Legal right share and section 117 claims: when a will leaves you out

A s. 117 application must be made within six months of the first taking out of representation (s. 117(6), as amended by s. 46 of the Family Law (Divorce) Act 1996). A surviving spouse must elect to take the legal right share within six months of receiving written notice of the right from the personal representatives, or one year from the first grant, whichever is later (s. 115(4)). An application under s. 121 to set aside a gift made to defeat a spouse's share must be made within one year of the first grant.

1. Get a copy of the will and find out whether a grant has issued. Once a grant of probate or letters of administration with will annexed has issued, the will is a public document: you can buy a copy from the Probate Office in Dublin or the relevant District Probate Registry. Check the date of the grant immediately, because both the s. 117 deadline and the spouse's election period run from the first taking out of representation.

   If no grant has issued yet, you can lodge a caveat in the Probate Office so that no grant issues without notice to you; it is not a substitute for issuing a s. 117 claim. Ask the executor's solicitor in writing for a schedule of assets and liabilities so that you can see what the estate is worth.

2. If you are the surviving spouse or civil partner, calculate your legal right share. The share is one-half of the estate if the deceased left no children and one-third if there are children (ss. 111 and 111A). It is calculated on the net estate: all property the deceased owned beneficially, after funeral and administration expenses, debts and liabilities (s. 109(2)). Property that passed outside the estate, such as a house held as joint tenants or a life policy written in trust, does not count.

   The legal right is lost if it was renounced in writing, either in a pre-nuptial contract or after the marriage (s. 113), if the spouse deserted the deceased for two years or more up to the death (s. 120(2)), or if succession rights were extinguished by a court order on judicial separation or divorce. A divorced spouse is no longer a spouse and has no legal right share.

3. Make your election in writing in time. The personal representatives must notify the spouse in writing of the right to elect (s. 115(4)). Where the will leaves the spouse a gift, the spouse can take either that gift or the legal right share; if no election is made, the spouse takes under the will and loses the legal right (s. 115(1)(b)). The spouse can also take the legal right share and accept a smaller gift in partial satisfaction of it (s. 115(3)). Where the will expressly states that a gift is in addition to the legal right, the spouse receives both (s. 114).

   Where the estate includes the home in which the surviving spouse was ordinarily resident, the spouse can require the executors in writing to appropriate it in or towards satisfaction of his or her share (s. 56), within the same time limits.

4. If you are a child, assess whether you have a s. 117 claim. Any child of the deceased, including an adult child, a child born outside marriage and an adopted child, can apply. The court asks whether the parent failed in his or her moral duty to make proper provision for the child in accordance with the parent's means, whether by will or otherwise, and decides from the point of view of a prudent and just parent, taking into account the position of each of the children (s. 117(1) and (2)).

   Relevant factors include your age and financial position, any disability, the support and gifts you received during the parent's lifetime (for example, education, a site or a deposit for a house), what your siblings received, the size of the estate and the parent's other obligations. The onus on the child is a heavy one; it is not enough that the division seems unequal.

5. Know what a s. 117 order cannot touch. An order under s. 117 cannot affect the legal right share of the surviving spouse, nor, where the surviving spouse is your other parent, any gift to that spouse in the will or the spouse's share on intestacy (s. 117(3)). Against a surviving civil partner, the court may reduce the legal right share only if it would be unjust not to do so, having regard to the testator's obligations to the civil partner (s. 117(3A), inserted by s. 86 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010).

   A person convicted of the murder, attempted murder or manslaughter of the deceased cannot apply (s. 120(1) and (4)). If the parent died without any will, s. 117 does not apply at all, because the children share the estate under the intestacy rules instead.

6. Issue the proceedings within six months of the grant. The application is brought against the personal representatives, by special summons in the High Court or by civil bill in the Circuit Court, depending on the value of the estate. It is heard in private (s. 119). The six-month period in s. 117(6) runs from the first grant of representation, not from the date of death or from the date you learned of the will, and the court has no power to extend it.

   Be careful with informal correspondence: a letter to the executors saying you intend to claim does not stop time running. Issue the summons or civil bill and serve it promptly, and send a copy to the executors' solicitors asking them not to distribute the estate. Costs are at the court's discretion (s. 117(5)); an unsuccessful claimant may have to bear his or her own costs or pay those of the estate.

7. Look for assets taken out of the estate. The legal right share and a s. 117 claim bite only on the estate. Property passing by survivorship to a co-owner, pension death benefits paid at the trustees' discretion and policies written in trust fall outside it. Under s. 121, however, the court can treat a gift made within three years before death, or taking effect on death, as part of the estate if it was made to defeat or substantially diminish the spouse's share or to leave a child insufficiently provided for.

   A spouse must apply under s. 121 within one year of the first grant; a child relies on s. 121 within the s. 117 application. In Martin v Horan [2026] IEHC 398 a house transferred into joint names years before the will passed to the son by survivorship, so the daughters had to challenge the deed itself on grounds of undue influence and improvidence.

8. Negotiate, mediate or proceed to hearing. Most s. 117 and legal right disputes settle once both sides have a clear picture of the estate, the needs of the claimant and the provision made for each child during the parent's lifetime. Swap affidavits of means and a full schedule of the estate early, and consider mediation: it is private, cheaper than a hearing and preserves family relationships better.

   If the case proceeds, the court decides what is just, and can order a lump sum, the transfer of specific property or a share of the residue. The order bears its share of the expenses and liabilities of the estate. Remember that tax follows the inheritance: property received under a s. 117 order or as a legal right share is a taxable inheritance for capital acquisitions tax, although a spouse or civil partner is exempt.

9. If you are an executor, administer with these claims in mind. Notify the surviving spouse in writing of the right of election under s. 115(4) as soon as the grant issues, because the period does not start until the notice is received. Do not distribute any part of the estate that could be needed for a legal right share or a s. 117 claim until six months after the grant have passed, and if proceedings are issued, hold the assets until they are resolved.

   In Doyle v Doyle [2026] IEHC 285 the High Court explained that a beneficiary's right to receive a specific bequest of land arises only once administration allows it, and that the land remained exposed to possible s. 117 claims by the other children for six months after the grant.

• Missing the six-month deadline. A s. 117 claim issued even a day late is barred, and the court cannot extend the time.
• Waiting for the executors to tell you. Executors have no duty to tell a child about s. 117 or that a grant has issued; check the Probate Office yourself.
• Spouse failing to elect. If the surviving spouse does not elect in time, he or she takes only what the will gives and loses the legal right share.
• Assuming equality between children. Section 117 does not entitle children to equal shares; provision made during the parent's lifetime counts, and the onus on the claimant is heavy.
• Ignoring assets outside the estate. Jointly held property and trust policies pass outside the will; challenging them needs a separate claim or a s. 121 application.
• Costs exposure. Costs are discretionary, and an unmeritorious claim against a modest estate can leave the claimant paying costs that exceed any benefit.

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Last updated: 04/11/2026 · Sources: Succession Act 1965 (ss. 56, 109–121), Family Law (Divorce) Act 1996, s. 46 – six-month limit in s. 117(6), Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (ss. 81, 86 – ss. 111A and 117(3A)), Family Law Act 1995, s. 14 – extinguishing succession rights on judicial separation, irishstatutebook.ie, EUR-Lex

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