S117 of the Succession Act 1965 has been Law for over 50 years and is the subject of a recent consultation paper from the Law Reform Commission
Prior to the 1965 Act, a person making a will was completely free to decide how his/her property should be passed on, be it to wife, children, friends or donkey sanctuary this was not an area where judicial interference was considered appropriate.
S117 reads as follows
“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.”
The 1965 Act imposed significant restrictions on this “testamentary freedom.” Section 117’s guiding aim was to protect the spouse and children of a testator from being completely disinherited. The wording of s117 in referring to “a moral Duty” was seen as way of avoiding dictating for a minimum provision for children while still preserving some element of “testamentary freedom” taking its lead from family provision legislation first enacted in New Zealand in 1900.
The Law reform commission considered five main points when examining S117;
- Whether section 117 of the Succession Act 1965 should be repealed, retained as it is or amended; and if it is to be retained but amended whether to prescribe the matters to which the court should have regard in deciding whether to make an order under the section (see page 49);
- Whether section 117 should be extended to permit applications by children of parents who have died intestate (that is, without having made a will) (see page 59);
- Whether the 6 month time limit for applications under section 117 should be increased and/or whether the courts should have a discretion to extend it (see page 68);
- Whether the date from which the time limit in section 117 begins requires clarification or reform (see page 74);
- Whether the personal representatives of the deceased parent should be under a duty to inform children of their entitlement to make an application under section 117 (see page 82).
The commission in their deliberations considered the work of English gerontologist Prof Sarah Harper director of the Oxford Institute of Population Ageing, in particular her idea of a “generational contract” – “That means an adult generation cares for young people, then the young people grow up and they care for their older parents.” However she claims we are now moving away from this traditional position “We are now moving into an adapted generational contract, which means that older people have more responsibility for themselves than in the past. They’ve had fewer children [to provide for them later] and they live longer, so they have a longer time, potentially, in frailty. And that means that they won’t be leaving [inheritances] for their children in the way that they’re used to.”
This it is felt is the older generation may consider that it does not owe much to the next generation, their children, once their children are adults.
Professor Harper has referred to evidence that those who can have increasingly started to pay a kind of “up front” inheritance during their lifetime, such as their child’s college fees or a deposit for a first mortgage, that would previously have been the inheritance left behind.
The commission parsed the central tenant of Thomas Piketty’s Capital in Twenty-First Century being that “If you get slow growth alongside better financial returns, then inherited wealth will, on average, “dominate wealth amassed from a lifetime’s labour by a wide margin” by saying that “In the 21st century inherited wealth may grow faster than earned wealth” and stray into political territory by opining that “A possible policy alternative would be that, instead of caring directly for their elderly parents, people of working age could pay high enough taxes to fund a good-quality universal state care system similar to the system that operates in some Scandinavian countries such as Denmark”
This is just part of a lengthy consultation paper canvassing aspects of section 117 and how it might be changed with further papers on the subject to follow.
Conor Waldron – Legal Intern, JRAP O’Meara