Section 117 of the Succession Act 1965 cover this very difficult question where it provides :
“ Where on application by or on behalf of a child of a testator, the court is of the 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 fit”
The term “child” in the context of the Act includes an adult child, a child born outside marriage and an adopted child. The essence of the claim is that the testator has failed in his/her moral duty to make proper provision for the child in accordance with his/her means. The application is considered by the Court rom the point of view of a prudent parent
The criteria for determining whether proper provision was made was set out in the case of FM-V-TAM :
a. The number of children, their ages and their positions in life at the date of the testators death;
b. The means of the testator;
c. The age, his/her financial position and prospects in life of the child;
d. Whether the testator has already made proper provision for the child.
In the case of In the Estate of ABS decd. Kearns J. held that the relationship of parent and child does not of itself and without regard to other circumstances create a moral duty to leave anything by will to a child. In addition he held that the section does not create an obligation to leave something to each child. The Court must consider the entirety of the testator’s affairs so that the moral claims of others may require such provision to be reduced or omitted altogether. Most importantly the Court must not disregard the fact that parents must be presumed to know their children better than anyone else.
The claim must be brought within a period of 6 [six ] months from the taking out of the Grant of Probate.
For specific advice on what is undoubtedly a complex issue contact us now on 045 432382 or email@example.com