Succession Act 1965

Provision for children.

[New]

117

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.

F49 [ (1A) ( a ) An application made under this section by virtue of Part V of the Status of Children Act, 1987, shall be considered in accordance with subsection (2) irrespective of whether the testator executed his will before or after the commencement of the said Part V .

( b ) Nothing in paragraph ( a ) shall be construed as conferring a right to apply under this section in respect of a testator who dies before the commencement of the said Part V . ]

(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.

F50 [ (3A) An order under this section shall not affect the legal right of a surviving civil partner unless the court, after consideration of all the circumstances, including the testator s financial circumstances and his or her obligations to the surviving civil partner, is of the opinion that it would be unjust not to make the order. ]

(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 the discretion of the court.

(6) An order under this section shall not be made except on an application made within F51 [ 6 months ] from the first taking out of representation of the deceased's estate.

Annotations:

Amendments:

F49

Inserted (14.06.1988) by Status of Children Act 1987 (26/1987), s. 31, commenced as per s. 1(2)(b).

F50

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 86, S.I. No. 648 of 2010.

F51

Substituted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 46, commenced as per s. 1(2).

F52

Substituted by Children and Family Relationships Act 2015 (9/2015), s. 69, not commenced as of date of revision.

Modifications (not altering text):

C23

Prospective affecting provision: subs. (3A) substituted by Children and Family Relationships Act 2015 (9/2015), s. 69, not commenced as of date of revision.

F52 [ (3A) An order under this section

(a) where the surviving civil partner is a parent of the child, shall not affect the legal right of that surviving civil partner or any devise or bequest to the civil partner or any share to which the civil partner is entitled on intestacy, or

(b) where the surviving civil partner is not a parent of the child, shall not affect the legal right of the surviving civil partner unless the court, after consideration of all the circumstances, including the testator s financial circumstances and his or her obligations to the surviving civil partner, is of the opinion that it would be unjust not to make the order. ]

Editorial Notes:

E10

Provisions for application by a civil partner and cohabitant for provision out of estate made (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), ss. 127 and 194 respectively, S.I. No. 648 of 2010.

E11

Provision for application by a divorced spouse for provision out of estate made (27.02.1997) by Family Law (Divorce) Act 1996, s. 18, commenced as per s. 1(3).

E12

Provision for application by a spouse divorced in another jurisdiction for provision out of estate made (1.08.1996) by Family Law Act 1995, s. 25, S.I. No. 46 of 1996.