Consultation Paper on Alternative Dispute Resolution - Law Reform ...

the will or otherwise. 193 In making an order under section 117, a Court must, in
accordance with section 117(2):
―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.‖
5.172 An order made under section 117 cannot, however, affect the legal
right share of the spouse of the deceased, or, if the spouse is a parent of the
child, any gift that has been left to the spouse of the deceased, or any share on
intestacy to which he or she would be entitled (this might arise where, for
example, a testamentary gift and/or the residuary gift fails and falls to be
distributed on intestacy). This is why most section 117 claims are brought in
respect of the last will of the second parent to die. 194
5.173 The Commission considers that there are good grounds for
suggesting that applications under section 117 of the Succession Act 1965
should be brought before a judge very early in the proceedings so that the
availability of mediation is made known to the parties. For that reason the
Commission has provisionally concluded that a Court should adjourn
proceedings when appropriate to allow parties to a dispute arising under section
117 of the Succession Act 1965 to consider mediation.
5.174 The Commission provisionally recommends that a Court should
adjourn proceedings when appropriate to allow parties to a dispute arising
under section 117 of the Succession Act 1965 to consider mediation.
J Conclusion
5.175 The Commission concurs with the comments of the President of
Ireland that:
―The old adversarial model of a day in court with a winner and a
loser was never designed effectively to address the profound human
needs and vulnerabilities at the heart of family relationships and
indeed even the most redeemed family law model has stark
193 See Brady Succession Law in Ireland (2 nd ed Butterworths, 1995).
194 See Hourican ―Section 117 Claims: Practice and Procedure and Matters to Bear
in Mind‖ (2001) 6(3) CPLJ 62.
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