Legal Right Share, S.117 applications, Promissory Estoppel– Tipp FM 16.06.15
What is a Section 117 Application?
s.117 permits children to make an application to the court for redress if they feel their deceased parent has not made proper provision for them in accordance with his or her means, whether by his will or during his lifetime.
The definition of a child includes adopted, non-marital, foster and step children. There is no age limit on a child that can apply i.e. can be an adult child.
If the court accedes to such an application, it has an absolute discretion to make such provision for the child, as it considers just and equitable.
The court shall consider the application from the point of view of a “prudent and just parent”, taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.
What factors will the court take into consideration when assessing whether proper provision has been made for a child?
Factors which the court will consider in assessing whether the deceased parent at the date of death has failed in his moral duty to make properly provide for a child includes considerations such as;
(a) The amount left to the surviving spouse or the value of the legal right share, depending on which the spouse elects to take.
(b) The number of children the deceased has, their ages, and their positions in life at the time of the testator’s death.
(c) The means of the deceased.
(d) The age, financial position and prospects in life of the child whose position is being considered.
(e) Whether the testator already made proper provision in his lifetime for the child.
(f) Whether the child has a disability.
What are the shortcomings of section 117?
The short time limit
The time limit imposed by s.117 is a particularly strict one. Once six months has elapsed, there is an absolute bar to recovery.
Choosing the relevant date
Case law in this area has consistently concluded that the relevant date in deciding whether the testator has failed in his moral duty to make proper provision for his children is the date of the testator’s death.
A child cannot make an application if there deceased parent has not made a will as the law on intestacy and the distribution of the estate in accordance
Where does legitimate expectation/promissory estoppel fit into succession?
A s.117 claim can be made as a stand-alone claim or it can be taken with a claim for legitimate expectation. For legitimate expectation to arise the relationship between the parties doesn’t have to be a child/ parent relationship.
In the case of legitimate expectation the deceased must have made a representation to another in respect of a specific property, that other must have relied on that representation to their detriment and the deceased fails to fulfil that promise by gifting that property to another or by failing to make a will and therefore the rules of intestacy apply.
A typical example of this is whereby a family member has worked on a family farm or business, in the belief and on the basis of representations made to them that the farm of business would be theirs on the death of the deceased. In relying on this representation that forego other business opportunities or job offers,
Another example of a legitimate expectation claim is where a family member or carer moves in to live with an elderly person and carries out improvements to the property in the belief that the dwelling will be left to them.
What is a Legal Right Share and how does it affect your freedom to gift in a will?
If the person dies either wholly (leaving no will) or partially intestate (certain gifts in the will are not valid) leaving a spouse and no children, the surviving spouse is entitled to a legal right share of one-half of the estate.
If the person dies either wholly or partially intestate leaving a spouse and children, the surviving spouse is entitled to a legal right share of one-third of the estate.
A spouse is entitled to make a gift to their spouse in a will, but it should be specified whether this devise will be in addition or in satisfaction of the LRS. If not the surving spouse needs to choose or “elect” which gift to take under the will.
A personal representative is obliged to notify a surviving spouse of the right to choose. This right of election or right to choose is not exercisable after the expiration of six months from the receipt by the spouse of such notification, or one year from the first taking out of representation of the deceased’s estate, whichever is the later