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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
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