How can my son find out if his father has cut him out of his will?

My son’s father and I never married. He has never paid maintenance for him. A few years ago there was a disagreement between them and unfortunately his father hasn’t had any contact with him for about five years.

My ex also has another son who he is very close to. Recently my ex came into some money from the sale of his own father’s house. In the event that he dies, how can our son find out if he left a will?

CC

In an ideal world, we all take care of family, not least when we die, assuming we have the resources to do so. The real world is more messy.

You don’t say whether your former partner was ever a part of your son’s life but he certainly never paid anything to the cost of raising him.

Now middle-aged, your son and his father no longer talk. Meanwhile, his father has a son from a separate relationship to whom he is close, and the father has come into money.

That certainly raises the potential for a dispute when he dies.

There are two scenarios here – one where he has a will and one where he does not. Let’s take them in reverse order.

If there is no will, his estate would be divided according to the Succession Act.

You do not say whether the father ever married – either to the mother of his other son or someone else. If he did, and presuming that spouse survives him, she will receive two-thirds of his estate with his children sharing the final third.

That would include your son, this favoured other son and any other children he might have.

If the spouse does not survive him, or there never was any spouse, the children split the value of the estate between them without regard to favourites. Everything is split evenly.

Whomever applies for the grant of administration intestate is obliged to track down all qualifying beneficiaries – which includes all children regardless of whether they were born inside or outside a marriage. In practice, whomever applies to manage the estate will engage a solicitor as intestacy can be a minefield.

But what if there is a will?

If it is like most other Irish wills and there is a spouse, it will simply leave everything to the spouse. If he does not, the spouse is entitled to what is called a legal right share – which, where there are children, amounts to one-third of the estate.

Assuming any legal right share is respected, the will could make provision for one or other or both sons – and any other children – but it doesn’t have to. There is no obligation for a person to provide in death for adult children or any other relative apart from a spouse.

However, if a child feels that they should be entitled to something in a will, they can take what is called a section 117 action.

Section 117 (1) of the Succession Act 1965 says: “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.”

This is a very wide and nebulous position, with the court taking into account the circumstances of the applicant vis-à-vis other family members among other things.

It clarifies in section 117 (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.”

The key thing is that any section 117 application must be made to the court within six months of a grant of probate.

And how do you know probate has been granted? In a harmonious family situation, you’d expect to be notified of this but in the scenario you outline, it may be a case of your son keeping tabs on the Probate Register where all grants of probate and grants on administration (in case of intestacy) are recorded – along with copies of the related will where one exists.

He will need his father’s first and surname and the year in which he died.

When will probate be granted? That depends on how efficiently whoever is managing the estate sort the paperwork and how complex the estate is. It generally takes a year or close to it anyway.

Is it worth pursuing a section 117? That depends on your son’s position in life and also what his father’s estate comprises. There is certainly no guarantee of success and there will be legal fees to consider.

Of course, there is nothing to say that this money your ex has recently come into will still be part of his estate when he dies. It could well have been dissipated by then – either because it was spent or because it was gifted to other family members.

The Section 117 procedure only refers to provision in a will or lack thereof. It does not cover lifetime gifts.

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.