Section 117 Succession Act 1965

Section 117 of the Succession Act 1965 provides that a child (including adult child) of a deceased parent who made a will can apply to court for a declaration that the parent failed in their 'moral duty to make proper provision for the child' in accordance with the parent's means.

Kearns J in In the Estate of ABC deceased XC, YC & ZC v RT, KU & JL22 set out very detailed guidelines that might apply in determining a s117 application:

“(a) The social policy underlying s117 is primarily directed to protecting those children who are still of an age and situation in life where they might reasonably expect support from their parents against the failure of parents, who are unmindful of their duties in that area.

(b) What has to determined is whether the testator, at the time of his death, owes any moral obligation to the applicants and if so, whether he has failed in that obligation.

(c) There is a high onus of proof placed on an applicant for relief under Section 117 which requires the establishment of a positive failure in moral duty

(d) Before a court can interfere there must be clear circumstances and a positive failure in moral duty must be established.

(e) The duty created by Section 117 is not absolute.

(f) The relationship of parent and child does not itself and without regard to other circumstances create a moral duty to leave anything by will to the child.

(g) Section 117 does not create an obligation to leave something to each child.

(h) The provision of an expensive education for a child may discharge the moral duty as may other gifts or settlements made during the lifetime of the testator.

(i) Financing a good education so as to give a child the best start in life possible, and providing money, which if properly managed, should afford a degree of financial security for the rest of one's life does amount to making proper provision.

(j) The duty under Section 117 is not to make adequate provision but to provide proper provision in accordance with the testator's means.

(k) A just parent must take into account not just his moral obligations to his children and to his wife, but all his moral obligations e.g. to aged and infirm parents.

(l) In dealing with a Section 117 application, the position of an applicant child is not to be taken in isolation. The court's duty is to consider the entirety of the testator's affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.

(m) Special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example, working on a farm he will ultimately become the owner of it thereby causing him to shape his upbringing, training and life accordingly.

(n) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong not to foster.

(o) Special needs would also include physical or mental disability.

(p) Although the court has very wide powers both as to when to make provisions for an applicant child and as to the nature of such provision such powers must not be construed as giving the court a power to make a new will for the testator.

(q) The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but rather, whether the decision of the testator to opt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.

(r) The court must not disregard the fact that parents must be presumed to know their children better than anyone else.”