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Unequal bequests to children under parent's Will

Wills – What if all adult children are professionals but farm and all money given in Will to one son?

This question relates to the rights of children who are not treated equally under a parent’s Will and we have had many questions on this issue over the last few months from concerned listeners. 

Any person who is of sound mind has a right to make their Will subject to a number of rules under the Succession Act 1965.  One obvious one is that a husband cannot simply disinherit his wife or visa versa.  A surviving spouse has very specific rights.   If they are not divorced and a Waiver is not in place then if there are children the surviving spouse has the right to half of the estate and if there are children the surviving spouse has an entitlement to one third of the estate.

Regarding the children it is less clear.  Section 117 of the Succession Act 1965 provides the High Court with the power to effectively alter the provisions of a Will regarding children if the court is satisfied that the parent has “failed in his or her moral duty to the children” the court “may order that such provision shall be made for the child out of the estate ……. as a prudent and just parent ….. would provide”.  The section goes on to say that this should be decided by taking into account the position of each of the children and any other circumstances which would be of help.  

This last provision is relevant to this listener’s question and it looks to me that that a parent has made sure that all of the children have been properly “set up” including the son to whom he/she is leaving the farm. I am presuming that in getting the farm, this son is being "set-up" as a professional farmer in the same way as the other children have been given professions.

Really what this listener has to do is look at their own circumstances and the resources that their parents put in to establishing them as professionals and compare that to the benefit to be derived by the son getting the farm and money. 

I would say that the court will not take the view that this is a simple financial calculation where all the children are going to be treated equally.   This listener should however so the exercise and bring it to a solicitor specialising in Probates and ask his or her opinion.

We made a Will for an elderly couple in a similar case a number of years ago and having advised the parents we suggested that they give a small gift of a site of land out of the farm to each of the children in the Will and leave the rest to the son who would take over the farm.   This solution worked very well and there was no contest on the estate.

For further reading, please see answers to previous questions on The Legal Column on LateNiteLive with Declan Carty: 

Probate for Mother's Estate

Succession Act Legal Right Share

Concern over future of Family Farm

Can children be left out of Parent's Will?

Inheritance rights of child of previous relationship

Can 1 or 2 family members get more from sale Family Home?



The issues raised in the answer to this NewsTalk listener's question are dealt with in a general way as can only be the case on live radio. Before relying on the advice given in this answer, whether you heard the broadcast or are for the first time reading the issues here please do not rely on the broad advice given. For a detailed professional opinion please consult a qualified legal advisor and for further details read our disclaimer on the Home Page.

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