Case studies: Adopted son won landmark case after being left out of will

Child affected by property crash secures repayment of bank loan under Succession Act

A doctor’s 32-year-old adopted child was given half of his late father’s estate when he took one of the first cases under section 117 of the Succession Act 1965. Photograph: Thinkstock/Getty Images

A doctor’s 32-year-old adopted child was given half of his late father’s estate when he took one of the first cases under section 117 of the Succession Act 1965. Photograph: Thinkstock/Getty Images

 

Case One

A doctor’s 32-year-old adopted child was given half of his late father’s estate when he took one of the first cases under section 117 of the Succession Act 1965.

In the 1970 case, known as GM; FM v TAM, the adopted son, who was a merchant seaman, had been completely left out of the will. His father had paid for the son’s education and other expenses when he was growing up.

The court decided it must consider a number of factors when deciding the case. These were:

a) The amount left to the surviving spouse or the value of the spouse’s legal right under the Act.

b) The number of children, their ages and positions, at the date of the deceased person’s death.

c) The means of the deceased.

d) The age, financial position and prospects in life of the applicant.

e) Whether the deceased had already made provision for the child.

The court decided the duty of the parent must be judged by the facts as they existed at the date of death, not at the time of the making of the will.

The court concluded that the father had failed to make proper provision for the son. It awarded him half of his father’s estate after taking account of his mother’s mandatory legal right share under the Act and other will-related expenses.

Case Two

A son who was badly affected by the property crash successfully appealed against his father’s will in a case taken in 2015 under the Act.

The deceased’s estate was worth more than €14 million and his will stipulated that it was to be divided equally between his six children.

However, one of the children, who had worked in the family business, had bought development land from his father for €1.2 million using a bank loan that was guaranteed by the father.

After the economic crash, the land had lost most of its value. However, the son was still in debt to the bank for €1.6 million.

His share of his inheritance would be needed to pay off the bank loan.

The High Court decided that the father had failed to make proper provision for the plaintiff because he had not referred in the will to the loan guarantee he had given; furthermore, because the guarantee was now worthless, the plaintiff was in a considerably worse position than his siblings.

The court decided that the plaintiff’s bank loan should be paid out of the estate, that he should be given an additional sum of €500,000 and that he and the other five children should then share equally the remainder in the estate.

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