The Non-Negotiable Six-Month Deadline for Section 117 Claims

The most dangerous mistake in a Section 117 claim is calculating the deadline from the date of death.

For a claim under section 117 Succession Act Ireland, the six-month period begins on the date the first grant of representation is extracted. That will usually be a grant of probate or, where no executor can act, letters of administration with the will annexed.

The date of death does not start the clock. Neither does the reading of the will, notice to beneficiaries or the date on which a disappointed child learns what the will contains.

Once the six months expire, the court has no statutory power to extend the deadline. Family negotiations, delayed discovery of the grant, minority, incapacity and ignorance of the right to claim do not stop time running.

Executors must take the deadline equally seriously. A personal representative who distributes an estate despite having notice of a threatened Section 117 claim may lose statutory protection and face personal liability if the remaining estate cannot satisfy a later court order.

The Section 117 deadline at a glance

Section 117(6) provides that an order cannot be made unless the application is brought within six months from the first taking out of representation. The wording is mandatory.

What is a Section 117 claim?

Section 117 allows a child of a person who made a will to ask the court to make provision from the estate. The child must establish that the deceased parent failed in their moral duty to make proper provision for that child in accordance with the parent’s means.

The section applies where the deceased died wholly or partly testate, meaning that they left a will dealing with some or all of the estate. It does not currently provide a remedy where the parent died wholly intestate.

The word “child” is not limited by age. An adult child may bring a claim, as may a child under 18 through an appropriate representative. The legislation also operates without the former distinction between children whose parents were married and those whose parents were not. Adopted children have succession rights through their adoptive families under the Adoption Act 2010.

Section 117 is often described as the most litigated provision of Irish succession law. That does not mean every unequal will is vulnerable. A parent is not required to divide an estate equally between children. The applicant must prove a positive failure of moral duty, not simply unfairness or disappointment.

The trigger is grant extraction, not the date of death

The statutory wording is “the first taking out of representation of the deceased’s estate”.

In practical terms, the relevant date is usually the date on which:

• a grant of probate issues to an executor; or
• letters of administration with the will annexed issue where an administrator is proving the will.

The High Court’s decision in In re Estate of F (deceased) clarified that the reference is to the grant by which the will is proved. A limited grant extracted for a specific purpose, such as pursuing litigation on behalf of the estate, may not start the Section 117 period. The nature and terms of the grant must therefore be examined rather than assumed.

The Law Reform Commission summarised the position clearly: the period runs from the date on which the will is proved by a grant of probate or a grant of administration with the will annexed.

This distinction can materially change the deadline. A parent may die in January, but the grant may not issue until October. The Section 117 clock begins in October, not January.

Conversely, a child who first learns about the grant several months after it issued does not receive a fresh six-month period.

How to confirm the grant date

Do not rely on family recollection or an estimate from the date probate papers were submitted.

The Courts Service Probate Register records grants of representation issued in Ireland since 1992. It can be searched using the deceased’s name and year of death. The record identifies the date of grant and the Probate Office that issued it.

Where a possible claim exists, obtain a copy of the grant and confirm:

1. the date it issued;
2. the type of grant;
3. whether it is a full or limited grant;
4. the identity of the personal representative; and
5. the court in which proceedings should be brought.

Six months means six months

Section 117 does not give the court a discretion to extend time. This separates it from many ordinary civil claims governed by the Statute of Limitations.

The Supreme Court has identified Section 117 as an example of a jurisdictional time limit. Compliance is a condition of the court’s power to make an order, rather than a procedural defence that an executor or beneficiary may choose to waive.

In PD v MD, the High Court concluded that it could not make an order after the statutory period even where that would cause serious injustice. The Law Reform Commission has described the result in direct terms: once the period has expired, the High Court has no jurisdiction to grant Section 117 relief.

The court cannot extend time because:

• the parties were negotiating;
• the executor agreed not to rely on the deadline;
• the applicant did not know that probate had issued;
• the applicant did not know about Section 117;
• the applicant was under 18;
• the applicant lacked decision-making capacity;
• the family wished to avoid proceedings; or
• the applicant’s solicitor was waiting for fuller information about the estate.

Even the defendant’s failure to raise the deadline does not confer jurisdiction on the court.

Negotiations do not preserve the claim

Families often begin discussions in the hope of avoiding litigation. That may be sensible, but negotiations and mediation must take place alongside deadline protection.

A letter threatening a claim is not the same as bringing the statutory application. Nor is an agreement to continue discussions a safe substitute for issuing proceedings.

If settlement cannot be documented and completed in time, protective proceedings may need to be issued before the deadline. Negotiations can continue afterwards.

Minority does not stop the clock

The strict position is particularly significant where the potential claimant is a child under 18.

The normal provisions suspending some limitation periods during minority do not extend Section 117(6). In PD v MD, the High Court held that Section 117 was not a claim under a will, on intestacy or as a legal right for the purpose of the relevant disability provisions.

An application can be made on behalf of a child, but it must still be made within the same six-month period. A parent, guardian or other appropriate representative should obtain advice immediately once a possible claim becomes apparent.

Executors face personal exposure if they distribute with notice

Executors and administrators must remain neutral. Their responsibility is to preserve and administer the estate according to law, not to defend the deceased’s decisions as a matter of family loyalty.

Section 117 does not impose a general statutory freeze on distributions during the six months. That does not make early distribution safe.

Section 49 of the Succession Act protects personal representatives who distribute after giving appropriate notices and without notice of a particular claimant’s claim. Crucially, the protection does not apply where the personal representative had notice of that claim at the time of distribution. A claimant may also be able to trace distributed assets into the hands of recipients.

Accordingly, where an executor has actual notice of a threatened Section 117 application and distributes the estate regardless:

• the executor may lose the statutory protection ordinarily available for distribution;
• the distribution may amount to maladministration or devastavit, meaning a wrongful loss or misapplication of estate assets;
• the court may require the executor to account for the distributed assets; and
• the executor may have to make good a shortfall personally if the estate can no longer satisfy the eventual order.

Personal liability is not an automatic consequence of every distribution made within six months. Knowledge, the nature of the warning, the executor’s conduct and the resulting loss will matter. However, a clear solicitor’s letter intimating a Section 117 claim cannot safely be treated as a general family complaint.

The Law Reform Commission has also noted that, although Section 117 contains no express prohibition on distribution, it is unwise for a personal representative to distribute where a potential claim is known.

Do not confuse the deadline with the executor’s year

Section 62 of the Succession Act gives personal representatives a measure of protection from proceedings seeking to compel distribution during the first year after death. This is commonly called the executor’s year.

It is separate from the Section 117 deadline:

• the executor’s year runs from death;
• the Section 117 period runs from the first grant of representation.

The two periods may overlap, but they do not share the same trigger and one does not extend the other.

The “prudent and just parent” test

Meeting the deadline preserves the court’s jurisdiction. It does not establish that the claim will succeed.

The substantive test has two stages.

First, the court decides whether the parent failed in their moral duty to make proper provision for the applicant in accordance with their means. The court approaches that question objectively, from the perspective of a “prudent and just parent”. It considers the position of every child and any other circumstances needed to reach a decision that is as fair as possible.

The alleged failure of moral duty is assessed at the date of death. The parent’s means, the child’s circumstances, lifetime provision, competing family obligations and matters reasonably foreseeable at that date may all be relevant.

Second, if a breach is established, the court determines what provision would now be just. At that stage, circumstances and estate values at the date of hearing may be considered.

The distinction matters. Section 117 does not ask whether the will feels equal. It asks whether, viewed objectively at death, a prudent and just parent would have made further or different provision for the applicant.

What potential claimants should do now

A child who may have a claim should:

1. Search the Probate Register immediately.
2. Obtain the grant and will.
3. Confirm the precise grant date and calculate the deadline.
4. Gather evidence of the parent’s means, lifetime provision and the circumstances of all relevant children.
5. Obtain specialist succession advice without waiting for negotiations to conclude.
6. Issue protective proceedings if the claim cannot safely be resolved before time expires.

There is generally no duty on an executor to advise a potential claimant that Section 117 exists. Waiting for notification is therefore a serious risk.

What executors should do now

An executor who receives notice of a possible claim should:

1. Record the grant date and the Section 117 deadline.
2. Preserve sufficient estate assets.
3. Suspend disputed or final distributions.
4. Obtain independent advice on the executor’s duties.
5. Keep the beneficiaries informed without taking sides.
6. Consider undertakings, an agreed reserve or court directions before any distribution.
7. Retain complete accounts and records of every decision.

If assets have already been distributed, the executor should obtain advice immediately. Delay may make recovery from beneficiaries more difficult and increase personal exposure.

The deadline should control the strategy

The six-month period under section 117 Succession Act Ireland is short, jurisdictional and fixed. It begins with the first substantive grant of representation, not with death and not with notice to the child.

For claimants, the practical rule is simple: verify the grant date and protect the claim before negotiating further.

For executors, the corresponding rule is equally clear: once a credible claim has been intimated, preserve the estate until the risk has been properly resolved.

HOMS Assist advises children, executors and beneficiaries in contentious succession matters. If a grant has issued, or a distribution is being proposed despite a potential claim, an urgent Section 117 deadline review should be the next step.

About the author: Claire Tuohy is a Partner at HOMS Assist, specialising in wills, trusts, probate, and cross-border estates. With dual qualifications in Ireland and England & Wales, and as an active member of the Society of Trusts and Estate Practitioners (STEP), Claire brings deep expertise in tax-efficient succession planning. Her commitment to clear, practical advice ensures high-net-worth clients navigate complex estate matters with confidence.