The Gazette 1983

GAZETTE

SEPTEMBER 1983

The Rights of Children and the Discretion of the Courts under Section 117 of the Succession Act, 1965

by Anne E. Bacon, Solicitor. (John B. Jermyn prize-winning essay, 1983)

T HE Succession Act of 1965 was finally passed in December of that year during Brian Lenihan's term of office as Minister for Justice. A previous Succession Bill had been swept aside with a dissolution of the Oireachtas, but contributions to the drafting of the new Bill had come from all sides, with that of Mr. John A. Costello, in particular, being acknowledged by the Minister. The Bill was entitled "An Act to reform the law relating to succession to the property of deceased persons in particular the devolution, administration, testamentary disposition and distribution on intestacy of such property and related matters." Until this enactment the Acts governing this area of law were to be found scattered through the Statute Books dating back as far as 1285 to the Administration of Estates Act; a comprehensive overhaul was long overdue. As the laws of succession affect fundamental property rights quite a number of areas affected by the new act were controversial. The main areas of contention were in Parts IX and X entitled "Legal Right of Testator's Spouse and Provision for Children" and "Unworthiness to Succeed and Disinheritance" respectively. They introduced novel concepts into the Irish law of succession which severely curtailed testamentary freedom. The Minister pointed out during the debates on the second stage of the Bill (Dail Debates Vol. 215 25/5/65) that the right to disinherit a spouse and children was not a fundamental right inherent in property. "In a country such as ours which recognises the very special position of the family "as a moral institu- tion possessing inalienable and imprescriptible rights antecedent and superior to all positive law", so-called freedom of testation is a paradox which cannot be defended on any ground". It was thought that the enactment of legislation which only went as far as providing for maintenance of a spouse and not a legal right to a specific share irrespective of need or dependency would fail to discharge the obligations imposed on the state under Article 41 of the Constitution. The intention of Part IX of the Act in giving a legal right to a testator's spouse was to place the spouse beyond the control from the grave by a capricious testator. Under Section III of the Act a spouse has a legal right to one-half of the testator's estate where there are no children and a right to one-third of the estate where there are children. The spouse does not have to have recourse to the Courts to establish his or her rights to a share in the testator's

estate. The Act imposes a duty on the Personal Represen- tative to notify the spouse in writing of the right of election between the legal right and the rights under the Will (Section 115). The right must be exercised within a year from the first taking out of representation of the deceased's estate or six months from the receipt by the spouse of notification of the right of election, whichever is the later. Likewise where a person dies intestate the surviving spouse becomes entitled to a fixed portion of the estate. By contrast with this type of provision for spouses, the rights of children of testators to a share in the estate is dependant on judicial discretion. It should be noted that the system of entitlement to a fixed portion applies to children only when there is an intestacy. Section 117 The provisions of Section 117 are as follows: " 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. (2) 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. (3) An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy. (4) Rules of court shall provide for the conduct of proceedings under this section in a summary manner. (5) The costs in the proceedings shall be at )he discretion of the court. (6) An order under this section shall not be 223