Unlike spouses, children are not entitled to any specific share in a deceased person’s estate.
Testate
Accordingly, in a testate situation, a child is only entitled to whatever the will of the deceased says.
Intestate
In an intestate situation a spouse is entitled to two thirds of the estate with the one third going to the ‘issue’. ‘Issue’, for the purposes of the Succession Act, 1965, includes marital and non-marital children, adopted children and their lineal descendants. Step children and foster children are not included.
Section 98 Children
It is worth noting the provisions of section 98 of the Succession Act, 1965. It provides that where a child predeceases a testator leaving issue at the time of death, the gift from the testator will not lapse but will take effect as if the death of that child occurred after the death of the testator, unless a contrary intention appears from the will.
This means that if a testator’s child predeceases him leaving grandchildren, any benefit that would have been received by the child will pass to his estate.
Actions that a Child Can Take Against an Estate
The first action to look at is a ‘section 117’ action. Section 117 of Succession Act, 1965 provides:
| 117.—(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just. | ||
| (2) The court shall consider the application from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and 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. | ||
| (3) An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy. | ||
| (4) Rules of court shall provide for the conduct of proceedings under this section in a summary manner. | ||
| (5) The costs in the proceedings shall be at the discretion of the court. | ||
| (6) An order under this section shall not be made except on an application made within twelve months from the first taking out of representation of the deceased’s estate. |
The Court will consider the situation from the perspective of a prudent and fair parent and must consider the position of the other children of the testator also.
The time limit for bringing an action under section 117 is 6 months and this is a strict limit.
The critical test for success of a section 117 challenge is
- whether the parent positively failed in his moral duty to make proper provision for the child and
- the child must establish that he/she had a need which the testator could have satisfied in making his will.
A court cannot make an order which will interfere with the legal right share of the surviving spouse.
The second type of action is a ‘section 63’ action. Section 63 of the Succession Act, 1965 deals with advancements to children and allows a child to bring a case against a child who has previously received an advancement during the testator’s lifetime. This action will seek to have the previous advancement to a sibling taken into account in the distribution of the estate on death.
If this action is successful, it will clearly impact on the distribution of the estate.
Proprietary Estoppel
The third type of action that can be taken by a disappointed child is a proprietary estoppel action. A proprietary estoppel action will aim to prove that the child acted to his detriment in the belief that he would be given a right to the deceased’s property and the deceased knew and encouraged this belief.
This is a very difficult action to succeed with.
However, if it is successful and an equitable interest has been established, it will prevail over the legal right share of the spouse and the claims of other children sharing the estate, unlike a successful section 117 action.
Read spouses’ rights under Succession act, 1965 also.