Application by Child

Rights of Children

Children do not have an automatic right to benefit from the estate of their parents. A parent ay choose not to give particular children or indeed any of his children, any benefit at all. Even where the spouse has not survived, it children have no entitlement to any share.

The Courts will only intervene and make provision for a child in exceptional circumstances. Section 117 of the Succession Act provides that a child may apply to court an order that such provision should be made for him out of the estates as the court thinks just. If the court is of the opinion that the deceased has failed in his moral duty to make proper provision for the child in accordance with his means, whether by will or otherwise may make provision, an order may be made.

The reference to moral duty is unusual in a statutory context.  There is very little if any, other legislation in which the court acts by reference to a moral duty. The effect of the legislation is that the moral duty becomes a legal duty.

S.117 Application to Court

A child of the deceased (of any age) may apply to Court on the basis that his deceased parent failed in his moral duty to make proper provision for that child in accordance with his means whether by will or otherwise. The Court may make such provision as it thinks just. This right applies both to children born to a married couple or former non-marital children.

The court shall consider the application from the point of view of a prudent and just parent taking into account the position of each child of the deceased and any other circumstances which the court may consider of assistance in arriving a

The Court considers the application from the perspective of a prudent and just parent.  It must take account of the position of each of the deceased’s children and any other circumstances which the Court considers relevant.

Where the Court determines that there has been a failure in moral duty, it may order provision for the child out of the deceased’s assets as it thinks fit. The decision is to be as fair as possible to the child to whom the application relates and to other children.

There is a strict time limit for making the application.  It must be made within six months from the time a grant of probate issues.  Unlike the provision with rights for spouses, there is no obligation on the personal representative to notify children of the prospective right to apply.

Scope of Provision

The child’s right to apply to court applies only where his parent has died having made a will which is wholly or partly operative.  It does not apply where there is no will.

This right applies to a child born of married parents or unmarried parents.  The application may be made by a child of any age. The application may be brought on behalf of minor children.

An order in favour of a child is not to affect the legal right share of the spouse (usually one-third).  If the child is also a child of the surviving spouse, then any legacy left to the surviving spouse or the share taken on intestacy, is not to be affected.

The provision also only applies to the deceased’s spouse. The legacy to the mother of a child, who is not the deceased’s spouse, may be disturbed.  In contrast, a legacy of the entire estate to a spouse could not be challenged by their children.

In application by a child who is not a child of the spouse, the spouse’s share of benefit under the will or partial intestacy may be reduced, but by no more than to the amount of the legal right share.

Strict Time Limit

The application to Court must be made within six months of the grant of representation being taken out. This was twelve months under the Succession Act as amended but was later reduced to six months.

Unlike the case with the legal right share, there is no obligation on the executors to notify the child of the right.

This time limit applies even to children under 18 years. This differs from the general position under the Statute of Limitations, by which underage children are given an extra period after they reach full age in which to take legal action.

The application may be brought on behalf of an underage child.

No Presumptive Right

It is well established in the cases interpreting the statutory provision that the mere fact of a parent-child relationship does not create an entitlement or even an expectation that the parent will leave anything to the child.

The bar is set relatively high.  The child must prove a distinct failure in the moral duty to make proper provision.

If a breach of the duty is shown, then it is a matter for the court to decide what share or substituted share should be made. The share or provision, if any made,  will depend on the entire circumstances.  It will not necessarily be mathematical equality with other children.

The court recognises that differences in requirements and circumstances may require different treatment from a moral perspective. Every case depends on the circumstance.

The position might be contrasted with that in many Continental jurisdictions.  In some jurisdictions, the share of the children is fixed and paramount, and in some of them, it cannot be easily displaced by a parent, even by lifetime gifts.

Lifetime Provision

The principle of advancement is a general equitable principle which applies where a lifetime gift was intended to make permanent provision for a child.  Under the principle,  the lifetime provision is added to the value of the benefit passing on death and the person who has received the gift or benefit is deemed to have already received this amount.

Where such a permanent provision has been made, the advance may be taken into account in satisfaction of the share of the child under a will or intestacy.  This is a presumption and is subject to a contrary intention being shown.

The court also takes account of provision made during the deceased’s lifetime in a  S 117 Application. The lifetime provision will be considered in the context of whether the deceased parent has failed in his or her moral duty.

A testator may satisfy his moral duty by making proper provision during the lifetime of the child. Making provision in a child’s lifetime, including in particular, giving the child a good start or education, may be sufficient to discharge the duty.

The Extent of Moral Duty

The duty is to make proper provision for the child in accordance with the testator’s means. The deceased’s subjective view of his duty is not definitive.

The law gives the deceased considerable latitude in deciding the amount which should be given to each child. An unequal division of assets between children will not usually mean a failure in moral duty.  Children may have different needs and different provisions may be appropriate.

The existence and extent of a moral duty if any, to make proper provision for children,  depend on the facts and the position as of the date of death.  Therefore, the fact that a will was made many years earlier may not suffice if circumstances have changed. The court may nonetheless find that the deceased has failed in his moral duty to the child.

The totality of circumstances is taken into account by a court in an application for a proper provision.  This includes the amount left to spouses, the legal right share, number of children, ages, position, and life, means of the testator and whether lifetime provision has been made.

The court may take account of the manner in which the child has been treated by the deceased during his lifetime.  In a number of cases where a child has been treated badly, or the parent has misbehaved was considered a factor.

Approach of Courts

There have been numerous written judgments in relation to the criteria which the Court applies in considering whether the deceased has failed in his moral duty to make proper provision for that child in accordance with his means, whether by will or otherwise. The courts have given guidance on the principles to be applied.

There is support for the proposition that the legislation is primarily designed to protect children who are of an age and situation in life where they might reasonably expect support from the parents against failures of parents in their duties. It is not a question of moral blameworthiness on the deceased’s part.

The court must look at the circumstances of the entire family and not just the position of the child who has made the application. It must also consider whether the deceased owed moral obligations to others, including non-family members.

The parent’s means are relevant. The financial position of the child is relevant.  All things being equal, it is more likely that greater provision will be required for a child with a greater financial need. Similarly, the greater the parent’s resources, the more that will be expected, all things being equal.

The test is applied as at the date of death.  A Will may have made proper provision for a child at the time it was made, but circumstances may have changed.  The Court may find that the deceased has failed in his moral duty, in the circumstances because the will has not been updated.

Criteria I

The Courts look at the objective circumstances. The fact that the deceased disliked the child or believed that he had no obligation to give anything to the child is disregarded.

The question of whether the deceased had a moral duty to make provision for the child must be looked at from the perspective of the facts at the date of death.  It takes account of :

• the amount left to  a spouse and the legal right share if taken;
• the number of children, ages and positions in life at the date of death;
• the totality of the deceased’s obligations to others
• the obligations of  a third party, such as a spouse or parent
• the means of the deceased;
• the age, financial position and prospects of the child;
• whether the deceased had made provision for the child in his lifetime.

Many cases have shown that there is a high onus of proof on the applicant.  Before a court may interfere, there must be clear circumstances and a positive failure of moral duty must be established.

Criteria II

Special needs such as physical or mental disabilities are highly relevant. If a child is suffering from mental or physical ill-health or from incapacity, the deceased would have a greater moral duty.  If a child has special needs, then all things being equal, the Courts would expect that greater provision should be made for him.

If the deceased parent has failed or fallen short in his duty as a parent during his lifetime and has, for example, failed to educate and maintain the child properly, this is a factor which would weigh in favour of a greater share for the child.

Account will be taken of the children’s behaviour and conduct towards the deceased.  The extent of moral duty may be less if the Court concludes that the failure to make provision or limited provision arose from the particular conduct of the applicant child.

On the other hand, where a child is induced to believe that he would receive a benefit and thereby acts accordingly, for example,  the court may consider this a failure. Separately in some cases, this may create an entitlement based on principles of legitimate expectation or estoppel. In some cases, there may be a contract, but some such contracts, in particular relating to land, must be in writing.

The setting up of a discretionary trust may not be sufficient to make proper provision.  If the trust is formed or implemented in such a way that one or more children are likely to benefit, then this will weigh against such provision being sufficient.

Proper Provision

If the court decides that a parent has failed to make proper provision, then the legislation provides that the court will consider the matter or proper provision from the perspective of a prudent and just parent.

The court will not substitute its own will.  It looks at the entire circumstance and asks whether, in the particular circumstance,  the course that the deceased took constitutes a breach of his moral duty.

Account should be taken of the position of other children of the deceased and any other circumstances that are appropriate in arriving at its decision. It will seek to be as fair as possible to the child and other children.

Account will be taken of the parent’s responsibilities and circumstances.  If other children have particular talents or particular needs, this will be considered.

Court Order

Generally, the Court makes an order adjusting the respective shares of the applicant and the beneficiaries under the will. This may reduce another person’s share.

Where a child has special needs, a trust may be set up for his / her benefit.  The trust may provide that benefits may be made to more than one child.

The Court may order that a discretionary trust be established to deal with special needs. The other children may be beneficiaries as appropriate, and if circumstances, needs and requirements dictate.