Succession Law Reform – kid’s succession entitlements need to be watered down

Sep 6, 2017

As people live longer and have fewer children, the law in many jurisdictions has altered on how to respond to children, including adult children, who take cases contesting, who gets what from a parent’s estate.

In considering how any new Irish legislation dealing with this should be drafted, recently, the Law Reform Commission draws attention to the context where the “generational contract” is changing.

The traditional generational contract in 20th-century Europe involved parents, who had cared for their children expecting their children to care for them when they were old. But people are now taking more responsibility for their later years than they did in the past and are funding their own needs, including health and care requirements.

These changes have meant that in countries such as Australia and New Zealand, the courts have become less inclined to consider that children have any expectation to inherit. Consequently, those courts are more reluctant to alter the legacies left to children in parents’ wills in cases where children are contesting them.

In Ireland, Section 117 of the Succession Act 1965 allows children of deceased parents to go to court and argue that a parent’s will is not in accordance with their “moral duty make property provision for the child”, taking into account the parents’ means. The 1965 Act provides that a surviving spouse has a legal right to a minimum share of one half of an estate where there is a will and no children and one-third where there are children. There is no legal minimum share to which a child is entitled.

The Law Reform Commission’s recent review includes consideration of the views of English gerontologist Prof Sarah Harper, who has noted that many people now rely on the value of their family home to fund their older years.

“The effect of this may be that in the 21st century the older generation may consider that it does not owe much to the next generation, their children, once their children are adults.”

The Law Reform Commission report proposes the amendment of a law so it will simply state that a deceased parent has a duty to make “proper provision” for a child. Parents will no longer have a “moral duty” to leave an inheritance for their children under proposed changes to the law.

If the law is changed, children who are unhappy with how they are provided for in a parent’s will can still bring a challenge in the courts. However, it will be more difficult for them to argue that they have not been provided for by their parents.

The commission’s document signals an end to the notion that children are entitled to an inheritance. It said the law changes are being recommended to reflect the fact people are having fewer children and parents are living longer and need to fund their own later life health and care requirements.

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