I find myself in a possibly fairly unusual situation. My stepmother regrettably has left me a considerably lesser share than the other residual beneficiaries of her will – her own children and my own sibling.
I am also adopted, a fact that was common knowledge to all concerned. On this, my stepmother would have been “of her time”.
This new will written after my father’s death came as a bit of shock to me as during his lifetime my father never indicated that it was his intention to distinguish between any of us but especially between me and my own sibling.
In his later years of poor health, I was the hands on person 24/7 (of his own children).
Is there any avenue open to me to challenge my meagre share of this will? Frankly the online advice in this area is contradictory on a section 117 appeal on the basis of this non-blood relationship.
I think this query is timely as there are many many people adopted in the 50′s & 60′s in Ireland and frankly our rights are sometimes at best vague.
Any advice appreciated on the basis that I understand I will require professional advice to ultimately deal with this.
Ms T.R.
As you conclude, the ultimate decision on whether to challenge your stepmother’s will in this case will require seeking professional advice but there are a few things that might help inform you on that path.
As you say, your personal circumstances are somewhat unusual in that, as I understand it, you were adopted by your father (and his first wife/partner?) who also had a child of their own before or subsequently. Your father later married your stepmother, with whom he appears to have had some children. It is unclear from your letter if all your step-siblings were the children of your stepmother and your father. Unusual, but in a time when blended families are an increasing feature of society, such arrangements will probably not be unique.
And you are correct that there are different rights of inheritance for a person who is a stepchild compared with someone who is adopted but that is on the basis of intestacy – where there is no will. As I understand it, both your father and your stepmother have left wills so that is irrelevant.
It does seem unnecessarily provocative of someone to treat all their children – including stepchildren – equally with the sole exception of one all other things being equal, so I can certainly see why you might feel aggrieved in this case. However, you also need to weigh the social and financial implications of pursuing it. There is no guarantee of success, taking legal action is not cheap even though there is the possibility of the estate having to meet the cost of a successful challenge, and doing so can irredeemably rupture family relations.
You refer to your stepmother’s will being a new will written after your father’s death. This surprised you as your father had never indicated he viewed you as any different from his other children.
That may be so but it was up to your father to decide how to distribute his estate on his death. How he viewed his family and the various relations would not in itself constrain your stepmother in her choices regarding her own will. It is important that you don’t conflate or confuse the two.
In general, there is no automatic right of inheritance under a will – with the exception of a spouse who does have what is called a legal right share. That means, where there are no children, the spouse has an automatic, legally-enforceable entitlement to have their dead spouse’s estate regardless of what a will says. Where there are children, that share drops to one-third.
But again, there is no suggestion here that legal right share is an issue. You are silent on the contents of your father’s will when he predeceased your stepmother but it would not be unusual that the entire estate passed to his spouse. This is very common in Ireland, not least for tax reasons as no inheritance tax is payable on anything left to a spouse.
Having said that, it is increasingly common for those in blended families to make special provision to ensure their own children are provided for in their absence. There is no obligation to do so but situations such as the one in which you find yourself which can give rise to misunderstanding and grievance highlight why it might be a good idea to consider such an approach.
You mention section 117 of the Succession Act. This is the section under which a child can challenge a will, arguing that a parent has “failed in his [or her] moral duty to make proper provision for the child in accordance with his [or her] means” either in their will or otherwise.
This is a very complex area where the courts have wide discretion. It is very much up to the plaintiff – i.e. you, if you take the case – to prove that you have been unfairly treated under the will.
The first key thing is that any challenge must be lodged within six months of probate. Miss that deadline and you will not get a hearing so time is not on your side here.
A court would look at your stepmother’s estate as a whole as well as the age, financial status and prospects both of yourself and her other children, and any provision made for any of you in her lifetime “from the point of view of a prudent and just parent”. It has the latitude to examine “any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children”.
If you are all broadly in the same position – and where your mother’s other stepchild, your sibling is treated on a par with her step-siblings but you are not – it is certainly possible the court might decide to adjust allocations under the will. It has broad powers in that area but I certainly would not bet on it. The fact that you cared full-time for your step-siblings in his final years would be a factor is you can show it to the court’s satisfaction, especially if it meant you sacrificed other opportunities in terms of study or employment.
You need to consider whether, given the uncertainty, the cost and the potential social cost with other family members, it is worth taking the risk of legal challenge.
The one thing you need to clarify is the issue of your ability as a stepchild to take a section 117 challenge at all.
There is clear confusion among legal professionals on this, even those specialising in the area. Some state categorically that “the definition of a child [under section 117] includes adopted, non-marital, foster and step children”. Others write, with equal conviction: “Adopted children can bring section 117 proceedings against the estates of their adoptive parents but not their natural parents. Neither stepchildren nor foster children can apply under S117.”
I cannot find specific legal precedent on this issue, though that does not mean there is not some case law out there. What is telling is how sparse any reference to step children is in relation to section 117 is. It shows, as you clearly feel, how much of a forgotten group they can be, and with today’s blended families it certainly appears to be an area worthy of greater focus for the legal profession.
If even those specialising in the area are at odds, it is certainly an initial issue to clarify before deciding on any further action.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com with a contact phone number. This column is a reader service and is not intended to replace professional advice
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