Inheritance Law Question

zentrumsounds

Hi,

I'm trying to get my head around the law regarding the Succession Act and the impact it has on a spouse and children. The scenario in relation to is as follows:

A man has two children and is divorced (the divorcee is mother to the children but has no obligation on the estate of the man). However the man has a new partner, as yet unmarried whom he is likely to marry. If he wills the entire property to his new partner do the children have any right with respect to the estate. I know that in these circumstances a spouse has a right to one third of the will regardless of the contents of that will. Do children have similar rights regardless of the contents of the will or also a right to one-third?

Any insight would be great.

The document in question is below but there is no doubt someone who understands without reference to this.
<http://www.attorneygeneral.ie/slru/Restatement_Succession_Act_1965.pdf&gt;

juke

Children have no similar automatic entitlement, but could make a claim under Section 117

coylemj

I'm not sure what effect divorce has on succession rights as this obviously didn't exist when the Succession Act was passed in 1965.

In general terms if he makes a will then the children do not have any automatic rights of succession subject to the provisions of S.117....

s. 117:
(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.

My reading of this is that if all of the children are now grown-up and all of them were given a standard of education and upbringing based on what would have been expected given the economic status of the testator, then none of them have any claim on the estate of the father and he can leave his estate to whomever he chooses based on your statement that the ex-wife has no claim on the estate.

zentrumsounds

Thanks for the responses!

What if the Man were NOT to marry the partner? I.e. he wills the property to the partner but makes no provision for the children... I.e. no spouse status.

coylemj

It doesn't matter if he's married or single when he dies, the children have no automatic right of inheritance once he makes a will.

hession.law

first important thing to remember is that there is a very short six month time limit in which to bring an action under this section. the clock starts from the first taking out of representation. regardless if the testator has made provisions for the children during his lifetime the court may alter the will to the benefit of the children. the question is that at the time of death, had the testator failed in his moral duty to provide for them. like most areas of law, cases turn on their unique facts. if interested in knowing more i would suggest reading Re LB; EB v SS which deals with a testatrix given most of her estate to charity.