Parents have ‘no moral duty’ over inheritance

By Elizabeth Summers / November 4, 2016 / No comments
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The expectation that adult children will receive a large inheritance from their deceased parents could change dramatically under proposals by an expert legal body.

The Law Reform Commission (LRC) recommended that legislation governing succession rights be amended so that parents who have already provided for children to adulthood are under no legal obligation to provide further financial assistance through inheritance.

Currently, children of any age have no automatic entitlement to any share of their parent’s estate, except where no will has been made, although many expect a share of any inheritance. In some instances, there may be issues with distributing the inheritance, namely some family members could be taken out of a will due to their link, which would mean that proof has to be found. This can be helped by looking to resources such as Genealogy Bank, which will be able to trace back family heritage to see if there is a connection that can assist with making an inheritance case if required.

Under existing legislation, the courts make no assumption about whether parents have provided for adult children, which gives judges greater flexibility on the division of an estate between family members. The LRC recommends the removal of all legislative references to a “moral duty” on parents to provide for their children, because it “may unduly emphasize an expectation or entitlement to inherit”. This would lower the ability of adult children to successfully challenge a will that a deceased parent has made, whether they did this themselves or with the help of someone like this trust and estate attorney to ensure that everything was correctly laid out and accounted for.

Raymond Byrne, an LRC commissioner, said inheritance laws in the Succession Act 1965 needed to change to reflect more complex family situations and longer life expectancy.

The LRC said that the assumption that if parents care for their children, their children will care for them when they are older has changed, meaning parents are less likely than before to leave inheritances to their children. Instead, they can hire senior care professionals who can care for elderly parents with tasks like preparing food, laundry, etc. they can even call for medical help if needed by the elderly people.

Coming back, Mr Byrne claimed that this “generational contract” was no longer as common as in the 20th century as parents lived longer, meaning they had more time to fund their old age, including healthcare and assisted living costs, with the effect of reducing the size of any inheritance for their offspring.

For adult children, the LRC said it was appropriate to presume that a parent had already provided for them, although it recommended three exceptions to this rule: grown-up children with financial needs arising from physical or mental-health problems; children who provided care and support for a now deceased parent; and where the estate contained an item of particular sentimental value to the adult child.

In a 206-page report, the LRC recommends that Section 117 of the 1965 act, which provides the sole legal mechanism for children to challenge the contents of a will, be extended to cover intestacy – where a parent dies without making a will – as the courts cannot currently vary how the estate of an intestate person is divided, even in hardship cases. At present, a child has the right to at least one third of the estate of a deceased parent, to be shared between them and their siblings.

Mr Byrne said the review had considered the balance between a parent’s freedom to decide the terms of their will and duty to provide for their children.

“The commission is of the view that the fundamental policy behind section 117 remains sound,” Mr Byrne said.

The report, which will be formally launched by Ms Justice Marie Baker, a High Court judge, today, makes 19 recommendations to reform Section 117.

The LRC said executors or administrators of estates would continue to be under no duty to notify potential claimants of their ability to contest a will.