S 117 Succession act 1965 Flashcards
S 117
Enables court to intervene where a testator fails in their moral duty to make proper provision for their children
Before 1965 Act…
Irish law granted unfettered testamentary freedom
Early proposals sought..
Fixed legal shares for children
These were replaced with ..
discretionary provisions to respect the majority of testators
Court emphasised that the testators moral duty must consider the applicant child’s age, financial situation and propects
EB v SS 1998
EB v SS 1998
Opportunities for advancement in life
Failure of moral duty must be proven
DC v DR 2015
Courts must intervene when a will disregards reasonable parental obligations
McHugh v McHugh 2012
Courts often presume that the testators are best placed to decide on estate distribution
Elliot v Stamp 2008
Proposed Reform
LRC recommends replacing “moral duty” with “proper provision”
What will the proposed reform do?
emphasize objective needs of child
eliminate subjective connotations
focus on concrete financial and social requirements
Adult children
LRC proposes a presumption that parents have fulfilled their obligations with exceptions for financial hardship
Extending s 117 to intestacy
Re estate of F deceased 2013
greater flexibility in family provision, particularly in cases of hardship
Critical factors in determining whether proper provision has been made - case
Moynihan v Greensmyth 1977
Critical factors in determining whether proper provision has been made
- The amount left to surviving spouse
- The number, age and position of the children
- The means of the testator
- The financial position of the applicant
- Whether the testator has already made proper provision fro the child
