Inheritance law is extremely complex. If you’re concerned about the legal ramifications of disinheriting your child or the legal rights of a disinherited child, this guide will explain where you stand under Irish law.
Can parents disinherit their children?
Death is a very difficult and emotional time for all those involved. It is important that you are fully aware of your rights when thinking about inheritance in order to minimise contention when settling your estate. It is also extremely important to clearly establish your intent to ensure your wishes are adhered to after death.
Should a parent wish to disinherit a child, they are perfectly within their rights to do so under Irish succession law. Under the succession act 1965, there is no automatic right for a child to inherit from a parent. A child can contest this under the grounds that the parent has failed in their duty to provide.
Whilst the succession act can enable a parent to disinherit a child, it is within the legal rights of a disinherited child to contest this under section 117 of the aforementioned act. Should this happen, the courts would have to make considerations based on the following factors:
- Whether the child is of an age in which they may reasonably expect to be supported by their parent
- If the parent has a moral duty to provide for their child and if they have failed to do so
- Have proper provisions been made for gifts or expenses which would relieve the parent of a moral obligation to their child?
- Does the child have a physical or mental disability?
- Has the child contributed to their parent’s estate, e.g.: working for a family business or having a hand in accumulating wealth on the assumption they would inherit it?
Whilst the court has powers to potentially make provisions for a disinherited child, they are unable to create a wholly new will. If the child does wish to contest their disinheritance, this must be done within six months of a Grant of Probate.
It is incredibly important that a will is drawn up by a legally trained professional in order to limit contestation. When disinheriting a child, it would be suitable to include a statement justifying your reasons for doing so, for example stating that you have provided adequate provisions for the said child within your lifetime.
Forced heirship
Forced heirship restricts the freedom of the deceased to choose how their assets may be handled or distributed after death. Forced heirship applies to a group referred to as ‘protected heirs’. Protected heirs generally are spouses and children, who are guaranteed a portion of your assets regardless of your will. Generally, forced heirship will only apply to a portion of your estate rather than your total assets.
Those deemed protected heirs would each inherit an equal portion of the estate. There are potential ways in which to ensure a protected heir does not inherit a portion of your estate, however it is imperative you speak to a trained legal professional in order to further look explore this avenue.
Why would parents disinherit their children?
There are a number of reasons why a parent may disinherit a child and the parent is legally within their rights to do so if they wish. The following reasons are the most common reasons for a parent disinheriting a child:
- Previous Inheritance Distribution: It is common for a parent to disinherit a child if they have adequately gifted the child their portion of inheritance during their lifetime. For example, a child who has had a house bought for them or a substantial amount of money gifted in the parents’ lifetime, may be disinherited to ensure that other heirs receive their rightful share.
- Estrangement or lack of relationship: If the parent has no relationship with the child, it is possible that they may disinherit them. However, it is possible for this to be contested, should the child believe that the parent has been isolated from themselves due to a third party.
- Conflict of interest: If a parent does not approve of their child’s lifestyle choices they may choose to disinherit them. This could be a fundamental conflict of interest, such as differing religions or simply because the parent feels that the child would not use their inheritance appropriately.
Whilst there are many reasons for parents to disinherit their children, it is important to remember that a disinherited child does have the legal right to challenge such a decision. It is therefore important to seek professional legal advice when thinking of making a will, in order to ensure your wishes are protected as far as the law allows.
Who is classed as a child of the deceased for the purpose of inheritance?
Generally, in order to be eligible to inherit (unless otherwise explicitly mentioned in the will) the child must either be a biological child or a child that has been adopted by the deceased. This includes stepchildren, but only if they have been adopted by the deceased.
If you have a child that is not biological or adopted to whom you wish to bequeath a portion of your estate, it is important to ensure they are named in your will to avoid them being automatically disinherited.
Inheritance laws can be extremely complex. Due to the nature of inheritance and probate laws, it is essential that you consult a legally trained professional when making a will or any provisions for after your death. Wills created in the absence of a legally trained professional are more likely to be successfully contested. Speaking to a solicitor well-versed in probate law can help to ensure your final wishes are respected.
McGinley Solicitors have 30 years of experience in probate law and pride ourselves on delivering a client-focused service. Our team are there to guide you through the process and answer any questions you may have regarding the division of your estate.
We pride ourselves on acting with integrity and empathy in all cases. McGinley Solicitors have offices in both Dublin and Donegal, each with a highly trained and dedicated team of solicitors qualified to help you, alternatively, you can contact a member of our team via telephone or email.