My aunt died in 2019. She was single with no children (apparently). She resided in a long-term care facility for many years, as was her choice.
Her money, as per her will, was divested between her siblings, nieces and nephews with some to charity. She had a house and signed this over to my father in the 1980s. He died young and left this house to me.
In recent times, it appears as if my aunt may have had a baby she gave up for adoption many years ago, possibly the 1940s. My aunt never admitted this; but from DNA online searching a person closely related has turned up, but has not made contact.
My query: could my aunt’s child (my cousin) claim anything against her estate at this stage and could I have a liability that I need to make provisions for?
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Ms M.F.
Ireland is far from perfect, but it has come a long way from the world of church censure and secret adoptions that blighted the lives of so many women, especially single women, in the middle of the last century.
That includes some of our adoption laws and also the position of people who have been adopted in relation to succession – or inheritance.
The 1987 Status of Children Act makes clear that once someone is adopted, they no longer have any right of inheritance from their birth parents. Instead, they assume a right of inheritance from their adopted parents.
This is down to the legal nature of adoption. The position with fostering is different, interestingly, largely because it does not have the same legal finality or closure. Someone who has been fostered retains inheritance rights from their natural parents.
When I say right of inheritance, I am speaking about rights under the Succession Act, which applies only to situations where there is no will – intestacy. Where there is a will, only a spouse has a legal right to a share of an estate. Adult children have no automatic right to inherit from a parent.
It is possible for a child to take what is called a section 117 claim (named after the section of the legislation providing for such appeals) alleging that they have not been fairly provided for according to the means of the person who has died. But it can be a high bar.
One important condition is that any such claims must be taken within six months of the grant of probate on a person’s estate, which is the point at which their will becomes a public document available to anyone caring to examine it (for a modest fee).
More recently, the Birth Information and Tracing Act 2022 was brought in to correct the position of people who had been illegally adopted at around the time of the events you are considering.
It gives people who were adopted illegally the right to trace their birth families. It also gives them inheritance rights where a person dies without a will. Again, where a will exists, there is no automatic right to inherit for anyone except a spouse, unless the estate or a residue is left equally to all children or close relation.
I have not seen the wording of your aunt’s will, but, even if this were your aunt’s lost child and your aunt were still alive, it is unlikely they would have any automatic claim to anything from her.
And, unless my reading of the legislation is incorrect, it is not retrospective. That means it cannot be used to change the position of the distribution of estates of people who died before the law came into force. That includes your aunt who, according to the details you provide, had died several years previously.
Of course, we really have no idea what the position of this person is. I am no expert on DNA and the information you have provided is sparse, so I cannot say whether there is any certainty that this person is your aunt’s offspring or related to your family in some other way – perhaps even through one of your aunt’s siblings.
You may, of course, have more detail than you have disclosed.
One way or the other, the whole thing is moot.
As far as the house is concerned. This was left to your father as a gift many years before your aunt died, so it certainly would not be affected by any claim on a will.
Anything that came to you via the will is also protected at this stage – first by the fact that there was a will and second due to the passage of time.
In any case, this person has not yet made any contact. They might never do so. It’s perfectly possible that they have been fortunate enough to find a loving adoptive family and are very happy in that arrangement. Now well into their 70s, they may well have their own family.
Why they chose to submit a DNA sample to one of the many commercial operations is something only they can know. It might have nothing to do with suspecting they had a lost family.
Either way, as the law now stands, they are not entitled to anything from your aunt’s estate if the adoption was legal. And, even if they were illegally adopted, your aunt died before the new legislation came into force, so there should be no claim on the estate – and therefore no liability against you or any other beneficiary and no need to make financial provision.
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 with a contact phone number. This column is a reader service and is not intended to replace professional advice
