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Will made by alcoholic parent

If you have an alcoholic parent, can they exclude one child who has no independent means in a will. Michael.

Hi Michael. 

 

It depends on circumstances and is probably a stateable case under Section 117 of the Succession Act 1965.

 

This Section gives discretion to a High Court judge effectively to reorganise a deceased person’s will who have children.  The test is set out in Section 117 in that if the testator (the person making the will and now dead) fails in his or her moral obligation to make proper provision for a child, then the judge may make such proper provision (effectively amending the will) on the basis “as a prudent and just parent should provide”.

 

This all depends on the circumstances as to why one child should be excluded and others mentioned in the will.  One justifiable reason might be that another child mentioned in the will or more favoured than any of the other children would be if they suffered some sort of disability and required life care.

 

I suspect however, Michael, in the case you are talking about, that the alcoholic parent simply did not like the child when they were making their will. 

 

A very important point arises here, that if the parent was drunk at the time of making the will then the will could be contested.  Anyone signing a legal document (whether it is a deed, a contract or a will) must be “compos mentis” – that is, that they are fully mentally competent and know what they are doing.  If the excluded child could prove that the parent was drunk when they were making the will, then they could actually challenge the will itself as being an invalid document, and not just seeking favour under Section 117.

 

It is important to note that an application under Section 117 must be taken within twelve months of the date of probate or representation being taken out from the Probate Office.

 

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