Section 117 Applications Flashcards
What does Section 117 of the Succession Act 1965 allow children to do?
Bring a claim if a parent failed in their moral duty to make proper provision for them.
What two-stage process must the court follow in Section 117 applications?
Decide if the testator failed in their moral duty.
If yes, determine the appropriate provision to be made.
What key principle did Finlay CJ establish in Re IAC [1989] for s.117?
There must be a positive failure of moral duty — not merely a less generous bequest.
What list of factors did XC v RT [2003] IEHC 6 establish for s.117 decisions?
Age and circumstances of child.
Financial position and prospects.
Testator’s financial means.
Lifetime provision made.
Special needs (disability, hardship).
Conduct of child toward parent.
How does Lyall interpret the XC v RT factors?
Lyall argues they attempt to confine the jurisdiction to only clear failures of moral duty.
How does Spierin view the XC v RT factors?
Spierin sees them as a helpful compendium but stresses judicial discretion remains critical.
How does the child’s financial status impact an s.117 claim?
Young or dependent children have stronger claims (Re ABC).
Adult, independent children have a weaker moral claim.
How important is lifetime provision in assessing moral duty?
Very important — substantial gifts or education can satisfy the duty (B(E) v S(S) case).
How do special needs influence a s.117 case?
Disabilities or serious financial hardship heighten the parent’s moral obligation (McDonald v Norris).
Courts favour vulnerable claimants.
How does a child’s bad conduct affect a Section 117 application?
Bad conduct can diminish or extinguish the parent’s moral duty (McDonald v Norris).
Courts consider if misconduct was provoked (Barron J.).
What did the Supreme Court say about parental obligations to others?
Parents must balance obligations to all dependants (MPD v MD [1981]).
Not just the applicant child is relevant — the whole family context matters.
What did W(C) v W(L) [2005] say about foreknowledge of other wills?
A parent is deemed to have foreknowledge of how their spouse’s will may affect provision for their children.
According to B(E) v S(S), does treating all children equally avoid s.117 claims?
No — equality can still fail the moral duty if special needs of one child are ignored.
What criticisms did Lyall and Storan raise about Section 117?
Lyall: Courts risk rewriting wills if discretion is too broad.
Storan: s.117 might become a tool for judicial rewriting rather than enforcing moral duties.
What recommendations did the Law Reform Commission make in 2017 (LRC 118-2017)?
Remove ‘moral duty’ language.
Presume proper provision unless exceptional needs (e.g., disability, care-giving) are proven.
Protect testamentary freedom but retain fairness for vulnerable children.
Why does Spierin defend judicial discretion under Section 117?
To ensure that courts can adjust decisions based on diverse, complex family realities.
What is the final conclusion about Section 117 based on case law and commentary?
Courts balance protecting vulnerable children with preserving testamentary freedom.
Discretion is necessary but should be guided by structured factors, not mechanical rules.
“AGED TESTATORS FINANCE LOVING SPECIAL CHILDREN”
Word XC v RT Factor
AGE Age and circumstances of the child at death
TESTATORS Testator’s financial means (wealth and capacity to provide)
FINANCE Financial position and prospects of the child
LOVING Lifetime provision (education, gifts, earlier support)
SPECIAL Special needs (e.g., disability, illness, hardship)
CHILDREN Conduct of the child toward the testator
