Crime & Law

New regime will not lead to claims against estates of biological parents

People who are formally adopted are precluded from making such claims

Under the Government’s Birth Information and Tracing Bill, adopted people are to gain a right of access to their birth certificate information. Photograph: iStock

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Colm Keena
Thu Feb 10 2022 - 18:02

The recent judgment of the High Court, in which a man who believes he was born in a Mother and Baby Home secured part of his late mother’s estate, did not involve redress for his birth circumstances.

However, the man, who is married and in his mid-60s, did argue successfully that his late mother, who was unmarried and had no other children, should have provided for him in her will.

The man was awarded €225,000 from an estate worth €705,000. The deceased had willed her estate to her nieces and nephews, with the main asset, a house and farm, going to one nephew.

Under the Government’s Birth Information and Tracing Bill, adopted people are to gain a right of access to their birth certificate information.

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Legal sources said the new regime will not lead to claims against the estates of biological parents because people who are formally adopted are precluded from making such claims.

In the case in the High Court, the unidentified man was raised by a loving couple of limited means to whom he was apparently given by his mother some months after he was born. There was no formal adoption.

The case was taken under section 117 of the 1965 Succession Act, whereby the courts can interfere with the details of a will if it is decided the parent has “failed in his moral duty to make proper provision for the child in accordance with his means”.

The mother in the case, who was unmarried, died in 2015 and the case was taken in 2017. Section 117 cases have to be taken within six months of the taking out of full probate of the estate.

The court heard that the man has suffered from significant mental health issues in recent decades and that these were linked to his sense of isolation and not belonging in his early life. He is retired with a modest income.

His mother lived within 10 miles of where he grew up. He made contact with her when he was 23, but the relationship deteriorated after he said she offered to sell him a site which he could not afford, and which he felt she should have gifted to him. His mother never made any provision for him.

Ms Justice Siobhán Stack accepted the man’s evidence that it was well-known in the family of the deceased, and the wider community, that he was the woman’s child. His father had died in an accident before he was born.

Class distinctions

“He retains a grievance about the class distinctions of the time and the fact that children like him were treated differently by some of their teachers in school,” the judge said.

The court heard that the woman had not shown an interest in her grandchild, whom the man introduced to her when the child was 18 months old.

The mother had not been involved in providing for her nieces and nephews during her lifetime, and had a modest income from her farm.

The judge said that “we cannot stand in judgment of a deceased woman who is not here to speak for herself”.

“It must still be remembered that when he travelled to play Gaelic football with his underage team in his mother’s hometown, which was only 10 miles away from where he lived, she always went to watch his matches. At that time, he noticed her but did not know who she was,” the judge said.

The evidence presented “a poignant image of this woman, who was still probably only in her late 30s or early 40s at the time, watching her only child from a distance. The court acknowledges and empathises with the plaintiff’s feelings, but equally must bear in mind that it has no direct evidence of his mother’s experiences and the pressures on her, both familial and social,” the judge said.

Having reviewed these matters because they featured in the evidence, the judge said that “nothing that the court can do in a section 117 application can provide redress for these matters, nor is it any function of the court to comment on the rights or wrongs of what occurred”.

The judge did, however, decide that the deceased should have made provision for her son in her will in circumstances where she knew the mental health difficulties he had in the years prior to her death were linked to the isolation he had felt in his younger life, and where there were no competing claims on her assets.

The money awarded to the man is to be charged against land bequeathed to the nephew, and is not to affect the smaller bequests given to the woman’s other relatives, the judge ruled.

Who will have to pay the legal costs arising from the case is to be the subject of a future sitting.