WILLS: Failure of a parent to make proper provision in a will – the Section 117 application

The duty of a parent to their child is an onerous one which does not necessarily stop just because the child reaches adulthood; indeed the duty may even continue beyond the grave.

If a deceased person has failed to make ‘proper provision’ for a child in accordance with their means in their will, the child, no matter what age they are, may take an action against the deceased’s estate under section 117 of the Succession Act 1965.

This piece of legislation is based upon the idea that parents have a moral duty to provide for their children and in cases where that duty is not met the courts may intervene and alter the will.

If the court is satisfied that the deceased failed to make proper provision for the child (whether by the will or during their lifetime) it may vary the will in whatever way it decides to be just and equitable.

In such applications the court will place themselves in the position of a ‘prudent and just parent’ and consider a variety of factors.

These factors include the amount left to the surviving spouse, the number of children and their position in life, the means of deceased and the age of the applicant and their financial position and personal circumstances.

The court will also consider whether the deceased had made any proper provision for the child during their lifetime.

The definition of ‘child’ under the legislation is broad and includes an adopted, non-marital, foster and step-child.

If a person wishes to challenge a will they must move promptly. The Succession Act prescribes a time limit of six months from the first taking out of representation of the deceased’s estate.