What rights has adopted son to his dead mother’s inheritance?

My mother-in-law died nearly two years ago. She left her estate between her children, with no provision for grandchildren. One of her daughters predeceased her and died intestate, leaving one adopted son.

I’ve read part of the Succession Act 1965 which states the inheritance lapses and reverts to the estate to be divided between the remaining beneficiaries.

I’ve also read section 98 of the same Act which states his right to this inheritance. My question is: does her son have an automatic right to his mother’s inheritance?

Ms EC

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Things can get messy when someone who is expected to inherit dies first. Ideally, we all update our wills regularly to keep them current fully in line with our wishes, given changing circumstances; but as most Irish people don’t even have a will, there’s probably little hope of that.

That’s when we have to delve into the Succession Act. You’re among the few who have ever done that before getting in touch, so I’m impressed. But the legal language of legislation can make easy interpretation difficult.

In any case, your question gives me a chance to correct something I said in passing the last time this arose – and which reader Mr J.B. quite correctly pulled me up on.

Where someone predeceases a person who intends to leave them something in their will, the general rule is that what they were going to inherit goes back into the pot, so to speak. This is called the doctrine of lapse. It falls into a residuary clause – a catch-all clause that every will should have to set down who shares anything that is left over after specific bequests have been sorted. It also provides a safety net for cases where someone who was expected to inherit does not live long enough to do so.

The adopted son has no automatic right to his mother’s share but, if there is no spouse, the likelihood is that the adopted son will inherit directly from the grandmother

Without a residuary clause, anything left over in an estate for any reason, including by virtue of the person not being alive to receive their inheritance, is treated under the rules of intestacy where it is divided among the dead person’s closest relatives in a ranking order that is also set out in the Succession Act.

However, as you noticed in your reading, section 98 makes an exception where a parent leaves something to their child and that child dies before them but leave “issue”, the doctrine of lapse does not take effect.

“Issue”, a very legal word, essentially means children. It governs all of a person’s children, whether they are born in a marriage or outside of it, as well as children who have been formally adopted by them, and, in turn, their direct descendants. But it does not include stepchildren or foster children.

So the situation regarding your sister-in-law falls into this category. She has died but she has left behind an adopted son, so the inheritance that was due to her does not lapse.

However, and this is where I have said the wrong thing on more than one occasion, that does not mean that what was intended for his mother automatically devolves on to the adopted son.

Instead, what happens is that the inheritance your mother-in-law was leaving for her now deceased daughter becomes part of that dead daughter’s estate. In effect, the law is contriving to decide that the daughter lived beyond the mother, even though that is not in reality what happened.

Where someone predeceases a person who intends to leave them something in their will, the general rule is that what they were going to inherit goes back into the pot, so to speak

What happens that inheritance then depends on what was in the dead daughter’s will, if she had one. It would be quite common, for instance, that spouses would leave their entire estate to each other – not least because that avoids all tax issues.

You don’t say whether this woman left had a spouse, only that she had an adopted son, so it really depends who she left her assets to in her own will. Clearly, it is likely that he will have been provided for, but so might other people, and then there will be the content of any residuary clause.

Of course, that is only if she had drawn up a will. If she left no will, then this inheritance would be treated under the rules of intestacy in the same way as the rest of her estate.

Where there was a spouse and this adopted child, that would essentially see the inheritance split, with two-thirds going to the spouse or civil partner and the remaining third going to the adopted son. If there is no surviving spouse or partner, everything will go to the adopted son.

So the adopted son has no automatic right to his mother’s share but, if there is no spouse, the likelihood is that the adopted son will inherit directly from the grandmother, either through a will or via intestacy.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice