Dear Claudine,

I have been with my partner for 10 years and we have no children together. My partner is Divorced and has three grown up children from her previous marriage. I have one son from a previous relationship, who is 31 years old. I own my own property and my partner lives with me. I have been thinking of making a will leaving my property to my partner. I am worried that my son will object to this. I would appreciate your advice.

David

Dear David,

Thank you for your e-mail. The general rule is that a person of sound mind can make a Will disposing of their assets to those people whom they would like to benefit on their death. If you are intending to Will your property to your partner, then a number of issues arise. Firstly, your son may make a claim against your Estate under Section 117 of The Succession Act 1965. While there is no absolute right for a child to inherit from their parent, the Test is, whether that parent has “failed in his/her moral duty to make proper provision for that child”. The Court would consider the application from the point of view of a “just and prudent parent” and will review: 1) whether that parent has failed in his/her moral duty to make proper provision for his/her child in accordance with that parent’s means as of the date of his/her death, 2) The health and financial status of the child making the application to include his/her age and occupation etc.., 3) The conduct of that child towards their parent during his/her life-time, 4) The financial needs of the child, 5) Whether proper provision was made by that parent for their child during that parent’s life-time i.e. did he/she pay college fees, towards the purchase of a property for their child, or make any lump-sum payments to his/her child etc.., and 6) Whether it is fair and reasonable to make an Order in favour of the Applicant child. Only, if the Court deems that the Applicant child’s parent has failed to make proper provision, does it then consider what provision should be made for the Applicant child, based on the assets of their parent, as of the date of his/her death. It is important to note that the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 established a Civil Partnership Registration Scheme and Redress Scheme for long-term opposite sex and same sex co-habiting couples who are not married or registered in a Civil Partnership. If you and your partner register with the HSE’s Civil Registration Service then you will both benefit from an exemption from Inheritance Tax on inheritances which you may receive from each other. If you elect not to register your Civil Partnership then your partner may have a substantial tax liability as she can take a maximum inheritance of €16,604.00 and thereafter, she will be required to pay Capital Acquisitions Tax at 25% on any inheritance received above this amount. I hope that the above is helpful to you.

With Every Good Wish.

Claudine