Call to remove 'moral duty' of parents to provide for children

The changes could see children left out of a parents will

Call to remove 'moral duty' of parents to provide for children

File photo | Image: Photocall Ireland

A new report has recommended that Irish succession law be reformed, in particular in relation to adult children.

The Law Reform Commission has suggested removing the 'moral duty' to provide for children.

However adult children may continue to bring applications under the law if they can prove there has been "parental failure" to make proper provision for them based on a needs test.

The report on Section 117 of the Succession Act 1965: Aspects of Provision for Children recommends that the section should be changed to remove references to 'moral duty' to simply say that a deceased parent has a duty to make 'proper provision' for a child.

"The phrase 'moral duty' may unduly emphasise an expectation or entitlement to inherit, rather than an appropriate focus on the needs of a child, including an adult child", it says.

But a presumption that parents have provided for their adult children - over the age of 18, or over 23 if in full time education - is subject to three exceptions.

Where the adult child has a particular financial need arising from their health or decision making capacity; where the estate contains an item of particular sentimental value to the adult child; or where the adult child had provided care and support for the deceased.

Changing demographics

The commission claims the changes reflect the fact that people are living longer, and having less children to look after them in later life.

"Important social changes since the 1960s have included the recognition of equal rights for all children in succession law and the introduction of divorce, which has meant that applications under section 117 often now involve more complex family settings", it says.

The report also takes account of demographic changes since the 1960s.

These have affected what is called the 'generational contract' that operated in the 20th century, under which the adult generation first cared for young people, then the young people grew up and they cared for their older parents.

But the commission says since the 1960s, a number of changes have occurred.

"Parents are having fewer children, and therefore there are fewer of them to care for the parents in later life. While the parents are living longer, so that they have a longer time period to fund their own later life, notably their health and care requirements", it says.

"This also means that they may be less likely to leave inheritances for their children in the way that children in the 20th century may have expected".

Some leading gerontologists have suggested we may be moving into an 'adapted generational contract', which means older people will have more responsibility for themselves than in the past.

'Parents need some of the money'

Raymond Byrne is director of the Law Reform Commission. He told Newstalk Breakfast this could see children left out of wills completely.

"Under the Succession Act, minimum shares are automatically given to a spouse whether there's a will or not... Where there is no will, children also get minimum shares.

"Where there is a will, the current law basically says that the spouse must be given a certain minimum amount... but the children under the Succession Act have never been given any kind of minimum amount where there is a will.

"So in theory at least, you could have a parent giving nothing to any of the children - leaving all of the money, other than what's left to the spouse, give it all away to charity.

"Section 117 is in the Succession Act in order to say that if there is a particular failure to make proper provision for any or all of the children, then you can make an application to say there hasn't been proper provision."

"We think that that kind of a balance between the rights of the spouse who's left behind and the children who are left behind, that's about right."

He says changes to families and lifestyles mean the law needs to adapt as well.

"We have to recognise since the 1960s when the Succession Act was made, parents are living longer.

"The idea that there's an expectation of an entitlement to succeed or inherit something from parents - I'm afraid the reality of parents living longer is that they need some of the money that might otherwise have been passed on to their children to look after themselves into their longer age".