Intestacy and s. 117 (Part 2)

20 April 2023

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We know now that there is no s. 117 claim in the case of intestacy. We looked last week at a narrow exception to this in the case of civil partners. There is another exception, and that is in the case of partial intestacy. So, where, for example, a person, does not make reference to the residue in their will, then the residue falls on intestacy. This arises under s. 109(1) of SA 65 which says that the provisions of s. 117 applies to estates where the person dies “wholly or partly testate” thus leaving open the possibility of bringing s. 117 claims in cases of partial intestacy.

Where someone dies partially testate, its not that the s. 117 element is limited to the testate bit and the intestate portion falls on intestacy. All of the estate is “up for grabs”. This is because in making orders under s. 117 “. . . the court may order that such provision shall be made for the child out of the estate as the court thinks just”. (my emphasis). So this means that a claim may be made over the whole estate and not just the testate portion. There is one exception to this. That is s. 117(3). This provides:-

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.

So, from this, the surviving spouse’s share is protected (whether or not it arises under the legal right share, as a bequest or on intestacy). So it serves to limit to a degree the scope of the claim against the intestate portion of the estate. This would apply in all cases of a s. 117 claim where there is a surviving spouse. Obviously, if there is no surviving spouse it makes the s. 117 action more attractive to the challenger plaintiff child.

Hope this helps and if you have any probate, tax, will drafting or capacity issues, please let me know and reach out to me on Colm Kelly