Son left out of mother’s will despite her pledge he would be ‘looked after’, court told

Man who was raised by foster family but never adopted by them has option under Succession Act to challenge biological mother’s will

A man who says he was promised by his biological mother he would be “looked after” following her death was not acknowledged in her will as her son and is not a beneficiary of her estate, the High Court has heard.

The man was raised by a foster family and spent time in an institution, and his biological brother was unaware of his existence until he received correspondence from the man’s lawyers after their mother’s death, Ms Justice Siobhán Stack was told when dealing with the court’s probate list on Monday.

Represented by barrister Niall Fahy, the man’s solicitors had applied for an order to compel production of his mother’s testamentary papers following her death in recent months.

Mr Fahy said the man’s mother had told him he would be “looked after” and he had sought to see a copy of her will to see whether she had acknowledged him as her son and whether her promises to him “were kept”.


The man’s solicitors, Burns Nowlan, were initially told his application for a copy of the will was refused, apparently on the basis that no evidence had been provided establishing him as a son of the deceased.

That evidence was provided in October last but, because there was no agreement to produce the will, the man’s application was issued on November 9th last, Mr Fahy said. It seemed there was a “belated” recognition that his client was entitled to see the will and the will was provided in December, with the effect that the only outstanding issue in this application to produce it concerned costs, counsel outlined.

Jamie Quane BL, for the respondent – the woman’s other son and executor of her estate – opposed the costs application. His client was unaware that his mother had another son and, because of the sensitivity of the matter, his solicitor had to make inquiries, counsel said. In the circumstances, his client could “perhaps be forgiven” for the delay until December 13th in producing the will, he said.

Mr Fahy said he understood the respondent may have been unaware the applicant was his biological brother. The applicant, counsel added, was never lawfully adopted by his foster family with the effect that, under the Succession Act, he is legally the son of the deceased. If his mother had died intestate, he would have been entitled to a share in her estate, counsel noted.

Ms Justice Stack said she understood the anxiety of the applicant about wanting to see the will, but she also understood that the circumstances in which the respondent received this application came as “a shock” and he needed time to deal with it. The applicant, she ruled, was entitled to his costs out of the deceased’s estate.

It remains open to the man to bring proceedings under the Succession Act over his omission from his mother’s will. Section 117 of that Act allows a child to apply to court to challenge a parent’s will on the basis the parent had not provided for them in the will or otherwise in accordance with the parent’s moral obligation to do so in light of the parent’s means.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times