The moral duty test
The court asks whether, judged from the standpoint of a prudent and just parent at the date of death, the testator failed in their moral duty to make proper provision for the applicant child, taking account of the parent's means, the child's circumstances and the claims of others on the estate. The bar is real: parents are entitled to distribute unequally, to prefer the child who stayed on the farm, and to take account of what each child already received in their lifetime, education, sites, money, a start in business, all of which counts as provision. Claims succeed where a genuine need or a genuine imbalance was left unaddressed, an incapacitated child left without security, a child whose unpaid work built the estate, and fail where the applicant is simply disappointed. Adult, established children can succeed, but their cases are harder.
The six-month guillotine
A section 117 application must be made within six months of the first taking out of representation to the estate. The period is short, strictly enforced, and runs whether or not the child knows their rights or the estate's contents. For potential applicants the practical rule is absolute: take advice the moment the will's contents are known, and watch for the grant issuing. For executors the same clock is a planning tool, since an estate generally cannot be safely distributed until the window has closed, and distribution timetables should be built around it.
Section 117 in farm estates
The recurring South-East fact pattern puts the farm to one child and modest legacies to the rest, and section 117 is the vehicle by which the rest test that arrangement. The defence usually rests on lifetime provision, on the farming child's earned position, and on the estate's inability to pay more without breaking the holding, all of which must be evidenced, not asserted: schedules of lifetime advances, the history of who worked and who was educated at whose expense, and realistic figures for what the farm can sustain. Claims by the farming child also arise, where the will unexpectedly divides the land they were reared to inherit, and these interact with the proprietary estoppel claims dealt with on the farm estates page.
Acting for executors and beneficiaries
An executor facing a section 117 claim holds the ring: the duty is to the estate and to the will, not to any faction, and the executor's proper role is to place the evidence of means and lifetime provision before the court while the beneficiaries whose shares are at stake argue their own corners. Settlement is common and often wise, the court's discretion is broad and outcomes are hard to predict, and any settlement redistributing the estate should be documented as a deed of family arrangement with specialist tax advice obtained. Proceedings are heard otherwise than in public, which matters to families who value privacy.
Frequently asked questions
What is the time limit for a section 117 claim?
Six months from the first taking out of representation to the estate. The limit is strictly enforced and advice should be taken immediately on learning of a will's contents.
Can an adult child bring a section 117 claim?
Yes. There is no age limit, though established adult children face a higher practical hurdle and must show a real failure of moral duty rather than mere unequal treatment.
Does a section 117 claim affect the spouse's share?
Provision ordered for a child cannot reduce the surviving spouse's legal right share or their share on intestacy. Claims are effectively contests over the remainder of the estate.
To discuss a matter in confidence, contact Richard O'Shea at Mary Molloy Solicitors, 2 Rose Inn Street, Kilkenny. Arrange a consultation. This page is general information, not legal advice.