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info@eastcorkjournal.ie


East Cork Business Post Succession Act 1965


tate with the remaining one- third to be distributed equal- ly among the children.


If


namic has changed. The Law Reform Com- mission have recently pro- posed changes to the Suc- cession Act


1965, most by KAREN WALSH


When the Succession Act 1965 was enacted, times were very different.


Often,


children were educated only to primary or secondary lev- el. Some families could only afford to educate one child to the third level due to the costs of education. Nowa- days, most children are com- pleting third level education and have boundless oppor- tunities.


longer. There


Parents are living have


been


significant improvements in people’s quality of life, the medical treatment available and the


professional care


and facilities provided for the elderly. Older people now have


more financial responsibil- ities for themselves than in the past. This means natural- ly that the ‘pot of assets’ that form part of an estate can be greatly eroded on death. The traditional familial intergen- erational relationship or dy-


notably Section 117. Unlike a spouse or civil partner, chil- dren have no absolute right to inherit any part of their parent’s estate if


the parent


makes a Will. However, as the law currently stands if a child considers that he or she has not been adequately provided for he or she may make an application to court to seek a declaration that the parent has “failed in his moral duty to make prop- er provision for the child in accordance with his means.” This is known as a Section 117 application. Each case is decided on its own merits and the court examines the situation from the point of view of “prudent and just” parent. An example of such a suc-


cessful case is a case which took place in 2000 where a child brought a Section 117 application against his father’s estate. The son of the deceased had been tak- en out of school at the age of 14 and put to work on


Prenups by KAREN WALSH


Dear Karen, I’m getting married next


year, to a girl I’ve been go- ing out with for seven years. We’ve been living together for the past three years, in a rented house in the lo- cal town. She’s a primary school teacher. We’re building a house


on my parent’s farm, which I am due to inherit…I’m currently in a farm partner- ship with them. We’ve had a savings account for the past three years and that is paying for the house along with a small mortgage we took out. I spend most days in


my parent’s house, as I’m working on the farm full


time and one day over din- ner my mother asked me if we were going to have a prenuptial. I hadn’t consid- ered it before, but the farm has been in the family for a number of generations, and I think they are con- cerned about their own security – they are in their seventies. Is a pre-nuptial worth


getting?


Dear Reader, Congratulations this is


great news. A wedding is filled with fun and excite- ment, make the most of it. Your question regarding


the validity of pre-nuptial agreements in Ireland is a very interesting one. The issue


of pre-nuptials has


the family farm due to his father being unable to work as a result of injury sustained in an accident. The son re- ceived no remuneration for his work and was eventually ordered to move off the farm after he married. The father had made a Will in which he gave his other son some of the farm and had during his lifetime sold another sec- tion of the land. When his father died, the son brought a section 117 application. The court held that the son was entitled to the remain- der of the farm on the basis that his father had deprived his son of an education and a chance of an independent career.


Where there is a valid Will The Law Reform Com- mission are


maintaining


that Section 117 should be retained but in an amend- ed form. The Commission considers that Section 117 should be amended so that its focus would be firmly on a needs based approach. shall presume that


It proper


provision has been made by a parent for an adult child


been in the press recently from the The


farming lobby. farming community


believes that the issue of as- sets should be resolved be- fore they meet any would- be spouses for fear that meeting the wrong partner could in fact break up the farm. If a marriage does go wrong and parties


end


up separating and going through a judicial separa- tion and divorce proceed- ings. A divorce will only be granted in this jurisdiction if the Court is satisfied that proper provision has been made for both par- ties involved. Your ques- tion involves a certain de- gree of complexity in that your assets are very closely linked with your parents, so the question of whether a pre-nuptial is worth getting generally and specifically in your circumstances must be answered in two parts.


subject to three exceptions, as follows: 1) In the case of an adult


child whose health needs or capacity has not been prop- erly provided for in the par- ent’s Will. 2) In the case of an adult


child who has given up oth- er opportunities in order to care for the parent in the parent’s last years. 3) In the case where the adult child shows that


the


parent left something that is of sentimental value. The Commission’s report proposes to remove


refer-


ences to “moral duty”. This new legislation will provide circumstances whereby the child would need to prove significant need or hardship and that this need or hard- ship should not be based on a failure of the parent’s mor- al duty.


Intestacy At


present, a Section


117 application can only be brought where


the parent


leaves a valid Will. If there is no Will and


there are children, then their surviving spouse has a legal right to two-thirds of the es-


technically pre-nuptials do not have


Under Irish law, whilst legal force,


they can be regarded by Judges as being persuasive in the context of a Judi- cial Separation or divorce when it comes to dividing up the marital assets.


It


is important to note that just


because the parties


have signed a pre-nuptial agreement, this does not mean that the marital as- sets will be divided up ac- cording to the contents of the pre-nuptial agreement. For the contents of a pre- nuptial agreement


to be


enforced by a Judge, the prenuptial agreement must make proper provision for each of the parties involved in the proceedings. An ex- ample of a prenuptial that will never be enforced by a Judge is the following situ- ation; if a man marries a woman and he has a house worth 1 million and he has


Tel: 021 463 8000 • Email: info@eastcorkjournal.ie • Web: www.eastcorkjournal.ie


there is no surviving spouse and no Will, the estate is shared equally among the surviving children. The


Commission pro-


poses to include a Section 117 in cases of intestacy (no valid Will). The courts have no power at present to vary the shares that a child may be entitled to in the event of intestacy.


In 1965, the Oireachtas


decided not to extend Sec- tion 117 to include intestacy because it might give rise to additional litigation. Valid arguments shall be made that a child is already provid- ed for in the event that their parent does not leave a valid Will under the rules of intes- tacy, and that in that circum- stance, no such Section 117 application should be made available. Any person at


present


who intends to bring a Sec- tion 117 application against a parent’s estate would have to weigh up the pros and cons carefully in advance of bringing such an application as prospective


applicants


should always be aware that the costs of such an applica- tion is at the discretion of the


€500,000 in the bank and makes a prenuptial agree- ment


with his proposed


wife that states that in the event of divorce the wife shall not be entitled to any share of the house or the money. This will not be en- forceable as it is unfair and obviously does not make proper provision for the wife in that case. If you wish to make a prenuptial that


stands


a good chance of being utilised and enforced by a Court the


prenuptial


should be updated every 5 years or after a big event such a having a baby or inheriting significant assets. The Pre-nuptial must be fair and make proper pro- vision for both parties, for a court to enforce its con- tents. It is worth remember- ing that the Court has the power to vary aspects of the pre-nuptial agreement. You say that you are in


Thursday, 14th


December 2017


court and an unsuccessful applicant is not necessarily entitled to have the costs of the application paid out of the estate of


the deceased.


In some cases a court can refuse the applicant the costs of the claim. Any proposed changes


to the legislation will take some time and it will remain to be seen how exactly the proposed changes would be worded and interpreted through case law. However, it will lead to


interesting questions. Many children are staying at home to care for their elderly par- ents.


Some are giving up


their careers and other op- portunities and it may well prove interesting to see if such children will make Sec- tion 117 applications on foot of this proposed new legis- lation. What about a child who lives with a parent for other reasons and provides no care in reality for the parent? Should the child at home who cares for his or her parents without pay be entitled to bring a Section 117 application? Will a fam- ily farm or a family home be regarded as an item of sentimental value?


What


about the child who stays at home to work in the family


a farm partnership with your parents, so it is worth discussing the financial se- curity that offers.


this potentially It should be noted


that when forming a farm partnership especially with family members both tax advice and legal advice should be obtained. It is unclear if you are


due to inherit the entire farm along with your par- ents’ house but


if your


parents are worried about their own security then they could also ensure that their house is not over


transferred to you and does not


form part of the farm part- nership and so is a separate and distinct asset. Like I said in the pre- vious paragraph, in any divorce


and separation


proceedings a Court must make proper provision for both spouses. Therefore, in the normal course of things the Court will only order


eastcorkjournal


business to his detriment? Will a child who suffers with depression or alcoholism be entitled to bring a claim on the basis of health needs? These are all questions that remain to be answered. Only time will tell. Karen Walsh, of Walsh &


Partners, Solicitors, comes from a farming background and is a solicitor specialising in agricultural law, land law and renewable energy and is author of ‘Farming and the Law’ available


from www.


claruspress.ie. The firm also specialises in personal injuries, employment


law


and family law. She has of- fices in Dublin and Cork. For further


information please


contact 01-602000 or 021- 4270200. Email: info@walshand-


partners.ie Web: www.walshand-


partners.ie Disclaimer: While every


care is taken to ensure ac- curacy of information con- tained in this article, Solic- itor Karen Walsh does not accept


responsibility for


errors or omissions howso- ever arising, and you should seek legal advice in relation to your particular circum- stances at the earliest possi- ble time.


that the assets belonging to each person be divided up to make proper provision for both parties. What this means is that


if you and


circumstances (and this will very much depend on the circumstances of each individual case) if the Court has no way to make proper provision for both parties for example if one of the parties can’t work etc and there is a farm partner- ship in being the Court can order that the partnership be dissolved.


your parents have a farm worth €500, 000 and you are entitled to a 50 percent share of that farm and then it is only your share of farm partnership that shall form part of the martial assets. If there are enough assets to make proper provision for the parties in a separation context then the Court will not look beyond the farm partnership. However, rare


in @eastcorkjournal / #eastcorkjournal


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