Application by Child
Cases
In the Goods of G. M. Deceased
In the Matter of the Succession Act, 1965
F.M. v T.A.M.
, O.A., J.A.K., M.K. and G.A.C.
High Court
3 March 1970
[1968 No. 249 Sp.]; [1969 No. 235 Sp.]
[1972] 106 I.L.T.R 82
Kenny J.
Kenny J.
G.E.M. (“the testator”) was the owner of a large form in County Meath which he worked and of lands in England. On the 10th December, 1924, he married B.C. one of the defendants. They had no children and in 1941 she decided to adopt a boy called F.B., the plaintiff, who came to live with them. The informal adoption followed a conversation which she had with her sister and she did not consult the testator who knew nothing of it until she brought the boy to the farm. There was no system of legal adoption in the Republic of Ireland at that time.
The plaintiff attended the national school at A. until he was eight and then went to boarding schools until he was 17 years of age when he became a student at the School of Navigation attached to the University of Southampton for one year. He then joined the Merchant Navy in which he reached the position of first mate. He holds a Master’s certificate and since May, 1969, has been working for the British and Irish Steamship Company. He is now 32, lives in Dublin, married and has two children. His basic salary is £1,200 but his total earnings will be about £1,700 this year.
On the 19th March, 1954, An Bord Uchtala made an adoption order under the Adoption Act, 1952, by which the plaintiff became the adopted child of the testator and his wife. The application for this must have been signed by the testator and validity of the Order has not been challenged. From the time it was made the plaintiff was called F.M. or F.B.M.
Mrs. M. who is a medical doctor, paid all the expenses of the plaintiff’s education and provided him with clothes and pocket money. The testator and the plaintiff were on friendly terms, but the bond of affection which the relationship of father and son usually creates never existed between them. The testator told the plaintiff that he would never become the owner of the farm at F. and all the evidence suggests that the testator never wanted the adoption and signed the documents in connection with it to please his wife. The testator has two nephews, J.A.K. and M.K., the sons of his sister who was a medical doctor who now lives in Northern Ireland. Mrs. K. and one of her sons called on a few occasions to see the testator. Mrs. M. did not welcome their visits and there was not any personal affection or attachment between the testator and his nephews.
On the 3rd March, 1961, the testator made his will by which he appointed his brother, T.A.M. and A., the well known solicitor, to be his executors and trustees. He left all his property in the Republic of Ireland and his shares and securities to them upon trust for his wife for life and after her death for the two nephews I have mentioned, absolutely. He left his farm at P. in England to them upon trust for his brother-in-law G.A.C. who had been managing it for many years, for his life and after his death to his nephew, M.K. absolutely. The remarkable feature about this will is that the plaintiff is not mentioned in it. The effect of section 24 of *85 the Adoption Act, 1952, was that the plaintiff was to be regarded as the child of the testator and of his wife born to them in what the Act calls “lawful wedlock” and who for the purpose of property rights was to be treated as a child of the testator if the testator had died intestate.
The testator died on the 19th January, 1968, when he was 93 years of age. He was domiciled in the Republic of Ireland. His property consisted of (a) the farm in Co. Meath subsequently acquired by the Land Commission for £50,000 payable in 8% Land Bonds and which, for the purposes of this application, I intend to value at £45,000; (b) shares and securities in the Republic of Ireland, in England and Scotland, which had a market value of about £65,000; (c) livestock and furniture worth about £8,500 and (d) the farm in England which had a value of about £18,500. His debts and funeral expenses were £2,257 so that the gross value of his estate after deduction of debts, but before deduction of testamentory expenses was about £135,250. The testamentary expenses (excluding the costs of these proceedings which I estimate will be about £5,000) will be about £5,000 so that the testator had disposing power over assets worth about £130,000. The estate duty payable in the Republic of Ireland was £38,067 against which there is a credit of £12,061, the duty paid in England. His widow has elected to take the legal share of one-third of his estate instead of the benefits given to her by the will (see section 111 of the Succession Act, 1965.)
There was some discussion as to whether the estate for the purposes of Part IX of the Act of 1965 includes the farm in England, but it has now been conceded that it does not. Section 109(2) of the Act has not changed the judge-made rule that the succession to immoveables is governed by the law of the place where they are situate, while that to moveables is regulated by the law of the domicile of the deceased. Section 109(2) bears a striking similarity to section 66 which appears in Part VI which deals with distribution on intestacy. Both define the type of interest in property with which the two parts are dealing, an estate to which the deceased was beneficially entitled for an interest not ceasing on death.
Part IX of the Act made radical changes in the law relating to the privilege to dispose of all property by will in any manner. The widow is now given a right to choose between what is given her by the will and one-third of the estate when children of the marriage have survived the testator. Section 117 provides that when the court is of opinion that a testator has failed in his moral duty to make proper provision for a child of his in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just and the effect of section 110 is that a child who has been adopted under an order made by An Bord Uchtala is in the same position as a child born of the marriage. Section 120 specifies a number of cases in which a person may be excluded from inheriting. It has not been suggested that the plaintiff has done anything which would justify his omission from benefit under the will of the testator.
Counsel have referred to the legislation in England, New Zealand and in New South Wales which limits the unrestricted power of disposition by will. The Family Protection Act, 1908, of New Zealand was the first legislation of this type in a common law country while a similar law was made in New South Wales by the Testators (Family Maintenance and Guardianship of Infants) Act, 1916 The legislation in England began with the Inheritance (Family Provision) Act, 1938, which has been amended by the Intestates Estates Act, 1952, and the Family Provision Act, 1966. I have considered many of the decisions on these Acts. Allardice v. Allardice [1911] A.C. 730; Re Allen [1922] N.Z.L.R. 218; Bosch v. Perpetual Trustee Co. Ltd. [1938] 2 All E.R. 14; In re Pugh decd. [1943] Ch. 387 and In re Goodwin [1968] 3 All E.R. 12.
The concept underlying the legislation in New Zealand, New South Wales and England is that a testator owes a duty to make reasonable provision for the maintenance of his widow and of his dependants. Our Succession Act, however, is based on the idea that a testator owes a duty to leave part of his estate to his widow (the legal right share) and to make proper provision for his children in accordance with his means. It is not based on a duty to provide maintenance for his widow nor is it limited in its application to children who were dependant on him. The cases decided on the New Zealand, New South Wales and English Act of Parliament are, therefore, of little assistance.
An analysis of section 117 shows that the duty which it creates is not absolute because it does not apply if the testator leaves all his *86 property to his spouse (section 117(3)) nor is it an obligation to each child to leave him something. The obligation to make proper provision may be fulfilled by will or otherwise and so gifts or settlements made during the lifetime of the testator in favour of a child or the provision of an expensive education for one child when the others have not received this may discharge the moral duty. It follows, I think, that the relationship of parent and child does not of itself and without regard to other circumstances create a moral duty to leave anything by will to the child. The duty is not one to make adequate provision but to make proper provision in accordance with the testator’s means and in deciding whether this has been done, the court may have regard to immoveable property outside the Republic of Ireland owned by the testator. The court, therefore, when deciding whether the moral duty has been fulfilled, must take all the testator’s property (including immoveable property outside the Republic of Ireland) into account, but if it decides that the duty has not been discharged, the provision for the child is to be made out of the estate excluding that immoveable property.
It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend upon (a) the amount left to the surviving spouse or the value of the legal right if the survivor selects to take this, (b) the number of the testator’s children, their ages and their positions in life at the date of the testator’s death, (c) the means of the testator, (d) the age of the child whose case is being considered and his or her financial position and prospects in life, (e) whether the testator has already in his lifetime made proper provision for the child. The existence of the duty must be decided by objective considerations. The court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive.
The testator in this case never made any provision for the plaintiff except that he allowed him to live at F. The plaintiff was the testator’s only child and his mother and he were the only persons to whom the testator owed a duty for there was no one else with any moral claim on him. The estate of the testator was worth about £135,250 before payment of testamentory expenses and estate duty. If I take £10,000 as an estimate of the amount of testamentory expenses and costs, the value of the mother’s legal right will be about £36,200 (one-third of £108,500) so that the amount available to make proper provision for the plaintiff is about £89,000. The amount of estate duty payable is £38,000 but as Mrs. M’s legal right and any provision made for the plaintiff under section 117 will have to bear their proportions of this duty section (118) I exclude it from the calculation. This is another striking change made in the law because except in relation to real estate, estate duty was, before 1967, payable out of the residue.
In my opinion the circumstances which I have described created a moral duty binding on the testator to make proper provision by will for the plaintiff. He made no provision whatever and so he failed in this duty. The court must, therefore, order that proper provision is to be made out of the estate and must decide this difficult question from the point of view of a prudent and just parent.
I think that the provision which such a parent would have made in this case would have been to have given one half of the estate (excluding the immoveable property in England) to the plaintiff. The amounts of the testamentory expenses and the costs of the two sets of proceedings will be deducted from the gross amount of the estate to arrive at the figure on which the one half is calculated.
L. v. L.
[1978] IR 288
1 I.R. L. v. L.
Costello J. 2
22nd November 1977
The plaintiff’s mother married the deceased on the 5th August, 1939, in Dublin and the two plaintiffs were the only children of this marriage. The first plaintiff is now aged 37 years and his sister, the second plaintiff, is now aged 33 years. Their mother was the deceased’s first wife. She applied to the High Court in Liverpool, England, for a divorce and on the 18th February, 1951, a decree nisi was granted; the decree nisi was made absolute on the 11th April, 1951. The deceased remarried in the month of July, 1951, and his second wife is the defendant in these proceedings. There were two children of this second marriage, a son who was born on the 3rd July, 1953, and a second son who was born on the 14th June, 1956. The deceased’s first wife remarried in the month of June, 1952.
The deceased died on the 19th September, 1973, having made two wills. The first will was dated the 17th December, 1951, and in it he made certain limited provision for the plaintiffs, being the children of his first marriage. However, the first will was revoked by a will made by the deceased on the 23rd August, 1960, in which no provision was made either for his first wife or for the children of his first marriage. Under the provisions of his second will the deceased bequeathed his property to his second wife (the defendant) and his solicitor, Mr. Boyle, in trust for his second wife absolutely should she survive him for a period of six calendar months; if she did not so survive him, then in trust for the issue of his marriage with his second wife living at the date of his death or that of his second wife, whichever should be the later, as tenants in common in equal shares. As the defendant has survived the deceased by more than six months she became entitled to the entire of the deceased’s estate under the terms of the second will.
The plaintiffs bring this present claim under the provisions1 of s. 117 of the Succession Act, 1965. They ask the Court to hold that the deceased failed in his moral duty to make proper provision for them in accordance with his means, whether by his will or otherwise; and they seek an order that proper provision be made for them by the Court out of the deceased’s estate as the Court thinks just.
In the course of opening the case on behalf of the plaintiffs, Mr. Morris made the following submissions. He stated that he proposed to call evidence which would establish that the deceased’s first wife was forced to go through the divorce proceedings in England, and that neither she nor her husband was domiciled in England at the time of those proceedings or at any time. He saidthat the legal effect of that evidence is that the English court had no jurisdiction to grant the decree of divorce, that the decree was a nullity in the eyes of Irish law, and that recognition cannot be given to it: he referred to Gaffney v. Gaffney 5 . As the second marriage of the deceased was not a valid one, he said that the two children of that marriage are illegitimate in the eyes of the law of this country. Therefore, he claimed that “the children of the second marriage have not any legal rights under the Succession Act,” and that the wife of the second marriage (the defendant) has no rights under the Act of 1965, and that the second family should not be taken into account in considering the plaintiffs’ application under s. 117 of that Act. As a further logical step in this argument it was claimed that the deceased’s first wife is the”spouse” for the purposes of Part IX of the Act of 1965 and that, accordingly, she became entitled to one-third of the deceased’s estate as a legal right2under the Act. However, I was told that the wife of the first marriage has waived this claim. Based on these submissions, counsel for the plaintiffs stated that the Court should divide the entire of the estate equally between the two plaintiffs, being the children of the first marriage, or, if it considered that the suggested waiver could not be validly made, that the Court should divide two-thirds of the deceased’s estate equally between them.
It is clear that the validity of the plaintiffs’ submissions depends partly on a determination of certain questions of fact (i.e., whether the first wife was coerced into the divorce proceedings, and the nature of the domicile of the parties at the time of those proceedings) and partly on how s. 117 of the Act of 1965 should be interpreted.
“Mr. Butler, on behalf of the defendant, urged on me the undesirability of hearing evidence in relation to the validity of the divorce decree and of making a decision in relation to the validity of the second marriage, unless it was absolutely necessary for me to do so. He agreed with the view which I expressed that, if the section was interpreted contrary to the plaintiffs”submissions, the result might be that evidence in relation to the divorce and the validity of the second marriage would not be relevant.
Having heard counsel on the matter, I decided that in the particular circumstances of the present case I should adjourn the hearing of the summons to consider, in the light of the submissions made, how the section should be construed. To that task I now turn.
At the outset I should say that this is not a case in which a question is raised as to whether the claimant under s. 117 of the Act of 1965 is a
legitimate child of the testator. Accordingly, I do not have to consider in these proceedings whether an illegitimate child is entitled to apply under the section for an order in its favour. The issue raised is a different one. Here, the claimants are legitimate but it is suggested that, in considering their claim, the position of the deceased’s two children of his second marriage should not be considered because they are illegitimate. Basically, there are two issues which may require to be determined in all proceedings under section 117. First, the Court must determine whether there has been a failure on the part of the testator of the moral duty mentioned in the section and which he owed to the applicants. The second question (which would only arise if the first question were answered affirmatively) concerns the provision which the Court should make out of the testator’s estate. I will consider the plaintiffs’ submissions as they affect the Court’s inquiry under each of these separate questions.
The Court must make an order that is just. The Court is required by s. 117, sub-s. 2, to consider the application from the point of view of a prudent and just parent; it is required to take 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 or children who are claimants under the section and to the other children. A parent, in acting prudently and justly, must weigh up carefully all his moral obligations. In doing so, he may be required to make greater provision for one of his children than for others. For example, one child may have a long illness for which provision must be made; or one child may have an exceptional talent which it would be morally wrong not to foster. But a just parent, in considering what provision he should make for each of his children during his lifetime and by his will, must take into account not just his moral obligations to his children and to his wife but all his moral obligations. The father of a family may have many moral obligations. Again, to give an example, a father may have aged and infirm parents who are dependent on him and to whom he clearly owes a moral duty. When acting justly and prudently towards his own children he would have to bear in mind his obligations to his own parents; the provision he makes for his children may have to be reduced because of these other obligations. Therefore, it follows that, if a child of the testator claims after his death that insufficient provision was made for such child, the Court, when considering whether this was so or not, must bear in mind all the moral duties which the testator may have had and all the claims on his resources thereby arising.
In considering the validity of the judgements which the testator made during his lifetime and by his will, and how he fulfilled his moral obligations, it is obviously not relevant to consider only those obligations which could be enforced under the Act of 1965. To return to the example which I gave a moment ago, the dependent parents of a testator to whom he owed a moral duty would have no right under the section to claim that provision be made for them out of their deceased son’s estate. Nonetheless, when adjudicating on a child’s claim under s. 117 of the Act of 1965, it would obviously be relevant for the Court to bear in mind that the testator may have been under a moral duty to make provision for his own parents. Whilst, therefore, it can be said that the parents in the example which I have given have no “rights”under the section (in the sense that they can make no claim pursuant to the section to have their rights, under the moral obligation owed to them, fulfilled), the existence of the moral duty owed to them may be relevant to the claim made by a child of the testator.
If it is accepted (as I think it must be) that the Court, when considering an allegation by a testator’s child of a breach of duty to him, should bear in mind all the moral duties which the testator may have had, then, if the testator had an illegitimate child, it would be necessary to consider whether the Court should regard the testator as having had a moral duty to that illegitimate child. I think the answer to that question must clearly be in the affirmative. Therefore, it follows that, in adjudicating on the claim of a legitimate child, the moral duty which the testator may have owed to any illegitimate child he may have had must also be borne in mind by the Court. This is so (for the reasons I have given) whether or not the illegitimate child is entitled to make a claim under sub-s. 1 of section 117.
In the present case, the allegation is that the deceased had two illegitimate children as his second marriage was an invalid one. However, it seems to me that it cannot be suggested that the deceased owed his children by his second marriage no moral duty: whether the deceased’s second marriage was valid or not, such a duty existed. The nature and extent of that moral duty cannot be affected by a decision now by this Court that the second marriage should not be recognised. Therefore, it follows that, in considering the first question (i.e., whether the deceased failed in his duty to the plaintiffs), the existence and fulfilment of the deceased’s moral duty to the children of his second marriage is a matter which it is relevant for the Court to consider. As the validity of the second marriage is not of any relevance to this part of the case, evidence relating to the alleged invalidity of the divorce proceedings is likewise not relevant to it.
If the deceased failed in his moral duty to the plaintiffs or either of them, the next issue which the Court would be required to consider is the extent to which and the manner in which it should make proper provision for the successful plaintiffs out of the deceased’s estate. I will now consider whether the validity of the second marriage and the status of the children of that marriage are in any way relevant to this part of the Court’s functions under section 117.
If a testator by his will makes provision for his children or some of them, it is clear that such beneficiaries could be affected by an order made under s. 117 because, in making provision out of the testator’s estate for the claimant, the bequest to the other children may be reduced or possibly eliminated. Therefore, it is obvious that the Court, in making an order under s. 117, is required to consider the position of children who are beneficiaries. Its decision must be as fair as possible to all children who are claimants under s. 117 or who are beneficiaries under the testator’s will. But the situation is different when the testator has a child or children in respect of whom he makes no provision in his will and who make no claim under the section. In such circumstances no order which the Court may make can affect their interests in any way; they have no right to any share in the estate under the will, and they have made no claim to a share in the estate under the Act of 1965. The position of such children is not in any way relevant to the task which the Court must perform when making a just provision out of a testator’s estate in favour of the claimants.
In the events that have happened, none of the deceased’s children obtained any benefit under his will. The plaintiffs, being the children of his first marriage, have made claims under s. 117 of the Act of 1965 but no claims under that section have been made by the children of his second marriage. Therefore, the position of the children of the second marriage is irrelevant to the considerations which arise on the second question in these proceedings; this is so whether the children of the second marriage are legitimate or illegitimate. Accordingly, for the purposes of the second question with which the Court may be faced in these proceedings, the validity of the second marriage and evidence relating to the divorce is not in any way relevant.
It is now necessary to turn to examine the relevance of the evidence proposed to be given relating to the validity of the divorce in the light of the position of the second wife (the defendant) under section 117. Where, as in this case, a testator leaves children, his surviving spouse is entitled to one third of his estate as a legal right under ss. 111 and 112 of the Act of 1965. If the second marriage of the deceased was an invalid one, then his first wife is the deceased’s “spouse” for the purposes of the Act of 1965, and she is entitled to the legal right to which I have referred. However, I have been informed that the deceased’s first wife has expressly waived any claim to this right under the Act of 1965. She is perfectly entitled to do this. Therefore, if the first wife is the “spouse” for the purposes of the Act of 1965, I can approach my task under the Act and make provision for the plaintiffs (if I think it proper so to do) without regard to the position of the first wife. If, on the other hand, the deceased’s second wife (the defendant) is the “spouse” of the deceased, then she is entitled to a legal right under the Act of 1965 or to her bequest under the deceased’s will, and she can elect to take the bequest or the legal right; in default of election she would take under the will. I have assumed that in the present case the defendant claims to be entitled to the deceased’s entire estate under the will and not to a legal right under the Act of 1965.
Sub-section 3 of s. 117 places a restriction on the powers of the Court which are granted by sub-s. 1 of that section. If the surviving spouse is the mother or father of the applicant child, then sub-s. 3 of s. 117 provides that no order under the section can affect any bequest to the spouse. The defendant is not the mother of either of the plaintiffs and, therefore, it follows that an order under s. 117 can affect a bequest to her whether or not she is the spouse of the deceased. Therefore, it is unnecessary for the Court to consider who is the “spouse” of the deceased for the purposes of sub-s. 3 of s. 117 as unrestricted provision can be made out of the estate whichever be the spouse. Therefore, for the purposes of the restrictions imposed by sub-s. 3 of s. 117, the validity of the second marriage and the evidence relating to the divorce are not relevant.
It is necessary now to revert to the plaintiffs’ submission that the second family (including the second wife) of the deceased should not be taken into account in considering the plaintiffs’ claim. I have already pointed out that, in considering the first question (i.e., the alleged failure of a moral duty to the plaintiffs), the moral duty which the deceased owed to persons other than the plaintiffs is a relevant matter for the Court to consider.
By marrying one another, the deceased and his second wife (the defendant) undertook mutual obligations towards each other and, by living with her as her husband, the deceased undertook a moral obligation for her welfare. From what I have already been told, the Court which hears this case could well conclude that that duty lasted throughout his life. It could have evidence (which it might or might not accept) that the deceased had a moral duty to make provision for her in his will. Founded, as it is, on the fact of the marriage and the relationship which the deceased and his wife thereby created for themselves, this moral duty cannot, in my view, be affected by a decision of this Court that it will not recognise the validity of the second marriage. Even if the Court cannot properly recognise the second marriage, it must accept as a fact that moral duties were created by the parties to it; in this connection see the judgment of Mr. Justice Kenny at p. 7 of the report of In re M. 2
In considering the plaintiffs’ claim that the deceased failed in his moral duty to them, the Court should bear in mind that he also had a moral duty to make provision for his second wife; this duty has to be borne in mind when deciding how a prudent and just parent would act towards the children of his first marriage. The Court’s deliberations on this part of the case would be unaffected by a finding that it should not recognise the validity of the second marriage. Neither could the validity of the second marriage be relevant in relation to the second issue in these proceedings, should the Court decide the first one in the plaintiffs’ favour. I have already pointed out that the restrictions in sub-s. 3 of s. 117 on the Court’s powers to make provision for the plaintiffs do not apply in this case; it does not necessarily follow from this that the Court will make an order affecting the bequest to the deceased’s second wife. Having heard all the evidence, it may or it may not do so. In deciding what provision should be made out of the deceased’s estate (if any), the Court should have regard to all the deceased’s moral obligations at the time of his death, including those he may have owed to his second wife. For the reasons I have already given, the nature and extent of that moral duty cannot be affected by a decision of the Court that it should not recognise the validity of the second marriage. Equally, then, on this aspect of the case, evidence relating to the English divorce is irrelevant.
Therefore, I conclude that evidence relating to the validity of the English divorce is not relevant to any of the issues that arise in these proceedings. I also conclude that the Court should bear in mind, for the purposes I have indicated, the moral duties which the deceased owed to the wife and children of the second marriage. I need only add that the construction which I have placed on s. 117 of the Act of 1965 is not affected by the provisions of s. 110 of the Act. These provisions apply, in the manner set out in the section, theprovisions of the Legitimacy Act, 1931, and of s. 26 of the Adoption Act, 1952, when it is necessary to deduce any relationship for the purposes of Part IX of the Act of 1965. Section 110 has no relevance to the facts of this case and does not, in my view, alter the construction which I think s. 117 bears.
In the Matter of N.S.M., deceased
B.S.M., L.N.N. and A.P. v R.J.W., John M., J.M. and N.M.M.
High Court
27 May 1971
[1970 No. 187 Sp.]; [1970 No. 290 Sp.]
[1973] 107 I.L.T.R 1
Kenny J.
Kenny J:
These are two applications brought under s. 117 of the Succession Act, 1965 (“the Act of 1965”) by three of the children of the late N.S.M. (“the testator”) in which they claim that their father failed in his moral duty to make provision for them and in which they ask the court to do this out of his assets. The two applications were heard together and have many unusual features. The gross estate of the testator was worth about £430,000, there are two ladies who claim to have been his legal spouse under Irish law and each of the three children, all of whom are over 21, has, as a result of their grandfather’s prudence, what most of us in this community would regard as a substantial private income. The very large claim for estate duty adds to the difficulties because the executors have not been able to predict how the money to pay it will be raised. So the court has to speculate what the position will be in the future years and as to the price of shares in a well known company whose shares have a quotation on the Dublin Stock Exchange and since the hearing concluded, have been given this privilege in London.
A.B.M. (“the grandfather”) established a very successful … . business in Dublin which was subsequently transferred to a company, N.M. and Son (Dublin) Limited (“the M. company”). The business was so successfully managed that the shares in the M. company became valuable and so the grandfather incorporated the M. Trust Company (“the Trust company”) in March 1950 as a means of diminishing the claim for estate duty on his death and so that he could provide for his children and his grandchildren. The assets of the Trust company were to consist of shares in the M. company and as it regularly paid dividends, those who held shares in the Trust company received an income from them.
The testator who was one of the grandfather’s sons worked in the M. company. In March 1938 he married P.M.W. who came from a wealthy family, and they went to live in C. Abbey. They had four children, N.M.M. born on the 21st April, 1939, P.A.M. (now Mrs. P.), born on the 7th March, 1941, B.S.M. born on the 15th March, 1942, and L.N.M. (now Mrs. N.) born on the 19th June, 1946. The testator inherited from the grandfather a well known stud at S. and his wife and he took a keen interest in racing and horse-breeding. Their good fortune in having four children and their wealth did not, however, persuade them to have a peaceful life together and, after an exchange of lurid charges and counter-charges, she left him and went to live in England in 1956. In December, 1957, he covenanted with her that he would pay her a yearly sum of £600 during their joint lives. The four children remained in Ireland with their father and, in January, 1959, the family moved from C. Abbey to B. Lodge which was part of the S. stud farm. Shortly afterwards the testator became ill and was in hospital for treatment for alcoholism. He had known Miss J.K. for some time before this and she had *2 him released from hospital and went to live with him in B. Lodge. He wanted Mrs. P.M. to divorce him so that he could marry Miss J.K. Financial terms were arranged and she applied to the High Court in England under the Law Reform (Miscellaneous Provisions) Act, 1949, for a dissolution of the marriage. On the 16th June, 1966, that court granted her a divorce and, on the same day, he covenanted with Mrs. P.M. that he would pay her a monthly sum of £80. On the 22nd June, 1966, he married Miss J.K. (“Mrs. J.”) in a Registry Office in England.
The testator had encouraged N.M.M. to regard himself as his successor in the M. company and so N.M.M. worked in an associated M. company in Belfast and then transferred to Dublin. The other son, B.S.M. showed an interest in country life and in horse-breeding and so, when he left St. Columba’s he went to the Gurteen Agricultural College and then worked at the S. stud which was owned by C. Estates Limited in which the testator owned almost all the shares. B.S.M. who has a marked impediment in his speech, worked on the stud farm for very low wages and lived at B Lodge. He has had no training in anything except agriculture and horse-breeding. His speech defect is a handicap for him in business but when giving evidence, he showed that he has considerable intelligence and an ironic humour.
Mr. John, who has been in the employment of the M. company since 1933 as an accountant, who has been a wise and faithful friend to three generations of the M. family and who is responsible for much of their prosperity, was very concerned from 1965 on about the very large amount of estate duty which would become payable on the death of the testator: he knew that assets worth about £400,000 would be liable for duty at the 40% rate and that when they consist largely of shares in private companies, the difficulties about raising the money to pay these duties are formidable. There was also the risk that the Revenue would move against the testator as a shareholder in C. Estates Limited because the profits of that company were not being distributed as dividends. So the advice of accountants and lawyers was sought and a scheme to reduce liability for estate duty on the testator’s death was worked out. There was to be a bonus issue of shares in C. Estates Limited and the testator was to renounce these in favour of trustees who would hold on discretionary trusts for his children. Provision was also to be made for the payment of the annual sum to Mrs. P.M. and for an income for Mrs. J. One of the steps in the scheme was the preparation of instructions by the testator to his trustees which would not bind them but which would indicate his wishes and, on the 5th December, 1966, the testator signed a memorandum which included a statement that he would make provision for his two daughters in his will.
In 1967 the testator suddenly decided that he would sell the S. stud and that he would buy another landed property further from Dublin. It has been suggested that Mrs. J. persuaded him to do this but although she may have supported him in the decision, I am convinced that his reasons for it were that he was in bad health, that the responsibility of looking after other peoples’ mares which were brought to the stud weighed on his mind and that he wanted to reduce the load of worry and work which its ownership involved. He was also anxious to get further away from Dublin so that he would not have to take any part in the management of the M. company. I accept all the evidence given by Doctor M.D. and Mr. Michael J. on this aspect of the case and I reject any evidence which conflicts with the testimony which they gave. As however the testator had led B.S.M. to believe that the stud would ultimately be his and as he had encouraged him to make its management his life work, he felt so ashamed about the decision to sell it that he was unable to tell him of it. So he asked Mrs. J. to do this difficult work and B.S.M. naturally thought that it was her decision. A bitter quarrel between the three of them broke out and B.S.M. left B. Lodge and moved to Dublin. His father, however, was so concerned about him that he asked Mrs. P. to take him into her house and she did so. S. stud was sold for £120,000 and the testator purchased an estate, L.R. which he farmed but where he did not have the responsibility of looking after animals belonging to other people. He spent about £40,000 in restoring the house on this property and Mrs. J. and he lived there until his death in October, 1969.
Before I deal with the testator’s will and codicil which have given rise to this litigation, it is necessary to describe the financial position of the children because each of them has a substantial independent means which came from their grandfather and from some of the W. relatives.1 When the grandfather had formed the Trust company, he became entitled to 76,000 £1 shares in it. He decided *3 to settle some of these in favour of his grandchildren and so, by a deed of trust of the 10th May, 1950, in which the testator and Mrs. P.M. were the trustees, he settled 20,727 shares (the allotment of which he had arranged would be made to the trustees) as to two-thirds, in favour of his grandsons when they reached 25 and as to one-third in favour of his granddaughters when they reached that age. The result was that N.M.M. and B.S.M. each became entitled to 6,909 shares in the Trust company and Mrs. P. and Mrs. N. each to 3,454. At the time of the testator’s death the 6,909 shares gave a gross yearly income of £1,382 while the 3,454 gave £691. The dividends on these shares, before any of the children reached 21, were applied by the testator in paying for their education and I am satisfied that almost all the expenses in connection with the children were paid out of the income which came from the settlement of 1950.
Each of the children also benefited under the will of an aunt, Miss Minnie W. She gave more to her nieces than to her nephews but the value of the shares to them was not proved. When, in 1963, B.S.M. got his, they were worth about £10,000. Those belonging to Mrs. R. produced a gross income of £396 in 1964. A list of her securities in 1964 has been handed in. Most of the shares on it were what are now called “growth” equities and in that year would have had an average yield of about 3%. On this basis their value was about £14,000 which fits in with the evidence that the nieces got more than the nephews under Miss W’s. will. In 1963 Mrs. P. (then Miss P.M.) became engaged to Mr. A.L. The testator disliked and distrusted him and he insisted that he should settle all the shares to which she would become entitled under the settlement of 1950 and all those of which she was the owner under her aunt’s will so that she would not be able to dispose of them. A firm of solicitors, who had no connection with the family and who are not acting for any of the parties in this litigation, were consulted and prepared a wholly inappropriate settlement which contains some astonishing provisions and which has had most unfortunate consequences. I am convinced that the testator was wholly responsible for the decision to settle Mrs. P’s. shares and that he gave the instructions. Although he was then a very wealthy man, the settlement gives him a life interest in the income if his daughter and her husband died without children. The property was settled on trust to pay the income to Mrs. P. during her life and after her death to her husband during his life or remarriage and then “in trust for the children of the said intended marriage” as Mrs. P. should appoint. The said intended marriage was the marriage between Mrs. P. and Mr. L. In default of appointment the property was to be held for all the children of that marriage who attained 21 and then in trust for the testator for his life, and, after his death, for his children who were alive at the date of the death of the survivor of Mrs. P. and him. If the testator and the solicitors whom he retained wished to guard against the risk that Mr. L. would get his wife’s property, it is difficult to understand why Mr. L. was made a party to the settlement and why he was given an interest for his life. The marriage to Mr. L. broke up shortly after it was celebrated, Mrs. P. obtained a divorce in Mexico in April, 1966, and is now happily married to Mr. P. and they have children. But although Mrs. P. has the income, her children can never benefit under the settlement and the ultimate result may well be that her brothers and sister may inherit the property. The testator knew this because he sought advice as to whether the settlement of 1963 could be set aside after his daughter had married Mr. P.
When B.S.M. left the stud, he came to Dublin. Mr. John and N.M.M. persuaded those in the M. company that he should be employed in it and he obtained a position as a supervisor of the unloading of timber at a salary of £600. In November, 1968, this was raised to £750, in April, 1969, to £950 and in July, 1969, to £1,100. His salary from March, 1970, has been £1,200 and he gets a bonus of £100 each year. The company also pays the expenses of running his car: these amount to about £200 each year. He was married on the 10th June, 1969, some months before his father died. His father did not attend his wedding and all attempts to reconcile them failed.
The testator made eight wills during his life. By the last one made on the 24th June, 1966, he appointed his solicitor, Mr. R.J.W. and Mr. John to be the executors and trustees and gave 500 shares in the M. company free of legacy duty to Mr. John. He gave all the residue of his estate upon trust to realise it and out of the proceeds to pay the debts, funeral and testamentary expenses (which include the estate duty on the personal estate but not on L.P.) and then to pay the income of it to Mrs. J. during her lifetime or until she remarried. Upon the death or remarriage of Mrs. J., he gave all his shares in the M. company and in a number of companies *4 associated with it and any shares to which he might be entitled to in the Trust company to N.M.M. subject to any death duties payable thereon and, subject to these provisions, he gave all the residue of his property to B.S.M. Clause 7 of the will read: “I have made no provision for my daughters as they are already provided for out of other funds”. By a codicil on the 25th October, 1968, he gave the house and lands at L.P. to Mrs. J. absolutely.
In March, 1969, the testator’s mother, Mrs. I.M., transferred shares in the M. company to her two sons and the testator gave the 4,950 shares which he got from her to N.M.M. The value of these shares at the time was about £11,000. They are now worth considerably more than this. The evidence was that Mrs. I.M. transferred 9,900 shares to her sons but I have not been able to trace whether she gave more to the testator than to her other son or whether he transferred 500 shares which he owned together with those which he inherited from his mother.
In 1969 negotiations between the directors of the M. company and T. Company Limited with the aim of the acquisition of all the shares in the M. company by T. Company began. The testator knew about these and they had reached broad agreement on the terms upon which the M. company was to be taken over when the testator died. The terms which were accepted by everybody were that there were to be two shares in T. Company given in exchange for each ordinary share in the M. company. When the testator died, the price of an ordinary share in T. Company was 55/-: at the date of the hearing of the case the price was 45/- and it is now £2.50 (50/-).
The gross value of the testator’s assets when he died was about £430,000. He had debts of £25,000 so that the net estate before death duties and expenses is about £405,000. These figures are based on the assumption that L.P. will be sold for £70,000. The principal assets were 24,000 ordinary shares in the M. company with a value of £145,000, 19,950 shares in the Trust company worth about £100,000, 800 shares in M.T.R. (Dublin) Limited with a value of £10,000, L.P. which is held on freehold tenure valued at £70,000 and livestock on the lands worth about £42,000. The total amount of the estate duty payable will be about £163,000 but as L.P. is freehold, it will have to bear duty of £28,000. The total amount of duty payable on the personal estate is therefore £135,000.
When Mr. R.J.W. and Mr. John had obtained probate Mrs. P.M. brought proceedings (1970 141 Sp.) against them, Mrs. J., N.M.M. and B.S.M. in which she claimed that she was the testator’s spouse under the Succession Act, 1965. This case, which raised very interesting and extremely difficult questions as to the recognition of the English divorce by the courts in this country, was compromised. The terms upon which it was settled were that the executors were to raise £20,000 and to pay it to N.M.M. and the solicitor acting for Mrs. P.M. in trust for her for her life and after her death as she might appoint with power to them, however, to apply the capital for her benefit. In addition the executors were to pay an annual sum of £2,000 out of the income of the residuary estate to Mrs. P.M. during her life and she released the covenants of 1957 and 1966. L.P. was to be sold and after payment of the duties, the proceeds were to be invested as Mrs. J. might require.
This compromise raises one of the many uncertainties which have made this case so difficult to decide. The yield on T. Company shares is five per cent. while the yield on Government securities today is eight and a half per cent. If, therefore, the yearly sum of £2,000 is to be provided out of shares in T. Company, it will be necessary to retain shares in that company worth £40,000 while if the money is to be invested in Government securities, £24,000 would be sufficient. Mr. John has said, however, that so many shares in T. Company will have to be sold to raise the amount of the estate duty that the price is bound to fall and that if more have to be put on the market to realise the cash necessary to buy Government securities, it will be driven down more. Therefore, he says, the case should be approached on the basis that Mrs. P.M.’s annuity will be provided out of dividends from T. Company shares and on this basis it should be valued at £40,000. Mrs. P.M. is now 61 years of age. The importance of this matter is that it is necessary to calculate what the income of the residue will be because the testator was certainly under a moral obligation to make provision for Mrs. J. and anything given to the three children claiming in this case during her lifetime will reduce the income available. In June 1966 Mrs. J. gave her age as 54 so she is now 59 and according to the Irish life table published in the Statistical Abstract, has an average expectation of life of seventeen years. The executors’ costs of taking out probate and of administration are estimated at £10,000 and the costs of all the litigation are estimated *5 by Mr. R.J.W., the whole of whose evidence I accept, at £70,000.
The unfortunate result of the levy for estate duty and the legal expenses is that there will be nothing available for B.S.M. when Mrs. J. dies or remarries. If, therefore, there was a moral duty imposed on the testator to make proper provision for his three younger children in accordance with his means, he failed to do this and the court must then make provision for each child. It is not an answer to say that the testator tried to make provision for B.S.M. and that this failed because of the large amount of estate duty and legal costs which will be payable. The court must attribute to the testator on the day before his death knowledge of the amount of estate duty which will be payable on his estate and a remarkable capacity to anticipate the costs of the litigation which will follow his death. I realise that this is unreal, that the amount of estate duty payable is usually mercifully hidden from most testators and that it is impossible to anticipate what litigation will follow on death. I am convinced, however, that s. 117 must be interpreted in this way.
Counsel for Mrs. J. and for N.M.M. has said that the three younger children were so well provided for by their grandfather, their aunt and by other relatives who left them legacies that there was no moral duty to them on the testator. It is, therefore, necessary to say something about the history and present financial position of each of the three younger children. Mrs. P. was educated at the French School in Bray and spent a year at a domestic science college at Alexandra. She then did a three year course in physical training at the Ling College, obtained a diploma in that subject and taught for some time in England. All the fees and expenses in connection with this were paid out of the income of the settlement of 1950. She became engaged to Mr. L., executed the most unfortunate settlement of the 16th December, 1963, and married him. There were no children of this marriage and when the marriage broke up, she went back to live with her father in B. Lodge. She got a divorce in Mexico in April, 1966, and subsequently married Mr. D.P. She bought a house in Glenageary and used £2,500 which she got from a grandaunt, V.M., towards paying for the deposit on it. She sold it and as her wish was to live in the country, her husband and she bought the house G.D. and four and a half acres of land at K. This cost £6,200 including fees and they have spent about £9,000 in repairing and improving it. The money for the improvements came from a loan made by the trustees of the settlement of 1963 who realised many of the securities and advanced the money on a mortgage of the property. The house was conveyed to her husband and to her and they are liable to the trustees for the mortgage interest so that in theory, it should be paid to the trustees who should then pay it to her. I am quite sure that this is not done. Before the securities were sold to provide the advance to buy G.D. she had an income of £914 from them and, in the year in which her father died, she had an income of £585 together with the notional interest on the mortgage. The securities in the settlement now give an annual income of £721. The mortgage secures £11,000 at an annual interest rate of 9 per cent, so that there is a notional income of £1,710. Her husband is a full time director in a private company, L.D. Limited, and has a small shareholding in it. It is a family company and he has an annual salary of £3,400. He has the use of a company car and Mrs. P. owns some horses and has her own car. They have, therefore, if one includes the mortage interest, a total joint income of £5,100 and, if the interest is left out of account, £4,120.
B.S.M. has 6,909 £1 shares in the Trust company the value of which is about £30,000. He got £2,000 from a relative, the said V.M., and £1,100 from another relative, but has spent both of these sums. The dividends from the shares in the Trust company give him £1,382 each year and those from the shares which he inherited from Miss W. an annual yield of £750. His salary from the M. company in the year in which his father died was £1,100 and the expenses of his car were paid. Therefore, in the year in which his father died his annual income was £3,432; it is now £3,632. He has bought a house in Dublin and is the owner with N.M.M. of a filly, G.C. which he purchased in November, 1969, and for which £2,000 was paid. She has been entered for the Irish Classics in 1972. I have to make so many informed guesses about the administration of this estate that I hope that I will be forgiven if I do not speculate as to the animal’s success in racing. When the testator told B.S.M. about the sale of the S. Stud, he told him that he would help him with the purchase of a farm: this was obviously intended to make it possible for B.S.M. to carry on the life for which he had been trained but the bitter quarrel between them had the result that the testator did nothing about this. Mr. Matheson has said *6 that B.S.M.’s. position in the M. company is precarious and that if rationalization took place, he would probably lose his position. I thing it extremely unlikely that he will lose his position as long as N.M.M. and Mr. John are associated with that company.
Mrs. N., who is almost 25, went to the French School at Bray and then to Alexandra. She trained as a radiographer for two years at St. Vincent’s Hospital but was too young to do the final examination when the school of radiography in that hospital closed. Her education was paid for out of the income from the settlement of 1950. In April, 1966, she married when her husband, a medical student from Persia, had not qualified. He has since qualified and has finished his intern year and is now doing post graduate research work with the aim of getting a higher degree in medicine. In May, 1969, she sold some of the investments to which she had become entitled under Miss W’s. will and purchased a house in S.A. for £14,000. She has divided the house into two flats, in one of which she lives and the other of which is let. Her income in the year in which her father died was £1,438. This consisted of £390, the net rent which she received from her house after payment of rates, £691 dividends from the Trust company and £357, the income from the remaining investments which she acquired under her aunt’s will. Her husband gets an allowance of £720 a year from his father so they have a flat in a good residential area and a combined joint income of £2,158. Shortly after the testator’s death, her husband began his one-year internship in a Dublin hospital for which he was paid £90 a month. Her husband, who hopes to practise in Teheran, has excellent prospects in the medical world.
Mrs. J. had had a business until she went to live in the testator’s house in 1959. She has no property or means except what she is entitled to under the testator’s will. Without doubt he owed her a moral obligation to provide her with somewhere to live in comfort for the rest of her life and with an income which would make this possible. This obligation, I think, extended to giving her the same standard of living as she had been accustomed to when she was his wife. Counsel for the children invited Mr. O’Neill, counsel for Mrs. J., to state whether he was contending that she was the testator’s spouse for the purposes of the Act of 1965. Mr. O’Neill said that he was but rightly declined to argue this interesting question. The existence of the moral duty to her does not depend upon whether Mrs. P.M. or she is the spouse.
It is necessary now to try to estimate the amount of income which will be available for Mrs. J. out of the estate. This matter was not discussed at all in argument and involves a considerable amount of guess work. The shares in T. Company to which the executors have become entitled will not provide a sufficient sum to pay the estate duty, the amount payable to Mrs. P.M. and costs and as the shares in the Trust company cannot be easily sold, I think it certain that the Trust company will have to be wound up in the near future. The shareholders in it will then become entitled to shares in the T. Company. If L.P. is sold for £70,000 and if the estate duty for which it is liable and other expenses are about £30,000, there is a balance of £40,000. The cost of a residence for Mrs. J. in Dublin would be about £20,000 and the remaining £20,000 if invested in Government securities at the present yield of eight and a half per cent. would give £1,700 each year. The gross personal estate less the debts will be £340,000. £20,000 must be paid to Mrs. P.M., £70,000 will be required for the costs of the proceedings, £10,000 as the costs of probate and administration and £1,500 for Mr. John’s legacy. To this must be added a sum of at least £20,000 to provide the income for Mrs. P.M. and the estate duty of £135,000. All these amount to £256,500: there is thus a residue of about £84,000. If this is retained in T. Company shares and if they give a yield of 5 per cent., the income will be £4,200 while if the residue were invested in Government securities, the figure would be £7,140. If, however, the sum required to provide the income for Mrs. P.M. is taken at £40,000 (as Mr. John suggests it should be), the income from the residue, if retained in T. Company shares, would be £3,200. Mrs. J. would therefore have an income of about £5,000 if she invests £20,000 of the proceeds of L.P. This with a good house would be regarded by most people in this community as being a generous provision for her.
It has been argued that the testator did not owe any moral duty to his children to make proper provision for them because they have adequate incomes and as a subsidiary point, it was said that the testator does not owe any moral duty to a married daughter to give her anything out of his estate. Mr. Baker said that the second of these contentions was “reactionary”. The answer to the *7 problem is not, however, to be found in ambiguous adjectives. In some cases a testator may be under a moral duty to make proper provision for a married daughter: in others he may not. If, for example, a member of our community whose wife had predeceased him had an estate of £25,000 and had sons under 18 and a married daughter, he would not, in my opinion, be under any moral duty to her. I adhere to the views which I expressed in G.E.M., deceased (unreported, in which judgment was given on the 2nd March, 1970).2“It follows, I think, that the relationship of parent and child does not of itself and without regard to other circumstances create a moral duty to leave anything by will to the child. The duty is not one to make adequate provision but to make proper provision in accordance with the testator’s means … It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend upon (a) the amount left to the surviving spouse or the value of the legal right, if the survivor elects to take this, (b) the number of the testator’s children, their ages and their positions in life at the time of the testator’s death, (c) the means of the testator, (d) the age of the child whose case is being considered and his or her financial position and prospects in life and (e) whether the testator has already in his lifetime made proper provision for the child. The existence of the duty must be decided by objective considerations: the court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive”.
The testator, who had gross assets of about £430,000, made no provision for his three younger children out of his property. Two of them had strong moral claims on him. B.S.M. had been induced to believe that he would ultimately become owner of the S. Stud and shaped his life accordingly. The whole foundation of his upbringing and training was swept away when the testator sold the stud and then left L.P. to Mrs. J. absolutely. Mrs. P. had been persuaded by the testator to settle the property which she had got from her grandfather and from her aunt in such a way that she is entitled to the income of it for her life but cannot leave any of it to her husband or her children. The testator has made adequate provision for N.M.M. by putting him into a prosperous business where his considerable commercial talents make it certain that he will have a large income. Mrs. P.M. has compromised her claim and most generous provision has been made for Mrs. J. I am therefore of the opinion that the testator failed in his moral duty to make proper provision for B.S.M. and for Mrs. P.
I have found Mrs. N’s. claim more difficult. With considerable wisdom she had refused to settle her property though the testator was anxious that she should. By Irish standards she has a considerable unearned income. The testator’s obligation, however, was to make proper provision for her in accordance with his means. I think that the size of the testator’s estate, the fact that all the expenses of her education were paid out of income to which she was contingently entitled and which she would get when she attains 25 if it had been accumulated and the uncertainty of her future (married to a doctor who has just qualified), created a duty to make proper provision for her.
As the testator failed in his moral duty, the court must make a just provision for each of the three younger children out of the estate in the way in which a prudent and just parent would do this. There is, however, a preliminary difficulty. If I take the view that a prudent and just parent would have given each of his daughters a substantial legacy, I know that he would do this on the basis that the estate duty would be paid out of the residue and so the amount of it would not be reduced by that duty. But the Act of 1965 imposes liability for this duty at the rate applicable to the estate on any provision which the court makes. Must the court then give a legacy which a testator would have given or should it give one which will take account of the liability for the death duties? In my view the court must give an amount which after deduction of estate duty will be the legacy which it would be just to give.
In my opinion a prudent and just parent would have left L.P. to Mrs. J. for her life or until her remarriage and, on her death or remarriage, would have given it to B.S.M. in substitution for the S. Stud which he was led to believe that he would inherit. He would also have left him some shares in the M. company after the death or remarriage of Mrs. J. But he would have had no idea how many shares would be available when that event happens and I do not know. I therefore propose to give B.S.M. one-sixth of the shares in T. Company and in the Trust Company (if it has not been put into liquidation) *8 which will be in the residue on the death or remarriage of Mrs. J. and after the payment of any death duties to which the residue will be liable on her death. Each of the daughters will be given a legacy of £34,000.
The will and codicil of the testator in so far as they relate to L.P. will accordingly be set aside and, in place of this, there will be substituted a devise of L.P. to the executors and trustees of the will in trust for Mrs. J. for her life or until her remarriage and upon her death or remarriage in trust for B.S.M. absolutely. They will be given power to invest such part of the proceeds of sale of it as they think prudent in the purchase of a residence for Mrs. J. and to allow her to live in any property bought free of rent. The bequest to N.M.M. (which becomes effective after the death or remarriage of Mrs. J.) will be altered by giving B.S.M. one-sixth of all the stocks and shares in the M. company, the M.T.R. Company, the K.B.T. Company and in the Trust company after the death or remarriage of Mrs. J. The legacies to the daughters will reduce the residue to £44,000 which if it gives a yield of 5 per cent will have the result that Mrs. J. will have an annual income of £3,900 and a house.
There was a debate without reference to any authorities as to whether the bequest of the shares to N.M.M. was “property of the deceased not specifically devised or bequeathed but included (either by a specific or general description) in a residuary gift” or whether it was property specifically bequeathed. This question, which arises on the First Schedule to the Succession Act, 1965, (which is modelled on the English Administration of Estates Act, 1925), does not have to be decided. The only authority on the matter which I have been able to find is the decision in Fielding v. Preston (1857) 1 De Gex and Jones 438 in which Lord Cranworth L.C., decided that a bequest of leaseholds for life and, then to a named beneficiary, was a specific bequest after the death of the life tenant. If, however, the issue should become relevant in this case, I think that the bequest to N.M.M. does not become specific until the death or remarriage of the life tenant. For the purpose therefore of the application of assets, the shares are within clause 2 of Part II of the First Schedule to the Act of 1965 (see also re Ridley [1950] 2 All E.R.1 and re Wilson [1966] 2 All E.R. 867.
Counsel for the three children analysed the earlier wills made by the testator in great detail. I have not done this or indeed attached any importance to it because I do not think it relevant. The question is not what the testator thought his moral duty was, the issue is ‘what was his moral duty judged by objective considerations’.
R.G. v P.S.G and J.R.G.
No. 621 Sp
High Court
20 November 1980
[1980] I.L.R.M. 225
(Carroll J)
CARROLL J
delivered her judgment on 20 November 1980 saying: In this case a preliminary point was taken on behalf of the defendants which raises the question of when is a testator not a testator?
S. 117 of the Succession Act, 1965 does not apply in the case of a pure intestacy. The application must be made by or on behalf of a child of ‘a testator’. Therefore the legislature did not intend that a child of an intestate should be able to come into court and make the case that, in his particular circumstances, his share should be greater than that of his brothers and sisters.
S. 117 is included in Part IX of the Act. S. 109(1), which is the first section in Part IX, provides that where, after the commencement of the Act, a person dies wholly or partly testate leaving a spouse or children or both spouse and children, the provisions of that part should have effect.
In this case the deceased made a will appointing his wife sole executrix and univeral legatee and devisee and she predeceased him. The deceased’s will was therefore wholly inoperative and his entire estate devolved as on intestacy. Counsel for the defendants have argued that because of the provisions of s. 109 (1), Part IX (and therefore s. 117) can only apply to the estate of a person who dies wholly *227 or partly testate and that the deceased in this case could not be said to have died ‘partly testate’.
I have been referred to the definition of ‘an intestate’ in s. 3 of the Act. ‘An intestate’ means a person who leaves no will or leaves a will but leaves undisposed of some beneficial interest in his estate and ‘intestate’ shall be construed accordingly.
‘Testator’ is not defined in the Act.
The definition of an intestate as including a person who leaves undisposed of some beneficial interest in his estate means that a testator can simultaneously be ‘an intestate’ within the meaning of the Act. This is recognised in s. 115(2) relating to the right of a spouse to a legal right where a person dies partly testate and partly intestate.
It is also clear that in a case to which s. 117 applies, the court may have recourse by virtue of s. 109(2) to all the disposable estate of a testator (subject to payment of expenses, debts and liabilities) whether devolving as on intestacy or not, in making provision for a child. The only limitation (under s. 117(3) is that the legal right of the surviving spouse may not be affected or, if the surviving spouse is the mother or father of the applicant, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy may not be affected either.
The ordinary meaning of ‘testator’ is a person who has made a will in accordance with the statutory provisions. One consequence which flows from that, is that, regardless of whether the testator has effectively disposed of all or any part of his estate, a grant of probate will issue to the executor or executors named in the will, or alternatively, a grant of letters of administration with will annexed will issue if there is no executor named, or if the executor predeceased the testator, or if the executor named renounces probate. Letters of administration intestate do not issue even if the will is wholly ineffective to dispose of any part of the testator’s estate.
The issue to be decided here is whether a special meaning should be given to the word ‘testator’ in s. 117 by virtue of s. 109(1) which refers to a person dying ‘partly testate’. Can a person who has made a valid will but has failed to dispose of any part of his estate be said to have died ‘partly testate’?
I have been urged to hold that the meaning of ‘partly testate’ cannot mean simply leaving a will, but rather leaving a will that is operative. But to depart from the ordinary meaning of testator is to introduce an arbitrary element. If the test is to be ineffectiveness as to disposition of the testator’s property, a testator may have appointed a guardian of his infant children, executed a power of appointment, given directions as to burial, appointed an executor and yet failed to dispose of any part of his own property. It would really be stretching the meaning of language to hold that he did not die partly testate.
If the test is to be a totally inoperative will in every respect, this again may turn out to be arbitrary. If an executor, validly appointed, survives the testator but renounces probate, a will which otherwise would be partially operative then becomes totally inoperative and if the arguments as to the meaning of ‘partly testate’ were accepted, the right of a child to apply under s. 117 would depend on whether or not the executor could be persuaded to take out probate.
In order to decide if a person has died wholly or partly testate, it is necessary first to decide if he dies testate. The state of testacy does not depend on the effectivenes of the will. It depends on the effectiveness of the execution of the will. If testacy is established, then in my opinion it follows that the person must die wholly or partly testate. There is no third state of testacy — that is, a state of testacy which is neither whole nor partial.
Accordingly it is my view that a person who has made a will in accordance with the statutory provisions, dies testate. If he has disposed of his entire estate, he died wholly testate. In every other case he dies partly testate.
A testator must be presumed to know that if any bequests or devises lapse, they will fall into residue. Similarly he must be presumed to know that if the residuary legatee or devisee or (as in this case) the universal legatee and devisee, predeceases him, his residuary estate or entire estate, as the case may be, will devolve as on intestacy. Therefore a testator should be presumed to make a will knowing that it will be supplemented, if necessary, by the statutory provisions relating to distribution on intestacy.
But because his estate is said to devolve as on intestacy, does not mean that he has not died testate. The only way a testator, having made a valid Will, can cease to be a ‘testator’ is by revoking the will in accordance with s. 85 of the Act by one of the means mentioned in that section, other than by making a new will.
I therefore hold that s. 117 applies in this case because the deceased died a testator and I turn now to consider the merits of the plaintiff’s application.
The plaintiff is the eldest son of the deceased testator who died on 6 December 1976. He is a farmer of 47 years of age. He is married with one child now aged 8. The defendants are the personal representatives of the deceased and have taken out a Grant of Administration with Will Annexed to the estate of the deceased. They are brothers of the plaintiff and the three of them are the sole next of kin of the deceased and the only persons entitled to share in his estate. The first named defendant (now aged 40) is an owner/driver of a lorry, employed under contract by Roadstone, with three children now aged 15, 14 and 8. The second named defendant (now aged 46) is a teacher with four children now aged 17, 15 10 and 6.
The deceased owned a farm of approximately 150 acres in County Wicklow. The plaintiff left school at the age of 14 to work the farm. He said (very honestly) that even if he had been given the opportunity of further education, he would not have wanted to stay at school. Be that as it may, he stayed at home, worked the lands and lived in the family house with his father and mother. He married in 1965 and his wife moved into the family home. About that time he wanted to move out of his parents’ house to a farm of about 45 acres at Harristown which was owned by his mother and was situate about eight miles away. He was persuaded by his mother and father not to move because the home farm would be his eventually. I am completely satisfied that the plaintiff was always encouraged by both his father and mother (who was the dominant figure in the home) to believe that the farm would be his one day. This was repeated to him by his father less than a week before he died.
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The plaintiff stayed on with his parents after his marriage and he also made a venture about that time into the haulage business by acquiring a lorry and employing a driver. But it was not a financial success and he gave it up completely in 1974.
The plaintiff and his father carried on mixed farming. They had a dairy herd, store cattle, a bull, sheep, some tillage to grow food for the cattle, perhaps selling a load to cover the cost of seed. The plaintiff was paid no wages for his work but the household expenses came from the creamery cheque and the mart cheque when stock was sold. If he or his wife needed money for anything, he said they asked for it. Sometimes the deceased told him to take money out of the mart cheque when he (the plaintiff) was lodging it in the bank. The finances of the farm were run very casually and I am sure that the deceased treated the monies in his current account as being monies belonging to the household generally.
Apart from getting money for special purposes when asked for, the plaintiff just got pocket money over the years, never very much. He and his wife also had the use of the family car.
In 1970 a small area of land comprising about 4 acres was bought by the deceased from the E.S.B. for approximately £415 and he gave it to the plaintiff. It was land adjoining the farm and had been rented from the E.S.B. When he got the opportunity of buying, the deceased bought it.
The plaintiff worked hard with his father to run the farm and, being a dairy farm, it meant working seven days a week for 365 days of the year. His wife also played a full part in the running of the farm. There were two permanent workmen employed but one of those died around 1969 and the other went to England. After that only casual labour was employed.
The mother of the plaintiff died on 1 April 1969. By her will she left a parcel of land comprising approximately 18 acres adjoining the home farm to the plaintiff charged with £300 for the second named defendant. She left the 54 acres at Harristown to the first named defendant for life with the provision that the remainder was to go either to his eldest son if he reached 21 or to the plaintiff, as her trustees would decide. Her trustees are the second defendant and a clergyman. The second named defendant was left a house in Blessington which he subsequently sold for £7,000. The residue which amounted to little was left equally between the three of them.
After his wife’s death the testator lived on in the farm with the plaintiff and his wife. I am sure the household was a happy one and the defendants and their families were regular visitors at weekends.
Over the years the plaintiff gradually acquired stock on his own account. This he did by buying and selling as the market demanded and by rearing calves and sheep. Both the defendants accepted that he did have stock on his own account, apart from his father’s. The plaintiff said that at the time of his father’s death approximately 75% of the stock was his own. I have no reason to believe that this estimate is not true.
The deceased died suddenly in his seventies without warning. When he died it was discovered that he had never made a will after the death of his wife and accordingly the deceased’s estate fell to be distributred as on intestacy. The plaintiff *230 took exception to his brother, the second defendant, coming around asking questions and, as he put it, ‘dictating’ to him. The relationship between them deteriorated, although the plaintiff has remained on good terms with his other brother, the first defendant.
The plaintiff has made a claim under s. 117 that his father, the testator, has failed to make proper provision for him in accordance with his means. Taking all the circumstances of the three brothers into account and looking at it objectively, I do not think that this is a case where equality is equity. I am of opinion that the testator failed in his moral duty to make proper provision for the plaintiff in accordance with his means. I do not accept that leaving the plaintiff with one third of the deceased’s estate would constitute proper provision.
Farming is the only occupation known to the plaintiff since the age of 14. He was always encouraged to believe that the farm would be his. He was discouraged from leaving home when he married. Therefore the testator owed a moral duty to the plaintiff to make proper provision for him and provide him with a means of livelihood from farming reasonably comparable with what he enjoyed before the death of the testator. The life style which they enjoyed was not one of luxury. It was one of hard unremitting work. It would not have discharged the testator’s moral duty to leave the minimum amount of land from which a living might or might not be wrested. Adequacy is not the test. There must be proper provision in accordance with the testator’s means. The living which the plaintiff could make from the land should in this case be reasonably comparable with what he enjoyed prior to his father’s death.
But account must also be taken of the defendants and their circumstances. The first defendant was given the opportunity of secondary education but he left school at 15 or 16 years of age. He worked on the farm for some time, then, after a few years, he left home because his mother did not approve of the girl he wanted to marry. He went to work in England and worked at a variety of hard manual jobs over there. He married the girl of his choice and happily after some time the breach with his mother was healed. He came home after about seven years with his wife and child in 1966 and went to live on the lands of Harristown in which his mother eventually left him a life estate. At that time he got a job with Roadstone, driving his own lorry. His father gave him a small sum (either £135 or £175) towards the cost of buying the lorry which he got on hire purchase. The money probably was a down payment.
The first defendant has worked hard all his life. He now works long hours in the summer and somewhat shorter in the winter. He bought his house in Clondalkin for £4,000 partly through letting the lands of Harristown for a lump sum for five years for £3,300. He borrowed £700 which was the balance of the purchase money and paid this off in three years. He still lets the lands of Harristown and this year the rent was £2,000. He owns his own lorry, in the sense that he is buying it on hire purchase. But in another few years he will have to change the lorry for a new one. So that although the list price of the lorry is £23,000, the H.P. repayments on that (currently running at £458.70 per month) and on its replacement will probably always be a feature of his finances as a lorry driver. He has three children who are now entering an expensive age. He said he was *231 not too happy to be a lorry driver but was glad to have a job and that he would like to farm if he could. His gross weekly earning i 1976 were £250 to £300 approximately and are now about £450. This works out nett at about £90 a week everything paid (i.e. running costs, H.P., income tax). In 1972 his father gave him £1,000 out of the estate of his aunt Sarah and also gave out of the same estate £500 National Loan to his eldest son. His father had been the sole beneficiary of Sarah, a sister of his.
The second defendant was given a university education and he became a teacher. His annual salary is now £8,500 gross. His nett earnings per week after tax are approximately £110 to £120. When he got married in 1962 he bought his first house out of his own savings with the help of a mortgage. In the year 1972 his father gave him £1,000 in July and £1,000 in October out of Sarah’s estate and he had £7,0000 from the sale of the house in Blessington which was left to him by his mother. With this money he was able to buy another house for £13,000 with the help of a mortgage for £2,500. His eldest son was also given £500 National Loan out of Sarah’s estate. He ultimately sold his first house for £9,000 in 1975 and used the money to buy fifteen acres of land (Fisher’s field) near the family home for £15,000 shortly after his father’s death. He made up the balance from his savings. It says a lot for his careful mode of living that he could save sufficient out of his teacher’s salary to enable him to purchase these lands. But even if he can manage and has managed on his salary, that does not mean he is not entitled to expect some part of his father’s estate. His children are also coming to a very expensive age, particularly if they go on to third level education.
Both defendants are entitled to expect some share in their father’s estate both for their own benefit and to help with their children’s education.
The assets of the testator which are available for distribution consist primarily of land. There are three folios. Folio 4854 comprises 44 acres 1 rood and 11 perches, being part of the lands of Glashina and it is on the lands comprised in this folio that the house is situated. Adjoining that there there are the lands in Folio 7598 County Wicklow comprising 41 acres 1 rood and 7 perches, also part of the lands of Glashina.
On the other side of the road are the lands comprised in Folio 7599 comprising 65 acres 3 roods and 21 perches, being partly the lands of Glashina and partly the lands of Burgage Moyle. The lands are second grade lands and are all roughly of similar quality. The value of these lands has been estimated by the plaintiff’s valuer to be about £170,000 and by the second defendant’s valuer to be between £240,000 and £27000.
The stock forming part of the testator’s estate is estimated in the revenue affidavit at £60,000. The plaintiff estimated that at the time of the testator’s death the stock on the farm consisted of approximately 25 to 30 cows, approximately 40 to 40 bullocks and heifers, approximately 25 to 30 calves, a bull and approximately 100 ewes. He claimed to own 75% of these, which I accept. So the estimate of £60,000 for stock belonging to the testator’s estate is an overestimate. The deceased left in his current account cash amounting to £1,615.29 and on deposit account £7,026.40. Household goods were estimated at £1,000. There would also be farm machinery and the family car which was insured and registered in the deceased’s name.
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I consider that the just division of the deceased’s estate, trying to be as fair as possible to the plaintiff and to the defendants, is to give to the plaintiff firstly the house and all its contents, all personal effects of the deceased, all farm machinery, the car and all stock on the farm, and secondly some of the lands.
The plaintiff claimed 75% of the stock. The evidence was that if the stock was reduced by 25% the farm could be reduced by approximately 40 acres. Therefore as regards the land I would give all the lands in Folio 4854 and 7599 to the plaintiff. This will enable him to carry on farming, not to the full extent as before but hopefully he will have a reasonable living on the reduced acreage. This leaves the lands comprised in Folio 7598 comprising 41 acres 1 rood and 7 perches together with the cash in the bank to fall into residue. This land is the land which would cause least damage to the farm by loss, according to the plaintiff’s valuer. The land which I have designated as falling into residue, has no direct access to the public road. However the plaintiff owns 3 acres 3 roods and 37 perches, being the lands bought from the E.S.B., which give the lands in Folio 7598 access to the public road; I therefore make it a condition of the provision I have made for the plaintiff that the plaintiff transfers (at the cost of the defendants) his title in these lands (being the lands comprised in Folio 1407F) to the defendants free from incumbrances (other than casements presently affecting the lands) as tenants in common at the same time as they assent as personal representatives to vesting of the lands in Folio 4854 and 7599 in him. This will make a saleable unit for the defendants. The plaintiff is to have the use of all the lands of the deceased until the assent to vesting is made and he does now have to account for the rents and profits of the lands comprised in Folio 7598 since the death of the deceased.
I have considered whether I should or could made a distinction between the two defendants in the absence of any application from either of them under s. 117. I reached the conclusion that I could stipulate that more was to be taken from one brother’s share than the other, if that was the just thing to do. However I have decided to make no distinction between the two defendants in the cirsumstances of this case. They both own their own houses. The first defendant has a life interest in 54 acres with a strong prospect that his eldest son will inherit the remainder interest. The second defendant has 15 acres which he bought himself. The first defendant has three children and the second defendant has four children. So taking all into account I will not disturb the equal division of the residue between the defendants after the plaintiff has been given the share which I have allocated to him.
With regard to costs the defendants will have to pay all the administration costs and their expenses of this action out of the residue so I think the just thing to do is to provide that the plaintiff should pay his own costs. He will probably have to sell some stock because of the reduced acreage and he can discharge his costs out of the money realised from the surplus stock.
MPD v MD
[1981] ILRM 179
There might at first appear to be an anomaly where there is a claim by a child in respect of a diminished intestate share, which is allowed under s.121, while an application can only be made under s.117 where the deceased died wholly or *182 partly testate. But this is not really so, because, if the application under s.121 is successful, the disposition is deemed to be a devise or bequest made by the deceased by will, which would bring the child’s claim within the ambit of s.117.
Therefore, so far as the application under s.121 is made in the interest of the children, it must be taken in conjunction with the application under s.117. During the course of the case it was never argued on behalf of the defendant that the right of the children to make an application under s.117 was barred. The defendant opposed the application on the grounds that the deceased had not failed in his moral duty to make proper provision for the children of his marriage with the widow, but it was not argued that their claim was barred by lapse of time. In fact I have a note taken on the first day, when the question of whether the proceedings under s.121 were barred or not was being argued, to the effect that counsel for the defendant said the proceedings under s.117 were not being taken as barred.
However, the court is presented with a difficulty by reason of the wording in relation to the time limit in s.117. S.121(5) is expressed as an enabling provision but s.117(6) is expressed as limiting the power of the Court viz: ‘An order under this section shall not be made except on an application made within twelve months etc.’ If the court has no power to make an order under s.117 in an application under that section because the proceedings have not been instituted within the twelve month period, and if I am correct in my interpretation that an application for an order under s.121 is dependent on the success of an application under s.117, it follows that the court cannot make an order under s.121 in the interests of the children.
There is however a specific section in the Act which deals with the extension of the limitation period in the case of disability. S.127 provides:
S 49 of the Statute of Limitations 1957 which extends the periods of limitation fixed by that Act where the person to whom a right of action accrued was under a disability, shall have effect in relation to an action in respect of a claim to the estate of a deceased person or to any share in such estate, whether under a will, on intestacy or as a legal right, as if the period of three years was substituted for the period of six years mentioned in sub-s.(1) of that section.
The disabilities referred to are those set out in s.48 of the Statute of Limitations 1957 and are: (i) Infancy, (ii) being of unsound mind and (iii) being a convict, subject to the operation of the Forfeiture Act, 1870, in case no administrator or curator has been appointed under that Act.
The question to be decided is whether s.127 applies to applications under s.117 so that in cases of disability (e.g. infancy) the period of limitation as fixed by this section is extended to the period of three years after the disability ends. If it does not, it means that infants (or other persons under a disability) will be deprived of an opportunity of making an application under s.117 after one year from the raising of representation, even if the appropriate person to bring the application on their behalf as next friend may have a conflicting interest.
In the case where a father of a young family dies leaving a life estate to his wife with remainder (e.g. family business or farm) to his eldest son, the mother *183 may be satisfied with that arrangement knowing that she will look after all the children out of her life interest and ultimately the family business or farm will go to the eldest son. But if she dies after a year has elapsed from representation being raised and while the children are still infants (or alternatively if she elects after the year has elapsed to take her legal right in lieu of her life estate) there is no provision whatsoever made for any of the infant children other than the eldest son. If there is no extension of time under s.127 for the infant children, they are deprived of their remedy under s.117. I am sure there are many other examples which would show that there are compelling reasons why a time limit of twelve months set out in s.117(6) should be mitigated by the application of s.49 of the Statute of Limitations 1957 as amended by s.127 of the Succession Act, 1965, or in some other way.
Equally there are reasons why the administration of estates should not be delayed beyond a reasonable time. This was adverted to by the Supreme Court in Moynihan v Greensmyth [1977] IR 55 at 72. The effect of applying s.49 of the Statute of Limitations 1957 as amended by s.127 of the Succession Act, 1965 to claims under s.117, would be to leave the estate of a deceased testator open to claims on behalf of his children until the extended period had elapsed, i.e. three years after the disability ended. Because I was concerned about the jurisdiction of the court to make an order under s.117 if s.127 did not apply to applications under that section (which had not been argued), I relisted the case for further argument on the point of jurisdiction and whether s.127 applied or not.
The case of O’Brien v Keogh [1972] IR 144 was cited as advancing a general principle in favour of a lenient interpretation of statutory provisions relating to limitation periods where infants were concerned. To my mind, that case concerned the constitutionality of s.49 sub-s.2(a)(ii) of the Statute of Limitations 1957 and it was decided that the particular sub-division of the sub-section was unconstitutional. In this case the constitutionality of s.117(6) was not raised.
After the case was relisted for hearing, the defendant did not reiterate that she was not relying on the time limit contained in s.117(6) and she did not agree that the court could make an order under s.117 notwithstanding that the summons was issued outside the twelve month period. Accordingly I must decide the matter.
S.127 applies to actions in respect of a claim to the estate of a deceased person or to any share in such estate whether under a will on intestacy or as a legal right. Because the qualification ‘whether under a will, on intestacy or as a legal right’ does not go on to state or ‘otherwise’, the claims to which the section applies in my opinion are limited to those specified i.e. arising under a will, on intestacy or as a legal right.
An application under s.117 is not a claim ‘under a will’. It is a claim made independently of the will and against its provisions. A claim under s.117 is not a claim ‘on intestacy’ nor can it be regarded as a claim as ‘a legal right’ taking the general meaning of those words. ‘Legal right’ has a special meaning in the Succession Act and is defined in s.3 as a right of a spouse under s.111. It is again similarly defined in s.112 and in s.118 is placed in contradistinction to a claim under s.117. Therefore it appears to me that s.127 does not apply to an applic *184 ation under s.117.
Next I must consider whether the wording of s.117 (6) precludes me from making an order even if I am satisfied that such order should be made.
Normally, unless a defendant specifically relies on the defence of effluxion of time as barring a claim, the claim will be decided on the merits. However, this appears to me to be a case where both the right and the remedy are barred. I am reluctantly forced to the conclusion that s.117(6) lays down a strict time limit which goes to the jurisdiction of the court and which cannot be ignored even though the defendant did not rely on the time until the last minute when the case was relisted. Accordingly even though I am satisfied (as I shall show later) that it is an appropriate case to make an order under this section and that a serious injustice will result for the children, I do not see how I can make an order in view of the wording of the section. I might add that if the defendant had consented to jurisdiction I would have felt free to make an order under s.117 with such consent.
In the hope that I will be found to be wrong on appeal or alternatively in the hope that the defendant will revert to her original attitude and will not rely on this part of my judgment, I considered it proper, having heard all the evidence, to give judgment on all aspects of the case. Accordingly I will proceed to give my judgment as if the jurisdiction point had not arisen.
The first aspect concerns the claim under s.121. As I have already said, I must dismiss the claim of the widow under s.121 on her own behalf, because that claim was issued out of time. The claim on behalf of the children is on a different footing. There is no time limit applicable to their claim under s.121, except in so far as it is dependent on the success of the application under s.117. If an order can be made under s.117, an order can also be made under s.121. Therefore, assuming the application under s.117 not to be barred, I must go on to consider the merits of the application for an order under s.121 in so far as it is made in the interest of the children.
The disposition of proprety made by the deceased within three years of his death, in respect of which the claim under s.121 is made, were: (1) The transfer to the defendant of 50% of the issued shares of the company which owned the business premises for the sums of £1,000 and £2,000; and (2) The transfer of the house in which the deceased was living with the defendant and their two children from his sole name into the names of himself and the defendant as joint tenants.
By allowing the defendant to buy the shares at the price negotiated with the retiring partners, the deceased was allowing her effectively to acquire a half interest in the premises at an under value. Therefore there was a considerable element of gift in the transactions.
In 1974, when the first transfer of shares was made, the defendant was at that time in the course of studying to become a member of the same profession as the deceased, with the intention of going into partnership with the deceased. The same facts applied two years later when the second transfer was made. The defendant did not in fact qualify until shortly after the death of the deceased.
In relation to the house, the evidence was that the deceased wanted to make *185 provision for the defendant and her children. It seems to me that the purpose of the transactions in relation to the house and in relation to the share transfers was to provide for the deceased’s second family and was not necessarily intended to result in diminishing the provision for his children by his wife.
Therefore, I must dismiss the claim under s.121 on behalf of the children on the grounds that there is no proof, either directly or by inference, that the dispositions were made by the deceased for the purpose of leaving his children by his wife insufficiently provided for.
This still leaves the question to be decided whether the deceased failed in his moral duty to make proper provision for his four children by his wife in accordance with his means. It is therefore necessary to consider not only the provisions of the will but also the effect of the separation agreement between the deceased and his wife.
Under the separation agreement the maintenance for the wife and the children was to be reviewed upwards in accordance with the cost of living. This was reviewed once in or about 1975 to £100 per week. Evidence was given that, if a sum of £3,500 a year in 1969 was increased to take account of inflation up to 1 January, 1980, the sum which the widow would be receiving on that date would be £12,551 a year. This is relevant in considering the level of maintenance which the children could reasonably expect to get after the death of the deceased.
In fact the defendant has continued to pay the £100 per week to the widow since the date of death of the deceased together with providing a leased car and running expenses of it, pending the outcome of the actions. Counsel for the widow has argued that the obligations of the deceased under the separation agreement continued after the death of the deceased and would continue for the lifetime of the widow. He particularly drew attention to the arbitration clause which provided for arbitration between the parties or their representatives.
Even though it is only necessary for me to determine whether and to what extent the children of the deceased were entitled to any benefits under the separation agreement after the death of the deceased, I have been asked to construe the agreement as a whole. Counsel for the defendant has argued that the obligations of the deceased ceased on his death on the principle ‘actio personalis moritur cum se’.
In my opinion the widow became entitled under the separation agreement for her life to a right of residence in the family home. This right continued after the death of the deceased and to this extent the provision relating to arbitration between the parties or their respective representatives is relevant. Apart from the right of residence it seems to me that the agreement was not intended to continue beyond the period of the joint lives of the parties and the phrase ‘for the duration of this agreement’ must be given this meaning. (See in Re Liddington Liddington v Thomas 1940 1 Chancery 938). The right of the widow to be maintained by the deceased which he fulfilled during his life under the separation agreement, was translated after his death into her right to claim a legal share in the one third of his estate, if she was not satisfied with the provision made for her by the will of the deceased.
Since the deceased disclaimed all rights whatsoever to all personal chattels, *186 effects, furniture and property in the family home they became the property of the widow under the agreement and do not form part of the estate of the deceased. The maintenance to be paid by the deceased to the widow was not only for herself but also for the maintenance and support of her children. Education, medical and hospitalisation fees were to be paid by the deceased in addition to the sum for maintenance. Since the obligations of the deceased to pay maintenance for the children under the separation agreement ceased on his death, the deceased had a moral duty to make proper provision for his children by his will in accordance with his means.
On the death of the deceased the widow became entitled to the proceeds of a policy of insurance under the Married Woman’s Status Act, 1957. This did not form part of the estate of the deceased. She was paid the sum of £31,887. She spent approximately £15,000 of this in repairs to the house. She said the house badly needed it and she wanted a nice home for her children. The widow was never given any training to enable her to earn her own living. She works now in a part-time job earning very little money and she is in effect living off her capital. Her mother died shortly after the deceased and left her approximately £10,000 in shares and a flat which she owned in St. Anne’s. However, I do not consider that any of these assets which have come into the hands of the widow should be taken into account to reduce the liability of the deceased’s estate in respect of the children. The widow will need all her own resources to support herself for the rest of her life.
The will of the deceased is dated 25 March, 1976. The relevant provisions in the context of this case are as follows:
1. The deceased gave to his widow a one third share in his estate, this share to include the family dwellinghouse together with the furniture fixtures and fittings therein.
2. He bequeathed his interest in the property company together with the interest and good will of the firm carrying on his professional practice to the defendant, the practice to be carried on by her.
3. He left the residue of his estate to his trustees on trust for sale to pay out the proceeds, funeral and testamentary expenses and debts and to apply the residue of the monies for the benefit, maintenance, education and advancement of his six children (who are all named in the will) in such manner and upon such conditions as they should in their absolute discretion appoint and in default of such appointment among his said children in equal shares.
If the residue were of sufficiently large proportions to ensure that there were adequate funds to provide proper provision for his children by his wife, (assuming that he also fulfilled his moral obligations to the defendant and her children) there is only one alteration which I would see as necessary. I am of opinion that a prudent and just parent would not have given to the defendant a discretionary power to appoint among her children and the children of the widow. I consider that if the deceased wanted to provide for his children by way of discretionary trust he should have provided one fund for the children by his wife over which she could have had power to appointment and another fund for his children by the defendant over which the defendant could have had the power of appoint *187 ment. The defendant has said she does not intend to exercise the power and will let the residue vest in default of appointment equally. But I do not consider this to answer the exigencies of the case. Perhaps the deceased’s children by his wife might need the money more than the defendant’s children. But it would be asking too much of human nature to expect that the defendant would disinherit her own children in favour of the children of the widow.
The question about the form of the discretionary trust of the residuary estate is largely academic because one thing is very clear and that is that the residue, even before payment of legal expenses or allowing for the widow’s one third share, will be approximately £6,000.
In order to decide whether proper provision has been made for the children in accordance with the deceased’s needs, the size of this estate must be examined. After payment of debts and expenses including estimated Probate costs of £1,700 there will probably be a cash balance of £6,656.37.
The property which the deceased had available to him as disposable property consisted of: 1. The practice itself. 2. A half interest in the business premises in which the practice was carried on. 3. The remainder interest in the original family home. 4. The cash residue.
The value of the disposable property I estimate as follows:
1. The practice:
1. The type of practice carried on by the deceased’s firm is of a kind which results in a very high turnover in proportion to profits. Therefore, it does not appear to me to be realistic to value the property on the basis of one year’s turnover, which is how the accountant for the widow valued it. But equally I do not agree with the accountant for the defendant who said that nothing should be given for goodwill and that the purchase price would be equal to the profits for one year or a year and a half.
The profits for the twelve months ending 31 October in the years 1974 to 1979 inclusive are as follows:
1974
£9,296
1975
£5,830
1976
£13,238
1977
£17,582
1978
£17,978
1979
£3,692
The figures for the broken year 1976 1977 are obtained by combining two sets of accounts. The reason for the fall in profits in 1979 was due to the postal strike and must be disregarded. The practice had recovered to normal at the time of the hearing but the accounts were not available for the twelve months to 31 October, 1980. I estimate the value of the practice at the date of death to have been £18,909, that is, twice the average yearly profit for the three years prior to 31 October, 1976. I estimate the value of the practice now to be £35,756 that is twice the average yearly profits for the three years prior to 31 October 1979 taking an estimated profit of £18,374 for the year 1979 instead of the actual profit of £3,692.
2. The Business premises:
2. The business premises in which the firm carry on the practice are extremely valuable. They were worth £100,000 approximately at the deceased’s death and are now worth about £200,000 approximately. The *188 The annual rent which could now be charged on the basis of vacant possession is approximately £20,000 per annum. The rent which could have been charged in 1976 with vacant possession would have been approximately £10,000 per annum. The firm occupied the premises without any formal tenancy agreement. When the fee simple was purchased not many years ago, a payment was made to the bank from the accounts of the practice equal to the amount of the repayments due to the Bank to discharge a loan and was entered in the books of the practice as rent. However, this appears to have been a matter of accountancy done on accountant’s advice, rather than a payment of rent with intent to create the relationship of landlord and tenant. Therefore, I hold that the firm carrying on the practice is a licensee of the premises owned by the company and not a tenant.
3. The family dwelling-house:
3. Under the terms of the deceased’s will the widow is given one third of the estate to include the dwelling-house together with the furniture, fixtures and fittings therein. Since she is entitled to a right of residence in the house for life and to the furniture, fixtures and fittings therein absolutely under the separation agreement, the estate of the deceased is only entitled to the dwelling-house subject to the widow’s right to residence. According to the evidence the life expectancy of the widow is twenty five years. The value of the house now with vacant possession is approximately £23,000. It is difficult to estimate what a purchaser would pay for a house subject to a right of residence which could last twenty five years. Based on the evidence I would estimate the value of the deceased’s interest in 1976 at the date of death to have been £1, 500 and I estimate it now to be £3,000.
In deciding what provision the court should make for the children regard must be had to the value of the entire estate not only at the date of death but also at the date of the hearing. The court must consider whether at the date of death the provision made by the deceased was proper provision. If it was, then subsequent fluctuation in the value of the assets is irrelevant. If the court decides that it was not proper provision at that time, it must move on to make such provision out of the estate as the court thinks just. The provision must be just at the time the court makes its order therefore the court must have regard to the value of the entire estate at the date of the hearing.
Disposable estate at the date of death was as follows:
Practice
£18,900
Business
Premises
£50,000
Family Home
£1,500
Residue
£6,600
TOTAL
£77,000
Out of this disposable estate the deceased gave the widow a one third interest to include the family home. He gave the practice and his interest in the business premises to the defendant. This effectively rendered the residue inadequate to provide proper provision for his children. Therefore, I am of opinion that the deceased at the date of his death failed in his moral duty to make proper provision for his children by his wife in accordance with his means whether by will or *189 otherwise and accordingly that it is an appropriate case for the court to make such provision for them as the court thinks just.
The value of the disposable estate at the date of the hearing was:
Practice
£35,756
Business
Premises
£100,000
Family Home
£3,000
Residue
£6,600
TOTAL
£145,356
In making provision for the children the court must take into account the moral obligations of the deceased towards the defendant and her children (see L v L [1978] IR 288. However, there is a sharp contrast in the relative positions of the widow and her children and the defendant and her children.
The defendant is now a fully qualified professional woman. She was able to carry out her professional studies while living with the deceased. She operates the practice out of premises in which she owns a 50% interest by virtue of the disposition of shares during the deceased’s lifetime. She is now a sole owner of a dwelling-house which was provided by the deceased. Her earning capacity is very high and is sufficient to maintain a very high standard of living for herself and her children.
I consider that the moral obligations of the deceased to the defendant and her children were discharged partly in his lifetime by the disposition of the house and the shares and partly by his will in giving her the practice to be carried on by her. The practice is her means of livelihood and her means of providing for her children. If anything should happen to her while her children are infants, her estate will comprise all this property and will exist for the benefit of those children.
The children of the deceased by his wife, on the other hand, if they have to rely on the provisions of the will, will effectively have no maintenance or other provision from their father’s estate. The eldest child is finished school. She is now twenty-one. She has had no training except that she did a beauty course. Her mother says she would like to improve herself. She has a job but is earning very little and cannot afford to pay all her living expenses (e.g. dentists’ bills). The next child who is eighteen has left school. She is a clever girl and is doing a secretarial course but could possible benefit from further education. The next child who is seventeen is still at boarding school and he is doing his Leaving Certificate this year and will go on for third level education, depending on his results. The last child is sixteen. She is still at school and is not academically inclined at the moment.
I consider the proper provision for the children of the deceased according to his means should include provision not only to house, clothe, maintain, feed and educate them and ensure that medical, dental and chemists’ bills are provided for until they finish their education and are launched into the world but should also include some provision by way of advancement for them for life. Proper provision by the deceased for his children by his wife should have ensured a *190 reasonably equitable distribution of his property between his two families so that his children by his wife would not have to live in straitened circumstances while his children by the defendant could live to a high standard due to a large extent to the provision he had made for them and the defendant.
In making a division of the deceased’s estate I must take into account that the widow is entitled to one third of the estate. I do not think that any problem arises from the fact that notice to elect under s.115(4) has not yet been served, so she has not yet indicated whether she is taking under the will or her legal right. It appears to me that there is no appreciable difference between the two. I am assuming that the deceased’s residual interest in the family home will form part of the widow’s one third share whether she elects or not. In the separation deed no provision was made to give the children a right of residence in the house. However, as long as their mother becomes absolutely entitled to the house I am satisfied that this will ensure that they have a home.
I also assume that she will become entitled to appropriation of one third interest in the deceased’s moiety of the business premises as part of her one third share. On that basis I would make an order appropriating the remaining two third interest in the moiety of the business premises for the benefit of the children by the wife. The end result which this will achieve is that the family home and one half interest in the business premises is held either by the widow or her chidren. The defendant has her family home and the other half interest in the business premises. She also has the practice as the means of earning her livelihood.
There will be adjustments to be made in respect of the payments made to the widow since the death of the deceased. The rents and profits in respect of the business premises will have to be accounted for by the defendant. If the rent which could have been charged at the date of death was £10,000 and at the date of hearing in 1980 was £20,000 then if the increase is spread over the intervening years it appears to me that the moiety representing the rents and profits of the deceased’s share can be calculated as follows:
For the year
1977
£5,000
1978
£6,250
1979
£7,500
1980
£8,750
1981
£10,000
This would leave a figure of £27,500 due in respect of one moiety of the rents and profits for the four years 1977 to 1980. There will have to be a set off in respect of the money already paid by the defendant to the widow pending the outcome of these proceedings.
The income which will be derived from the two third moiety interest in the business premises (or the proceeds of sale thereof) is to be held by the widow on a discretionary trust to use such income for the benefit of all or any of the children for the next four years until 25 June, 1985. At that date the youngest child will be twenty one. It is probable that the education and maintenance of the two younger children may cost more than the two elder children both of whom have left school. Their mother will be able to use the income as she thinks fit *191 for any one or more of them, as one child may need more at any given time. At the end of the period the property is to be divided equally between all the children. In the interval the mother may also have power (as she sees fit) to settle any part of the capital not exceeding one quarter of any one of the children.
I consider that these arrangements constitute just provision for each of the children.
The defendant, if she decides to carry on the firm at the business premises in lieu of selling them, is entitled to a tenancy agreement. I consider that the interval between rent reviews should be whatever is the shortest normal period in the open market. Since she is in the position of being personal representative and the person who has an interest in having as long an interval between reviews as possible, she cannot gain any advantage for herself presonally by reason of her office. Also, the rent should not be calculated by reference to the fact that the firm, of which she is the only member, is a licensee. I do not consider that she can make any profit at the expense of the widow or children by reason of such occupation. The rent should be calculated on the basis of vacant possession, which at the date of the hearing was £20,000 in respect of the entire premises.
Just in case there is any residue, I direct that two thirds of it be held by the widow on the same discretionary trusts as the rents and profits of the business premises.
In The Estate of IAC Deceased;
C and F v WC and TC
[1989] ILRM 815
FINLAY CJ
(Griffin and Hederman JJ concurring) delivered his judgment on 24 July 1989 saying: This is an appeal brought by the first-named defendant against an order made in the High Court on 9 October 1987 by Costello J pursuant to s. 117 of the Succession Act 1965.
The deceased testatrix made her last will on 5 November 1981, and died on 17 May 1985.
She was at the date of her death a widow and left her surviving four children who were:
T., a son aged 44;
W., a son aged 42;
C., and Ch., twin daughters, aged 41.
*817
The position and circumstances of these four children at the date of the death of the testatrix was found as a fact by the learned trial judge on evidence adduced before him which supported such findings, and must accordingly be accepted by this Court for the purpose of determining the issues on this appeal.
The position so found of each one of the children was as follows;
T. was a permanent invalid, having sustained brain damage. He was married with one child and his sole income was apparently a disability pension payable by the United Kingdom Government where he had been residing at the onset of his disability.
W. was married with three sons aged approximately ten, seven and six, and one of them was severely disabled by deafness. He was the owner of the family business of grocery and newsagents which had been transferred to him by his mother during her lifetime, but that business was to the knowledge of the testatrix, in financial difficulties before the time of her death.
C. had married in 1969 but was separated from her husband since 1974. She had four children: two girls who were twins aged approximately fifteen and two girls who were twins aged approximately eleven. She received maintenance from her husband for the support of herself and the children at the time of her mother’s death, of approximately £240 per month. She was in steady employment, earning approximately £10,000 gross, per year at the time of the hearing in the High Court, and had been so employed, earning approximately £6,000 at the time of the death of her mother. She was the owner of a house in which she resided with her children, and which was subject to a relatively small mortgage.
Ch. was living with her husband and her two children who were twin girls aged about seven. Her husband was apparently the sole owner of the house in which the family lived, but she and her husband were joint owners of a residential property in Spain where the family had lived for some time. The learned trial judge found that prior to the death of the testatrix Ch.’s marriage was in difficulties to the knowledge of the testatrix and he concluded that a just and prudent parent would have made provision for the fact that it was probable that this marriage would break up. On the evidence the marriage did break up after the death of the testatrix and Ch. is now separated from her husband.
Benefits received by children in the lifetime of the testatrix
It was proved that in a period of approximately ten years before the death of the testatrix each of the four children had received the following benefits from his or her mother.
T. received £7,000 in cash in 1983.
W. received a total of £10,000 to £20,000 in cash over this period, much of which consisted of injections of cash by his mother into the business from which the learned trial judge was satisfied he (W.) must have derived some benefit. He had been transferred the family business by his mother in 1979 and it was after the death of the testatrix sold for £38,000.
*818
C. received sums in cash between 1976 and 1985, together with a motor car which was registered in her mother’s name, the total value of which was approximately £18,500.
Ch. received £3,000 in 1981, and between 1983 and 1985 while her mother was living with her, received approximately £2,400 per annum in respect of the upkeep of her mother.
Value of the estate
The learned trial judge assumed the net value of the testatrix’s estate, on the evidence adduced before him, to be in the figure approximately of £122,000.
The provisions of the will
The testatrix left her estate as follows:
To T. :
Cash
£10,000
ESB shares
£7,900
Quarter share of residue, approximately
£12,900
Total:
£30,800
To W. :
Premises at Dorset Street, valued at
£50,000
(viewed by the learned trial judge as probably an under-estimate)
Quarter share of residue
£12,900
Total:
£62,900
To C. :
A bequest of a motor car that was registered in the testatrix’s name, which by the time of her death was of no value.
One quarter share of the residue, say,
£12,900
To Ch. :
Silver valued at
£ 200
Plus one-quarter share of the residue,
£12,900
say,
£13,100 (total)
Order of the High Court
The learned trial judge found that the testatrix had failed in her moral duty to make proper provisions, according to her means, for both C. and Ch., and made provision for them by varying the devise of the Dorset Street premises to W. so as to make C. and Ch. joint tenants with him in those premises in the respective shares of one-ninth to C. and two ninths to Ch.
S. 117 of the Succession Act 1965
The provisions of s. 117 relevant to the issues arising in this case are those contained in sub-s. (1) and sub-s. (2) of that section and are as follows:
(1) Where on application by or on behalf of a child of a testator the court is of opinion that the *819 testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
(2) The court shall 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 it would be as fair as possible to the child to whom the application relates and to the other children.
The law
In the course of his judgment as a judge of the High Court in the case of In re G.M. Deceased: F.M. v T.A.M. 106 ILTR 82, Kenny J, at p. 87, stated as follows:
It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend upon
(a) the amount left to the surviving spouse or the value of the legal right if the survivor elects to take this,
(b) the number of the testator’s children, their ages and their positions in life at the date of the testator’s death,
(c) the means of the testator,
(d) the age of the child whose case is being considered and his or her financial position and prospects in life,
(e) whether the testator has already in his lifetime made proper provision for the child.
The existence of the duty must be decided by objective considerations. The court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive.
I would adopt and approve of this general statement of the principles applicable to an application under s. 117 as being a correct statement of the law.
I would, however, add to it further principles which may to an extent be considered a qualification of it.
I am satisfied that the phrase contained in s. 117(1)‘failed in his moral duty to make proper provision for the child in accordance with his means’ places a relatively high onus of proof on an applicant for relief under the section. It is not apparently sufficient from these terms in the section to establish that the provision made for a child was not as great as it might have been, or that compared with generous bequests to other children or beneficiaries in the will, it appears ungenerous. The court should not, I consider, make an order under the section merely because it would on the facts proved have formed different testamentary dispositions.
A positive failure in moral duty must be established.
In a case such as is the instant case where evidence has been given of the testatrix’s financial support of her children during her lifetime indicative of a concerned assistance to all the members of her family, and where, as was established to the satisfaction of the learned trial judge in this case, the relationship between the testatrix and her children, and in particular, between the testatrix and her daughters, was one of caring and kindness, the court should, it seems to me, entertain some significant reluctance to vary the testatrix’s dispositions by will. Quite different considerations may apply, as have been established in some of the decided cases under this section, where a marked hostility between a testator and *820 one particular child is established to the satisfaction of the court.
Applying these principles to the facts as found by the learned trial judge in this case, I have come to the following conclusions.
Whilst the provision made for Ch. in this will probably was at the time of the making of the will, in 1981, a proper provision it had, in my view, ceased to be so before the death of the testatrix in 1985. Accepting as I do the finding of the learned trial judge that by that time the testatrix was aware of the difficulties in Ch.’s marriage to the extent that as a just and prudent parent she should have made provision for the probability of the break-up of that marriage, it seems to me that bearing in mind that of all her four children Ch. had up to that time received the least financial benefit from her by a very considerable margin, that a proper provision for this particular child necessarily involved either a further testamentary disposition by codicil or otherwise, or the making of a gift inter vivos.
The testatrix by her provision for C. during her lifetime indicated in a very definite fashion her appreciation of the particular problems facing a daughter whose marriage had broken up. The logical consequence of that view would, it seems to me, have been that she should have made some improved provision for her daughter Ch., having regard to the learned trial judge’s finding on the evidence that she was aware of the likelihood of a break-up of that marriage also.
I cannot agree, however, on the evidence with the learned trial judge’s conclusion that in the case of C. the provision made by the combined operation of gifts by the testatrix during her lifetime and the provision contained in the will fell short of the testatrix’s moral obligation to make proper provision for her daughter. The evidence would appear to indicate that at the time of the death of the testatrix that C. was established, living with her four children in a house subject to a relatively small mortgage, and in a steady, well-paid job, though not at an extravagant salary, and was receiving a reasonable contribution from her husband towards the maintenance of her children. Her difficulties from the time of her separation in 1974 to 1985 had been substantially aided by sums totalling just under £20,000.
In these circumstances, I cannot accept the conclusion that the provision made for her in the will of a one-quarter share in the residue was less than proper.
I would, accordingly, allow this appeal to the extent of varying the order made in the High Court by setting aside the finding of a failure properly to provide for the plaintiff, C., by affirming the finding of a failure properly to provide for the plaintiff, Ch., and by affirming the appropriate variation in the administration of the estate of the deceased to make just provision pursuant to that finding as being to declare Ch. entitled to a two-ninths share in the premises in Dorset Street which were devised to W.
M v TAM
(1972) 106 ILTR 82
Kenny J.
G.E.M. (“the testator”) was the owner of a large form in County Meath which he worked and of lands in England. On the 10th December, 1924, he married B.C. one of the defendants. They had no children and in 1941 she decided to adopt a boy called F.B., the plaintiff, who came to live with them. The informal adoption followed a conversation which she had with her sister and she did not consult the testator who knew nothing of it until she brought the boy to the farm. There was no system of legal adoption in the Republic of Ireland at that time.
The plaintiff attended the national school at A. until he was eight and then went to boarding schools until he was 17 years of age when he became a student at the School of Navigation attached to the University of Southampton for one year. He then joined the Merchant Navy in which he reached the position of first mate. He holds a Master’s certificate and since May, 1969, has been working for the British and Irish Steamship Company. He is now 32, lives in Dublin, married and has two children. His basic salary is £1,200 but his total earnings will be about £1,700 this year.
On the 19th March, 1954, An Bord Uchtala made an adoption order under the Adoption Act, 1952, by which the plaintiff became the adopted child of the testator and his wife. The application for this must have been signed by the testator and validity of the Order has not been challenged. From the time it was made the plaintiff was called F.M. or F.B.M.
Mrs. M. who is a medical doctor, paid all the expenses of the plaintiff’s education and provided him with clothes and pocket money. The testator and the plaintiff were on friendly terms, but the bond of affection which the relationship of father and son usually creates never existed between them. The testator told the plaintiff that he would never become the owner of the farm at F. and all the evidence suggests that the testator never wanted the adoption and signed the documents in connection with it to please his wife. The testator has two nephews, J.A.K. and M.K., the sons of his sister who was a medical doctor who now lives in Northern Ireland. Mrs. K. and one of her sons called on a few occasions to see the testator. Mrs. M. did not welcome their visits and there was not any personal affection or attachment between the testator and his nephews.
On the 3rd March, 1961, the testator made his will by which he appointed his brother, T.A.M. and A., the well known solicitor, to be his executors and trustees. He left all his property in the Republic of Ireland and his shares and securities to them upon trust for his wife for life and after her death for the two nephews I have mentioned, absolutely. He left his farm at P. in England to them upon trust for his brother-in-law G.A.C. who had been managing it for many years, for his life and after his death to his nephew, M.K. absolutely. The remarkable feature about this will is that the plaintiff is not mentioned in it. The effect of section 24 of *85 the Adoption Act, 1952, was that the plaintiff was to be regarded as the child of the testator and of his wife born to them in what the Act calls “lawful wedlock” and who for the purpose of property rights was to be treated as a child of the testator if the testator had died intestate.
The testator died on the 19th January, 1968, when he was 93 years of age. He was domiciled in the Republic of Ireland. His property consisted of (a) the farm in Co. Meath subsequently acquired by the Land Commission for £50,000 payable in 8% Land Bonds and which, for the purposes of this application, I intend to value at £45,000; (b) shares and securities in the Republic of Ireland, in England and Scotland, which had a market value of about £65,000; (c) livestock and furniture worth about £8,500 and (d) the farm in England which had a value of about £18,500. His debts and funeral expenses were £2,257 so that the gross value of his estate after deduction of debts, but before deduction of testamentory expenses was about £135,250. The testamentary expenses (excluding the costs of these proceedings which I estimate will be about £5,000) will be about £5,000 so that the testator had disposing power over assets worth about £130,000. The estate duty payable in the Republic of Ireland was £38,067 against which there is a credit of £12,061, the duty paid in England. His widow has elected to take the legal share of one-third of his estate instead of the benefits given to her by the will (see section 111 of the Succession Act, 1965.)
There was some discussion as to whether the estate for the purposes of Part IX of the Act of 1965 includes the farm in England, but it has now been conceded that it does not. Section 109(2) of the Act has not changed the judge-made rule that the succession to immoveables is governed by the law of the place where they are situate, while that to moveables is regulated by the law of the domicile of the deceased. Section 109(2) bears a striking similarity to section 66 which appears in Part VI which deals with distribution on intestacy. Both define the type of interest in property with which the two parts are dealing, an estate to which the deceased was beneficially entitled for an interest not ceasing on death.
Part IX of the Act made radical changes in the law relating to the privilege to dispose of all property by will in any manner. The widow is now given a right to choose between what is given her by the will and one-third of the estate when children of the marriage have survived the testator. Section 117 provides that when the court is of opinion that a testator has failed in his moral duty to make proper provision for a child of his in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just and the effect of section 110 is that a child who has been adopted under an order made by An Bord Uchtala is in the same position as a child born of the marriage. Section 120 specifies a number of cases in which a person may be excluded from inheriting. It has not been suggested that the plaintiff has done anything which would justify his omission from benefit under the will of the testator.
Counsel have referred to the legislation in England, New Zealand and in New South Wales which limits the unrestricted power of disposition by will. The Family Protection Act, 1908, of New Zealand was the first legislation of this type in a common law country while a similar law was made in New South Wales by the Testators (Family Maintenance and Guardianship of Infants) Act, 1916 The legislation in England began with the Inheritance (Family Provision) Act, 1938, which has been amended by the Intestates Estates Act, 1952, and the Family Provision Act, 1966. I have considered many of the decisions on these Acts. Allardice v. Allardice [1911] A.C. 730; Re Allen [1922] N.Z.L.R. 218; Bosch v. Perpetual Trustee Co. Ltd. [1938] 2 All E.R. 14; In re Pugh decd. [1943] Ch. 387 and In re Goodwin [1968] 3 All E.R. 12.
The concept underlying the legislation in New Zealand, New South Wales and England is that a testator owes a duty to make reasonable provision for the maintenance of his widow and of his dependants. Our Succession Act, however, is based on the idea that a testator owes a duty to leave part of his estate to his widow (the legal right share) and to make proper provision for his children in accordance with his means. It is not based on a duty to provide maintenance for his widow nor is it limited in its application to children who were dependant on him. The cases decided on the New Zealand, New South Wales and English Act of Parliament are, therefore, of little assistance.
An analysis of section 117 shows that the duty which it creates is not absolute because it does not apply if the testator leaves all his *86 property to his spouse (section 117(3)) nor is it an obligation to each child to leave him something. The obligation to make proper provision may be fulfilled by will or otherwise and so gifts or settlements made during the lifetime of the testator in favour of a child or the provision of an expensive education for one child when the others have not received this may discharge the moral duty. It follows, I think, that the relationship of parent and child does not of itself and without regard to other circumstances create a moral duty to leave anything by will to the child. The duty is not one to make adequate provision but to make proper provision in accordance with the testator’s means and in deciding whether this has been done, the court may have regard to immoveable property outside the Republic of Ireland owned by the testator. The court, therefore, when deciding whether the moral duty has been fulfilled, must take all the testator’s property (including immoveable property outside the Republic of Ireland) into account, but if it decides that the duty has not been discharged, the provision for the child is to be made out of the estate excluding that immoveable property.
It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend upon (a) the amount left to the surviving spouse or the value of the legal right if the survivor selects to take this, (b) the number of the testator’s children, their ages and their positions in life at the date of the testator’s death, (c) the means of the testator, (d) the age of the child whose case is being considered and his or her financial position and prospects in life, (e) whether the testator has already in his lifetime made proper provision for the child. The existence of the duty must be decided by objective considerations. The court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive.
The testator in this case never made any provision for the plaintiff except that he allowed him to live at F. The plaintiff was the testator’s only child and his mother and he were the only persons to whom the testator owed a duty for there was no one else with any moral claim on him. The estate of the testator was worth about £135,250 before payment of testamentory expenses and estate duty. If I take £10,000 as an estimate of the amount of testamentory expenses and costs, the value of the mother’s legal right will be about £36,200 (one-third of £108,500) so that the amount available to make proper provision for the plaintiff is about £89,000. The amount of estate duty payable is £38,000 but as Mrs. M’s legal right and any provision made for the plaintiff under section 117 will have to bear their proportions of this duty section (118) I exclude it from the calculation. This is another striking change made in the law because except in relation to real estate, estate duty was, before 1967, payable out of the residue.
In my opinion the circumstances which I have described created a moral duty binding on the testator to make proper provision by will for the plaintiff. He made no provision whatever and so he failed in this duty. The court must, therefore, order that proper provision is to be made out of the estate and must decide this difficult question from the point of view of a prudent and just parent.
I think that the provision which such a parent would have made in this case would have been to have given one half of the estate (excluding the immoveable property in England) to the plaintiff. The amounts of the testamentory expenses and the costs of the two sets of proceedings will be deducted from the gross amount of the estate to arrive at the figure on which the one half is calculated.
Re L.B; E.B. v. S.S.
[1998] 2 I.L.R.M. 141 Keane J
KEANE J
(Lynch J concurring) delivered his judgment on 10 February 1998 saying: The facts in this case are not significantly in dispute and may be shortly stated.
The plaintiff’s father built up a successful business, called BMB Ltd, from what appears to have been a relatively modest foundation. At the date of his death in 1985, he owned 56% of the shares in the company, to which his widow, the plaintiff’s mother and the testatrix in this case, then became entitled. There were four children of the marriage, the plaintiff, who at the date of the trial in the High Court (1995) was aged 40, and his three sisters, S.S., G. McC. and M. who are older than him and who at the date of the trial were in their mid-forties.
All four children went to secondary school. The plaintiff left at the age of eighteen having achieved two honours in his leaving certificate. He went on to university to study commerce, but dropped out in his first year. He worked at *145 various jobs between 1974 and 1983, initially in his father’s business, and during that time also lived in London for a while and in the Netherlands. In 1983, with his father’s financial assistance, he returned to university and achieved a BA (Mod), a pass degree, in German and history from Trinity College.
The plaintiff developed a major problem with drink and drugs in the mid-1980s. His alcoholism became extremely serious in 1987 and in the years 1991/1993 he received treatment in St. John of God’s Hospital, The Rutland Centre and Cluain Mhuire. His evidence at the trial was that, since his discharge from Cluain Mhuire in 1993, he had not taken alcohol or drugs.
The plaintiff married in 1988. His wife does not work. They have three children, two girls and a boy, who, at the date of the trial, were aged twelve, ten and eight respectively. They were all attending non fee paying schools. They live in a house which was given to him and his sister M. by their father and which is worth approximately £120,000.
The plaintiff’s sisters S.S. and G. McC., who are the defendants in these proceedings, are both married, have families and are comfortably off. So too is his sister M, who is unmarried.
In the year 1987 the plaintiff’s mother (hereafter ‘the testatrix’) instructed a solicitor, Mr Michael Halpenny, to draft a will for her. She described the plaintiff to Mr Halpenny as ‘happy go lucky’, a ‘ne’er do well’ and ‘still a student at 32 years of age’. At that time, her assets consisted of a house, an apartment, money in the bank and stocks and shares, including, of course, the shares in BMB Ltd. Her total assets appear to have been in excess of £1 million. She made it clear to Mr Halpenny that she wished to treat all her children equally and to make substantial provision for them in her lifetime. She decided to do this by transferring all her shares in BMB Ltd to them. Since the husband of S.S. already owned 100 shares in the company, this was achieved by transferring 66 shares to S.S. and 166 shares each to the remaining three children, including the plaintiff. The plaintiff’s shares, after payment of gift tax, realised a sum of approximately £275,000.
On 5 October 1988, the testatrix again saw Mr Halpenny and told him that she wished to make a new will. She had decided to leave the residue of her property, after some relatively small legacies to her children and grandchildren, to a number of charities. She told her solicitor that she was taking this course, because of the ample provision she had already made for each of the children in her lifetime. Mr Halpenny suggested to her that ‘charity begins at home’, but she remained adamant and reiterated her view that the plaintiff was ‘an eternal student’.
The plaintiff unhappily dissipated the sum of £275,000 within a relatively short time. It had all gone by the year 1992.
On 20 March 1992, the testatrix called to Mr Halpenny again and said that she wished to make a new will. The changes were, however, minor. She was *146 insistent that the charities were still to be the beneficiaries. She also told Mr Halpenny on that occasion that the plaintiff was an alcoholic and was having marital problems. It is accepted that she was aware of the fact that he had squandered the money he had been given and was in relatively straitened circumstances.
The testatrix died on 9 December 1992. The terms of her will have already been summarised: she gave legacies of £5,000 to each of her grandchildren (of whom there were ten at the date of her death) and a nebuliser to the plaintiff. She left the residue of her estate to the following named charities:
(a) The Simon Community;
(b) The Cancer Research Fund of St. Luke’s Hospital, Rathgar;
(c) The Society of St. Vincent de Paul;
(d) Concern;
(e) Goal.
The gross value of the estate as shown in the Inland Revenue affidavit was £335,027.30 while the nett value was £302,499.78.
The plaintiff at the time of the trial was unemployed and in receipt of social welfare assistance of approximately £135 per week. He has no savings and no assets, other than the half share in the house to which I have already referred.
The present proceedings have been instituted by the plaintiff under s. 117 of the Succession Act 1965 (hereafter ‘the 1965 Act’), claiming a declaration that the testatrix had failed in her moral duty to make proper provision for the plaintiff in accordance with her means by her will or otherwise, having regard to all the circumstances of the case. He further claimed an order making such provision for the plaintiff as seemed to the High Court to be just. S.S. and G. Mc.C, who had been named as the executrices in the will, were joined as the defendants.
At the trial before Lavan J, the plaintiff, Mr Halpenny and G. McC. gave evidence. While counsel on behalf of the executrices resisted the claim under s. 117, it was made clear that they would have no personal objection to provision being made for their brother out of the estate. It would appear that the named charities were also consulted and indicated that they would abide by whatever order the court made.
It was agreed in the High Court that the first issue which had to be determined was whether the testatrix had failed in her moral duty to make proper provision for the plaintiff in accordance with her means, whether by her will or otherwise. If that issue was resolved against the plaintiff, it would follow, of course, that the court would not be concerned with the extent of any provision that should be made for him. In a reserved judgment, Lavan J concluded that the plaintiff had not established that the testatrix had failed in her moral duty to make proper provision for him and dismissed the claim under s. 117(1). From that decision, the plaintiff now appeals to this Court.
*147
Submissions of the parties
On behalf of the plaintiff, Mr Finnegan SC submitted that, in determining whether the testatrix had failed in her moral duty to make proper provision for the plaintiff, the court had to sit ‘in the testatrix’s chair’ on the eve of her death, to use the language of Kenny J in In re G.M.: F.M v. T.M. (1972) 106 ILTR 82. While he accepted that subs. (2) was primarily directed towards the extent of the provision that should be made once it had been established that the testatrix had failed in her moral duty, he submitted that its language was also relevant in determining whether the testatrix had so failed. The court was, accordingly, required to consider the first issue from the point of view of ‘a prudent and just parent’, taking into account the position of the child whose provision was in issue and all the circumstances of the case. This was an objective test, he said, and the fact that the testatrix might genuinely have thought that she had made appropriate provision for the plaintiff was not a relevant consideration.
Mr Finnegan submitted that, while it was not disputed that the testatrix had made generous provision for the plaintiff by the transfer of shares in 1987, it was also clear that she was aware, at the time she made her will in 1992, that all that money had been squandered and that the plaintiff was in relatively straitened circumstances. She was also aware that his problems were due in significant measure to his alcoholism and drug addiction. Since that situation remained unchanged at the date of her death, Mr Finnegan urged, a just and prudent parent would have made at least some provision, even of a relatively small nature, for him in her will. The understandable fear that might have been felt by the testatrix that this money would also be dissipated could have been met by vesting the funds in trustees who could advance sums to the plaintiff at their discretion. He submitted that the testatrix having failed so to provide, the High Court could authorise the establishment of such a discretionary trust, citing in support the decision of Costello J, as he then was, in H.L. v. Bank of Ireland [1978] ILRM 160.
Mr Finnegan submitted that the critical factor in applications under s. 117 was the need of the applicant child. Where, as here, a need was established beyond any doubt, the only remaining question was as to whether the testatrix had discharged her moral duty to meet that need, having regard to her own means. In this case, he submitted, it was clear that she had not.
On behalf of the defendants, Mr Paul O’Higgins SC submitted that s. 117(1) did not create a moral duty which rested on parents to make proper provision for their children in accordance with the parent’s means: it recognised that such a duty existed. He urged, however, that the burden of establishing that a parent in any given case had failed in his or her moral duty was a heavy one, citing in support the dicta of Finlay CJ in In re L.A.C. deceased; C.C. v. W.C. [1990] 2 IR 149; [1989] ILRM 815. He also relied on the observation by the learned Chief Justice that to meet the comparatively high threshold set by the section, it was *148 not sufficient that the High Court judge should take the view that he or she would have made a particular provision for the applicant child. It had to be shown that the testatrix, in this case, could not reasonably have adopted the course she did.
Mr O’Higgins submitted that, applying that test, which was not a subjective test, it could not plausibly be suggested that the testatrix in this case had not reasonable grounds for deciding not to make any further provision for the plaintiff. Having made what was conceded to be generous provision for him during her lifetime, the testatrix was perfectly entitled to take the view that she should use the rest of her money in support of the particular charities concerned and thus benefit people whose needs were beyond doubt. It would be a serious incursion on the freedom of testamentary disposition guaranteed under Article 40.3.2° and Article 43 of the Constitution if the right of the testatrix to make that choice were to be frustrated.
Mr O’Higgins further submitted that the testatrix may well have thought that, having regard to what had happened in the past, providing the plaintiff with further benefits under her will might not have been in his interest. That was a view which a parent who had unarguably made proper provision for a child in the past might well take and it was not the function of the court under s. 117 to set it aside.
The applicable law
S. 117 of the 1965 Act provides inter alia as follows:
(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
(2) The court shall 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 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.
The policy underlying these provisions is clear. Until its enactment, it was possible for a testator to dispose entirely of his or her property without any regard to the needs of his or her spouse or children. The Oireachtas in dealing with this possible social evil chose, in the case of the children, to adopt a scheme similar to those in other common law countries which allowed a degree of flexibility to the court in determining whether provision should be made for them.
*149
In a frequently cited passage in In re G.M.: F.M. v. T.M. (1972) 106 ILTR 82, Kenny J, sitting as a High Court judge, said:
It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend upon:
(a) the amount left to the surviving spouse or the value of the legal right if the survivor elects to take this,
(b) the number of the testator’s children, their ages and their positions in life at the date of the testator’s death,
(c) the means of the testator,
(d) the age of the child whose case is being considered and his or her financial position and prospects in life,
(e) whether the testator has already in his lifetime made proper provision for the child.
The existence of the duty must be decided by objective considerations. The court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive.
That statement of the law was approved by Finlay CJ speaking for this Court in C.C. v. W.C., subject to one qualification which he expressed as follows:
I am satisfied the phrase contained in s. 117(1), ‘failed in his moral duty to make proper provision for the child in accordance with his means’ places a relatively high onus of proof on an applicant for relief under the section. It is not apparently sufficient from these terms in the section to establish that the provision made for a child was not as great as it might have been, or that compared with generous bequests to other children or beneficiaries in the will, it appears ungenerous. The court should not, I consider, make an order under the section merely because it would on the facts proved have formed different testamentary dispositions.
A positive failure in moral duty must be established.
The circumstances of the present case are somewhat unusual. Typically in applications under s. 117, the applicant child contends that there has been a failure of moral duty in relation to him or her, having regard to the provision made either by will or during the lifetime of the testator for other members of the family. Here the plaintiff has no complaint as to the division of the shares between him and his three sisters in the inter vivos transaction in 1987. His claim is that, having regard to his circumstances at the date of the death of the testatrix, she should have made provision for him at the expense of the other beneficiaries, i.e. the charities.
*150
It is also clear that the court in the present case was not entitled to take into account, in considering whether the testatrix had failed in her moral duty within the terms of s. 117(1), the fact that the plaintiff, since his discharge from Cluain Mhuire in 1993, had not taken alcohol or drugs. Since his recovery from his addiction for that period was subsequent to the death of the testatrix, it was not relevant to the discharge or otherwise of her moral duty to him. It could only become relevant if the court were of the view that she had failed in her moral duty and was going on to consider, under subs. (2), the extent of the provision that should be made for him.
It is also obvious that it is not necessarily an answer to an application under s. 117 that the testator has simply treated all his or her children equally. The maxim ‘equality is equity’ can have no application where the testator has, by dividing his estate in that manner, disregarded the special needs (arising, for example, from physical or mental disability) of one of the children to such an extent that he could be said to have failed in his moral duty to that child. At the same time, the proper and understandable anxiety of parents to avoid any friction among their children by effecting, so far as possible, an equal distribution of their property among them must also be recognised. Thus, the clearly expressed wish of the testatrix in this case to treat all her children equally, although not a decisive factor, is not entirely irrelevant.
Conclusions
Ultimately, the issue which the High Court had to resolve was reasonably straightforward. It is beyond argument that the testatrix had made adequate, and indeed generous provision, for the plaintiff during her lifetime. His father had done everything in his power to give him the best start in life possible, including financing his returning to university when he was in his thirties and providing him with a house. In addition to that, he was given by the testatrix £275,000 which, properly managed, should have afforded him a degree of financial security for the rest of his life. Towards the end of her own life, she might have concluded that, rather than give the entire of her remaining wealth to the five charities of her choice, she should make at least some provision for him in the hope that this time he would use it to good effect. The alternative was to do what she did and make no further provision for him.
As has already been pointed out, the test to be applied is not which of these alternative courses the court itself would have adopted if confronted with the situation. It is whether the decision by the testatrix to opt for the second course of leaving unaltered the bequest to the charities, of itself and without more constituted a breach of her moral duty to the plaintiff. I am satisfied that it did not.
The court, in applications of this nature, cannot disregard the fact that parents must be presumed to know their children better than anyone else. In many cases that obvious fact would be of little weight where it is established that a *151 child has been treated in a manner which points clearly to a failure of moral duty on the part of the testator. It is of considerable significance, however, in a case such as the present, where, even on the most favourable view of the plaintiff’s case, it cannot be suggested that he was treated with anything other than generosity and support by both his parents up to the time that the shares in BMB Ltd were transferred to him. Against that background, the decision of the testatrix not to make further provision for him in her will may well have been prompted, not merely by a concern that her money should go where she could be sure that it could do most good, but also by a belief that, since the provision of significant financial assistance to the plaintiff had not in the past produced the best results, it might not have been in his own interest to provide him with further funds, even through the mechanism of a trust. It is, however, sufficient to say that this was clearly a view which a responsible and concerned parent could take and that it follows inevitably that the learned High Court judge was correct in concluding that the plaintiff had failed to establish that the testatrix had failed in her moral duty to him.
In the judgment which he is about to deliver, Barron J considers the obligation, if any, on the deceased, in a case such as the present, to have regard to the plaintiff’s responsibilities to his children. A person in her position might be regarded as being under a moral duty to make some provision for the children of the plaintiff. That, however, is not the issue with which the High Court or this Court is concerned: we are solely concerned with the legal obligations of the deceased. In the case of her children, the Oireachtas has transposed the moral obligation which she, in common with all parents, owed to her children into a legal duty enforceable in the terms laid down in s. 117. The social policy underlying that provision — and which was, of course, exclusively a matter for the Oireachtas — was, it is reasonable to assume, primarily directed to protecting those children, who were still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents who were unmindful of their duties in that area. However, since the legislature, no doubt for good reasons, declined to impose any age ceilings which would preclude middle aged or even elderly offspring from obtaining relief, the courts must give effect to the provision, irrespective of the age which the child has attained. But to extend in effect the extremely ample protection which the Oireachtas has thus afforded to children, even in the middle aged and elderly category, to grandchildren seems to me to bring within the scheme of the Act a category of claimants the protection of whom was not envisaged by the legislature. I am accordingly satisfied that the apparent needs of the plaintiff’s children are not a factor which would justify the court in the present case in setting aside the findings of the learned High Court judge.
There is one other matter, to which I drew attention at the hearing, and to which I would like to return. In the present case, the interests of the five chari *152 ties benefited by the will could have been materially affected by the outcome of the present proceedings. It is surprising that at no stage was the Attorney General given notice, as the protector of charities, of the existence of the proceedings. Charities enjoy a special position in our law because they are established for the public benefit and the Attorney General has also a special role as their guardian. If he had been given notice of these proceedings, he might well have decided that, having regard to the attitude of the executrices, it would have been adding unnecessarily to the costs for him to be joined as a party. It is, however, in my view desirable (and it may be essential) in every case, whether it arises by way of a construction summons or an application under s. 117, where the interests of charities may be materially affected, that the Attorney General be given notice of the proceedings.
I would dismiss the appeal.
BARRON J:
This is an appeal by the plaintiff against the decision of the High Court dismissing his application for relief under the provisions of s. 117 of the Succession Act 1965.
At the date of the hearing of his application the plaintiff was aged 40, and married with three children aged twelve, ten and eight years respectively. Although he did not marry until 1988, he had cohabited with his wife since before the birth of their first child. He was the youngest of four children having three older sisters. His father was a successful businessman who when he died in 1985 left his widow an estate of some £1.3 million.
The plaintiff dropped out of university in his first year. He had various jobs thereafter including running a small haulage business financed by his father. When that failed, he returned to university from which he obtained a pass arts degree, his subjects being history and German. Up to the birth of her first child, his wife had worked, but following the birth she became a semi-invalid and is now unable to work.
Following his graduation, the plaintiff appears not to have worked. He became an alcoholic and drug addict and at the date of his mother’s death on 9 December 1992 he was unreformed, though by August 1993 he had reformed and has remained free from both alcohol and drugs since. During the period of his addiction he lost his driving licence.
He was a feckless character and known to be such by his mother. In 1987, she had distributed the major part of what she inherited from her husband equally between her four children. After taxes the plaintiff received £275,000. The plaintiff lives in a house owned in equal shares by himself and one of his sisters. This house was provided as a gift from his father. Apart from spending about £25,000 on the house, the entire of the sum he received from his mother was wasted in one way or another.
At the date of the hearing in the High Court the plaintiff was separated from *153 his wife and the sole income available to the family was unemployment assistance.
By her will his mother left the entire of her remaining estate amounting to approximately £300,000 to five named charities. Each is aware of these proceedings and is content to abide by whatever order the court makes. However, it is to be regretted that the Attorney General as protector of charities does not appear to have been notified of the existence of the proceedings.
This application was unusual in that the plaintiff made no claim on his own behalf but sought under the mechanism of s. 117 to obtain provision for his children. This would be in addition to the sum of £5,000 left to each of them by his mother’s will. None of his sisters who are reasonably well off has made any claim.
Before the passing of the Act, there was no restriction upon a person making a will as to who might be made a beneficiary thereunder. A person might cut out his or her entire family and none would have any recourse to the estate. This was rightly regarded as wrong. The Succession Act 1965 changed the law in favour of spouses and children. Exceptions, though not applicable in the instant case, were made in relation to those deemed by the Act to be unworthy to succeed.
The spouse of the deceased was given a particular share in the estate, called the legal right, in every case. No such mandatory provision was made for children. They were dealt with upon a different basis. The section recognised that the relationship of parent and child came within the moral basis upon which the relevant part of the Act was based. It recognised that the parent should not be obliged to make provision for his or her children in all cases. So children were not given rights similar to the legal right given to the spouse. Instead, they could apply to the court whenever they were of the view that the parent had not observed the moral obligation arising from their relationship and their respective circumstances.
The Act expressed this moral obligation as a duty to make proper provision for the child in accordance with the means of the parent. The duty is entirely a moral one though enforceable in law. Before the court can act there must however be clear circumstances which establish that it is proper to grant relief. A positive failure in moral duty must be established: see the judgment of Finlay CJ in In re L.A.C. deceased, C.C. v. W.C. [1990] 2 IR 149; [1989] ILRM 815. The court has no power to redraft a will and even where it is satisfied that the statutory moral duty has been breached it has no such power. Its sole power in such circumstances is to make such provision for the applicant child so that the will which will then be deemed to have included such provision is no longer in breach of the duty. The date at which the relevant factors must be considered is the date of death of the deceased.
In considering whether to accede to an application, the court is not con *154 cerned with the parent child relationship alone. It is concerned with what is proper provision in accordance with the parent’s means. Even though the child may not come within the statutory category of those unworthy to succeed, yet the right being based upon moral considerations, whether the child deserves to have provision or further provision made cannot be overlooked.
Dealing with the circumstances in which the court should interfere, I said in In the goods of J.H. deceased [1984] IR 599 at p. 608:
The power of the court arises only to remedy a failure on the part of the testator to fulfil the moral duty owed towards the child. In general, this will arise where the child has a particular need which the means of the testator can satisfy in whole or in part. If no such need exists, even where no provision has been made by the testator whether by his will or otherwise, the court has no power to intervene.
In the instant case, the plaintiff was very much in need at the date of his mother’s death. He was an unreformed addict, he had a wife who was a semi-invalid and unable to work, and he had three young children aged respectively, nine, seven and five years of age. However, he had been well provided for by both his parents. His father had provided him with a good education and helped towards establishing himself in life well after the normal period. His mother had transferred to him a large sum of money in 1987. He did not deserve more. This he has acknowledged by seeking funds only to better the position of his children.
Part of a person’s needs must involve his or her responsibilities whether legal or moral. In In the goods of J.H. deceased I also said at p. 608:
In the ultimate analysis, each case must stand upon its own facts. To take two examples: proper provision for a child in one walk of life may not be proper provision for a child in a different walk of life; or proper provision for a child without a handicap or with normal responsibilities may not be proper provision for a child with a handicap or with exceptional responsibilities.
Although the present issue did not arise in that case, I clearly assumed then and take the view now that proper provision involves assistance to enable the child to meet its responsibilities. These include those towards his wife and his children.
The deceased never took these into account though she was fully aware of the circumstances of her son. In 1988 when she made her will leaving her estate to charity, her expressed view of her son was that he did nothing but enjoy himself. There is no evidence as to how much of her gift he had then spent. However, when she affirmed her will in March 1992, he had nothing left which she knew. She even revoked her legacy to him of her car, presumably on the basis that he had lost his licence. There were no material changes in the plain *155 tiff’s circumstances between that date and the date of her death.
In my view, the deceased was wrong not to consider his then responsibilities. Her desire to treat each of her children equally can be appreciated. But while equality is equity, perpetuating inequality may not be. To treat children with widely divergent financial circumstances equally may be as morally wrong as to treat equally those whose circumstances are roughly equal would be morally right. That however is not the issue. A parent does not have to treat his or her children equally nor produce equality.
Going to the root of this application is the meaning to be given to the words ‘proper provision’. The plaintiff obtained advancements from his father within the meaning of s. 63 of the Act as well as a generous provision from his mother in 1987. But the level of provision cannot of itself determine what is proper. ‘Proper’ connotes in the context in which it is used doing what is right. If so, then the fact that generous provision has already been made must only be one of the matters to be taken into account in determining what is proper.
The situation must be looked at as of the date of death. At that date, the deceased had four children and a number of grandchildren not only the children of the plaintiff. The only member of her family who purported to have any claim on her bounty was the plaintiff. What was the right thing for her to have done? She should have considered the individual circumstances of each of her children. In so far as she did consider the circumstances of the plaintiff, she dismissed them as imposing any further obligation upon her. If she had considered them more deeply, she would have realised that by reason of his addiction and his inability to handle money, he was unable to provide for his wife and children in accordance with the standards to which he himself had been used or indeed to any reasonable standard. This was a situation brought about entirely by himself but for which his dependants were in no way responsible.
In those circumstances, would it be proper to make further provision for the plaintiff so that he could fulfil his obligations to his dependants? In answering this question, it is the moral duty to the plaintiff and not any moral duty to the dependants which must be considered. Having regard to his obligations and the very considerable difference in his economic circumstances from those of his mother and the competing moral claims of the charities, it would have been right and proper for some further provision to have been made for the plaintiff. There are three factors involved and in my view each is satisfied. First, the plaintiff has a considerable need to meet his obligations. Secondly, the deceased had the means to alleviate that need, certainly in part. Thirdly, having regard to all the moral claims upon her bounty, it would have been right and proper for the deceased to have used some of those means to alleviate at least part of that need.
In the present case, I would grant relief to the plaintiff upon the basis that the ultimate beneficiaries should be his children, since it was for them that the *156 application was in reality brought. This should be by way of a supervised trust whereby the funds may only be used for the advancement of his children or exceptionally for their maintenance provided that the entire sum so applied will be used solely for their benefit.
In so doing, there is a danger that this is giving a strained construction to the words of the section. The right is given to the child, whereas the benefit is to be taken by the grandchildren. Having regard to the overall purpose of this part of the Act to prevent a testator from wrongfully disinheriting his nearest family, such a construction is meeting that purpose. It is the responsibility and therefore the need of the child and not that of the grandchildren which the relief is intended to meet. In other parts of the Act children of a deceased parent step into the shoes of that parent, whereas s. 117 is silent on this. This case highlights that difference and suggests that perhaps further consideration should be given to the section by the legislature.
I would allow this appeal upon the basis which I have indicated.
MacNaughton v Walker
Brian Scott MacNaughton, Laura Nayer Nouri and Ann Popplewell v Ralph Joseph Walker, John Murray and Others
1970 Nos. 187 Sp and 290 Sp
High Court
27 May 1976
[1976-7] I.L.R.M. 106
(Kenny J)
KENNY J
delivered his judgment on 27 May 1976 saying: These are two applications brought under s. 117 of the Succession Act 1965 (‘the Act of 1965’) by three of the children of the late Norman Scott MacNaughton (‘the testator’) in which they claim that their father failed in his moral duty to make provision for them and in which they ask the court to do this out of his assets. The two applications were heard together and have many unusual features. The gross estate of the testator was worth about £430,000, there are two ladies who claim to have been his legal spouse under Irish law and each of the three children, all of whom are over 21, has, as a result of their grandfather’s prudence, what most of us in this community would regard as a substantial private income. The very large claim for estate duty adds to the difficulties because the executors have not been able to predict how the money to pay it will be raised. So the court has to speculate what the position will be in future years and as to the price of shares in a well-known company whose shares have a quotation on the Dublin Stock Exchange and since the hearing concluded, have been given this privilege in London.
Alfred Black MacNaughton (‘the grandfather’) established a very successful builders’ providers business in Dublin which was subsequently transferred to a company, Norman MacNaughton & Son (Dublin) Ltd (‘the MacNaughton company’). The business was so successfully managed that the shares in the MacNaughton company became valuable and so the grandfather incorporated the MacNaughton Trust Company (‘the trust company’) in March 1950 as a *108 means of diminishing the claim for estate duty on his death and so that he could provide for his children and his grandchildren. The assets of the trust company were to consist of shares in the MacNaughton company and as it regularly paid dividends, those who held shares in the trust company received an income from them. The testator who was one of the grandfather’s sons worked in the MacNaughton company. In March 1938 he married Pamela Mary Workman, who came from a wealthy family, and they went to live in Celbridge Abbey. They had four children, Norman Malcolm (‘Malcolm’) born on 21 April 1939, Pamela Ann (now Mrs Popplewell), born on 7 March 1941, Brian Scott born on 15 March 1942 and Laura Victoria (now Mrs Nouri) born on 19 June 1946. The testator inherited from the grandfather a well-known stud at Simmondstown, and his wife and he took an interest in racing and horse-breeding. Their good fortune in having four children, and their wealth, did not, however, persuade them to have a peaceful life together and, after an exchange of lurid charges and counter charges, she left him and went to live in England in 1956. In December 1957 he covenanted with her that he would pay her a yearly sum of £600 during their joint lives. The four children remained in Ireland with their father and, in January 1959, the family moved from Celbridge Abbey to Beaufort Lodge which was part of the Simmondstown stud farm. Shortly afterwards the testator became ill and was in hospital for treatment for alcoholism. He had known Miss Joan Kelly for some time before this and she had him released from hospital and went to live with him in Beaufort Lodge. He wanted Mrs Pamela to divorce him so that he could marry Miss Kelly. Financial terms were arranged and she applied to the High Court in England under the Law Reform (Miscellaneous Provisions) Act 1949 for a dissolution of the marriage. On 16 June 1966 that court granted her a divorce and, on the same day, he covenanted with Mrs Pamela that he would pay her a monthly sum of £80. On 22 June 1966 he married Miss Kelly (‘Mrs Joan’) in a registry office in England.
The testator had encouraged Malcolm to regard himself as his successor in the MacNaughton company and so Malcolm worked in an associated MacNaughton company in Belfast and then transferred to Dublin. The other son, Brian, showed an interest in country life and in horse-breeding and so, when he left St. Columba’s, he went to the Gurteen Agricultural College and then worked at the Simmondstown Stud which was owned by Celbridge Estates Ltd in which the testator owned almost all the shares. Brian, who has a marked impediment in his speech, worked on the stud farm for very low wages and lived at Beaufort. He has had no training in anything except agriculture and horse-breeding. His speech defect is a handicap for him in business but when giving evidence, he showed that he had considerable intelligence and an ironic humour.
Mr John Murray, who has been in the employment of the MacNaughton company since 1933 as an accountant, who has been a wise and faithful friend to three generations of the MacNaughton family and who is responsible for much *109 of their prosperity, was very concerned from 1965 on about the very large amount of estate duty which would become payable on the death of the testator; he knew that assets worth about £400,000 would be liable for duty at the 40% rate and that when they consist largely of shares in private companies, the difficulties about raising the money to pay these duties are formidable. There was also a risk that the revenue would move against the testator as a shareholder in Celbridge Estates Ltd because the profits of that company were not being distributed as dividends. So the advice of accountants and lawyers was sought and a scheme to reduce liability for estate duty on the testator’s death was worked out. There was to be a bonus issue of shares in Celbridge Estates Ltd and the testator was to renounce these in favour of trustees who would hold on discretionary trusts for his children. Provision was also to be made for the payment of the annual sum to Mrs Pamela and for an income for Mrs Joan. One of the steps in the scheme was the preparation of instructions by the testator to his trustees which would not bind them but which would indicate his wishes and, on 5 December 1966, the testator signed a memorandum which induced a statement that he would make provision for his two daughters in his will.
In 1967 the testator suddenly decided that he would sell the Simmondstown Stud and that he would buy another landed property further from Dublin. It has been suggested that Mrs Joan persuaded him to do this but although she may have supported him in the decision, I am convinced that his reasons for it were that he was in bad health, that the responsibility of looking after other peoples’ mares which were bought to the stud weighed on his mind and that he wanted to reduce the load of worry and work which its ownership involved. He was also anxious to get further away from Dublin so that he would not have to take any part in the management of the MacNaughton company. I accept all the evidence given by Dr Maurice O’Connell and Mr Michael Johnson on this aspect of the case and I reject any evidence which conflicts with the testimony which they gave. As however the testator had led Brian to believe that the stud would ultimately be his and as he had encouraged him to make its management his life’s work, he felt so ashamed about the decision to sell it that he was unable to tell him of it. So he asked Mrs Joan to do this diffifult work and Brian naturally thought that it was her decision. A bitter quarrel between the three of them broke out and Brian left Beaufort Lodge and moved to Dublin. His father however was so concerned about him that he asked Mrs Popplewell to take him into her house and she did so. Simmondstown Stud was sold for £120,000 and the testator purchased an estate, Lodge Park, which he farmed but where he did not have the responsibility of looking after animals belonging to other people. He spent about £40,000 in restoring the house on this property and Mrs Joan and he lived there until his death in October 1969.
Before I deal with the testator’s will and codicil which have given rise to this litigation, it is necessary to describe the financial position of the children because *110 each of them has a substantial independent means which came from their grandfather and from some of the Workman relatives. When the grandfather had formed the trust company, he became entitled to 76,000 £1 shares in it. He decided to settle some of these in favour of his grandchildren and so, by a deed of trust of 10 May 1950 in which the testator and Mrs Pamela were the trustees, he settled 20,727 shares (the allotment of which he had arranged would be made to the trustees) as to two-thirds in favour of his grandsons when they reached 25 and as to one-third in favour of his granddaughters when they reached that age. The result was that Malcolm and Brian each became entitled to 6,909 shares in the trust company and Mrs Popplewell and Mrs Nouri each to 3,454. At the time of the testator’s death the 6,909 shares gave a gross yearly income of £1,382 while the 3,454 gave £691. The dividends of these shares, before any of the children reached 21, were applied by the testator in paying for their education and I am satisfied that almost all the expenses in connexion with the children were paid out of the income which came from the settlement of 1950.
Each of the children also benefitted under the will of an aunt, Miss Minnie Workman. She gave more to her nieces than to her nephews but the value of the shares left to them was not proved. When, in 1963, Brian got his, they were worth about £10,000. Those belonging to Mrs Popplewell produced a gross income of £396 in 1964. A list of her securities in 1964 has been handed in. Most of the shares on it were what are now called ‘growth’ equities and in that year would have had an average yield of about 3%. On this basis their value was about £14,000 which fits in with the evidence that the nieces got more than the nephews under Miss Workman’s will. In 1963 Mrs Popplewell (then Miss Pamela Ann Macnaugton) became engaged to Mr Alastair Lawson. The testator disliked and distrusted him and he insisted that she should settle all the shares to which she would become entitled under the settlement of 1950 and all those of which she was the owner under her aunt’s will so that she would not be able to dispose of them. A firm of solicitors, who had had no connexion with the family and who are not acting for any of the parties in this litigation, were consulted and prepared a wholly inappropriate settlement which contains some astonishing provisions and which has had most unfortunate consequences. I am convinced that the testator was wholly responsible for the decision to settle Mrs Popplewell’s shares and that he gave the instructions. Although he was then a very wealthy man, the settlement gives him a life interest in the income if the daughter and her husband died without children. The property was settled on trust to pay the income to Mrs Popplewell during her life and after her death to her husband during his life or remarriage and then ‘in trust for the children of the said intended marriage’ as Mrs Popplewell should appoint. The said intended marriage was the marriage between Mrs Popplewell and Mr Lawson. In default of appointment the property was to be held for all the children of that marriage who attained 21 and then, in trust for the testator for his life and, after his death, *111 in trust for his children who were alive at the date of the death of the survivor of Mrs Popplewell and him. If the testator and the solicitors whom he retained wished to guard against the risk that Mr Lawson would get his wife’s property, it is difficult to understand why Mr Lawson was made a party to the settlement and why he was given an interest for his life. The marriage to Mr Lawson broke up shortly after it was celebrated, Mrs Popplewell obtained a divorce in Mexico in April 1966 and is now happily married to Mr Popplewell and they have children. But although Mrs Popplewell has the income, her children can never benefit under the settlement and the ultimate result may well be that her brothers and sister may inherit the property. The testator knew this because he sought advice as to whether the settlement of 1963 could be set aside after his daughter had married Mr Popplewell.
When Brian left the stud, he came to Dublin. Mr Murray and Malcolm persuaded those in the MacNaughton company that he should be employed in it and he obtained a position as a supervisor of the unloading of timber at a salary of £600. In November 1968 this was raised to £750, in April 1969 to £950 and in July 1969 to £1,100. His salary from March 1970 has been £1,200 and he gets a bonus of £100 each year. The company also pays the expenses of running his car: these amount to about £200 each year. He was married on 10 June 1969 some months before his father died. His father did not attend his wedding and all attempts to reconcile them failed.
The testator made eight wills during his life. By the last one made on 24 June 1966 he appointed his solicitor Mr Walker and Mr Murray to be the executors and trustees and gave 500 shares in the MacNaughton company free of legacy duty to Mr Murray. He gave all the residue of his estate upon trust to realise it and out of the proceeds to pay the debts, funeral and testamentary expenses (which include the estate duty on the personal estate but not on Lodge Park) and then to pay the income of it to Mrs Joan during her lifetime or until she re-married. Upon the death or re-marriage of Mrs Joan, he gave all his shares in the MacNaughton company and in a number of companies associated with it and any shares to which he might be entitled to in the trust company to Malcolm subject to any death duties payable thereon and, subject to these provisions, he gave all the residue of the property to Brian. Clause 7 of the will reads: ‘I have made no provision for my daughters as they are already provided for out of other funds’. By a codicil made on 25 October 1968 he gave the house and lands at Lodge Park to Mrs Joan absolutely.
In March 1965 the testator’s mother, Mrs Ida MacNaughton transferred shares in the MacNaughton company to her two sons and the testator gave the 4,950 shares which he got from her to Malcolm. The value of these shares at the time was about £11,000. They are now worth considerably more than this. The evidence was that Mrs Ida transferred 9,900 shares to her sons but I have not been able to trace whether she gave more to the testator than to her other son or *112 whether he transferred 500 shares which he owned together with those which he inherited from his mother.
In 1969 negotiations between the directors of the MacNaughton company and Brooks Thomas & Co. Ltd with the aim of the acquisition of all the shares in the MacNaughton company by Brooks Thomas began. The testator knew about these and they had reached broad agreement on the terms upon which the MacNaughton company was to be taken over when the testator died. The terms which were accepted by everybody were that there were to be two shares in Brooks Thomas given in exchange for each ordinary share in the MacNaughton company. When the testator died, the price of an ordinary share in Brooks Thomas was 55/-: at the date of the hearing of the case the price was 45/- and it is now £2.50 (250p).
The gross value of the testator’s assets when he died was about £430,000. He had debts of £25,000, so that the net estate before death duties and expenses is about £405,000. These figures are based on the assumption that Lodge Park will be sold for £70,000. The principle assets were 24,000 ordinary shares in the MacNaughton company with a value of £145,000, 19,950 shares in the trust company worth about £100,000, 800 shares in MacNaughton Twisteel Reinforcement (Dublin) Ltd with a value of £10,000, Lodge Park which is held on freehold tenure valued at £70,000 and livestock on the lands worth about £42,000. The total amount of the estate duty payable will be about £163,000 but as Lodge Park is freehold, it will have to bear the duty of £28,000. The total amount of duty payable on the personal estate is therefore £135,000.
When Mr Walker and Mr Murphy had obtained probate, Mrs Pamela brought proceedings (1970 141 Sp) against them, and Mrs Joan, and Malcolm and Brian in which she claimed that she was the testator’s spouse under the Succession Act 1965. This case, which raised very interesting and extremely difficult questions as to the recognition of the English divorce by the courts in this country, was compromised. The terms upon which it was settled were that the executors were to raise £20,000 and to pay it to Malcolm and the solicitor acting for Mrs Pamela in trust for her for her life and after her death as she might appoint with power to them, however, to apply the capital for her benefit. In addition the executors were to pay an annual sum of £2,000 out of the income of the residuary estate to Mrs Pamela during her life and she released the two covenants of 1957 and 1966, and Lodge Park was to be sold and after payment of the duties, the proceeds were to be invested as Mrs Joan might require.
This compromise raises one of the many uncertainties which have made this case so difficult to decide. The yield on Brooks Thomas shares is 5% while the yield on Government securities today is 8.5%. If, therefore, the yearly sum of £2,000 is to be provided out of shares in Brooks Thomas, it will be necessary to retain shares in that company worth £40,000 while if the money is to be invested in Government securities, £24,000 would be sufficient. Mr Murray has said *113 however that so many shares in Brooks Thomas will have to be sold to raise the amounts of the estate duty that the price is bound to fall and that if more have to be put on the market to realise the cash necesary to buy Government securities, it will be driven down more. Therefore, he says, the case could be approached on the basis that Mrs Pamela’s annuity will be provided out of dividends from Brooks Thomas shares and on this basis it should have to be valued at £40,000. Mrs Pamela is now 61 years of age. The importance of this matter is that it is necessary to calculate what the income of the residue will be because the testator was certainly under a moral obligation to make provision for Mrs Joan, and anything given to the three children claiming in this case during her lifetime will reduce the income available. In June 1966 Mrs Joan gave her age as 54 so she is now 59 and according to the Irish Life table published in the statistical abstract, has an average expectation of life of seventeen years. The executors’ costs of taking out probate and of administration are estimated at £10,000 and the costs of all the litigation are estimated by Mr Walker, the whole of whose evidence I accept, at £70,000.
The unfortunate result of the levy for estate duty and the legal expenses is that there will be nothing available for Brian when Mrs Joan dies or remarries. If, therefore, there was a moral duty imposed on the testator to make proper provision for his three younger children in accordance with his means, he failed to do this and the court must then make provision for each child. It is not an answer to say that the executor tried to make provision for Brian and that this failed because of the large amount of estate duty and legal costs which will be payable. The court must attribute to the testator on the day before his death knowledge of the amount of estate duty which will be payable on his estate and a remarkable capacity to anticipate the costs of the litigation which will follow his death. I realise that this is unreal, that the amount of estate duty payable is usually mercifully hidden from most testators and that it is impossible to anticipate what litigation will follow on death. I am convinced however that s. 117 must be interpreted in this way.
Counsel for Mrs Joan and for Malcolm has said that the three younger children were so well provided for by their grandfather, and their aunt and by other relatives who left them legacies that there was no moral duty on the testator. It is therefore necessary to say something about the history and present financial position of each of the three younger children. Mrs Popplewell was educated at the French School in Bray and spent a year at a domestic science college at Alexandra. She then did a three year course in physical training at the Ling College, obtained a diploma in that subject and taught for some time in England. All the fees and expenses in connection with this were paid out of the income of the settlement of 1950. She became engaged to Mr Lawson, executed the most unfortunate settlement of 16 December 1963 and married him. There were no children of this marriage and when the marriage broke up, she went *114 back to live with her father in Beaufort Lodge. She got a divorce in Mexico in April 1966 and subsequently married Mr David Popplewell. She bought a house in Glenageary and used £2,500 which she got from a grandaunt, Violet MacNaughton, towards paying for the deposit on it. She sold it, and, as her wish was to live in the country, her husband and she bought the house Garryard and 4.5 acres of land at Kill, Co. Kildare. This cost £6,200 including fees and they have spent about £9,000 in repairing and improving it. The money for the improvements came from a loan made by the trustees of the settlement of 1963 who realised many of the securities and advanced the money on a mortgage of the property. The house was conveyed to her husband and to her and they are liable to the trustees who should then pay it to her. I am quite sure that this is not done. Before the securities were sold to provide the advance to buy Garryard, she had an income of £914 from them and, in the year in which her father died, she had an income of £585 together with the notional interest on the mortgage. The securities in the settlement now give an annual income of £727. The mortgage secures £11,000 at the annual interest rate of 9% so that there is a notional income of £1,710. Her husband is a fulltime director in a private company, Leinster Dyers Limited, and has a small shareholding in it. It is a family company and he has an annual salary of £3,400. He has the use of a company car and Mrs Popplewell owns some horses and has her own car. They have, therefore, if one includes the mortgage interest, a total joint income of £5,100 and, if the interest is left out of account, £4,120.
Brian has 6,909 £1 shares in the trust company the value of which is about £30,000. He got £2,000 from a relative, Violet MacNaughton, and £1,100 from another relative but has spent both of these sums. The dividends from the shares in the trust company give him £1,382 each year and those from the shares which he inherited from Miss Workman an annual yield of £750. His salary from the MacNaughton company in the year in which his father died was £1,100 and the expenses of his car were paid. Therefore in the year in which his father died his annual income was £3,432; it is now £3,632. He has bought a house in Dublin and is the owner with Malcolm of a filly, ‘Granville Lady’ which he purchased in November 1969 and for which £2,000 was paid. She has been entered for the Irish Classics in 1972. I have to make so many informed guesses about the administration of this estate that I hope that I will be forgiven if I do not speculate as to the animal’s success in racing. When the testator told Brian about the sale of Simmondstown Stud, he told him that he would help him with the purchase of a farm: this was obviously intended to make it possible for Brian to carry on the life for which he had been trained but the bitter quarrel between them had the result that the testator did nothing about this. Mr Matheson has said that Brian’s position in the MacNaughton company is precarious and that if rationalisation took place he would probably lose his position. I think it extremely unlikely that he will lose his position as long as Malcolm and Mr Murray are *115 associated with that company.
Mrs Nouri, who is almost 25, went to the French School at Bray and then to Alexandra. She trained as a radiographer for two years at St. Vincent’s Hospital but was too young to do the final examination when the school of radiography in that hospital closed. Her education was paid for out of the income from the settlement of 1950. In April 1966 she married when her husband, a medical student from Persia, had not qualified. He has since qualified and has finished his intern year and is now doing post graduate research work with the aim of getting a higher degree in medicine. In May 1969 she sold some of the investments to which she had become entitled under Miss Workman’s will and purchased a house in Sydney Avenue, Blackrock for £14,000. She has divided the house into two flats, in one of which she lives and the other of which is let. Her income in the year in which her father died was £1,430. This consisted of £390, the net rent which she received from her house after payment of rates, £691, dividends from the trust company and £357, the income from the remaining investments which she acquired under her aunt’s will. Her husband gets an allowance of £720 a year from his father so they have a flat in a good residential area and a combined joint income of £2,518. Shortly after the testator’s death, her husband began a one-year internship in the Meath Hospital for which he was paid £90 a month. Her husband, who hopes to practice in Teheran, has excellent prospects in the medical world.
Mrs Joan had had a business until she went to live in the testator’s house in 1959. She has no property or means except what she is entitled to under the testator’s will. Without doubt he owed her a moral obligation to provide her with somewhere to live in comfort for the rest of her life and with an income which would make this possible. This obligation, I think, extended to giving her the same standard of living as she had been accustomed to when she was his wife. Counsel for the children invited Mr O’Neill, counsel for Mrs Joan, to state whether he was contending that she was the testator’s spouse for the purposes of the Act of 1965. Mr O’Neill said that he was but rightly declined to argue this interesting question. The existence of the moral duty to her does not depend upon whether Mrs Pamela or she is the spouse.
It is necessary now to try to estimate the amount of income which will be available for Mrs Joan out of the estate. This matter was not discussed at all in argument and involves a considerable amount of guess work. The shares in Brooks Thomas to which the executors have become entitled will not provide a sufficient sum to pay the estate duty, the amount payable to Mrs Pamela and costs and as the shares in the trust company cannot be easily sold, I think it certain that the trust company will have to be wound up in the near future. The shareholders in it will then become entitled to shares in Brooks Thomas. If Lodge Park is sold for £70,000 and if the estate duty for which it is liable and other expenses are about £30,000, there is a balance of £40,000. The cost of a *116 residence for Mrs Joan in Dublin would be about £20,000 and the remaining £20,000 if invested in Government securities at the present yield of 8.5% would give £1,700 each year. The gross personal estate less the debts will be £340,000. £20,000 must be paid to Mrs Pamela, £70,000 will be required for the costs of the proceedings, £10,000 as the costs of probate and administration and £1,500 for Mr Murray’s legacy. To this must be added a sum of at least £20,000 to provide the income for Mrs Pamela and the estate duty of £135,000. All these amount to £256,500 and there is thus a residue of about £84,000. If this is retained in Brooks Thomas shares and if they give a yield of 5%, the income will be £4,200 while if the residue were invested in Government securities, the figure would be £7,140. If however the sum required to provide the income for Mrs Pamela is taken at £40,000 (as Mr Murray suggests it should be), the income from the residue, if retained in Brooks Thomas shares would be £3,200. Mrs Joan would therefore have an income of about £5,000 if she invests £20,000 of the proceeds of Lodge Park. This with a good house would be regarded by most people in this community as being a generous provision for her.
It has been argued that the testator did not owe any moral duty to his children to make proper provision for them because they have adequate incomes and, as a subsidiary point, it was said that a testator does not owe any moral duty to a married daughter to give her anything out of his estate. Mr Baker said that the second of these contentions was ‘revolutionary’. The answer to the problem is not, however, to be found in ambiguous adjectives. In some cases a testator may be under a moral duty to make proper provision for a married daughter: in other he may not. If, for example, a member of our community whose wife had predeceased him had an estate of £25,000 and had sons under 18 and a married daughter, he would not, in my opinion, be under any moral duty to her. I adhere to the views which I expressed in George Ernest Moore Deceased, 2 March 1970:
It follows, I think, that the relationship of parent and child does not of itself and without regard to other circumstances create a moral duty to leave anything by will to the child. The duty is not one to make adequate provision but to make proper provision in accordance with the testator’s means. It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend upon (a) the amount left to the surviving spouse or the value of the legal right, if the survivor elects to take this, (b) the number of the testator’s children, their ages and their positions in life at the time of the testator’s death, (c) the means of the testator, (d) the age of the child whose case is being considered and his or her financial position and prospects in life and (e) whether the testator has already in his lifetime made proper provision for the child. The existence of the duty must be decided by objective considerations: the court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive.
*117
The testator, who had gross assets of about £430,000, made no provision for his three younger children out of his property. Two of them had strong moral claims on him. Brian had been induced to believe that he would ultimately become owner of the Simmondstown Stud and shaped his life accordingly. The whole foundation of his upbringing and training was swept away when the testator sold the stud and then left Lodge Park to Mrs Joan absolutely. Mrs Popplewell had been persuaded by the testator to settle the property which she had got from her grandfather and from her aunt in such a way that she is entitled to the income of it for her life but cannot leave any of it to her husband or her children. The testator has made adequate provision for Malcolm by putting him into a prosperous business where his considerable commercial talents make it certain that he will have a large income. Mrs Pamela has compromised her claim and most generous provision has been made for Mrs Joan. I am therefore of opinion that the testator failed in his moral duty to make proper provision for Brian and for Mrs Popplewell.
I have found Mrs Nouri’s claim more difficult. With considerable wisdom she had refused to settle her property though the testator was anxious that she should. By Irish standards she has a considerable unearned income. The testator’s obligation however was to make provision for her in accordance with his means. I think that the size of the testator’s estate, the fact that all the expenses of her education were paid out of income to which she was contingently entitled and which she should get when he attains 25 years of age if it had been accumulated and the uncertainty of her future (married to a doctor who has just qualified), created a duty to make proper provision for her.
As the testator failed in his moral duty, the court must make a just provision for each of the three younger children out of the estate in a way in which a prudent and just parent would do this. There is however a preliminary difficulty. If I take the view that a prudent and just parent would have given each of his daughters a substantial legacy, I know that he would do this on the basis that the estate duty would be paid out of the residue and so the amount of it would be reduced by that duty. But the Act of 1965 imposes liability for this duty at the rate applicable to the estate on any provision which the court makes. Must the court then give a legacy which a testator would have given or should it give one which will take account of the liability for the death duties? In my view the court must give an amount which after deduction of estate duty will be the legacy which it would be just to give.
In my opinion a prudent and just parent would have left Lodge Park to Mrs Joan for her life or until her remarriage and, on her death or remarriage, would have given it to Brian in substitution for the Simmondstown Stud which he was led to believe that he would inherit. He would also have left him some shares in the MacNaughton company after the death or remarriage of Mrs Joan. But he would have had no idea how many shares would be available when that event *118 happens and I do not know. I therefore propose to give Brian one-sixth of the shares in Brooks Thomas and in the MacNaughton Trust company (if it has not been put into liquidation) which will be in the residue on the death or marriage of Mrs Joan and after the payment of any death duties to which the residue will be liable on her death. Each of the daughters will be given a legacy of £34,000.
The will and codicil of the testator in so far as they relate to Lodge Park will accordingly be set aside and, in place of this, there will be substituted a devise of Lodge Park to the executors and trustees of the will in trust for Mrs Joan for her life or until her remarriage and upon her death or remarriage in trust for Brian absolutely. They will be given power to invest such part of the proceeds of sale of it as they think prudent in the purchase of a residence for Mrs Joan and to allow her to live in any property bought free of rent. The bequest to Malcolm (which becomes effective after the death or remarriage of Mrs Joan) will be altered by giving Brian one-sixth of all the stocks and shares in the MacNaughton company, and Twisteel Reinforcement Company, the Kingscourt Brick and Tile Company and in the trust company after the death or remarriage of Mrs Joan. The legalcies to the daughters will reduce the residue to £44,000 which if it gives a yield of 5% will have the result that Mrs Joan will have an annual income of £3,900 and a house.
There was a debate without reference to any authorities as to whether the bequest of the shares to Malcolm was ‘property of the deceased not specifically devised or bequeathed but included (either by a specific or general description) in a residuary gift’ or whether it was property specifically bequeathed. This question, which arises on the First Schedule to the Succession Act 1965 (which is modelled on the English Administration of Estates Act 1925), does not have to be decided. The only authority on the matter which I have been able to find is the decision in Fielding v Preston (1857) 1 De Gex and Jones 438 in which Lord Cranworth LC decided that a bequest of leaseholds for life and, then to a named beneficiary, was a specific bequest after the death of the life tenant. If however the issue should become relevant in this case, I think that the bequest to Malcolm does not become specific until the death or remarriage of the life tenant. For the purposes therefore of the application of assets, the shares are within clause 2 of Part II of the First Schedule to the Act of 1965 (see also In re Ridley [1950] Ch 415 and In re Wilson [1956] 2 All ER 867).
Counsel for the three children analysed the earlier will made by the testator in great detail. I have not done this or indeed attached any importance to it because I do not think it relevant. The question is not what the testator thought this moral duty was, the issue is ‘what is the moral duty judged by objective considerations’.
H.L. v The Governor and Company of the Bank of Ireland
1977 No. 346 Sp.
High Court
27 July 1978
[1978] I.L.R.M. 160
(Costello J)
COSTELLO J
delivered his judgment on 27 July 1978 saying: The plaintiffs’ evidence in these cases unfolds a family history which is tragic and distressing. They are the children of a father (the testator) whose conduct to them was harsh, frequently cruel, and neglectful to a degree that could well have been pathological. Their claim is that he failed in his moral duty to make proper provision for them according to his means by his will or otherwise, and it is a claim which quite clearly succeeds. Fortunately, it is not necessary for me to recount in this judgment all I have been told in the course of these proceedings, but I should make clear that I accept as true all the evidence I have heard concerning the testator’s conduct and his attitude to his children. However, in order to explain the order I propose to make I must briefly summarise the salient facts of the testator’s family life and the present circumstances of his surviving children, in so far as these are relevant to the operation of the provisions of s. 117 of the Succession Act 1965, under which these proceedings have been brought.
The testator owned a considerable amount of good agricultural land. He regarded himself as a gentleman farmer, but his great interest in life (which was of obsessive proportions) was for horses, which he bred, trained, bought and sold. He was an accomplished horseman, winning prizes in the R.D.S. jumping competitions and at shows throughout the country. He married in 1934, but his behaviour to his wife forced her to leave him and her family in the year 1947. There were five children of the marriage; Maurice (who is called ‘Pete’ by his family) was born on 24 March 1935; Helen, on 3 September 1937; Robert, on 24 November 1938; Gerald, on 6 March 1942, and Garret, on 8 March 1944. None of them received a proper education (although the testator had the financial resources to provide it); he physically ill-treated them; by his attitude to them he drove each of them out of his house in their middle teens, unqualified for anything but the most menial work, *162 and unprovided for.
Maurice, the eldest, left home first. Unfortunately he developed symptoms of mental illness and as far back as 1960 a well-known Dublin doctor wrote to the testator urging the necessity to get specialised medical care for him. The testator ignored this warning and at the time of the testator’s death Maurice was suffering to a serious degree from paranoid schizophrenia and was (and, unfortunately, still is) incapable of managing his own affairs. For long stretches of his life Maurice has lived the life of a vagrant. He has no means and is unmarried. The testator made no proper provision for him during his life.
Helen went to England at the age of 17 — like her brothers being driven from the home by her father. He gave her £3 when she left and a neighbour drove her to the boat at Dublin. She worked as a maid. She completed a secretarial course, took up nursing, became a dental assistant and later qualified as a specialist laboratory assistant. She obviously showed great initiative and moral courage. She married in 1959 and has three children. Her husband is an executive engineer in the Post Office earning £4,000 per annum and his prospects of significantly increasing his income are not good. She had a serious fall from a horse at the age of 15 and she badly injured her back. Her father refused to get her medical treatment and a neighbour brought her to a bone setter. The neglect of her back (according to the medical evidence which I accept) has had the most serious consequences. She has suffered continually from it, and had to give up work in 1961 due to its painful condition. In 1971 she had an operation which not only failed to cure her back condition but which resulted, due to an error, in the removal of the nerve supply to her bowel and bladder. She had a further operation in November 1977. She is now in a wheel chair and wears a cervical collar. The medical report which has been admitted in evidence indicates that she will have a significant probably 50% permanent disability for life, that she will have permanent back and leg pain and that she has permanent paralysis of the bowel and bladder. Her eldest son is asthmatic, and her daughter suffers from deafness. Because of her disability she cannot work (as she would like to do); cannot do housework and has to employ help in the house, both in the mornings and afternoons. She has shown great fortitude in the face of her many troubles. Her father made no provision for her of any sort after she left home.
Robert went to several different schools and considers that he was nearly illiterate when he left home at the age of 17. He, too, went to England, getting work in a canning factory, as a bus conductor, as a general labourer. Through the intercession of the family solicitor his father paid £150 to help him train as a ship’s radio operator. This was the only provision the testator made for him. He had nervous trouble and was unable to continue this work. He worked again in England and in Dublin at different jobs. In 1975 he left Ireland and went to Italy where he worked in monasteries until he learnt of his father’s death. Since then he has done no work. He has helped look after his sister’s children and does not know how he will utilise the legacy his father left him. He is unmarried.
Gerald was first sent to boarding school at the age of five. After attending a number of schools his formal education was stopped by his father at the age of 15. *163 He was required to stay at home and acted as a stable boy and farm labourer. He, too, injured himself in a riding accident and his injury was neglected and he still suffers from it. He, too, got regular beatings from his father. At the age of 16 he was given £10 and told to leave home. He worked at many different jobs in England; for a time he worked as a labourer on building sites and motorways, and for a time he was in the army. He managed to save enough to start up a taxi business. Whilst engaged in this he was arrested and charged in 1970 with receiving stolen goods. He was found guilty and was given a lengthy prison sentence, of which he served 6 years. He wishes to return to this country and work in agriculture. His father made no proper provision for him during his life.
Garret was the youngest son. He, too, went to England when very young, where he married and had two children. Whilst on a visit to this country in July 1971, he, his wife, and one of his children were killed in a motor accident. Julie, his second daughter survived. She was then aged about five years. The testator, against the wishes of her doctor, removed her from hospital and brought her to his home. He insisted (against the advice of all her relations) that he would bring her up and he adopted her under the provisions of the Adoption Act 1952. She was living with him when he died. Since his death, Helen has taken her to live with her and she has settled well into her new family. She has become entitled in her own right to a sum of about £20,000 arising from her parents’ tragic death.
The testator died on 22 May 1976. His principal asset was his farm which when sold realised £380,000. His cattle, bloodstock and machinery brought in nearly £58,000. Although the testator may not have known that his property was as valuable as it turned out to be, he must have been well aware that in the year 1976 he was a wealthy man. In fact, the gross value of his estate after his death came to £476,000 approximately. Two years prior to his death he made his last Will, on 18 February 1974. He left a legacy of £10,000 to Helen and £5,000 between her children when they reach the age of 21; a legacy of £15,000 to Robert; he bequeathed a sum of £10,000 to his trustee to pay the income to Maurice for his life; he bequeathed a further sum of £5,000 to his trustees to pay the income to Gerald for his life. He left a legacy of £2,000 in favour of his housekeeper. The rest of his estate he left to his grand-daughter, Julie. His trustees are, under the will, required to hold his residue on certain trusts in favour of Julie until she reaches the age of 25. She then becomes beneficially entitled to the entire residue. I should point out that a certain lack of clarity exists as to the disposition of the residue but counsel on behalf of the children have accepted that the effect of the Will is as I have just stated it to be. Having heard oral evidence from the solicitor who drafted the Will I am satisfied that if a court was called upon to construe it and if it heard oral evidence under s. 90 of the Succession Act 1965 (as I think it would following the principles enunciated by the Supreme Court in Rowe v Law [1978] IR 55) it would arrive at the construction which I have just given. It is, indeed, quite clear from the evidence that but for the advice given to him by his solicitor the testator would have left his children nothing and that it was with reluctance that he left them the relatively small bequests he did.
*164
I have referred to the gross value of the testator’s estate. His widow became entitled to her legal share of the estate under the provisions of the Succession Act 1965. This amounted to £148,693. After paying debts, funeral and testamentary expenses and allowing for the bequests to which I have referred the residue (to which Julie becomes entitled) is approximately £250,000.
Bearing in mind the extent of his assets at the time of his death, the legal share to which his wife was entitled, the provision (or, more accurately, the lack of provision) made by the testator during his lifetime for his childen, the extent of their needs and the other moral obligations which it could reasonably be said the testator had, I have no hesitation in deciding that the testator failed in his moral duty to the surviving four children of his marriage. In reaching this conclusion I am mindful of the fact that at the time of the testator’s death his son Gerald had been convicted of a serious criminal offence. Whether innocent (as he claimed he was) or guilty of the crime for which he was convicted his father had a moral duty to help his rehabilitation after his release from prison by making proper financial provision for his future. I am also mindful of the fact that the testator was well aware of the circumstances in which his other children lived and of the fact that each of them had tried to effect a reconciliation with him during his lifetime.
Having decided that there was a failure of the moral obligation referred to in s. 117 in respect of each of the Plaintiffs I must now, in accordance with the section, make provision for them out of the estate. A just and prudent parent would in my view approach the division of his estate on the basis that he owed a duty to his four children and his grand-daughter, Julie. But he would, in my view have to give special consideration to two of them, Helen and Maurice. Bearing in mind that they are entitled to legacies under the will and that the net residue after allowing for all legacies, the widow’s legal share, and expenses to date, is approximately £250,000 (which will have to be reduced further by the costs of these proceedings) I propose to make the following provisions.
Helen is suffering from a number of very serious physical handicaps. She has three young children to look after, as well as her niece Julie. Her eldest son as I have said is asthmatic, and daughter suffers from deafness. She will require to employ help in the family home and she should add on a new room to her house to help her live more easily with her handicaps. Her husband’s income is a small one. She has gone heavily into debt to pay for her last operation and she is virtually certain to incur further heavy medical expenses in the future. Her home is substantially mortgaged. I think that it is proper to allow her out of the estate the sum of £90,000. Added to her legacy, this means that she will receive the sum of £100,000 from the estate.
Maurice is suffering from a serious mental illness which has been diagnosed as paranoid schizophrenia. He is incapable of managing his own affairs. He will never be able to work, except perhaps in sheltered employment. He will not marry. He is presently urgently in need of psychiatric care. I think that a just and prudent parent would approach Maurice’s needs this way. He would consider that the most suitable care which Maurice might need could well be given in the services maintained by *165 the regional Health Board — in which event, Maurice would, in all probability, be entitled to the services free of charge. If this was the position, then the annual sums which he would need would be comparatively small. On the other hand, the care and attention which he might require might best be given in a private institution, in which event Maurice would need an income to keep him in such an institution. He would also bear in mind that it might not be possible to give him the medical attention he needs (the efforts of his family to date to persuade him to obtain medical attention have been fruitless), or he may leave the country as he did in the past. In these difficult circumstances I think that a just and prudent parent would establish a discretionary trust and appoint as its beneficiaries not only Maurice but also the testator’s other children, Helen, Gerald and Robert. This would enable the trustees to look after Maurice’s interests during his life and to care for the other children according to their needs if Maurice did not require the entire income in any particular year. I think that he would set aside the sum of £50,000 for such a trust as this sum together with the income from the trust of £10,000 should be sufficient to look after him even if no assistance was obtained in meeting the cost of private institutional treatment. S. 117 of the Act permits me to make such provision out of the estate as I think is just and I consider that I am empowered to make provision for Maurice by means of the creation of a discretionary trust and that this would be just both to Maurice and the other children. I propose therefore to make an Order appointing the Governor and Company of The Bank of Ireland to be trustees of a trust to be created by the Order and direct that the sum of £50,000 be retained by them from monies which they presently hold in the estate of the testator upon trust to pay the capital and any income from the trust fund to or for the benefit of any one or more of the natural children of the testator now living, that is to say, Maurice, Helen, Robert and Gerald in such shares and at such times as the trustees in their absolute discretion should think fit without obligation to make payments to or for the benefit of all the children or to require equality among those to whom payments are made and when Maurice Fitzgerald, the eldest son of the deceased shall have died, to divide what remains of the capital and accrued interest equally amongst the testator’s children then living without regard to payments already made to those children and if any child should have died prior to the death of the said Maurice Fitzgerald leaving children those children should take equally the share which their parent would otherwise have taken. I am aware that when a discretionary trust is created it is usual for the settlor to indicate how he wishes the trustees should exercise their discretion. So, without intending any consequences in law from so doing, I will indicate that in my opinion the trustees should give paramount consideration to the needs of Maurice when administering the trust which I have created, but that this does not necessarily mean that they should accumulate income on his behalf. They should bear in mind any advice they may receive from Mrs Fitzgerald the testator’s widow as to the administration of the trust. I will also order that in addition to all the statutory powers they shall have the trustees will have power to invest and change the investments freely as if they were beneficially entitled to the trust funds. I will order that the trustees be at liberty to apply to the *166 court for directions as to the manner in which they should exercise their trust powers. As the future is so uncertain and as the law in relation to discretionary trusts may well change I will order that the court will have power to vary the trusts which are created by the order provided that this variation does not interfere with proper provision for Maurice’s welfare. If an acceptance fee is payable to the trustees it should be payable out of the trust fund, and the trustees will be entitled to charge out of the fund their normal fees for acting in a trust of this sort. In making the provision for Maurice which I think is just I have aimed to achieve the greatest possible flexibility. This, I believe can be obtained by the orders I have proposed.
As to Robert, I will order payment out of the estate to him of £40,000 which added to the legacy under the Will means that he will obtain £55,000 out of the estate. As to Gerald, I will order payment out of the estate to him of the sum of £50,000. As he has in addition the income from the sum of £5,000 this means that a situation fairly close to equality is obtained in relation to these two sons. They will be receiving substantially less than their sister of course, but I think they will agree that her needs are greater than theirs and that they will appreciate why she should be preferred in the circumstances of the case.
The result of the orders which I have made will be to reduce the residue available to Julie to approximately £20,000 which sum will be subject to a further reduction arising from the costs of these proceedings. But I think that a just and prudent parent would not hesitate in producing this result. He would know that Julie is being well looked after by his daughter Helen and that the money he is leaving Helen will benefit the household in which Julie is living. He would also know that Julie is entitled to a sum of approximately £20,000 arising from the death of her parents and that she, as residuary legatee, will become entitled on the death of Maurice and Gerald to a further sum of £15,000.
J. H. and C. D. H. v Allied Irish Banks Ltd and Others
1978 No. 57 SP
High Court
17 November 1978
[1978] I.L.R.M. 203
(McWilliam J)
17 November 1978
McWILLIAM J
delivered his judgment on 17 November 1978 saying: These proceedings have been brought by the plaintiffs for a declaration that W. H. D. (hereinafter described as the testator) failed in his moral duty to make proper provision for them and for an Order in accordance with s. 117 of the Succession Act 1965, making provision for them out of the estate of the Testator.
S. 117(1) is as follows:
Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
Subs. (2) is as follows:
The court shall 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 to be 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.
This section has been considered in a number of cases, first, possibly, by Kenny J, in F.M. v T.A.M. (1972) 106 ILTR 82. I am aware that the decision in this case was appealed and that the proceedings were eventually compromised but, at p.87, Kenny J stated certain principles to be applied in operating section 117 and these principles were adopted as correct by Hamilton J, in judgments in cases of Bray v Bray and In re estate of Dowse deceased, Walsh v Allied Irish Banks Ltd delivered on 25 February 1977 and 2 March 1977, respectively. Kenny J, said—
It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend upon (a) the amount left to the surviving spouse or the value of the legal right if the survivor elects to take this, (b) the number of the testator’s children, their ages and their position in life at the date of the testator’s death, (c) the *205 means of the testator, (d) the age of the child whose case is being considered and his or her financial position and prospects in life, (e) whether the testator has already in his lifetime made proper provision for the child. The existence of the duty must be decided by objective considerations. The court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive.
In a judgment delivered on 2 November 1977, in a case of M.L. & A.W. v M.L [1978] IR 288 Costello J, at page 292 made the following observations:
A parent in acting prudently and justly must weigh up carefully all his moral obligations. In doing so, he may be required to make greater provision for one of his children than for others. For example, one may have a long illness for which provision must be made; or he may have an exceptional talent which it would be morally wrong not to foster. But a just parent in considering what provision he should make for each of his children during his lifetime and by his will must take into account not just his moral obligations to his children and his wife, but all his moral obligations. The father of a family may have many moral obligations. Again to given an example, a father may have aged and infirm parents who are dependent on him and to whom he clearly owes a moral duty … Therefore, it follows that, if a child of the testator claims after his death that insufficient provision was made for such child, the Court, when considering whether this was so or not, must bear in mind all the moral duties which the testator may have had and all the claims on his resources thereby arising. In considering the validity of the judgments which the testator made during his lifetime and by his will and how he fulfilled his moral obligations it is obviously not relevant to consider only those obligations which could be enforced under the Act of 1965.
The plaintiffs are the only children of the testator, who is also survived by his widow. The Testator and his wife were married in the year 1952. The plaintiff, J. H. (hereinafter called the daughter), was born on 2 April 1953. The plaintiff, C. D. H. (hereinafter called the son), was born on 24 February 1955. It appears that differences began to arise between the testator and his wife in or about the years 1961 and 1962 and these differences reached a stage in August 1971, such that the testator left the family home and went to reside in a flat where he continued to reside until the date of his death. During this period there was very little communication other than formal between the testator and the members of his family. Although a considerable amount of evidence was given on the point I consider it to be irrelevant for me to try to apportion responsibility for this state of affairs. On 1 October 1975, a deed of separation was drawn up and executed by the testator whereby his wife was given sole custody of the son, was given the right to reside in the family home with the two children, was given an annuity of £2,376.00 to be reduced by £26 per month (i.e. £312.00 per annum) on the daughter completing her university course or in other specified events but to be increased by the same monthly amount if and while the son should be incapacitated by illness. It was provided that the testator’s wife would maintain herself and her children (including the education of the children) and pay the rates of the family home but that the testator would pay the ground rent and mortgage charges and be responsible for its maintenance.
The plaintiffs did continue to reside with their mother in the family home but each of them has been a patient in St. Patrick’s Hospital and suffers from a form of depressive illness.
The daughter was first admitted to hospital on 24 September 1974, and was discharged on 19 November following. This interrupted her course at college but she obtained a degree in modern languages in 1977. She continued to have *206 psychiatric care and was re-admitted to hospital on 14 June 1978, where she remained until 28 August 1978. In addition to taking her degree, the daughter has done a secretarial course and is at present employed in a secretarial capacity although she stated in evidence that she would have liked to do other courses to qualify her for better jobs such as teaching, journalism or social work. The medical evidence indicates that she will be subject to recurrences of her illness. The evidence given to me is that her degree in modern languages is not considered to be of any value as a qualification for a job.
The son has suffered more severely from depressive illnesses. He passed the intermediate examination but he had to attend psychiatrists from 1971 onwards. This was the year when the testator left the family home and the son would then have been 16 years old. He did not sit for the leaving certificate and has had no training for any special job. He was admitted to St. Patrick’s Hospital on 10 May 1973, and remained there until the end of September. He continued to attend as a daily patient until the middle of December of that year. He was readmitted to St. Patrick’s Hospital in September 1974, and remained there until January 1975. In the interval between his two periods of hospitalisation the family doctor had taken an interest in the son and appears to have gone to considerable trouble to arrange a job for him in the wholesale department of a clothing firm. This was rather a poor job but I assume the doctor thought this occupation would help to rehabilitate the son. During October and November 1974, the son went to work from the hospital. He continues to attend St. Patrick’s Hospital as an out-patient from time to time and will require psychiatric supervision and medication indefinitely, probably for the remainder of his life. He is still employed by the clothing firm and his wages have been increased to the appropriate figure for the job as a result of trade union action but he feels his prospects of advancement are slight and that the possibility of the job terminating in the near future is considerable. Apart from the experience acquired in this job, the son has no qualification for any particular job.
The testator died on 23 January 1977, having made his last will on 10 December 1976 whereby he gave his wife one third of his real and personal estate, gave the plaintiffs legacies of £1,000.00 each and gave the residue of his estate to his sister and his nephew in equal shares. The estate of the testator has been valued at approximately £40,000.00 as part of which the family home is worth approximately £25,000.00 From an affidavit by the solicitor who drew this will it is clear that the testator was made aware of the provision in the 1965 Act whereby his wife would have a legal right to one third of his estate. Figures were mentioned as to the amount of pension rights to which the testator’s widow is entitled and these varied from £1,080.00 to £3,093.00 but no satisfactory evidence was adduced as to this. She has also got an income of approximately £500.00 to £600.00 per annum from shares she received on her mother’s death. Whatever may be the means of the testator’s widow, it is a matter which is not directly relevant to the issues in this case as she is not entitled to make any claim under the Act, can not be deprived of any part of the third of the estate to which she is entitled and we are not here concerned with her moral duty to make provision for her children.
The first issue which I have to decide is whether the testator did or did not have a moral duty to make provision for his children in accordance with his means. In considering this I have no duty to decide any question of responsibility for the estrangement between the testator and his wife. Nor have I any duty to decide any question of responsibility for the subsequent lack of communication between the testator and the plaintiffs. In my opinion, there can only be one answer on this issue. The testator did have such a moral duty, however neglected, thwarted or aggrieved he may have felt.
The second issue is whether the testator failed in that moral duty or not. In this context, adopting the view of Costello J, with regard to other possible moral duties, it is relevant to consider the position of the testator’s sister and nephew, not by comparison with the position of the testator’s widow, but objectively and independently. It is perfectly clear that, however attached the testator was to his nephew and his nephew’s family, he had no moral obligation to provide financially for his nephew, who is comparatively well-to-do. With regard to his sister, although I accept that she is not very well off, there is no suggestion of destitution or of financial or physical distress and, notwithstanding the kindness which she undoubtedly showed to the testator, I cannot see that the testator had any moral duty to make provision for her either.
I now turn to consider the position of the plaintiffs. It seems to me that a prudent and just parent would take such steps as were open to him to preserve the health and provide for the advancement in life of his children. This the testator has not done at all in the case of the son and only partially in the case of the daughter. In my opinion, the greater part of the estate after deducting the third given to his wife should have been made available to provide for his two children. I am not in the position of making an entire new will for the testator but part of the obvious dilemma in which I am placed has been resolved unwittingly by the executors because I observe that certain payments have been made on account of legacies and residue and I will direct that the residue of the testator’s estate, less the amount of these payments, shall be distributed as to one quarter thereof for the daughter and as to three quarters thereof for the son. No order will be made up until the matter has been re-entered for the purpose of considering how the share I have awarded to the son should be administered, having regard to the course adopted by Costello J, in the case of M.L. & A.W. v M.L.
J.R. v J.R.
1978 No. 661
High Court
13 November 1979
[1979] I.L.R.M. 236
(Keane J)
13 November 1979
KEANE J
delivered his judgment on 13 November 1979 saying: The material facts in this case are not seriously in dispute. The plaintiff is the only child of the above named deceased (whom I shall refer to as ‘the testator’). He is now aged 43 and is by occupation a motor mechanic. He is married, has four children and lives in a corporation house.
The testator’s first wife, who was the plaintiff’s mother, died in 1942. Approximately four years after her death, the testator bought a 20 acre farm and it was on this farm that the plaintiff grew up, going successively to the national school and the vocational school and ultimately being apprenticed as a motor mechanic when he was 16 years old. It is clear that the testator felt that the farm could not support both himself and the plaintiff and that the plaintiff should learn a trade. The plaintiff continued to live on the farm until he emigrated to England at the age of 19. Before his departure to England, however, an estrangement developed between the testator and the plaintiff which was apparently caused by the plaintiff’s wish to marry the young lady who in fact subsequently became his wife. In 1957, the plaintiff and his wife returned to live in a town near the farm and have been living there ever since. The plaintiff resolved his differences with the testator in 1962 and there is nothing in the evidence to suggest that their relations were anything but reasonably harmonious until the testator’s death on 19 September 1977.
The testator married the defendant in 1954. After the reconciliation between the testator and the plaintiff in 1962, the latter regularly visited the small farm. He says that he assisted frequently with the work on the farm during these visits, but there is some controversy as to the extent of the assistance actually given by him. It is, however, clear that not merely were relations between the plaintiff and the testator perfectly normal during all this time: there is also nothing to suggest that his relationship with his stepmother, the defendant, were marred in any serious way by the difficulties which are sometimes inherent in that particular relationship. During all this time, the work on the farm was done by the testator, the defendant and the testator’s brother, who had not married and who lived with the testator and the defendant.
On 19 March 1976, the testator made a will by which he left all his property to the defendant for her life with remainder to the plaintiff absolutely. Only a few weeks after making his will the testator made a new will revoking the former will and leaving all his property to the defendant subject only to a right of residence in the house of the lands for J.R. In the event of the defendant predeceasing the testator, the property was to go absolutely to the plaintiff. Apart from the farm, dwellinghouse, farm implements, stock and furniture, the only other asset of the deceased was a sum of £3,152.72 which was on joint deposit and a Fiat 1100 *238 motor car. It is common case that the value of the farm and dwellinghouse today is not less than £50,000. The evidence established that the farm was bought for approximately £630 and that the defendant, on her marriage, contributed £975.
These proceedings were instituted by the plaintiff under s. 117 of the Succession Act, 1965 which provides that:
(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
(2) The court shall 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.
Sub-s. (3) provides that:
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.
Under s. 111(2) of the Act, the defendant, as the spouse of the testator, has a legal right to one-third of the testator’s estate. It is also clear that where, as in the present case, the surviving spouse is not the father or mother of the applicant, an order may be made under s. 117, notwithstanding any consequent diminution in a bequest to the spouse; his or her legal right to one-third of the estate, however, cannot be affected by any order made under the section.
If an application under s. 117 is to succeed, the court must form the opinion that the testator has failed in his moral duty to make proper provision for the plaintiff in accordance with his (i.e. the testator’s) means. In a case such as the present, it is highly material before arriving at a conclusion to consider whether that conclusion should be arrived at having regard to objective considerations or subjective considerations.
If the question as to whether the testator had failed in his moral duty was to be answered in accordance with subjective considerations, I think it is clear that in the present case the application would fail. There is hardly room for any serious doubt that the testator was actuated by a scrupulous desire to do the best, within his relatively modest means, for his wife and son. His original intention had been to give a life interest only to the defendant, the farm going ultimately to the plaintiff absolutely. It is clear that he changed his mind, not because he was in the slightest degree actuated by any hostility towards the defendant, but because he was anxious to ensure that the defendant, who is an elderly lady, would be properly provided for. His instructions to his solicitor, Mr Kelly, made it clear that he was confident that the defendant would in turn ensure that proper provision was made for the plaintiff. As Mr Comyn SC on behalf of the defendant pointed out, the testator was probably concerned about the possibility that, with advancing years, neither the defendant nor her brother-in-law would be in a position to go on working this small farm and thought that they should be in a position to sell it and live in reasonable comfort for the rest of their days. A *239 sale by the defendant, as tenant for life, under the provisions of the Settled Land Act 1882, would merely have entitled her to the income from the proceeds of sale; and the testator probably thought that he should afford the defendant as much financial security as he could by entrusting her with the capital sum in the expectation that she would in due course make proper provision for the plaintiff. It is clear that this small farm could never provide a living for more than one person or one couple; and the testator appears to have come to the conclusion that he could best discharge his moral duty to provide for his wife by leaving her the farm absolutely. This does not mean that he was in any sense unaware of or blind to his moral duty to the plaintiff; on the contrary, the evidence makes it clear that he reposed the utmost confidence in the defendant to make whatever provision was necessary for him in due course. It follows that, were the matter to be determined by subjective considerations, it could not reasonably be said that the testator had failed in his moral duty within the terms of the section.
If, however, the test to be applied is an objective one, this would point to an entirely different conclusion. The plaintiff is the only child of the testator. Because the farm was small, he had to earn his own living as a motor mechanic. He is married and has four children. There is no indication that he has any significant assets or savings of any sort. The evidence points clearly to the fact that he is an honest and hardworking person and there is nothing to indicate that, had provision been made for him in the testator’s will, he would have dissipated the bequest in a reckless or improvident fashion. As a result of the operation of the testator’s will, however, the plaintiff is now left in a situation where, although he is the only child of the testator, he has no legal entitlement whatever to any part of the estate. There is nothing to prevent the defendant from leaving all the testator’s assets to someone other than the plaintiff and making no provision for him whatever in her will; and while this may very well be an unlikely contingency, one can only say that stranger events have happened. Judged by objective considerations, it seems to me that there is hardly room for any doubt that the testator has failed in his moral duty to make proper provision for the plaintiff in accordance with his means.
Fortunately, the question as to whether the test is a subjective or objective one, has been considered. In F.M. v T.A.M. and Ors (1972) 106 ILTR 82 and B.S.M. v R.J.W. (1973) 107 ILTR 13, Kenny J held that the question as to whether a moral duty within the meaning of the section existed had to be decided by objective considerations: it was for the court to decide whether the duty exists, and the opinion of the testator that he was not under any duty was not decisive. I am satisfied that I should follow these decisions and apply the principles laid down in them; and, accordingly, on the facts of the present case, I have come to the conclusion that the testator has failed in his moral duty to make proper provision for the plaintiff in accordance with his means.
The question then arises as to what provision the court should make for the plaintiff. I am required by sub-s. (2) to consider the application ‘from the point of view of a prudent and just parent’. I think that the solution to the problem which confronted the testator in this case was probably contained in his first will, i.e. a life interest to the defendant with remainder to the plaintiff. But an *240 order under the section must not affect the legal right of the defendant to one-third of the estate; and both Mr Comyn SC and Mr Fennelly SC for the plaintiff accept that this precludes the court in the present case from, as it were, reviving the first will. This inevitably means that any order for the making of provision for the plaintiff out of the estate can only be implemented by a sale of the farm. This is clearly unfortunate, but cannot be avoided, once the conclusion is reached that the testator has failed in his moral duty to provide for the plaintiff.
As I have already indicated, the maximum to which the plaintiff is entitled, if the court is satisfied, as it is in the present instance, that proper provision has not been made is two-thirds of the estate. That would be unjust to the defendant and, indeed, Mr Fennelly SC in opening the case for the plaintiff indicated that the plaintiff would be satisfied to accept one-half of the estate. After careful consideration, I have come to the conclusion that provision should be made for the plaintiff out of the estate of the deceased to the extent of two-fifths of the estate. Both parties will be allowed their costs out of the estate.
In the matter of S.117 of the Succession Act, 1965 and
In the goods of J.H., deceased
. M.F.H., J.M.H., B.C.H., and M.F.H., Plaintiffs v. W.B.H. (otherwise L.H.) Defendant
[1981 No. 1042 Sp.]
High Court 2nd March 1983
Barron J.
2nd March 1983
In this case, the testator died on the 30th May, 1980, having made his last will on the 8th May, 1980. He was survived by his second wife and nine children all of whom were the children of his first wife. The testator was a farmer and also carried on business as an agricultural contractor. His first wife died in 1974. From then on, he was assisted in his farming and contracting business by his son W.B.H. otherwise L.H. (hereinafter referred to as “L.H.”) the defendant herein. In 1977, he re-married and purchased a bungalow at Arden Heights in the town of Tullamore where he went to live with his second wife. From then on the farmhouse on his farm was occupied by his unmarried children. His assets at the date of his death comprised his farm of 48 acres at Spollenstown, Tullamore, now worth about £120,000; stock thereon and agricultural machinery valued together at £31,750; the bungalow in which he lived, now worth about £30,000; household contents valued at £1,500; £1,100 with the Credit Union; and a motor car valued at £5,000. Much of the machinery was subject to loans from the Agricultural Credit Corporation amounting in all to approximately £22,000. The purchase of the bungalow in Tullamore was financed by bank loans which at the date of his death amounted to some £25,000. He also had other liabilities amounting to approximately £12,000.
By his last will dated the 8th May, 1980, the testator appointed his son L.H. as sole executor and left his bungalow at Arden Heights to his widow for her life and after her death to a grandson, being the son of one of his married sons. He left the residue of his estate to his son L.H.. He made no bequest by his will to any of his other children.
Of his nine children, five, including L.H. were married. The remaining four, two sons and two daughters were unmarried. It is these latter who are the plaintiffs in the present proceedings. None of the children obtained more than a primary education. Each of them has essentially made his or her own way in life. N., the eldest, was born in 1943. He now owns his own farm and seeks nothing from the estate of his father. M.F.H., one of the applicants, was born in 1945. He left school at the age of fourteen and since then has moved from job to job in his occupation as a chef. His job has taken him away from home and he returned only during annual holidays for one or two weeks in the year. As a result, he became a virtual stranger to his brothers and sisters who remained at home. Since his father’s death he has been out of work for approximately 18 months and has got to know the unmarried members of the family from staying and living in the family home with them. He has, since he was a child, suffered from deafness in his left ear and uses a hearing aid. He is unmarried and has no assets other than his pay when in work which is of moderate proportions.
P.J. was born in 1946. He is married and lives in Durrow. He has a bulldozer contracting business and makes no claim against the estate of his father. The next child L.H., the defendant in these proceedings, was born in the year 1949. He learnt his trade as a mechanic in Tullamore and went to England in 1971, where he obtained steady employment. When his mother died in 1974 he returned home and stayed on to help his father. From then on until his father’s death he assisted his father both in the running of the farm and to a lesser extent in his agricultural contracting business. He is married and lives in a bungalow which he built on a site provided for him on the farm by his father. J.L., who was born in 1951, is an agricultural contractor. He is married and also lives in a bungalow which he built on a site on the farm provided for him by his father. He makes no claim against the estate of the testator. The next son, J.M.H., was born in 1953. He is a claimant and is unmarried and lives at home. He is a haulage contractor and at the date of his father’s death was not in a very good way of business. Since then he has done considerably better.
The next child, E., was born in 1954. She is married and makes no claim against the estate of her father. The last two children are girls both of whom live at home. They are both claimants. B.C.H. was born in 1955 and works as a clerk in Tullamore and has a reasonable wage having regard to the nature of her employment. M.F.H. (hereinafter referred to as “M.F.”) the youngest child, born in 1960, has had various jobs since she left school, mainly as a factory worker. Although of normal intelligence, she is unable to read or write save that she can sign her own name. While she was able to hold down a job in a factory which she lost only through redundancy, she would be one of the last of the labour force to find employment. She is not able to look after herself fully in the sense that she requires assistance when shopping and the family would not like to see her alone at home on her own, In the last year, she was the victim of an assault by a man whom she met at a dance and suffered moderately severe facial injuries. The burden of looking after her in this limited sense has devolved upon her two sisters.
The testator’s widow claimed her legal share and having done so agreed to accept in its place a life estate in the bungalow at Arden Heights and the sum of £15,000. Most of the agricultural machinery has been sold by the executor. He kept approximately £5,000 worth and the proceeds of sale of the remainder raised approximately £4,500 more than the money required to pay off the Agricultural Credit Corporation. The loan to the bank has been increased by interest and by payments made to the widow. In the result, there is now approximately £45,000 owing to the bank.
This application is brought under the provisions of s. 117 of the Succession Act, 1965. Section 117 so far as it is material is as follows:
“1. Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
2. The court shall 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.
3. 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.”
The approach to be adopted by the court in applying the provisions of this section was first considered by Kenny J., in F.M. v. T.A.M. 1 In that case at p. 86, Kenny J. said:
“An analysis of section 117 shows that the duty which it creates is not absolute because it does not apply if the testator leaves all his property to his spouse (Section 117(3)) nor is it an obligation to each child to leave him something. The obligation to make proper provision may be fulfilled by will or otherwise and so gifts or settlements made during the lifetime of the testator in favour of a child or the provision of an expensive education for one child when the others have not received this may discharge the moral duty. It follows, I think, that the relationship of parent and child does not of itself and without regard to other circumstances create a moral duty to leave anything by will to the child. The duty is not one to make adequate provision but to make proper provision in accordance with the testator’s means . . . The court, therefore, when deciding whether the moral duty has been fulfilled, must take all the testator’s property . . . into account . . . It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend upon
(a) the amount left to the surviving spouse or the value of the legal right if the survivor elects to take this,
(b) the number of the testator’s children, their ages and their positions in life at the date of the testator’s death,
(c) the means of the testator,
(d) the age of the child whose case is being considered and his or her financial position and prospects in life,
(e) whether the testator has already in his lifetime made proper provision for the child.
The existence of the duty must be decided by objective considerations. The court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive.”
This passage had been cited with approval in many later cases. In that case the applicant was an only child, who had been adopted. His father refused to recognise him as his son for this reason and had made no provision for him in his will. Kenny J. granted him relief under the section.
In In the matter of N. S. M. deceased 2 Kenny J. had to consider applications by the three younger children of the testator, proper provision having been made for the eldest child. In each case, Kenny J. granted the applicants relief. The facts so far as they are material and the reasons for his decision are contained in a passage of the judgment at p. 8. It is as follows:
“The testator, who had gross assets of about £430,000, made no provision for his three younger children out of his property. Two of them had strong moral claims on him. B.S.M. (one of the applicants)had been induced to believe that he would ultimately become owner of the S. Stud and shaped his life accordingly. The whole foundation of his upbringing and training was swept away when the testator sold the stud . . . Mrs. P. (another of the applicants) had been persuaded by the testator to settle the property which she had got from her grandfather and from her aunt in such a way that she is entitled to the income of it for her life but cannot leave any of it to her husband or her children. The testator has made adequate provision for N.M.M. (the eldest child) by putting him into a prosperous business where his considerable commercial talents make it certain that he will have a large income. . . . I am . . . of the opinion that the testator failed in his moral duty to make proper provision for B.S.M. and for Mrs. P.
I have found Mrs. N.’s (the third applicant) claim more difficult. With considerable wisdom she had refused to settle her property though the testator was anxious that she should. By Irish standards she has a considerable unearned income. The testator’s obligation, however, was to make proper provision for her in accordance with his means. I think that the size of the testator’s estate, the fact that all the expenses of her education were paid out of income to which she was contingently entitled and which she would get when she attains 25 if it had been accumulated and the uncertainty of her future (married to a doctor who has just qualified), created a duty to make proper provision for her.”
In L. v. L. 3 , the testator had been divorced by his wife and purported to marry for a second time. There were children of this purported marriage and the question arose whether or not in providing for his legitimate children, he was entitled to take into account his moral obligations to these other children. In the course of his judgment, Costello J. said:
“Basically, there are two issues which may require to be determined in all proceedings under section 117. First, the Court must determine whether there has been a failure on the part of the testator of the moral duty referred to in the section which he owed to the Applicants. The second question . . . concerns the provision which the Court should make out of the testator’s estate . . .
The Court must make an order that is just. It is required by s. 117, sub-s. 2, to consider the application from the point of view of a prudent and just parent; and it is required to take 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 or children who are claimants under the section and to the other children. A parent acting prudently and justly must weigh up carefully all his moral obligations. In doing so, he may be required to make greater provision for one of his children than for others. For example, one child may have a long illness for which provision must be made; or one child may have an exceptional talent which it would be morally wrong not to foster. But a just parent, in considering what provision he should make for each of his children during his lifetime and by his will, must take into account not just his moral obligations to his children and to his wife, but all his moral obligations. The father of a family may have many moral obligations. Again, to give an example, a father may have aged and infirm parents who are dependent on him and to whom he clearly owes a moral duty. When acting justly and prudently towards his own children he would have to bear in mind his obligations to his own parents; the provision he makes for his children may have to be reduced because of these other obligations. Therefore it follows that, if a child of the testator claims after his death that insufficient provision was made for such child, the Court, when considering whether this was so or not, must bear in mind all the moral duties which the testator may have had and all the claims on his resources thereby arising.
In considering the validity of the judgments which the testator made during his lifetime and by his will, and how he fulfilled his moral obligations, it is obviously not relevant to consider only those obligations which could be enforced under the Act of 1965.”
In J. H. and C. D. H. v. Allied Irish Banks Ltd. 4 in an unreported judgment delivered on the 17th November, 1978, McWilliam J., cited with approval the passage from the judgment of Kenny J., in F.M. v. T.A.M. 1 to which I have already referred and part of the passage from the judgment of Costello J., in L.v. L. 3 to which I have also referred. In this case, the testator who had been estranged from his wife, son and daughter, had left his estate between his sister and her son. McWilliam J. was satisfied that the testator had a moral duty to provide for his son and daughter in accordance with his means “however neglected, thwarted or aggrieved he may have felt.” Dealing with the position of the testator’s sister and nephew in the context of whether or not the testator had failed in this moral duty he said:
“In this context, adopting the view of Costello J., with regard to other possible moral duties, it is relevant to consider the position of the Testator’s sister and nephew, not by comparison with the position of the Testator’s widow, but objectively and independently. It is perfectly clear that, however attached the Testator was to his nephew and his nephew’s family, he had no moral obligation to provide financially for his nephew, who is comparatively well to do. With regard to his sister, although I accept that she is not very well off, there is no suggestion of destitution or financial or physical distress and, notwithstanding the kindness which she undoubtedly showed to the Testator, I can not see that the Testator had any moral duty to make provision for her either.”
These cases show the approach which the court adopts in the exercise of its jurisdiction under the section. They also indicate some circumstances in which a testator has been regarded as having failed in his moral duty to his child to make proper provision for him in accordance with his means. A similar approach has been adopted by the Courts in Australia and New Zealand. In Re Allen v. Manchester 5 at p. 220 a passage cited by Lord Romer in Bosch v.Perpetual Trustee Company Limited 6 at p. 21 Salmond J. indicates the test which the New Zealand courts adopt in relation to legislation which requires the Court to consider whether under the will of the testator adequate provision has been made for the proper maintenance and support of his spouse and children. He says:
“The Act is . . . designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provisions which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.”
In the exercise of its jurisdiction, the section requires the court to approach its decision from the point of view of a prudent and just parent, and to take into account the position of each of the children and any other circumstances which it may consider to be of assistance. Having taken these matters into account, it must reach a decision which is as fair as possible to the applicant child, and, where there are other children, to those other children also. In this context, the expression “other children” means any other child who is also an applicant or who is a beneficiary under the will and whose benefit thereunder may be affected by the exercise of the court’s powers. The court should not be required to take into account provision or lack of provision made for children not in either of these categories. The provision made for such children cannot be affected by its order. It must strike a balance, where necessary, between the children before the court on the basis of what is just having regard, as well as to the other matters it has to take into account, to the means of the testator passing by his will.
In my view, it is clear that what the court is being required to do is to be fair in all the circumstances. Since the court must see whether or not proper provision has been made in accordance with the means of the testator, it follows that “proper” means what is fair in the light of the matters which it has to consider and that the standard to be applied depends on the means of the testator. The court must decide whether or not any or any further provision ought to have been made for the applicant child and, if so, what further provision would have discharged the testator’s moral duty. In reaching its decision on both these questions, the court must take into account all the matters indicated in sub-section 2. The position of an applicant child cannot be taken in isolation. The quantum of what is proper provision in any particular case is not an absolute but is dependent on all the matters which the court must take into account. The opening words of sub-s. 2, make this clear. If it had been otherwise, the opening words would not have been “the court shall consider the application from” but would have been “the court shall consider any relief to be granted from.” It is the duty of the court to consider the entirety of a testator’s affairs and to decide upon the application in this overall context. In other words, while the moral claim of a child may require the testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.
The court has to consider whether or not the testator has failed in his moral duty. This suggests that the duty existed at the date of death of the testator. Nevertheless, it is the decision of the court on the hearing of the application which has to be fair. Such a decision would not, in my view, be fair if it disregarded a relevant factor merely because it occurred after the date of death of a testator. I would regard any such factor as being one of “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.” In my view, the principles of fairness require every relevant consideration to be taken into account when the decision is being made.
The power of the court is to order such provision for the child concerned out of the estate as the court thinks just. I would regard the nature of the provision made by such order as being part of the decision of the court. Accordingly, “just” in this context also means fair having regard to the interests of the applicant but also to the interests of the other children and such other person to whom the testator owed a moral duty.
In the ultimate analysis, each case must stand upon its own facts. To take two examples: proper provision for a child in one walk of life may not be proper provision for a child in a different walk of life; or proper provision for a child without a handicap or with normal responsibilities may not be proper provision for a child with a handicap or with exceptional responsibilities. Although the court has very wide powers both as to when to make provision for an applicant child and as to the nature of such provision, such powers must not be construed as giving the court power to make a new will for the testator. Of course, once the court exercises its powers, this affects the disposition of the testator’s estate and to that extent his will is re-written. However, the court has no power to ensure that all or any particular part of the testator’s disposable estate is divided between his children. The power of the court arises only to remedy a failure on the part of the testator to fulfil the moral duty owed towards his child. In general, this will arise where the child has a particular need which the means of the testator can satisfy in whole or in part. If no such need exists, even where no provision has been made by the testator whether by his will or otherwise, the court has no power to intervene.
In the present case, the position of the defendant is that he returned home on the death of his mother in the expectation, if not the promise, that he would be left the family farm on the death of his father. Although he carried on his own agricultural contracting business after he returned home, he also worked with his father both on the farm and in his father’s contracting business. However, he does not appear to have received any remuneration for so doing save that he was from time to time permitted to retain small debts owing to his father. Although L.H. went to England in 1971 following a bad car accident and with the need to pay off debts which he had incurred at home, I think it is clear that he had established himself in England and only came home on his mother’s death in order to be in a position to assist his father.
Of the remaining children both M.F.H. and J.M.H. set themselves on their respective courses in life for which each was suited and which each wished to adopt. B.C.H. lived at home and presumably would have remained at home until she married. The same can be said of M.F. except that having regard to her backward nature she is probably unlikely to get married. None of these remaining children has his or her own home, and to that extent cannot be said to have been established in life independent of the assistance of the testator. M.F.H. has a physical infirmity and a significantly poorer standard of living than his parents. J.M.H.’s business is now doing better, but nevertheless there is an absence of the security which would be present in a less precarious type of business. B.C.H. is established in her own career. However, as a daughter, she would have been expected until after the death of her mother and, even more so on the remarriage of her father, having regard to the needs of her sister M.F., to run the family home. To this extent her plans for her own life would have been affected. If she was expected to look after her sister on a long term basis, her plans would have been even more affected. M.F. clearly requires care on a permanent basis.
The present financial position of the estate is that the defendant has been left assets worth approximately £155,000 in respect of which there were either liabilities or he has assumed liabilities amounting in all to approximately £70,000. He has indicated that he would hope to be able to pay off these liabilities without resorting to the sale of any of the assets provided that no further pecuniary liabilities were imposed upon the estate. I think that this is a reasonable view.
The defendant’s main source of income lies in his business rather than in his profits from farming. To that extent, loss of part of the lands would not be so severe a burden. This view is supported by the existence of a planning application for a housing development on the part of the lands. The defendant had hoped to enhance the value of the lands affected by the application so that he could pay off the liabilities of the estate with the proceeds of sale. This plan has not matured since the necessary permission has been refused both by the local authority and by An Bord Pleanála on appeal.
In my view, a prudent and just parent considering the respective positions of the four applicant children and of the defendant and having regard to the means available to him would have been reluctant to divide up his lands between his children, but would have left them as a unit to one child. At the same time, he would have made some provision for the remaining children. In the present case, L.H. is clearly the child to whom the lands ought to have been left. The remaining assets have been insufficient to meet the liabilities of the estate including the right of the widow of the testator to her legal share in his estate. As a result, the bequest of L.H. has already been diminished. Having regard to my view that some provision ought to have been made for each of the plaintiffs, this means that this benefit must be further reduced. Such reduction must be as fair as possible to L.H. as to the children for whom provision must be made.
In my view proper provision for the plaintiffs in accordance with the means of the testator would have been as follows: J.M.H. should be entitled to a licence to reside in the family home until he marries, or if he does not marry then for his lifetime. In the event of his marriage, or, if he so wishes, without any decision to marry, he should be provided with a site upon which to build a home at his own expense. M.F.H. should be entitled to a similar licence to reside in the family home and should be provided with a site upon a similar basis. M.F. should be entitled to a licence to reside in the family home until she marries and if she does not marry then for life. During the period of such licence, she should have an exclusive licence in common with B.C.H., or such other member of the family who, in default of B.C.H. so doing, may from time to time be living in the family home and looking after her, to use and occupy Part B on the map adduced in evidence, subject to the right of L.H. to use the farm buildings whether for the purposes of his business as a farmer or as a contractor. During such time as she is entitled to such licences and she is unemployed, L.H. should make such provision for her maintenance as is reasonable having regard to the wages earned by her when employed and her social welfare payments received by her when she is not. The lands should also be stocked with a limited number of young cattle for the benefit of M.F. and the member of the family looking after her to a value not exceeding the value of the cattle of a similar nature kept by the girls in the family during the lifetime of the testator. B.C.H. should be entitled to a licence to reside in the family home until she marries and if she does not marry then for life. So long as she continues to look after M.F. and conditional upon her so doing she should, after her marriage and during the lifetime of M.F., be entitled to a licence for herself and for her husband and children to reside in the family home.
The lands the subject matter of the recent planning application have not yet come into the category of development land, but it seems that it is only a matter of time before they do so. When this happens they will be worth considerably more than at present. In my view, a prudent and just parent would have wanted such benefit to be shared between his children, certainly between such of his children who were weakest financially, a category into which each of the plaintiffs falls. Accordingly, in addition J.M.H., M.F.H., M.F. and B.C.H. should be entitled to the lands the subject matter of the recent planning application as tenants in common in equal one fifth shares with L.H. Conditions should be imposed upon this right for such time as the lands cease to be primarily agricultural in character so as to enable L.H. to use them for agricultural purposes. Included in such conditions should be one providing for the grant of successive conacre lettings of such lands to L.H. who should pay a reasonable conacre rent for them.
In indicating what I consider constitutes proper provision for the plaintiffs having regard to the means of the testator, I have had regard to the fact that the estate is entitled to the reversion of the bungalow at Arden Heights subject to the life estate of the testator’s widow and that this reversion has been bequeathed to a grandson of the testator to whom no moral obligation was owed by the testator. I have not sought to make this reversionary interest available either to the plaintiffs or to the defendant as compensation for what has been taken from him. The testator’s widow was born on the 21st December, 1937. Accordingly, having regard to her life expectancy, the value of this reversionary interest would be small. Both on this ground and from the nature of the interest itself, I do not consider that taking this benefit from the beneficiary named in the will would alter materially the provisions for the plaintiffs which I propose to direct.
I have not sought at this stage to determine precisely the nature of the rights which I have indicated ought to have been provided for the plaintiffs by the testator. Questions arise as to the location of the sites, the upkeep of the family home, the care of M.F., if B.C.H. is unwilling to undertake the responsibility, settlement of the share of M.F. in the lands the subject matter of the recent planning application, amongst others. It would be preferable for the parties to draw up a trust deed dealing with all these matters. There will be liberty to apply if any problems arise as to its form.
L v L
1982 No. 649 Sp
High Court
22 May 1984
[1984] I.L.R.M. 607
(Ex tempore) (Murphy J)
MURPHY J
delivered his judgment on 22 May 1984 saying: This is a particularly unfortunate case. The parents became estranged within two years of their marriage and the father made no provision for his daughter, the *609 plaintiff, during his lifetime. By his will he left her only £2,000. He charged his dwellinghouse and lands with rights of residence, support and maintenance in favour of his sister for her life and he devised the said dwellinghouse and lands with the stock and effects thereon to the defendant absolutely. The deceased was in loco parentis to the defendant and, in the last ten years, the defendant received 75% of the farm income.
The deceased had a moral duty towards the plaintiff which he ignored during his lifetime. This duty subsists even if the deceased’s wife had deserted him. I accept the statement of Kenny J in M v M (1972) 106 ILTR 82 that the moral duty of a testator is to make proper provision for his children in accordance with his means whether by his will or otherwise. Other moral duties of the testator must also be considered in the circumstances of the present case such as his duty towards the defendant and towards his unmarried sister. However, the deceased had the clear moral duty of a father to his daughter which was ignored during his lifetime. The assets of the deceased amounted to between £60,000 and £77,000. Before the death of her mother the plaintiff obtained a farm of land from her but this is only a factor in the case. I have to consider what provisions a just parent would have made for the plaintiff in the circumstances of this case. I think that £20,000 would have been a proper sum of money and, accordingly, I will make an order for the payment of £20,000 to the plaintiff out of the estate of the deceased to be paid over a period of five years from the taking out of the Grant of Probate on 24 May 1982 together with interest at the Bank of Ireland deposit rate, the same to be charged on the lands of the deceased.
N. O’H. v G. R.
1984 No. 58 Sp
High Court
26 November 1985
[1986] I.L.R.M. 563
(Costello J)
COSTELLO J
delivered his judgment on 26 November 1985 saying: The plaintiff claims that his mother, who died on 5 February 1978, failed in her moral duty to make proper provision for him in the will which she made on 8 November 1975 and he asks the court to exercise its jurisdiction under s. 117 of the Succession Act 1965 in his favour.
The facts (which are not in any way in controversy) on which this claim is made disclose a sad and indeed tragic story. The plaintiff was born on 29 April 1930, his mother and father having been married a little over one month before *564 his birth. But the marriage was one in name only, for they never lived together after it had been celebrated and never had any other children. His father was under the impression that he did not survive his birth, having been so informed by his mother. His mother played no part in his upbringing, having left him in a home immediately after his birth which later arranged for a foster mother to look after him. Effectually, he was abandoned by his mother. Whilst it is no part of my function to day to weigh the blameworthiness, if any, of her actions at the time, it is nonetheless relevant to record that his mother at no time during her lifetime made any provision for her son. She lost all contact with him and it was only as a result of efforts made over several years that the plaintiff, then a man of 37, discovered who his parents were, and got in touch with both of them. His father did not wish to see him and his mother only saw him once, although she talked regularly on the telephone to him for a couple of years after their one and only encounter.
The plaintiff left school at the age of 13 and after a number of different jobs he eventually obtained permanent employment as a machine operative in a factory. He married and reared a family of five children. But he was never well off. His mother had worked as a secretary. She came from a well-to-do family and apart from her salary she became entitled to share in the estate of two brothers who pre-deceased her. However, her own estate was a small one, being valued on her death for probate purposes at £4,500 approximately. She left nothing to the plaintiff (or to her husband), and having bequeathed some jewellery to a friend she appointed another her residuary legatee.
I am quite satisfied that the testatrix in this case failed in her moral duty to her son to make proper provision for him in accordance with her means.
The 1965 Act acknowledges that the moral duty of parents to make proper provision for their children may continue to the end of their lives, and in exercising its jurisdiction under s. 117 the court must take into consideration what provision had been made for a claimant during the life of the parent who it is alleged had failed in his or her moral duty when disposing of property by will. I think that a just and prudent mother in the circumstances of this case would take into account the fact that her son was not well off, that he had a large family to provide for, that she had been unable (or had failed) to help him in his early years, and that no matter how close she was to her friends she should have appreciated that she had a duty to make provision for her son which, in all the circumstances, could only properly be fulfilled by leaving her entire estate to him. Fortunately, I can give effect to this view, for not only have the next of kin of the residuary legatee waived any claim to share in the estate but the deceased’s husband has waived the one third share to which he was legally entitled by virtue of section III of the Act.
I will declare, therefore, that the plaintiff is entitled to the entire of his mother’s estate. I will order:
(a) that the executor do hand over forthwith to him the deceased’s jewellery and other personal effects which may be in her possession;
(b) that the executor do furnish an administration account to the plaintiff within one month;
*565
(c) that the executor is entitled to be paid out of the assets her costs of the administration and the costs of these proceedings on the Circuit Court scale;
(d) that if agreement is not reached on the costs that the matter be re-entered at the beginning of next term so that I can determine a reasonable sum to be allowed for costs;
(e) that after the sums for costs have been agreed or determined that these be deducted from the assets in the executor’s hands and that the balance be paid forthwith to the plaintiff.
I do not propose at the present time to make any order relating to the deceased’s entitlement to her brothers’ estates, but I will give liberty to re-enter the matter should it appear that an account should be taken in relation to either of them.
Re McDonald; McDonald v. Norris
[1999] 1 I.L.R.M. 270 McCracken J
The plaintiff is the eldest son of James McDonald (hereinafter called the testator) who died on 15 November 1993. The testator was a widower at the date of his death and was survived by two children, namely, the plaintiff and Thomas McDonald.
By his will dated 25 May 1993, the testator appointed the defendant to be sole executrix thereof and after directing her to pay all his just debts, funeral and testamentary expenses, provided: *273
I GIVE, DEVISE AND BEQUEATH unto my executrix hereof in trust for her daughter, Mary Norris, junior, all of my property of every kind and description absolutely and forever when she shall attain the age of 18 years subject to the payment of 5,000 to my son, Peter McDonald, in discharge of any moral obligations which it might be considered I have.
The plaintiff has brought these proceedings pursuant to s. 117 of the Succession Act 1965 which provides as follows:
(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
(2) The court shall 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.
The history of the relationship between the plaintiff and the testator is a very sad one, and unfortunately it is necessary to relate the background in some detail for the purpose of determining this application. The testator had originally been a substantial farmer in Mullinavat in County Kilkenny and in particular had been the owner of a farm of 156 acres in the townland of Ballynomey East, another of 124 acres at Ballyquin and what had been the home farm with the family dwellinghouse and 114 acres at Ballinclea. In addition, he had two smaller holdings of land amounting to some 64 acres. He had engaged in mixed farming, and had always had an interest in horses. In 1963 the testator was badly injured in an accident, and thereafter was physically unable to work the farm. At this stage the plaintiff was 14 years of age and was attending the local technical college, although he acknowledged in evidence that he was not good at the books. He left school shortly after his fathers injury and helped his mother to run the farm. She died in 1968 and the plaintiff and the testator remained on in the family home at Ballinclea. At this stage I am satisfied that the day-to-day running of the farm was substantially undertaken by the plaintiff although there was a local labourer employed for two or three days a week. The testator did the dealing with the cattle at the mart and looked after the horses.
The testator had become very friendly with the Norris family, who were also local farmers and who were related to him. There appeared to have been a number of dealings with horses which he undertook in conjunction with the Norriss. He began dealing in horses, and also buying horses on behalf of other people. *274 During the 1970s he would at times stay with the Norriss, although I am satisfied that at this stage it was only on an occasional basis.
Thomas McDonald, the plaintiffs younger brother, also left school at about 15 years of age and for a short time worked on the farm, but he was not content with a farming life, and in 1967 got a job in Clover Meats for one year. In 1968, at about 17 years of age, he got employment with Waterford Glass, and became a skilled glass cutter, but he continued to live in the family home with the plaintiff and the testator until he married in 1978. His evidence, which I find more reliable than that of the plaintiff, is that during this period, while the running of the farm was left to the plaintiff, the testator did provide for them in that he ran an account in the local shop, from which they could get their day to day needs. In addition, it would appear that the plaintiff had 45 or 50 acres of tillage land which he farmed for his own benefit, although the testator may have taken some of the produce for feed for his horses. In relation to the period up to 1980 I find that the plaintiff was primarily responsible for working the farm, other than the horses that were kept on it by the testator, and did not get paid anything in the nature of a regular wage. On the other hand, I do not accept that he was effectively left to fend for himself, as he had his food provided for him from the local shop and he had the benefit of the tillage land.
The real problems appear to have begun about the year 1980. The testator had been spending more and more time with the Norriss, and by about 1979 he seems to have been residing with them permanently. In 1980 the plaintiff got engaged to be married to Breda Irish. The testator appears to have had a dislike for the Irish family, and was opposed to the marriage. This was the beginning of a serious rift between the testator and the plaintiff
In January 1981 the plaintiff married Breda Irish. The testator did not go to the wedding and did not make any form of settlement on the plaintiff, but the plaintiff and his wife continued to live on the lands. At this stage the testator had some 150 cattle on the lands, as well as some horses. In July 1982 Mrs Breda McDonald, the plaintiffs wife, got a herd number, and the testator seems to have assented to this as the land owner. About the same time the testator removed all his own cattle from the land and sold them, despite the protests of the plaintiff. The plaintiff put his own cattle on the lands and has now built up a herd of some 75 cattle. From this time on the plaintiff effectively occupied the lands for his own benefit, and he also opened up a quarry on the lands of Ballyquin which he worked for his own benefit.
I have no doubt that in or around the time of the plaintiffs marriage, and in the year or 18 months thereafter, both the plaintiff and his brother, Thomas, put considerable pressure on the testator to sign the lands over to them. At this stage he was living with the Norriss and not working the lands. The testator had been the master of the local harriers, and kennelled the dogs on his lands. As part of the pressure being put on him, the plaintiff and his brother threatened *275 not to feed the dogs and for a period blocked the way into the kennels. Matters deteriorated between the testator and the plaintiff to the extent that in August 1982 the testator and his son, Thomas, who by this time seemed to have made things up with his father, attempted to take some of the hay from the lands for the testators horses, with the assistance of Mr Ned Norris. The plaintiff tried to prevent them from doing this, and a fight ensued in which Mr Norris struck the plaintiff with a pitchfork, and in the course of which it was also made clear by the plaintiff that he had a gun in his lorry. Following this, a complaint was made to the garda and the plaintiffs gun was confiscated by them. This incident appears to have been the last straw for the testator, and the testator consulted his solicitor, who then wrote to the plaintiff and demanded possession of the lands and threatened proceedings. On 1 October 1982 the testator issued an equity civil bill against the plaintiff seeking an injunction compelling him to vacate the dwellinghouse and lands and restraining him from entry on, occupying or using them. On 20 September 1983 a defence was entered, together with a counterclaim for monies due to the plaintiff for work done by him on the lands. By order dated 27 September 1983 His Honour Judge Sheridan granted the injunctions sought, and awarded the plaintiff 11,000 on his counterclaim, with a stay of execution until the plaintiff vacated the lands, and in any event a stay of execution for one year. The plaintiff remained on the lands, and worked them for his own benefit. At this stage a member of the local clergy intervened in an attempt to resolve the differences, and negotiated an agreement that the plaintiff could remain on the lands until April 1985 on payment of 1,000 and could further work the quarry during that period on payment of a further 1,000. These monies were in fact paid by the plaintiff to his father. However, the plaintiff has conceded in evidence that he never had any intention of leaving the lands when the term negotiated in that agreement expired, and in fact he did not do so. At this stage there is no doubt that the plaintiff was working the lands purely for his own benefit, and the testator was getting no benefit whatever from them.
Matters again came to a head in 1986, as the plaintiff had not vacated the lands, and a motion was brought to the Circuit Court to attach or commit the plaintiff for his failure to comply with the order of the court to vacate the lands. The plaintiff refused to leave the lands and on 10 June 1986 an order for attachment was made by His Honour Judge Sheridan, which order was executed on 12 August 1986. The plaintiff was removed to Mountjoy Prison, but consistently refused to purge his contempt. In the meantime, the plaintiffs wife and son continued to occupy the lands and to work them for their own benefit.
The plaintiff continued to refuse to comply with the order, and remained in Mountjoy Prison for some eleven months. He was ultimately released in July 1987, having given some form of undertaking to His Honour Judge Sheridan, the nature of which is not absolutely clear. In the meantime, although the plaintiffs wife worked the home farm during the time the plaintiff was in prison, his *276 father took back possession of the lands of Ballyquin, which he transferred to his son, Thomas, in October 1986, and also the lands of Corrig which he sold about the same time to a Mr Thomas. From this time on, not only did the relations between the testator and the plaintiff disintegrate totally, but the whole affair led to intense bad feeling locally, with neighbours taking sides. Graffiti appeared with phrases such as Tom Mac Betrayed his Brother and Norris the Grabber, and this graffiti was signed IRA. I am quite satisfied that at this time an organised and vicious campaign was conducted locally against the testator, the Norris family, the Thomas family who had purchased the lands, and who were in fact English and to a lesser extent Tom McDonald. Apart from graffiti appearing, there were threatening telephone calls, the testators horses were let loose, local shops were approached not to serve them and abuse was shouted at them, tractors owned by the Thomas family were burnt and an excavator was burnt out. This continued after the plaintiff came out of prison, and in 1988 two local men were given a three month suspended sentence and bound to the peace in relation to these activities. More importantly, on 19 May 1988 the plaintiff appeared before the local District Court on seven summons alleging breaches of the peace, which appeared to have consisted of verbal abuse and threatening gestures, and was bound over to keep the peace for two years on his own bond. The plaintiff and his wife deny organising these incidents, but I am quite satisfied that, not only were they aware of them, but they certainly did nothing to stop them. It should be said that the campaign against the Thomas family was successful in that they were forced to leave the lands which they had purchased from the testator.
I have no doubt that the plaintiffs behaviour towards his father, at least from 1984 when he refused to leave the lands, was quite appalling. He effectively took over his fathers lands for his own use, and while the testator managed to retrieve two of the farms while the plaintiff was in prison, the plaintiff and his family continued to reside on and work the home farm and the family home, to this day. They clearly have no right whatsoever to do so. The plaintiff also permitted and encouraged a campaign of intimidation against his father, who at this stage was in poor health on the plaintiffs own evidence. It should be noted that the worst of this intimidation appears to have taken place when the testator was over 70 years of age.
The case is sought to be made by the plaintiff that some of this land has been in the family for some 300 years, and that the plaintiff left school at an early age to assist on the farm, whereby the testator was under a moral obligation to provide for the plaintiff, and in particular to allow him to remain on the lands. It is also suggested that the sale of part of the lands to Mr Thomas was in fact done for the benefit of the Norris family, and that the proceeds may have gone to assist them. This may or may not be so, and I have no conclusive evidence either way. However, it must be remembered that at the time the land was sold, *277 the testator had been living with the Norris family for at least six years, and had been effectively excluded from his own lands by the plaintiff.
It is quite clear from the terms of the testators will that he was aware that he might have a moral obligation towards the plaintiff, as he left him a legacy of 5,000 in discharge of any moral obligations which it might be considered I have. It is against this background that I have now to consider whether the testator failed in his moral duty to make proper provision for the plaintiff in accordance with his means. It is a tragic background, and gives rise to considerations of whether and to what extent the behaviour of a child towards his father may affect the fathers moral duty under the section.
The basic approach which should be taken in considering s. 117 of the Succession Act 1965 has been laid down by the Supreme Court in several cases, including the most recently reported case of E.B. v. S.S. [1998] 2 ILRM 141. In that case, as in several other cases, the court cited with approval two passages from earlier authorities. The first of these is from the judgment of Kenny J in In re G.M.: F.M. v. T.M. (1972) 106 ILTR 82, where he said at p. 87:
It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend upon:
(a) the amount left to the surviving spouse or the value of the legal right if the survivor elects to take this,
(b) the number of the testators children, their ages and their positions in life at the date of the testators death,
(c) the means of the testator,
(d) the age of the child whose case is being considered and his or her financial position and prospects in life,
(e) whether the testator has already in his lifetime made proper provision for the child.
The existence of the duty must be decided by objective considerations. The court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive.
This was somewhat qualified in the judgment of Finlay CJ in C.C. v. W.C. [1990] 2 IR 143; [1989] ILRM 815, where he said at p. 148/819:
I am satisfied the phrase contained in s. 117(1), failed in his moral duty to make proper provision for the child in accordance with his means places a relatively high onus of proof on an applicant for relief under the section. It is not apparently sufficient from these terms in the section to establish that the provision made for a child was not as great as it might have been, or that compared with generous bequests to other children or beneficiaries in the will, it appears *278 ungenerous. The court should not, I consider, make an order under the section merely because it would on the facts proved have formed different testamentary dispositions.
A positive failure in moral duty must be established.
A considerable number of cases have been cited to me, in most of which the principles set out above have been applied. Unfortunately, none of them really deal with the problems raised in the present case, namely, what effect the behaviour of the plaintiff towards the testator should have in determining the testators moral duty. In J.H. v. Allied Irish Banks Ltd [1978] ILRM 203, McWilliam J did deal with the point to some degree. He said at p. 207:
The first issue which I have to decide is whether the testator did or did not have a moral duty to make provision for his children in accordance with his means. In considering this I have no duty to decide any question of responsibility for the estrangement between the testator and his wife. Nor do I have any duty to decide any question of responsibility for the subsequent lack of communication between the testator and the plaintiffs. In my opinion, there can be only one answer on this issue. The testator did have such a moral duty, however neglected, thwarted or aggrieved he may have felt.
I think that the wording of s. 117 would support the view that there is an assumption in the Act that a moral duty exists in general for a testator to make provision for his children. However, subs. (2) makes it clear that in considering whether there has been a failure in such moral duty, the court may take into account any circumstances which it considers 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. Perhaps the case that comes closest to the present is the recent Supreme Court decision of E.B. v. S.S., which I have referred to above. In that case, the plaintiff had developed a major problem with drink and drugs but had during his lifetime received a gift of shares from his mother worth approximately 275,000. By the time the plaintiffs mother came to make her will four years later, the plaintiff had dissipated the entire of this money. She left the larger part of her estate, after legacies to her grandchildren, to five named charities, and made no provision for the plaintiff. In refusing the plaintiffs application under s. 117, Keane J in giving the majority decision in the Supreme Court said at p. 151 of the report, after considering the background of the case:
Against that background, the decision of the testatrix not to make further provision for him in her will may well have been prompted, not merely by a concern that her money should go where she could be sure that it could do most good, but also by a belief that, since the provision of significant financial assistance to *279 the plaintiff had not in the past produced the best results, it might not have been in his own interest to provide him with further funds, even through the mechanism of a trust. It is, however, sufficient to say that this was clearly a view which a responsible and concerned parent could take and that it follows inevitably that the learned High Court judge was correct in concluding that the plaintiff had failed to establish that the testatrix had failed in her moral duty to him.
Further down the page he dealt with the policy of the legislature as follows:
In the case of her children, the Oireachtas has transposed the moral obligation which she, in common with all parents, owed to her children into a legal duty enforceable in the terms laid down in s. 117. The social policy underlying that provision and which was, of course, exclusively a matter for the Oireachtas was, it is reasonable to assume, primarily directed to protecting those children, who were still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents who are unmindful of their duties in that area. However, since the legislature, no doubt for good reasons, declined to impose any age ceiling which would preclude middle-aged or even elderly offspring from obtaining relief, the courts must give effect to the provision, irrespective of the age which the child has attained.
That case does support the view that there may be cases where a child is in serious need, but nevertheless no moral obligation to provide for that child exists. Admittedly, that was a case where the testatrix had already made considerable provision for the plaintiff during his lifetime, and therefore presumably could be considered to have fulfilled such moral obligation as did exist.
There is one further statutory provision which I should mention. S. 120(4) of the Succession Act 1965 provides as follows:
A person who has been found guilty of an offence against the deceased, or against the spouse or any child of the deceased (including a child adopted under the Adoption Acts 1952 and 1964, and a person to whom the deceased was in loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, shall be precluded from taking any share in the estate as a legal right or from making an application under s. 117.
It is accepted that the plaintiff in the present case does not come within this section, but I think the section is of relevance in that it envisages a situation in which a child may have no right whatever to invoke the moral obligation of his or her parent, and that such moral obligation may be affected by the behaviour of the child. This also seems to me to be in keeping with the passage I have quoted above from the judgment of Finlay CJ in C.C. v. W.C. to the effect that there was a relatively high onus of proof on an applicant for relief under the *280 section. What I have to decide is whether a prudent and just parent, in the circumstances of the present case and given the behaviour of the plaintiff, reached a decision which was in accordance with his moral duty to the plaintiff.
In this case the testator made provision for his son, Thomas, by transferring lands to him during his lifetime. There is no question but that he did make proper provision for Thomas, and this is not an issue in the case, other than to support the plaintiffs argument that no proper provision was made for him because the testator did not make a similar provision for him in his will. However, I must look at what benefit the plaintiff did get during the testators lifetime. Effectively, up to the year 1980 he got a roof over his head, he got food from the local shop and he got a small acreage of land on which he grew cereals. However, once he married in early 1981, and certainly by mid-1982 when the testator took his cattle off the land, effectively the plaintiff had the use of a farm of some 400 acres for which he paid nothing. He developed his own herd of cattle on the lands, he worked a quarry on the lands and he tilled some of the lands. The testator certainly grazed some horses on the land, and may have got some feed for the horses, but that is as far as it went. I think it is extremely relevant that the plaintiff got this benefit, not by a voluntary act of the testator but because he took it against the will of the testator. Even during the year that, thanks to the intervention of the local clergy, he was allowed to remain on the lands, the rent paid, even if it was only for the home farm, amounted to well under 10 an acre, and the sum of 1,000 for the unlimited use of a quarry for a year would also seem to be a gross undervalue. The fact is that, on the expiration of this agreement, the plaintiff continued to occupy the entire farm and the quarry until late 1986 without making any further payment and in flagrant breach of a court order. He continued to occupy the home farm from 1986 until the date of the testators death, and indeed up to date, without making any payment for it. It is not for me to put a figure on the value of all of this, but it was a very real and substantial benefit taken by the plaintiff during the lifetime of the testator.
I am of the view that in 1993, namely at the time of the death of the testator, he was entitled to consider that he had in fact conferred a considerable benefit on the plaintiff during his lifetime, notwithstanding the appalling behaviour of the plaintiff. I am also of the view that the moral duty which undoubtedly existed, was affected by the plaintiffs behaviour, and I think this is supported by the provisions of s. 120(4), which envisage that a plaintiffs behaviour may be such that he is absolutely precluded from making a claim. I think that the scheme of the Act implies that among the circumstances which a court may take into account in assessing the fulfilment of a moral duty, is behaviour of the plaintiff towards his parent which, while not absolutely precluding him under s. 120, nevertheless is a circumstance which should be taken into account together with the benefit which the plaintiff has in fact got during his lifetime. It has been emphasised over and over again in the authorities that a parent does not *281 have to treat all his children equally, and one of the reasons why he does not have to do so is that there may be circumstances such as those present in this case, which are envisaged by s. 117 as affecting the fulfilment of the moral duty. In this case the testator in fact left a legacy of 5,000 to the plaintiff, and in the light of the wording of the will, clearly did so in full knowledge of the provisions of s. 117, and indeed this has been confirmed by his solicitor. In the present case I am satisfied that in all the circumstances the testators moral duty was fulfilled by giving a legacy of 5,000 to the plaintiff and I am of the view that the plaintiff has not discharged the onus of proof which is on him to show the failure of such moral duty. I would dismiss the plaintiffs claim.
Re J. McD.; P. McD. v. M.N.
[1999] 4 I.R. 301; [2000] 1 I.L.R.M. 382 Barron J. Supreme Court
This is an application pursuant to the provisions of s. 117 of the Succession Act 1965 brought by the plaintiff who is the eldest son of the deceased in the title hereof.
The applicant is a farmer now aged fifty having been born on 8 April 1949. His father was a substantial farmer who in turn had inherited 465 acres from his father. This land was in a number of holdings. The largest was one of 156 acres. There was also a farm of 124 acres, and the residential portion and home farm comprised 114 acres as well as two smaller holdings comprising a further 64 acres. The deceased farmed the lands until the year 1963 when he was involved in a motor car accident. He sustained severe injuries to one of his legs which left it shorter than the other. As a result he was unable to drive and also unable actively to work the lands. At the time of the accident the applicant was fourteen and his younger brother was aged twelve.
The applicant had just started technical school. However, with his father unable to work the lands he was taken out of school and he and his mother with some help two to three days a week ran the farm. His mother died in 1968 at the age of 48 and thereafter the applicant ran the farm with the same help. Work on the farm involved feeding cattle, sowing and cutting corn and milking dairy cows.
The deceased never got over his wife’s early death and over the next ten years or so spent increasing periods with his late wife’s sister and her family (the Norrises) until in the late 1970s he took up residence with that family permanently.
From the time that the deceased could no longer work the farm his sole interest lay with horses. He bought and sold horses which he grazed on the farm. He was a good judge of horse flesh and spent much of his time judging at horse shows. He also kept cattle on the lands.
The applicant’s brother married in 1978 and now has two children. At the time of his marriage he left the farm. He had not been interested in farming and obtained employment and ultimately became a skilled glass cutter.
*386
The applicant married in January 1981. The deceased did not go to his wedding and appears to have had a serious dislike of his wife’s family.
The plaintiff’s marriage appears to have created serious bad feeling between himself and his father. In August 1981 the deceased consulted his solicitor for the purpose of instructing him to bring proceedings to eject the applicant from the deceased’s lands. The reason given to the solicitor was that he was determined as is recorded by the solicitor in an attendance on his client given in evidence ‘that not one inch would the Irish’s get’. The Irish’s were the applicant’s wife’s family.
In accordance with his instructions the solicitor, Simon Kennedy, wrote to the applicant by letter dated 18 August 1981 seeking vacant possession of the lands.
In or about this time both the applicant and his younger brother sought to get their father to transfer lands to each of them. It appears that the solicitor also approached the applicant to see whether or not the claim for possession could be settled in some way.
As well as seeking possession of the lands, the deceased in October 1981 sold his cattle which were grazed on the lands amounting to 140 head in all. In or around this time also the applicant and his brother sought to force the deceased’s hand by refusing to kennel the pack belonging to a local hunt of which the deceased was master.
In August 1982 there was a serious incident on the farm. It appears that the deceased and Mr Norris were seeking to take hay from the farm and that the applicant sought to prevent them. It is undisputed that Mr Norris struck the applicant with a pitch fork which resulted in a wound requiring 18 stitches. Unfortunately, as with the issue of the dogs the evidence does not delve sufficiently deeply to ascertain the full facts nor where the rights and wrongs of the matter lay. So far as the deceased was concerned the incident over the hay was the final insult and he again went to his solicitor to instruct him this time to issue the proceedings. Letters were written on 4 August 1982 and 16 September 1982 to no avail. Proceedings were then brought by way of civil bill on 1 October 1982.
The course of these proceedings is particularly unhappy. The applicant counterclaimed for remuneration for the periods during which he had been running the farm. Judgment was ultimately given in favour of the deceased for possession and in favour of the applicant on foot of his counterclaim for the sum of £11,000. Unfortunately, the applicant refused to leave the lands. He was ultimately attached and found himself in prison from August 1986 to July 1987.
While the applicant was in prison the deceased took possession of the holding of 156 acres which he sold for £90,000 to a friend at what is said to have been an undervalue. He also obtained possession of the holding of 124 acres which he transferred to his younger son. The applicant’s wife remained in pos *387 session of the residential holding and the two smaller holdings which were worked with it.
It is not quite clear upon what terms the applicant purged his contempt in July 1987. Suffice it to say that he was released from prison and apparently lived in some form of caravan adjoining the family farm. Whatever did happen thereafter he apparently got back into the farm and his father took no further action against him. His father died on 15 November 1993 having made a will on 25 May 1993 whereby he left the applicant the sum of £5,000 and the rest of his estate to the daughter of his wife’s sister whom he made executrix of his will.
The applicant’s claim failed in the High Court and the matter now comes before this Court by way of appeal from that refusal.
Until his marriage, the applicant appears to have received board and keep but no wages. The profits from the land and from the cattle and horses were taken by the deceased. From the time of his marriage, the applicant appears to have tilled some 45 to 50 acres and also to have opened a quarry on the lands which were ultimately sold. He held the benefit of the profits from the tillage and the quarry subject to providing some of the corn for the deceased’s horses.
After the judgment in 1984 effort was made through the local clergy to settle the argument between father and son. This did result in a moratorium for a year but ultimately achieved no agreement. The resulting attachment of the applicant caused considerable ill will in the neighbourhood. The locals took sides and various hot-headed actions were taken against the purchaser of the lands and against the Norrises. While the applicant and his wife were not the main instigators of this behaviour there was no doubt and has been so held by the learned trial judge that they did nothing to prevent it. For the purposes of these proceedings, it is sufficient to say that there were two camps in the neighbourhood and that the applicant and his father were on opposing sides.
Some reference must be made to the financial position of the Norris family. In 1979 they appeared to have defaulted on loans with the Agricultural Credit Corporation. This body did not take action immediately and it was five years until a receiver was appointed by it in 1984. An order for possession was obtained in 1988. In the same year a settlement was arrived at between the Norrises and the bank and the final payment thereunder was made in December 1996. It is not unreasonable to infer from the evidence that the deceased was the main contributor to enable the Norris family to pay off a major part of that borrowing.
While the immediate cause of the row between applicant and deceased was the family into which he had married, there is no doubt that the relationship between father and son was somewhat unusual. Sometime in the early 1970s the deceased had introduced his son to a neighbour as being one of his employees.
*388
This case gives rise to what is in effect a new question in this field. It is, to what extent should account be taken of bad feeling between the parent and the child. Clearly the answer must depend upon the particular circumstances of each case.
While the Act deals with unworthiness to succeed, in my view this does not mean that no other circumstances can be taken into account which would affect the worthiness of the child to succeed in an application under s. 117. The only case which deals with this issue is J.H. v. Allied Irish Bank Ltd [1978] ILRM 203. In that case the deceased had fallen out with his wife and his two children, his son and a daughter and had gone to live with his sister. He had left a small legacy to his family and the balance of his small estate to his sister. McWilliam J found that he was in breach of his moral obligation towards his children and was of the view that the bulk of the estate ought to have been left to them. He based his decision upon the ground that the testator had a moral duty to his children, however neglected, thwarted or aggrieved he may have felt. That, however, was a very clear case. Both the son and the daughter suffered from a depressive illness, the son more than the daughter, which disabled them from being able to hold down permanent employment. While McWilliam J found that the moral obligation existed he did not deal with the question to what extent, if any, such moral obligation may have been diminished by the bad relations between the parties.
S. 117 of the Succession Act 1965 clearly recognises that the relationship of parent and child creates a moral obligation to provide for the child in accordance with the parent’s means. This is an obligation which may be satisfied by will or otherwise: s. 117(1).
The court has to 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: s. 117(2). It is interesting to note that the decision which has to be made by the court requires it to balance only the positions of the children inter se. There is nothing in the section which suggests that the court should also balance other moral obligations imposed upon the testator. Nevertheless, the jurisprudence on this section shows that account has been taken of other moral obligations.
Undoubtedly, if the applicant had not taken the stance which he did, it is probable that the lands of his father would have been dissipated and nothing would have remained for him. That clearly is a factor to be taken into account when dealing with the question, whether any moral duty existed at the date of the testator’s death. Nevertheless, it is the factual situation at that time which the court has to take into account.
The section recognises a moral obligation on the part of a parent towards a *389 child. The section deals with whether or not that moral obligation still existed at the date of death of the parent. Nevertheless, it is an obligation which exists from the relationship between the parties and is one which is continuous from the date of birth of the child until the date of death of the parent unless in the meantime it has been satisfied or extinguished. Consequently, whatever the legalities of the matter may have been, the decision by the deceased to eject the applicant from the lands must have been in breach of his moral obligation to provide for his son, and more particularly the moral obligation which he owed his son for keeping the farm going. That is not to say that the son’s reaction was justified or something which should not be taken into account.
In my view the question which should be asked by the court is, what would have satisfied the moral obligation of the parent to the child in the particular circumstances of that family? In the present case, the deceased had two sons. One decided to leave the land and was in a position to earn his own living. The other, the applicant, stayed on the lands and had no other means of livelihood. In the ordinary course of events it would have been expected that he would have been left something over half the lands by his parent. In the present case that would have suggested a holding of some perhaps 250 acres in all. The next question is, should the behaviour of the son be taken into account either to extinguish or diminish the obligation of the parent. It seems clear that the answer to that must be yes. A further question which should be asked is, what benefits, if any, did the child receive from the parent in satisfaction of his moral claim against his father?
In the present case, the learned trial judge has held that the son received substantial benefits in the way of his keep and the profits which he was able to make from the tillage and from the quarry. In my view, the learned trial judge has overstated those benefits. In the ordinary way, benefits which will satisfy the moral obligation should be advancements.
They should relate either to an education which enables the child to make his way in life or else advancements of money which would enable the child to establish himself by their use. In the present case there were advancements in the sense that the applicant did not have to rent either the lands which he tilled or the quarry which he operated. To that extent there was advancement to the child but this was limited by the temporary nature of the provision. It is also a factor that the work which the son carried out for his father before the action was brought was worth £11,000 which he never received.
The learned trial judge was appalled by the applicant’s conduct towards his father. Admittedly, it was very bad. Nevertheless, it was prompted by a defence of what he regarded, to use a biblical term, as his birthright. However much one may deplore his conduct one cannot ignore the reason for it. Nor should the unreasoning and unreasonable attitude of the deceased that the Irish’s should get no part of his lands be ignored. Admittedly, the deceased did sign papers to *390 enable his daughter-in-law to start a herd on the lands, but this is something which remains inexplicable given his attitude to her family.
I do not accept that the conduct of the applicant has extinguished his moral claim on the estate of his father. There are a number of factors to be taken into account. The applicant’s behaviour was initially prompted by his father’s reaction to his marriage. That reaction was in itself a breach of the independent moral obligation the deceased owed to his son for maintaining the farm, which the deceased would have been unable to do.
No doubt the son’s reaction became appalling when he stood by when the bad feeling in the neighbourhood erupted, but there is no activity on his behalf directed against his father. In judging a child’s behaviour towards a parent, it is important to determine whether that conduct would have been the same had a stranger been involved. It should not be overlooked that parents and children have the same genes and that an uncompromising stubbornness in the one is likely to be mirrored in the other. The particular situation would never have developed had the applicant been farming a stranger’s lands. That really was the essence of the problem in the present case. The son reacted badly to what he regarded as his father’s unfair attitude towards him. This had already been seen in his introducing his son to a neighbour as his employee. Further, the attitude of the applicant can be measured by the fact that his brother also reacted against his father and only ceased when his father made over one of the farms to him.
Whatever way one looks at the behaviour of both the deceased and the applicant it must be taken to diminish the parent’s moral obligation towards the child. Certainly, if the deceased had had a moral obligation as he felt he had towards the Norris family the bad behaviour of the child would have increased the nature of such competing moral obligation.
It is quite clear that the deceased wished to befriend the Norrises. It also seems reasonably clear that the large capital sums which the deceased obtained from the sale of his farm and from the sale of his herd and which were spent during his lifetime were probably spent in assisting the Norris family. Whether or not this is so, he would not have had any moral obligation to provide for them on his death to the detriment of his son.
There is now some 170 acres of land in the estate of the deceased. While the behaviour of the applicant towards his father cannot go unrecognised, I do not regard it in the circumstances as extinguishing the moral obligation of the deceased towards him. To allow him no more from his father’s estate is to ignore his position in such circumstances. His only training is as a farmer and he would then be left in mid-life with no lands and no capital to acquire any. Nor taking into account the limited advancements and the legacy should it be diminished so as to disentitle him to any of the remaining 170 acres. It was likely that he would have received 250 acres and he would still have lost a *391 probable 80 acres.
At the same time, the wishes of a testator should not be totally ignored. The deceased wished to benefit the Norris family. He chose his niece because of that family’s financial difficulties. He left her the land because that was his only asset. In the context of the present case, to split off any part of the holding in favour of this beneficiary may engender unnecessary further ill will. It may be better for this reason to provide that the entirety of the remaining lands should pass to the applicant instead of his legacy upon condition that he pays to his cousin a sum of money as if it were a pecuniary legacy.
Before deciding on this matter the court would like to hear the wishes of the parties and to be provided with information as to the present value of the lands and any other assets of the estate and as to the amount which would have to be borne by the parties in respect of costs of these proceedings.
DS v KM, unreported,
High Court, Carroll J., December 19, 2003
This is an application under section 117 of the Succession Act 1965 (as amended) by DS (now aged 37), daughter of the deceased testator, claiming a direction that he failed to make adequate provision for her in accordance with his means and moral duty and for an order that the court should make such provision out of the estate. The other beneficiary under the will is her brother D (now aged 29).
The testator made his will on 22nd April, 1999. He died on 2nd September, 2001. Probate of his will was granted on 16th October, 2002 to KM the sole executor named in the will.
By his will the testator made the following bequests:
“I give devise and bequeath my 40 acre farm at C- and my house at T – to my son D absolutely.
I give devise and bequeath my land at M – to my son D absolutely but my daughter D may take a site from this property for the purpose of building a house thereon. It is my wish that my daughter would not sell this site.
My bank account at the National Irish Bank, C -, I leave to my son D and my bank account at the First Active Building Society, C – , is to be divided equally between my son D and my daughter D.
All the residue and the remainder of my estate I give devise and bequeath the same to be divided equally between my son D and my daughter D.”
The farm of lands at C – is comprised in two folios. One folio contains two plots consisting of 9 a. O r. 32 p. and 6 a. 3 r. 12 p. together with two undivided fourth shares of 23 a. 2 r. 23 p. (plot X). These lands are valued in the Revenue Affidavit at €90,151.48 (now valued at €96,250). The other folio contains 1 plot of 6.776 acres and an undivided fourth share in 23 a. 2 r. 23 p. (the same plot X). These lands are valued in the Revenue Affidavit at €37,139.84 (now €60,000).
The house at T – comprises registered land amounting to .582 acres and adjoining unregistered land amounting to .049 acres. The house and lands are valued at €196,809.40 in the Revenue Affidavit (now €240,000).
The lands at M – are registered lands comprising .420 ha. (approximately 1 a.) and are subject to a negative covenant contained in a transfer to the testator dated 21st January, 1992 not to use the property for any purpose other than a single private dwelling house with usual out-offices. These lands are valued in the Revenue Affidavit at €63,486.90 (now valued at €65,000 with the covenant and €150,000 if there is no covenant).
The bank accounts at the National Irish Bank amounted to €53,050.90 at the date of death. The bank accounts at the First National Building Society amounted to €28,687.17. There was also an account in Derry. Household contents were valued at €6,530 and livestock (sheep) valued at €3,800.
I am told there will be no residue to divide as it went on funeral expenses. The gross estate was valued at €479,559.19 and the net estate at €477,125.59.
The relevant facts are as follows:
The testator and his wife went to live in Scotland on their marriage. They had two children DS and D, the plaintiff and the second defendant respectively. In 1985 they returned to Ireland to the family farm with their son D who was then aged approximately 11 years old. The testator took up sheep farming. Their daughter, DS who was then approximately 19 years old, remained in Scotland.
DS has always supported herself and has worked as a child-minder since 1985. Her average weekly income is now approximately £155.00 Stg. per week. She supplements her income by working part time in a bar. She bought a house in Scotland in October 1994 for £38,500 Stg. subject to a mortgage of £9,999. She received £20,000 from her father to help in the purchase. In addition to mortgage repayments of £47.91 per month, she pays in addition £65.90 per month for a Mortgage Protection Policy. It is due to mature in April 2006 and should yield £7,000. A net balance of approximately £3,000 will be required to repay the mortgage. Her savings amount to approximately £5,714 and her debts to £2,723.
She married in June 1999 but the marriage broke up in December, 2001 after the testator’s death. On the occasion of her marriage, her father gave her £3,000 for the wedding. She never received any other monies from him.
She suffers from diabetes for the last 21 years and has to give herself two insulin injections each day. Her health has disimproved since her father’s death. She has been stricken by several comas and is on anti-depressants but must continue working to support herself. She was accused in two of the replying affidavits of drinking too much but in direct evidence she said she is a social drinker and does not abuse alcohol. She was not cross-examined and I have no reason to doubt her.
After her mother’s unexpected death in 1991 she went home to live with the testator and her brother. She said her father was delighted. She had a job and she had the use of the family car. After about two years she went back to Scotland because she missed her friends. But she said there was no resentment at her leaving and the door was always left open for her to come back. She was visited by both her father and brother in Scotland.
According to the medical reports exhibited in his affidavit, the second defendant DT suffers from a schizo affective disorder which appears to have manifested itself when he was 14 years old. A year later he came to the attention of the Mental Health Services. He was prone to angry aggressive outbursts and was admitted as a voluntarily patient in hospital, twice in 1989 and again in 1992 after the death of his mother. He suffered from delusions leading to a diagnosis of obsessional personality disorder. He also suffers from episodes of involuntarily movement that cause him distress but following investigation, they were not felt to reflect any underlying organic brain disease. He was admitted to hospital for a fourth time in 1995 and again in December 1995. In October, 2000 he was admitted to hospital as a temporary patient where the side effects of his medication were addressed. He also spent some time in a local mental health hostel at times when he and his father were arguing more than usual.
He was examined by a consultant psychiatrist in July 2002 who gave a very encouraging report. He was not suffering from significant cognitive impairment, his attention and concentration were normal, there was no impairment in his registration or recall or his memory and his intelligence appeared to be in the normal range. He has reasonable insight into his problems and accepts that he needs to take medication and receive help from the local mental health services. In the opinion of the psychiatrist his illness is characterised by relapsing and remitting symptoms and is a severe form. He requires long term treatment and support and assistance. His prognosis is relatively good, provided he continues with his medication and attends outpatient clinics regularly. Any relapse will require treatment in hospital but once recovered, he is likely to return to his previous level of independent function. D’s GP, who has known him since he moved back from Scotland, says that since he went on modern medication he has been in remarkably good form from a psychiatric point of view. Since his father’s death he has been running the sheep farming business with some success. He works very hard. He attends surgery regularly and is compliant with his medication. He has been particularly well since his father’s death which the GP put down to having a calmer home atmosphere. His father had difficulty coping with his mood swings.
D in his affidavit describes his life. He does his own household chores and cooking. He goes to the farm daily where he has about 50 ewes. It is about 5 miles distant from his home. He gets either the bus or a taxi, as he does not drive. He stays in in the evening and is interested in music and has pen pals. He is on long term disability benefit of €125 per week. He says the farming does not generate a great deal of income. He uses the unregistered land beside the house during the lambing season. He and his father also used the lands at M –, which are within cycling distance, for keeping sheep nearer at hand.
The relevant provisions of section 117 of the Succession Act, 1965 (as amended) provides:
(1) Where on application by or on behalf of a child of a testator the Court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means whether by his will or otherwise the Court may order that such provision shall be made for the child out of the estate as the Court thinks just.
(2) The Court shall consider the applicant 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 would be as fair as possible to the child to whom the application relates and to the other children.
The first issue is whether the testator failed in his moral duty to make proper provision for DS in accordance with his means.
During the testator’s life DS did get a little more than half the purchase price of her house and £3,000 for her wedding. Apart from that she did not get any other sums of money. She has supported herself since she was 19 but not in any lucrative employment.
She also suffers from the progressive disease of diabetes. The deterioration after the testator’s death cannot be taken into account as it is the circumstances existing at the testator’s death which are relevant.
When drawing up his will the testator must have known these details but he had to balance them against the needs of his son who suffers from a serious mental disorder. In his will he attempted to discharge his moral duty to his son by insuring that the house and adjoining plot and the farm would belong to him and he also left him a large sum of money (approximately €52,000 plus €15,000). He must also have known that his son would have his long term disability allowance. He also left the lands at M – containing approximately one acre subject to the right of DS to have a site.
He attempted to discharge his moral duty to his daughter by leaving her a smaller sum of money (approximately €15,000 and a site out of the lands at M – subject to his wish that she would not sell it. It is not contested that this did not create a binding trust and is inoperative.
But the bequest of the site was in fact meaningless. Looking at the map relevant to the folio, the land is divided by a river or watercourse and is subject to fishing rights (if any) reserved to the Land Commission by its fiat. The size of the “site” is not defined. The entire area of one acre is subject to a covenant not to use the property for any purpose other than a single private dwelling house. It makes no sense to divide the lands between DS and D. Since DS gets the right to build a house, the balance of the land cannot be used by D. for any purpose.
In my opinion the testator failed in the moral duty which he himself perceived
himself to be under, by failing to leave the bequest of a viable site for his daughter.
Taking into account the position of D who undoubtedly has the greater need I am of opinion that the failure of the testator can be remedied by leaving the entire building site compromising approximately one acre of the lands at M – to DS. It then becomes an asset which she can sell if she wants. While it is only a small alteration to the will I consider that it achieves what the testator had in mind in making provision for his daughter.
I do not believe that D’s ability to continue his sheep farming will be affected in any way by this provision. I would not alter the division of the testator’s money between DS and D.
K.C. v C.F.; M.C., unreported, High Court, Carroll J., December 16, 2003 (No. 2001/240 SP)The deceased, A.C., who died 24th November, 1999 was a widow who left eleven children her surviving. Five children predeceased her. Her husband, L.C., died 12th April, 1991. By her last will dated 30th June, 1993, she appointed the defendant, C.F., her solicitor, to be sole executor thereof and devised and bequeathed all her property to her sons, M.C. and J.C. absolutely. There were no words of severance. J.C. predeceased his mother, a bachelor and intestate, on 12th January, 1998. In that event M.C. became solely entitled to her estate. He is the notice party.
Probate of the will issued to C.F. on 20th December, 2000. The gross value of the estate returned in the Inland Revenue affidavit was in the sum of £1,000,152.69 and the net value was returned in the sum of £751,052.15. Certain additional sums will have to be added to that consisting of further assets of the deceased amounting to £13,715.90. Also certain assets belonging to J.C., deceased, amounting to approximately £25,000, will ultimately accrue for the benefit of the estate of A.C., deceased.
The deceased A.C. sold the original family home after the death of her son, J.C., and bought another house in which she lived with her daughter K.C. one of the plaintiffs. A.C. was only there six to seven months when she died. M.C. lived in a caravan in the yard at his mother’s home.
M.C. is described in the Inland Revenue affidavit as the sole beneficiary and capital acquisition tax amounting to £244,700 was paid. The estate consisted of the house, valued at £120,000 and the balance in cash.
Of the eleven surviving children, two daughters, namely the plaintiffs K.C. and B.C.F., claim under s. 117 of the Succession Act, 1965, that their mother, A.C., failed in her moral duty to make proper provision for them. None of the other siblings make such claim.
The plaintiff, K.C., was born on 29th November, 1967 and is now aged 36. She is the seventh eldest of the eleven surviving children. She attended school until the age of twelve and thereafter received no education. She is the only member of her family who is unmarried. She lived with her mother until she died and looked after her. She nursed her in her last illness and was very close to her. She has never had employment and is in receipt of social welfare. She continued living in the house for six months after the death, after which she left. According to her she was put out by M.C.’s wife. She lived with different brothers and sisters and now lives with a brother and his family in a halting site which she says is infested with rats.
During her life she never received gifts or property from her mother, save that on the death of her father, L.C., intestate, her mother, A.C., gave £10,000 to each of her unmarried children, including herself, K.C., the third party, M.C., and three other brothers, T.C., G.C., and B.C. Her mother paid for four weddings for M.C., T.C., G.C. and B.C. and gave each of them a new van and caravan on their wedding. She had lived in settled comfort for years and now describes her existence as living in squalor.
The other plaintiff, B.C.F., was born on 30th September, 1960 and is now 43. She is the fifth eldest of the surviving children. She was educated to Inter Cert. standard and left school at fifteen years. She has been unemployed since then. On 24th April, 1979, she married P.F. and they have four children aged 21, 18, 17 and 13, none of whom is working. She resides in a house rented from the Corporation but is in arrears with her rent. Her husband is unemployed and can no longer work at his former occupation due to health reasons. They live on social welfare benefit. She never received any gifts from her mother in her lifetime and never received any distribution from the estate of her father, L.C., who died intestate. She is aware that her mother gave £10,000 to each of her unmarried siblings, K.C., T.C., G.C. B.C., and M.C. (the third party). She is also aware that each of those brothers had their weddings paid for by their mother who gave each of them a van and caravan on the occasion.
While M.C. claims that their mother spent £10,000 on B.C.F.’s wedding and also gave assistance to her during her life, B.C.F. says her father paid £600 and her father-in-law paid £500 for her wedding. She says she lived in England between 1981 and 1998. Her mother came on four occasions to visit. She would bring either M.C. or another brother L.C. with her and they stayed three to four weeks. B.C.F. provided for their food and accommodation and her brothers made no contribution. Following these visits she was in financial difficulties.
Of the remaining seven children the information is at times conflicting.
J.C. and his wife are unemployed and on social welfare. They have eight (or nine) children, seven dependent (according to K.C.) and two under twenty-one (according to B.C.F.). B.C.F. says they have now moved into a new home and, are well provided for.
M.C., (not the third party) and his wife are unemployed and on social welfare with nine (or ten) children, all dependent (according to K.C.). B.C.F. says four children are over eighteen and there are five dependent children. They live on a halting site.
P.C. and his wife are unemployed and on social welfare. They live in a council house with eight children, four dependent. They are described by K.C. as financially comfortable. M.C., the third party, says they are in bad circumstances and that the council are going to knock down the house.
M.C. (a sister) is supported by her husband. They have nine children, two dependent. K.C. says they live in a new caravan. M.C. says there are three dependents and that the caravan is thirteen years old. B.C.F. says that she owns land and is building a house.
T.C. is not on social welfare, his wife is employed. They live in rented accommodation and have two dependent children. He is described by K.C. as comfortably off. M.C. says he has three dependent children and he understands he has a lot of debts.
G.C. is not on social welfare. His wife is on social welfare. They live in a council house and they have two children. He is described by K.C. as comfortably off. M.C. says their circumstances are very poor.
B.C., is not on social welfare, his wife is on social welfare. They have three dependent children. They live on a halting site. B.C.F. says the County Council has recently provided them with accommodation and that he owns a new 2003 Toyota Avensis costing €25,000 and a 1999 van.
L.C. works in London. His wife receives social welfare. They have seven children, all dependent. He lives in a four bedroomed property and is described by K.C. as very comfortable financially. M.C. says the house is in poor order and he is not in good enough financial circumstances to travel to Ireland for the hearing of the case. B.C.F. says this is not true.
None of the siblings swore any affidavit relative to their circumstances or whether they knew or agreed that M.C. had given a solemn undertaking to divide the residue of the money among the eleven surviving children or whether they forebore from suing under s. 117 on foot of an expectation that they would each get 1/11th of the money residue.
M.C., the third party, describes himself as a casual trader and is married with four dependent children. He claims in his affidavit in both proceedings that he told his mother she should make a will, particularly after J.C. died and she said she did not need to as she trusted him to carry out her wishes. He says he made a solemn promise to her about the division of her property, that he would own the house and divide all the remaining money equally between her eleven children (including himself) in equal shares. He says each of his brothers and sisters was aware before his mother died how her estate was going to be divided and agreed with this course of action and that he would be the owner of the house. He says that each of his brothers and sisters has a legitimate expectation to receive a 1/11th share based on the promise to his mother and on the fact that there was forbearance on the part of each of his brothers and sisters, excluding the plaintiffs, from taking any court action under s. 117. He says in his affidavits that he held the money on a solemn trust for his brothers and sisters and he believes he was constituted a trustee of the fund of money and that his mother was constituted a trustee of it, prior to her death. He avers he is willing to vest 1/11th share of the money in both K.C. and B.C.F.
K.C. says in her affidavit her mother asked M.C. to arrange for a solicitor to meet her so she could change her will on numerous occasions and he failed to do so. She denies that the contents of the will and the alleged agreement were well known within the family and says the first time she knew of it was after the proceedings were instituted. She corroborated this in her oral evidence.
B.C.F. in her affidavit and also in her oral evidence denies that she was ever aware of the alleged agreement between her mother and M.C. that the estate would be split evenly between the brothers and sisters. In her affidavit she says her mother was dead ten months before she became aware of a will executed by her mother. She only became aware of it after she personally carried out a search in the Probate Office. She said she revealed the contents to the various members of her family who were very shocked when they heard the contents of the will. The first she became aware of the alleged agreement was after she had issued proceedings. She did not believe there was an agreement between her mother and M.C. She said her mother asked M.C. on at least three occasions in hospital and on two occasions when at home to arrange for her to see a solicitor but he did not do so. She believes it was her mother’s intention to leave the house to K.C. who is unmarried and had lived with her for many years and cared and provided for her. She said her mother made that known to her. She says she believes her mother frequently gave M.C. money. She believes he is well provided for.
C.F., the defendant and executor, avers in his affidavit that M.C. attended his office on several occasions and indicated he wished to divide the net proceeds of his mother’s estate between his siblings equally. In his oral evidence he referred to a contemporaneous note of an attendance made on 1st December, 1999, when he interviewed M.C. He reviewed the terms of the will with him and the fact that all the estate passed to him. He then said:
“I advised M. as to the serious taxation implications arising from this. He himself is not keen to inherit the entire estate. In fact basically he is aware that his mother was of a mind to change the terms of the will before she died. Basically his understanding is that she wanted to leave the house at –- to him and the residue of the estate to the rest of his family equally.”
Later in the attendance he notes:
“In the circumstances that have arisen M. would be happy to renounce his rights under the terms of the will if he could be sure that he would get the house. In these circumstances I suggested that all the members of his family might complete a deed of settlement with him whereby they would agree to release their shares in the house to him. This, of course, would have to be done from the deed of renunciation.”
In his affidavit he exhibits a letter of 16th March, 2001 to the plaintiffs’ solicitors. In the course of the letter he states as follows:
“In relation to the estate of K.C. deceased, as you know our Mr. F. is executor of the deceased’s estate. On the basis of the instructions from the beneficiary under the will we understand he is quite agreeable to make substantial assets available for distribution among the family members. We understand this has already been mentioned to the family. Our client will be anxious to have the family settlement completed and to formalise these proposals. Please confirm if you would be agreeable to attend a meeting to advance matters in this regard.”
In his evidence C.F. stated that when M.C. told him he wanted to divide his inheritance and spoke of his mother’s wishes, he did not take that to mean a secret trust. He advised him he could not make a partial disclaimer, only a total disclaimer and he would need a family settlement. He said he was not told of any secret trust at the time he drafted the will. His view was that M.C. felt he had a moral obligation but that it was not a legal obligation. He was happy to swear the Inland Revenue affidavit naming M.C. as sole beneficiary.
The relevant provisions of section 117 of the Succession Act, 1965 (as amended) are as follows:-
Subsection (1) Where on the application by or on behalf of a child of a testator, the Court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means whether by his will or otherwise, the Court may order that such provision shall be made for the child out of the estate as the Court thinks just.
Subsection (2) The Court shall 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.
And
Subsection (6) An order under this section shall not be made except on an application made within six months from the first taking out of representation to the deceased’s estate.
The first issue to be decided is whether the testatrix, A.C., made proper provision for her daughters K.C. and B.C.F.
In order to know if she made any provision, it is necessary to decide whether A.C. created a secret trust in relation to the assets of her estate.
In my view no secret trust has been established.
M.C. did not inform the executor of the will, C.F., of the existence of any such trust. He told C.F. that his understanding was his mother wanted him to have the house and the remainder of the estate to be divided equally among the rest of the family. This is contradicted in his affidavit where he says it was his understanding that he would share in the division of the money. The two plaintiffs were never informed either by their mother or by him that there was any trust arrangement. I accept their evidence that the first they heard of this alleged trust was after they had issued proceedings, which they only issued as time was running out.
Therefore A.C. did not make any provision for the plaintiffs at all whether by will or by this alleged secret trust. Neither did she make any provision for either of them during her lifetime. The £10,000 paid to K.C. by A.C. after the death of her father did not absolve A.C. from her moral duty to make proper provision for K.C. There is no evidence as to the size of L.C.’s estate and the share to which K.C. would have been entitled on intestacy. There is a strong possibility that the money came from L.C.’s estate.
I am satisfied that both K.C. and B.C.F. are in want without any means and that K.C. is worse off because she has nowhere to live. She had led a settled existence for many years in the comfort of a house. I have no doubt that A.C. did fail to make proper provision for both of them in accordance with her means.
The next issue is what is proper provision in all the circumstances. The Court in ordering provision which is just must, under subsection (2), consider the application from the point of view of a prudent and just parent taking into account the position of each child of the testator and any other circumstances in order to arrive at a decision which would be as fair as possible to the applicant children and the other children.
I have been referred to the case of M.F.H. & Ors v. W.B.H. [1984] I.R. 599 in which Barron J. said at p. 607:
“In this context, the expression ‘other children’ means any other child who is also an applicant or who is a beneficiary under the will and whose benefit thereunder may be affected by the exercise of the court’s powers. The court should not be required to take into account provision or lack of provision made for children not in either of these categories. The provision made for such children cannot be affected by its order. It must strike a balance where necessary between children before the court on the basis of what is just, having regard as well as to the other matters it has to take into account, to the means of the testator passing by his will.”
It has been submitted that I should not take any of the other children into account because they do not benefit under the will and have not applied for relief under s. 117. However, I think there are special circumstances which must be taken into account in this case. I do not think I can ignore those other children completely. M.C. has sworn an affidavit that he holds the money residue on a solemn trust for his brothers and sisters each to get 1/11th. Therefore, if he does follow through on this solemn trust which he has imposed upon himself (omitting K.C. and B.C.F.), the other brothers and sisters, while not beneficiaries under the will, will be affected by the exercise of the Court’s powers. These are circumstances which I believe I must take into account and I cannot deal with the matter as if there were only K.C., B.C.F. and M.C. to consider. Neither can I deal with it on the basis that an eleventh share in the money residue is proper provision for either K.C. or B.C.F. This is not a case where an equal division of the residue would be fair.
In trying to be fair in all the circumstances I am of opinion that K.C. is entitled to €200,000 and that B.F.C. is entitled to €100,000 out of the estate. I seriously considered providing that K.C. should have a life interest in the house but this might well lead to complications. The arrangement prior to A.C.’s death was that M.C. lived in a caravan in the yard of the house with his wife and children. It would not be an ideal arrangement if K.C. were living in the house and M.C. was in a caravan in the yard. I hope that the larger sum which K.C. will receive would enable her to provide herself with reasonable accommodation.
In the Estate of ABC, deceased, XC, YC and ZC v RT, KU and JL, unreported, High Court, Kearns J., April 2, 2003This is an application brought under Section 117 of the Succession Act, 1965 by the three children of ABC, a retired businessman who died on the l0th August 1994 at the age of 64 years.
Section 117 of the Succession Act, 1965, provides:-
“(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
(2) The court shall 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 otherwise 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.
(3) 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
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devise or bequest to the spouse or any share to which the spouse is entitled on intestacy.”
The deceased had married LS in January 1954. He separated from her in December 1971, following which there was a separation agreement and subsequent divorce. Some years thereafter he met and remarried to RT in December 1977. His first wife LS remarried in April 1990 and no issue of any sort exists in relation to LS for whom there is adequate provision. RT was born in 1936 and is now 67.
There were three children of the first marriage, the plaintiffs herein, namely:-
• X, a son, born in April 1957
• Y, a daughter, born in December 1959
• Z, also a daughter, born in May 1962.
The deceased during his lifetime had been successful in business and he was the majority shareholder in a family enterprise in which the second named defendant, a brother of the deceased, also participated. This business, however, ran into difficulties at the end of the 1980’s. In 1986 it was the subject matter of a management buy out. Having regard to the indebtedness of the business at the time, the consideration received by the deceased was fairly meagre. He was offered a life insurance policy which paid him a monthly income of £1,200 per month until death, but which did not provide for any widow’s pension. In addition, it was agreed at the time of the buy out that the deceased should be paid a monthly sum of £610 over a four year period.
Over the last few years of his life, the deceased was in poor health, suffering from breathing difficulties which were related to a childhood condition of
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tuberculosis. His death, however, occurred quite suddenly at the home in which he lived with the first named defendant.
The deceased left a small amount of cash, amounting to just over £14,000, in a bank account deposit, a car and some prize bonds. There were debts to be paid, including funeral expenses of about £3,000 and probate tax of £10,500.
The deceased’s main assets were the joint share which he held with the first named defendant in their house, which is currently valued at about E3 million, and which passed to the first defendant by survivorship.
In addition, the deceased held shares in a company ME Limited. It in turn held no assets other than a shareholding in TI Limited. It had in turn had no assets other than a shareholding in WE Limited.
At the date of death of the deceased, WE Limited owned five residential properties in Blackrock and a unit in Cookstown Industrial Estate. These assets were valued at £462,600 for probate tax purposes.
The five residential properties were Section 23 properties purchased between 1988 and 1990. They were both an investment and at the same time a means of reducing the tax on rental income. The company structure was put in place to delay the payment of surcharge on undistributed dividends. None of the Section 23 properties could have been sold at the time of death without incurring substantial charges by way of claw-back of tax. At the date of death of the deceased, there were substantial borrowings of approximately £300,000 in WE Limited, which were being serviced via an interest-only loan. In this way, WE Limited could earn a net income from the rental of the various properties which it would then have to distribute within 18 months to avoid the surcharge. Once TI Limited received the dividend from WE Limited, it in turn would have to distribute it within 18 months to avoid surcharge.
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The same applied in ME Limited. This structure, which had been put in place as a result of professional advice, enabled the deceased as shareholder in ME Limited, to receive income by way of dividend in respect of which the tax charge had been deferred.
Accordingly, the `liquid’ means of the deceased at the date of death in reality amounted to an entitlement to a dividend from ME Limited amounting to about £60,000 per annum gross. It is of some significance that at both the time the deceased made his will, and indeed at the time of his death, it would not have been possible to collapse the company structure and liquidate the assets without exposing the companies and beneficiaries to very substantial tax charges.
The deceased made his last will and testament on the 19th March, 1993 wherein he appointed the defendants to be executors of his will and trustees of his estate. Probate of the said will was granted to the defendants on the 20th of December, 1995. The first named defendant has opted not to claim her legal right. By his said will, the deceased set up a discretionary trust. Having directed certain specific payments, including payment of debts and funeral expenses and that the trustees make provision for the deceased’s mother during her lifetime, the deceased thereafter directed the trustees –
“to pay out of the residue of the capital and any income arising from it to any one or more of my wife R, my children, my grandchildren, the spouses of my children and my brother K and his wife M in such shares and at such times as my trustees in their sole discretion shall think fit without obligation to make any payment to or for the benefit of my beneficiaries listed above or any of my children or to require equality among them and on the 20th anniversary of the death of the last surviving descendant of Eamon de Valera former President of
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Ireland such descendant having being alive at the time of my death to divide what remains of the capital and accrued income equally among my wife R, children then living without regard to payments already made to my said wife R children or grandchildren. All income received after my death shall be treated as income of my estate regardless of the period to which it relates and the statutory rules concerning apportionment and the rules in Howe v. Dartmouth and Allhausen v. Whittell shall not be applied.”
The Letter of Wishes, also dated 19th March 1993, was addressed to the defendants and the relevant portions are as follows:-
“My wishes in relation to the discretionary trust which I have given to you are the following:
1. As far as my beloved wife R is concerned I would like her to have an immediate payment of £5,000. In regard to her current position of joint managing director with me of WE Limited, I would like my trustees to examine the situation in the light of the requirements at the time, and if necessary to consider the appointment of any other managing director if they deem it appropriate. In the meantime, she should of course, be paid a salary appropriate to her requirements for the rest of her life whether or not she acts in the capacity of director, managing director or not.
2. I know that you, R, will also give to my children and my immediate family including nephew and nieces any of the family heirlooms which were given to me by my family, and I know that you and K will be as fair in that distribution as possible.
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3. When all of the other distributions under my will have been taken care of, the capital, if any, should be divided equally among my children.
4. In regard to my brother K, I would like my trustees to appreciate that he has been my lifelong loyal and devoted partner and friend in business that we shared together since he was 17 years of age, and while the companies are now all gone from our ownerships and they may only be enough to look after those mentioned, I would like nevertheless because of my deep affection, for K and his wife M to try and ensure that if certain circumstances arise that a helping hand in whatever way they think and find appropriate and possible shall but not be bound to be given to them as a small token of my love respect and gratitude for their help to me over the years. Specifically, I would like them to get a bequest of £20,000 as soon as possible. If there is enough funds around I would like a donation of say £5, 000 to be made to Abbeyfield Ireland Limited and £l,000 to St Vincent de Paul.
5. Finally I would like to record that 1 have chosen you as my executors and trustees because of your very intimate knowledge of all my affairs.”
Before moving away from the will and Letter of Wishes, it is perhaps appropriate to record that the reference to any ‘surviving descendant of Eamon de Valera’ is to protect against any infringement of the ‘Rule against Perpetuities.’ The rule in Howe v. Dartmouth confines a tenant for life to the yields on authorised securities. The rule in Allhausen v. Whittell presumes that a testator intends that all beneficiaries shall take as equally as possible. The exclusion of these rules is not
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unusual, although counsel for the plaintiffs does attach some significance to the inclusion of these provisions as appears hereafter.
At the date of death of the deceased, his wife R was wholly dependant upon him for support. She now had a house but had no separate or independent assets or wealth. The deceased’s mother was in a nursing home but subsequently died on the 30th of December 1995. While the deceased’s mother had some income from a trust set up by his father, the deceased was concerned that during her final years in a nursing home it might not have been sufficient to pay for her care.
During his lifetime, the deceased had made certain provisions for each of his children which I will briefly summarise, being mindful that such details must be extremely truncated having regard to the obligation of the court to avoid identifying the parties in anyway.
X, a son, enjoyed private education at primary and second level in a well known Dublin college. The deceased offered to provide a university education which X undertook for one year, but opted to quit without finishing. He received a car on leaving school and was trained in the family business, part of such training being in England. The deceased paid the deposit on X’s first house in Birmingham. On his return to Ireland, he was provided with employment in the deceased’s firm. Thereafter, the deceased in 1984/85 provided X with a sum of £26,500 to start him in a business. This business got into difficulties with tax liabilities and X required to borrow money to avail of the tax amnesty. The deceased provided a guarantee of £10,000 to enable X to borrow moneys to fund a payment to the revenue. In January 1990 the deceased furnished X with a loan of £2,500, although this advance, and whether it was repaid or not, was a matter of dispute in evidence. In December 1992, certain banks were threatening to call in loans made to X, at which point the deceased
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borrowed £5,000 which he gave to X to help him fend off the bank. It is agreed that this loan was not repaid to the deceased. The undisputed advances to X from his father amount to about £33,000.
Y, a daughter, was also sent to a private fee paying school at both primary and secondary level and all fees were paid by the deceased. Thereafter she did a one year secretarial course. She then went to college in London and Washington, all fees being paid by the deceased. The deceased also gave her a car, and provided her with £8,000 in 1985 by way of deposit for a house in south county Dublin. In 1986 Y married and the testator contributed approximately £5,000 to the cost of the wedding. The deceased also arranged for bank loans totalling £110,000, to Y and her husband part of which was a loan of £40,000 from WE Limited, to enable them purchase property. The loan of £40,000 was repaid after approximately one year.
Z, a daughter was also sent at her father’s expense to private fee paying schools at primary and secondary level and also did a secretarial course on leaving school. In 1980 she was also provided with a car and when in 1981 she ran up an overdraft with the bank, the deceased gave her a sum of £500 to assist in paying off the overdraft. In 1987/88, the deceased paid sums amounting to £13,000 towards the deposit and/or purchase price of a house. In early 1988 when she got married, the deceased contributed a sum of £5,000 towards the costs of the wedding. In May 1990, when she required a computer, the deceased purchased this for Z at a cost of £6,000.
At the date of death of the deceased, X was operating a video business and print shop. He had got his debts under control by selling his house. He was then living in rented accommodation but was not married and indeed has not married since. He was and remains in good health and while he diligently applied himself to work,
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had an unfortunate history of failure in his business enterprises. He was then 37 years of age. Y was married, had her own house, family and business. Her husband was gainfully employed and has his own business which at the time was doing well. Both Y and her husband had shown a particular interest in property development and had already shown themselves to be quite successful in this regard. She was 34 years of age at the time and in good health. Z was also married and had her own family. She had her own house and her husband enjoyed an excellent position with a finance company. She was 32 years of age at the time and in good health.
As events transpired, the deceased pre-deceased his mother, as a result of which all three children received one-third of their father’s share in the residue of their grandfather’s trust – approximately £26,000 each. Furthermore, all three children still have a one-third interest in a trust (consisting of a holiday home property in Wexford) acquired from the proceeds of the trust monies provided for their mother by the deceased. She is currently in her 70’s and in good health. They will receive these shares on their mother’s death.
For the sake of completeness, I propose to deal very briefly with the fortunes of the three children following the death of their father. X enjoyed a mixed relationship with his father, mainly due to the deceased’s reluctance to bail X out of his various business failures. As X saw it, the deceased wouldn’t help, although he had the wherewithal to do so. At the time of the deceased’s death, X was living in rented accommodation and had little or nothing in the way of assets. A partial reconciliation seems to have taken place prior to the death of the deceased but X’s pattern of unsuccessful business enterprises continued after his father’s death. In 1998 he closed down his video business and borrowed heavily to establish an I.T. Training Centre in Dublin city centre. This business also collapsed in 2001, following
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which X relocated the business and installed a new management team. This in turn collapsed in rancorous circumstances, albeit X was not himself part of the dispute which finally brought about an end to that business. He still lives in rental accommodation and is presently pursing a course in “life coaching”, which he hopes will provide him with a career and living as a psychological counsellor. He is surviving on handouts from his mother and sister Y. He draws €128 per week social welfare and receives a small rent allowance. He recently was compelled to apply to St. Vincent de Paul for a donation of €800 to make ends meet.
The second named plaintiff now operates a design business in south county Dublin. She lives with her husband in a valuable property worth about €1.5 million in Wicklow, subject to certain borrowings amounting to one-third of the value of the property. They own cottages on the property which are let and provide an income. They have a Section 23 property in Wexford. She and her husband sold an industrial property in 2002 at a profit of €230,000 and also sold their interest in a holiday home company in Wexford for €425,000. The profits on the latter were somewhat reduced by an obligation to pay off various loans. However Y and her husband also have an apartment in Portugal, owned subject to a mortgage, which is of considerable value. In evidence, Y accepted that they had made significant money from their dealings in property. While her husband had been obliged in 2002 to liquidate the company in which he worked, he has recently found alternative employment in a Manchester based company as a sales rep. They have three children.
Z is married and her husband works as a stockbroker with a leading Dublin firm. They enjoy a substantial income. Z works at home where she takes care of her three children. Z very fairly admits that her circumstances now are comfortable.
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Following the death of the deceased, all three took the view that their father had failed to make proper provision for them by the time of his death. All of them agreed they had been treated more or less equally by the deceased during his lifetime and all agreed that, generally speaking, their father had been a prudent and careful man who took a close interest in their education and careers. However, all felt that, by virtue of the setting up of the discretionary trust, they had effectively been denied any provision during the lifetime of the first named defendant. Apart from one payment made to X by way of company loan from one of the deceased’s companies in August 2002, no payments of any sort had been made to any of them. By contrast during that same period, the first named defendant drew from the companies firstly an annual salary of £14,000, up to 2000 then £28,000 from 2000 up the present. In evidence RT told the court how she managed the various properties, accounted for rents received, dealt with tenants problems and complaints and prepared the information for the annual audits. In addition, she had received directors loans amounting to approximately £90,000 from the time of the death of the deceased up to the present. These loans were sanctioned by the second named defendant and were paid to her to meet her overheads and living expenses when any need arose. As a result of changes in the tax laws, it had been possible over the last two years to increase her salary to £28,000.
While the evidence of the first and second named defendant made clear that the impoverished present circumstances of X were well known to the trustees, they nonetheless felt inhibited from making any form of payment to him by virtue of legal advice given to them by the third defendant to the effect that the institution of the present proceedings prevented the establishment of the trust and that accordingly no
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payments could be made until they were disposed of. The present value of the properties comprised in the trust is estimated at €3,500,000.
In the course of the hearing evidence was given by accountants on both sides in relation to the tax implications of unravelling or unwinding the discretionary trust. Both accountants agreed that, the 10 year period having now elapsed, and the benefit of the surcharge arrangements having run its course, it was now desirable to unwind the property from its present corporate structure of ownership as otherwise the eventual tax liabilities would only increase. Their evidence was that there could in fact be two incidents of capital gains tax arising on any disposition of the properties, and the liability to tax on a property sale of, €3,500,000 would be close to €500,000. As of the date of hearing, a sum of about €193,000 stands to the credit of the estate, together with a sum of €44,000 which is retained by the third named defendant in the solicitor/client account. There is a further possibility that, if the discretionary trust becomes operative, tax on the trust at 6%, together with 1% per annum thereafter could also arise.
The third named defendant gave evidence of the circumstances surrounding the making of the will by the deceased. It was his clear understanding that at the time of the making the will, the deceased had only enough in available funds to provide an income for himself and the first named defendant. Given the tax implications of selling any of the properties, the third named defendant certainly felt at the time that the setting up of a discretionary trust was by far the most prudent step for the deceased to take in terms of making any disposition of his assets. He had made an almost identical will in 1988. Furthermore, the deceased had kept an extremely careful and meticulous record of all advances made to each of his children, all of which had been taken into account by the deceased prior to the execution of his will.
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The third named defendant had advised the deceased of the possibility of an application under Section 117, so that the deceased was aware of his obligations in that regard and felt that by disposing of his assets as he did, he was discharging any obligation he had to his various dependants.
THE ARGUMENTS
On behalf of the plaintiffs, Mr. Farrell S.C. submits that the testator believed that the first named plaintiff had an inability to manage business affairs, a factor which increased X’s call on his father’s moral duty. He submits that it was clear by the date of death that X was unlikely to be consistently successful businessman. In relation to the other plaintiffs, Mr. Farrell in his submission states:-
“The second named plaintiff and her husband have always struggled a bit and clearly could have done with more support from the testator during his lifetime. An ability to do up properties and sell them at a profit seems to have been their strong point. Y had had two children at the date of death and a third on the way. With three young children to support, she and her husband had heavy financial obligations. The third named plaintiff had been relatively the most comfortable of the three. Like her sister, she was pregnant with her third child when her father died. She took the decision to work full time in the home looking after the family and probably has little earning power. The plaintiffs submit that the provisions made by their father for them in his life time were ungenerous. They accept that he was prudent but submit that he was not just to them. The two girls were very disappointed that he was so careful about the cost of their weddings. ”
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While accepting that the deceased had a moral duty to his second wife, Mr. Farrell submitted that the court should have regard to the fact that a very valuable house, not part of the deceased’s estate, had now passed into the sole ownership of the first named defendant by survivorship.
Moreover, the tone of the will and the Letter of Wishes – e.g. the use of the words “if any” in relation to a possible distribution of capital in the distant future suggests that the deceased contemplated that the plaintiffs might get nothing at all and the deceased apparently was not concerned by that. The insertion of the various legal rules was consistent with the provision of unduly favourable treatment for the first named defendant, and indeed the exclusion of the rule in Howe’s case could be taken as suggesting to the trustees that in substance the first named defendant was to be tenant for life of the entire estate. Existing lives at the death of President de Valera obviously included babies who could easily live to 80, so a time span of about 100 years could be involved. The express lack of any obligation to make payments to the children during that time could act only as an invitation to the defendants to act only as they had, in fact, done. The words “what remains of” in relation to the capital (and accrued income) were, Mr. Farrell agreed, consistent with the “if any” in the Letter of Wishes. The Letter of Wishes, Mr. Farrell submitted, revealed an absence of love or adequate concern for any of the plaintiffs, in marked contrast to the sentiments expressed in relation to the deceased’s second wife and in respect of his brother In effect, as things had worked out, the first named defendant was for all practical purposes a life tenant who could nominate her own income from the companies.
Mr. Farrell also submitted that there clearly was a conflict of interest between the first and second named defendants who were named both as beneficiaries and trustees. Mr. Farrell accepted that both had indicated in 2000, subsequent to the
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commencement of proceedings, that they would not act as trustees. However, this still did not answer the exigencies of the case. Their involvement as trustees with the power to decide who got money and who did not was always likely to produce the result that the trust either would not work at all or would work in a manner which was unfair to the three plaintiffs. The need to avoid conflicts of interest is a vital part of the wider law of trusts. In Spencer v. Kinsella [1996] 2 I.L.R.M. 401 at 409 Barron J. saw a problem that some of the trustees were too closely identified with the interests of some of the users of the trust property. He felt that “where a conflict of interest arises it is doubtful that a continuation by such persons in office could be remedied. ”
Mr. Farrell further submitted that the defendants as executors already hold the assets of the estate in trust for persons entitled by law thereto under and by virtue of Section 10 of the Succession Act, 1965. Given that the executors have power under Section 60 of the Succession Act to compromise or settle any dispute, claim or other matter relating to the estate of the deceased, it was open to the defendants to make provision for the various plaintiffs, something they had singularly failed to do.
In reply, Mr. Sreenan argued that neither that the second named or third named applicant had even a stateable claim given that at the date of death, both had been well educated, were in good health, were married and had husbands who were in good gainful employment. In addition, he submitted, both had their own homes and both had had their own homes and both had had substantial provision made for them by the deceased during his lifetime.
With regard to the first named plaintiff, while admitting he had fallen into straitened financial circumstances, he did at the date of death of the deceased have his own business and was in good health. He had had substantial provision put his way by the deceased, and his debts had been paid off. He had a string of failed investments behind him and had demonstrated unwillingness or inability to stick
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successfully and profitably to any one project. No prudent parent could have concluded that in these circumstances further substantial payments should be made to X. This was particularly so, given that X was likely within a very short period of time to receive a substantial payment on the death of his grandmother of approximately £26,000 and given that he also had a benefit still to come from another trust in respect of his mother’s home. It could not be said that a prudent or just parent would require the assets of the companies to be liquidated (with all the adverse tax consequences that that involved) in order to make an immediate and specific provision for X as distinct from leaving it to the discretion of the trustees to make that provision either out of income or capital as they saw fit.
Mr. Sreenan submitted that, at its core, the plaintiffs case was based upon an implicit assumption that the trustees in this case would or will act malevolently and in breach of their duty. If that be so, the beneficiaries would have remedies open to them.
Mr. Sreenan further submitted that the tax consequences flowing from events subsequent to the date of death are irrelevant to the issues before the court. The fact that they should be addressed sooner rather than later should not lead the court to redraft the will in a more tax efficient manner through the mechanism of a Section 117 application.
Any argument that the deceased was parsimonious with his children during his lifetime was, Mr. Sreenan submitted, a travesty of the truth. Having regard to all the circumstances, Mr. Sreenan submitted, the deceased had at the time of death, discharged all moral duties to the applicants. Insofar as X was concerned, a parent owes no moral duty to children to keep on giving them money well into their middle ages in circumstances where is likely to be lost on successive business ventures. If
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the testator was still under any moral duty to any of the plaintiffs at the time of death, it was more than adequately discharged by naming them as beneficiaries in a trust in circumstances where he had made his wishes well known, namely, that once his primary moral duties to his mother and wife were discharged, the balance should be divided equally between the children.
THE LAW
A significant body of jurisprudence exists in relation to Section 117 of the Succession Act 1965. During the course of hearing, counsel from both sides referred extensively to quotations and passages from the decided cases, which included Re: Goods of JH deceased [1984] I.R. 599, FM v. TAM[1972] 106 I.L.T.R. 82, L v L [1978] I.R. 288, J de B v. HE de B [1991] 2 I.R. 105, CC v. WC [1990] 2 IR 143, EB v. SS [1988] 2 I.L.R.M. 141, J. McD deceased P. McD v. MN [1999] 4 IR 301 and MPD & Ors v MD [1981] I.L.R.M. 179.
Counsel on both sides were agreed that the following relevant legal principles can, as a result of these authorities, be said to derive under Section 117:-
(a) The social policy underlying Section 117 is primarily directed to protecting those children who are still of an age and situation in life where they might reasonably expect support from their parents against the failure of parents, who are unmindful of their duties in that area
(b) What has to determined is whether the testator, at the time of his death, owes any moral obligation to the applicants and if so, whether he has failed in that obligation.
(c) There is a high onus of proof placed on an applicant for relief under Section 117 which requires the establishment of a positive failure in moral duty
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(d) Before a court can interfere there must be clear circumstances and a positive failure in moral duty must be established.
(e) The duty created by Section 117 is not absolute.
(f) The relationship of parent and child does not itself and without regard to other circumstances create a moral duty to leave anything by will to the child.
(g) Section 117 does not create an obligation to leave something to each child.
(h) The provision of an expensive education for a child may discharge the moral duty as may other gifts or settlements made during the lifetime of the testator.
(h) Financing a good education so as to give a child the best start in life possible, and providing money, which if properly managed, should afford a degree of financial security for the rest of one’s life does amount to making “proper provision”.
(j) The duty under Section 117 is not to make adequate provision but to provide proper provision in accordance with the testator’s means.
(k) A just parent must take into account not just his moral obligations to his children and to his wife, but all his moral obligations e.g. to aged and infirm parents.
(l) In dealing with a Section 117 application, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.
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(m) Special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example, working on a farm he will ultimately become the owner of it thereby causing him to shape his upbringing, training and life accordingly.
(n) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong not to foster.
(o) Special needs would also include physical or mental disability.
(p) Although the court has very wide powers both as to when to make provisions for an applicant child and as to the nature of such provision such powers must not be construed as giving the court a power to make a new will for the testator.
(q) The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but rather, whether the decision of the testator to opt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.
(r) The court must not disregard the fact that parents must be presumed to know their children better than anyone else.
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DECISION
This is a case which is notable for the absence of any singular feature in the behaviour of the deceased when arranging his affairs or making his will which would cry out for the court’s intervention. I am satisfied from the evidence of both the plaintiffs and defendants that ABC deceased was a prudent and careful man whose philosophy was, as stated in evidence by his brother, to provide a good education for his children, provide them with seed money to buy their own homes and, where necessary, to rescue them from any of life’s ‘disasters’ – in this context being disasters of the ‘non-commercial’ variety.
It seems to me that the disimprovement in the deceased’s business affairs from the mid 1980’s onwards made him ever more meticulous and exacting about accounting for expenditure, be it advances to the children for educational or house buying purposes, or to his two daughters and notably his older daughter, in connection with their wedding expenses. Both daughters feel, particularly Y, that the deceased somewhat spoiled these occasions by (in Y’s case at least) requiring her to account for every single item of expenditure and refusing to underwrite the cost of champagne at the reception. However, when seen against the wider backdrop of the provision made for each of the girls, and bearing in mind the altered circumstances in which the deceased found himself, these complaints fall well short of amounting to any failure of moral duty to make proper provision. At the date of death of the deceased, his daughters were well established, had married and had their own homes. There were struggles along the way, both then and since, but both daughters have succeeded in life to a significant degree. Both are comfortably well off with considerable asset backing. Y has a career of her own and Z is married to a successful stockbroker in a leading Dublin firm.
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While the first defendant lives in a fine house and has little in the way of outgoings, she is entirely dependent on the arrangements made by the testator during his lifetime and thereafter under his will. She sustains herself through the salary she earns in managing the five houses and the industrial property, efforts which it may be said redound in the medium and long term to the benefit of all the beneficiaries including the plaintiffs.
The court must consider moral duty as of the date of death of the testator. It is not in dispute that the testator had a moral duty to make adequate provision for the first named defendant and indeed his mother also who was in a nursing home. These moral duties must also be taken into account when assessing the moral duty owed by the testator to his children.
When one takes into account the various provisions made for both Y and Z by the deceased during his lifetime and having regard to both his and their circumstances at the time of the testator’s death, I am satisfied that he did, both by those provisions and by the further provisions in his will, discharge his moral duty in full towards his daughters. Their claims under S. 117 cannot in my view succeed. While they may feel uncomfortable with the terminology employed by the deceased in his Letter of Wishes, I am quite satisfied from the evidence that he cared deeply for his daughters and the use of affectionate terminology for the first and second named defendants simply arose from important events in his life history, being respectively his second marriage and his brother’s role in his business affairs. It seems to me that the testator most probably took it as a ‘given’ that his daughters in particular well knew of his love and affection for them. They have significant ongoing expectations under the will and trust, and also under the trust for their mother.
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The situation of X is more problematic. X has fallen on hard times and it would impossible not to feel a considerable measure of sympathy for his predicament. While he has a string of business failures, and has at times acted intemperately, notably with regard to his stepmother, he presented nonetheless as a decent person who grew up in the shadow of his father and who experienced great difficulty in trying to emulate his success. For reasons, therefore, which perhaps in no way reflect badly on him, he never became the kind of successful business man he undoubtedly aspired to be. It seems unlikely that any such ambitions, if he still harbours them, will ever now be realised.
There were major difficulties for X in 1992 which led to exchanges between his father and himself which are referred to in the deceased’s letter to X dated 5th December 1992. It is clear from that letter that the deceased had already come to the conclusion that X was a person who was going to have ongoing needs because of his perceived inability to manage his affairs. The letters and memos prepared by the deceased at that time illustrate graphically the tetchy and strained relationship which existed between father and son. In particular, the deceased appears to have been incensed that X continued to drive a Porsche instead of selling it at any price so as to minimise his indebtedness and avoid having to borrow further from his father. Fortunately, a reconciliation between father and son seems to have taken place in the year before the deceased’s death.
On 7th April, 1993 the deceased wrote to the third named defendant, his solicitor, setting out in great detail the amounts expended on his three children with a view to showing, as he put it, “that I have tried to treat them nearly equally, in case there is any dispute after my departure”. In drawing up his will and Letter of Wishes, the deceased had the full benefit of his solicitors advice and was ideally placed, not
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least because he was in indifferent physical health, to take a considered view both of the requirements of his various dependants and how his assets could or could not be deployed to meet any perceived needs.
What is quite clear is that the deceased had little in the way of available cash and any direction to sell the residential properties in the immediate event of his death would have been folly. As the inflation in property values, including the unprecedented upsurge in the last few years, has demonstrated, the decision to place those assets under a trust arrangement, was a wise one, at least from the point of view of maximising the value of the assets.
In the course of his submissions, Mr. Sreenan strongly urged the court not to intervene to “redraft the will” purely because the accountants on both sides agreed that the present arrangements for the ownership of the properties should be ended having regard to the ever growing tax liabilities associated with same. By the same token, however, it seems to me that the tax claw-back implications of any direction to realise any of the assets which might have been inserted in the will cannot be relied upon to absolve the testator from any moral duty under Section 117.
I have come to the conclusion that the testator did still have an ongoing limited moral duty with regard to X at the time he came to make his will and that this duty was more marked than in the case of his daughters. In my view, it must have been apparent to the testator, given the astute businessman that he was, that X was a person who would probably require a level of support at times in the future because of his inability to manage his affairs or to cope adequately in life.
This however brings me to the nub of the problem in the instant case. X and his sisters perceive that the defendants under the arrangements put in place do not or will not deal with them in a fair and even handed way. They point to the payments
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which the first named defendant has enjoyed from the time of the deceased’s death by way of contrast to a single payment of £5,000 made to X in circumstances of near destitution. Both the first and second named defendants in evidence stated, and had previously indicated, their willingness to step aside as trustees in the circumstances which had arisen. Furthermore, they adamantly assert that, until the present proceedings are disposed of, the trust could not be set up, nor could payments be made to any one, including X, and this was the legal advice given to them. The advances made to the first named defendant, they say, were by way of directors salary and legitimate director loans, all of which have been fully written up and accounted for. They say they are more than willing to help X when free to do so. The second defendant told the court he believed the company loan of €5,000 might in fact have been in breach of the companies legislation.
The court must obviously, in a S.117 application, avoid the temptation to enter into the arena of adjudicating on the manner in which, firstly, executors discharge their obligations in the administration of an estate and secondly, how trustees discharge their obligations to the beneficiaries of a trust. There are separate causes of action in cases where such failures are established.
The only question which this court can resolve is whether in the circumstances in which he found himself when making his will, and having regard to the requirement that moral duty be assessed as of date of death, the testator, by setting up a discretionary trust in which all of the plaintiffs and the first two defendants were named beneficiaries, thereby discharged his moral duty under S.117, to X and his sisters. I have already found it was adequate to discharge any duty owed to his daughters. The duty to X was however in my view also discharged by the creation of a discretionary trust by the deceased’s will, not least because it set in place,
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coincidentally or otherwise, the very apparatus and structure which was appropriate to meet the special needs which the deceased was clearly aware X had. Perhaps he could or should have selected different trustees. Perhaps he should have set up a separate trust for X. However, insofar as the deceased’s duty was concerned, it seems to me that the trust arrangement should, all things being equal, have met and covered all the exigencies of this case, including the foreseeable difficulties X might later encounter.
I do not think it is appropriate for me to conduct an inquiry as to whether the defendants, qua executors, have failed to discharge their duties and functions by not making some sort of special or ongoing provision in relation to X, whether by virtue of Section 60 (8)(e) of the Succession Act 1965 or otherwise, or whether they have been precluded by these proceedings from doing so. I will therefore confine myself to saying there is a clear and present need to address X’s position, not by the payment necessarily of any lump sum, but rather via the provision of some regular payment sufficient to meet his basis living needs and expenses, at least until his circumstances improve to the point where he can meet those costs himself.
In refusing the plaintiffs claims, I am also very much bearing in mind that all three plaintiffs are named beneficiaries of the trust assets. They will, in addition, have additional provision coming to them from their mother’s trust.
Whether or not the defendants or any of them should now cease to act as trustees is entirely a matter for them. With an eye to avoiding any further problems from this point onwards, it is obviously an issue to which I feel however some consideration should now be given. There are clearly conflicting interests for those who are both trustees and beneficiaries.
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More than anything else, these proceedings throw into sharp focus the difficulties which may arise under S. 117 of the Succession Act 1965 when a testator by his will creates a discretionary trust. It seems to me that other cases are bound to arise where the court may find it difficult, or even impossible, to determine if a testator who by so acting leaves it, in effect, to others to determine the apportionment of his assets, either between his children inter se, or between his children and others, has or has not discharged his moral duty under S. 117.
The children of a testator who so acts are also confronted with a very real dilemma, being one which is only accentuated in cases where, unlike the present one, no provision has been otherwise made for them by the deceased by way of assistance or advancement during his lifetime. Do they sit back and await the passage of time to see if the trust arrangements unfold in line with their hopes or expectations? Or, on the other hand, and particularly where trustees may be perceived to have an interest of some sort in competition with their own, do they resort to the remedy under S. 117?
While the facts of the present case have permitted the court to reach a view that the setting up of the discretionary trust in this instance did, for the various reasons stated, complete the discharge of the testator’s moral duty, the facts of other cases may obviously yield up different conclusions.
CW v LW
unreported, High Court, O’Sullivan J., February 23, 2005
JUDGMENT of O’Sullivan J. delivered the 23rd day of February, 2005.
Introduction
The applicant seeks an order under s. 117 of the Succession Act, 1965 (“the Act”) that her father, the late J. L. W. (“the testator”) failed in his moral duty towards her in the disposition of his estate. The testator died on 27th June, 2000 aged 91 and was survived by his wife L.A., then aged eighty four, and his four children, M., then aged sixty, L., the respondent, then aged fifty seven, O., then aged fifty one and C., the applicant, then aged forty seven.
The Testator
The testator, an only child, inherited approximately 1,000 acres of farmland at Clonee, Co. Meath in 1931 but had to pay substantial estate duty and determined not to let this situation arise again. He was a farmer all his life. In about 1970 he gave a substantial farm of 287 acres (“N. G.”) to the respondent, the only one of his children who had showed interest in being and trained as a farmer. There was, and is, a substantial house at N. G. and at the time there were tenants in it; the respondent moved into it, as a bachelor, in 1978. The respondent had already been given parcels of land, portions of N. G., by his father a few years before and had been farming these. At the same time the testator gave a farm of some 131 acres (“L.”) to O. The testator continued to farm L. paying O. a rent. L., however, clearly belonged to O and she was paid the compensation money for part of it which was compulsorily acquired later by the Roads Authority.
His Estate
At the time of his death the testator’s estate consisted primarily of a remaining farm of some 202 acres (“the G.”). There was also a substantial holding of shares, mainly in the Bank of Ireland, worth somewhat more than one million pounds.
There is a dispute as to the value of the G. at the date of the testator’s death; it was valued for probate purposes at slightly in excess of €3.5 million and this is the value contended for by the respondent. The applicant says that it was worth approximately €7 million at the time. Both parties are agreed that the G. is now worth €10 million.
The Wills
The testator’s will was made on 16th September, 1999 at home at the G. and witnessed by Ciaran Feighery, solicitor, and his wife. On the same occasion L.A. made her will. On that occasion the testator asked Ciaran Feighery whether he thought L.A. was capable of making a will and Ciaran Feighery who had spoken with her and knew her said he thought she was. The testator agreed. Both the testator and L.A. gave Ciaran Feighery permission to discuss each of their wills with the other.
Shortly before he died the testator instructed the respondent to arrange for the sale of sufficient Bank of Ireland stock to produce three bank drafts each of £190,000 to be given to his three daughters. These were to form part of their bequests under his will: he was anxious to ensure that they would receive an immediate payment. M. accepted this arrangement. The applicant rejected her bank draft suggesting that it was a trick to trap her into accepting her father’s will; so did O.
By her will, L.A. left her entire estate to be divided equally between her three daughters: nothing was left to the respondent. The main provisions of the testator’s will were to leave the G. to trustees on trust for L.A. for her life and thereafter absolutely to the respondent subject to some minor provisions not relevant here. In addition there were the bequests to each of his three daughters of Bank of Ireland shares to the value of £190,000 (a figure I am told which was close to the estate duty threshold).
L.A.
L.A. married the testator in 1938. They had four children referred to above. As already indicated the testator was sufficiently concerned about her mental capacity to raise this issue with his solicitor at the time of making his will in September, 1999. At the time of the testator’s death in June, 2000 L.A. was suffering from dementia and a month later the High Court made her a Ward of Court. This order was made on the occasion of a successful application by the respondent that because of his mother’s mental incapacity he be permitted to act as sole executor of the testator’s will notwithstanding that it named both of them joint executors. Subsequently the Solicitor General was appointed L.A.’s committee and was directed to elect on her behalf to take her legal right share in the testator’s estate.
Ciaran Feighery gave evidence that L.A. made no will with him after the one made in September, 1999 and it is clear that she became incapable of doing so before the testator’s death. Accordingly, that will is her last will. Ciaran Feighery’s evidence establishes that it was made in proper form and satisfied me that it is unlikely to be challenged on any technical basis. The respondent gave evidence that he will not bring s. 117 proceedings in relation to L.A.’s estate. That estate, accordingly, now substantial after an election having been made on L.A.’s behalf, will be divided equally between L.A.’s three daughters or in the seemingly unlikely event of s. 117 proceedings being brought by any of them possibly into four equal shares. Either way the applicant will receive a substantial inheritance under L.A.’s will.
M.
M. accepted the bequest under the testator’s will and has brought no proceedings under s. 117.
After initial years at home being minded by staff and a governess she was educated by the Sacred Heart nuns at Leeson Street Dublin and Roscrea where she was later joined by the applicant. She went on to qualify as a teacher and did some teaching in this country before she emigrated to Australia where she married and settled down and had four children. She is now separated and working and owns a house. During her lifetime she received gifts from the testator which enabled her to buy a family home in Australia. The testator also gave gifts to her four children which were obviously substantial because they were sufficient to buy a house in Australia for the four children. The gift to M. was also clearly substantial although I am not told exactly what it was.
L.
Aged fifty seven when his father died, the respondent is married with four children and farms the 287 acre farm at N. G. which he has owned for some three decades and where he is now living with his family in a substantial house on the lands. Both sides agree that today N. G. is worth €12 million. It was valued for probate purposes at slightly in excess of €3.5 million. I will return later to the issue of its value at the time of the testator’s death.
After attending secondary school at Clongowes Wood College the respondent chose the more practical farming course at Warrenstown College rather than a Bachelor of Agriculture degree at university. After this he went to the United States to continue learning farming for the best part of a year. He had been interested and active in his father’s farm since he was a boy and it was understood that he would be given a farm of his own when he finished his training. N. G. was given to him in stages around 1970 when at the same time his sister O. was given L. The respondent was always on good terms with his father and they helped each other out as neighbours with the loan of men and machinery as occasion required. In later years he occasionally himself worked for his father who remained active, albeit decreasingly, in farming until his 88th birthday at which stage his activities had reduced themselves to owning three cattle on a paddock around the house at the G., the remainder of the farm then having been let out to neighbours at a rent which was increasingly less than market value.
In evidence the respondent said he always got on well and continues to do so with his sister M. in Australia: rather less so, I gathered, with O. and the applicant. He broke off relations with the latter two when they initiated proceedings against the testator’s estate. O’s proceedings were withdrawn on the first day of the hearing before me: that was not surprising given that the current value of L. is somewhat short of €6 million.
The respondent said that he visits his mother at the G. in recent times only when the applicant (who has been minding her mother since her father’s death and who minded both parents for over a year before he died) is not there because if she is, she causes rows and unpleasantness with him which are apparent and upsetting to his mother despite her dementia.
The testator gave substantial gifts to the respondent’s children which are set up in a trust fund for their benefit: the respondent said that this fund had to be used from time to time for educational purposes. His four children are still wholly dependent.
The respondent accepted in evidence that his father had discharged all his moral obligations to him and said that whatever he did in his will this would remain his attitude; he has no intention of contesting his mother’s will or bringing proceedings in relation to her estate.
It was put to him on behalf of the applicant that given her circumstances, her repeated efforts at holding down jobs and limited means, she was not properly provided for by the testator. He acknowledged that there was something of a shortfall but added that this should be considered against what the testator did for her by way of education and the fact that she was better off when employed and also the fact that O’s substantial bequest was a fiasco in the sense that following it O. gave up work, lived off the rent and did not develop her asset so that his father was reluctant to repeat this arrangement with the applicant.
The respondent gave his evidence in an impartial and disinterested manner.
O.
O’s early home life and education followed a pattern similar to her sister M’s. She was educated by the Sacred Heart nuns, trained as a teacher and after school had a year abroad in Germany (M. had had a year in Switzerland). She has not married. She worked as a teacher in a number of different jobs, and some time after receiving L. she retired from work suffering from chronic tiredness and has not worked since. She lives off the income from her land. Also there were two adjoining cottages on L. which her father helped her to renovate. O. lives in one of them and gets some rent from the other. For some time the applicant lived in the adjoining cottage and paid O. a small rent. O. gets on well with the applicant.
The applicant
The applicant was born with a large birth mark covering almost the entire of the left side of her face. All her life, she says, she has been prone to depression and tearfulness and she said that at very early age when out on a walk with her minder and her sister O. she tried to commit suicide by running out in front of a lorry. She hesitated, however, and was saved by her sister.
Her upbringing was very similar to that of M. and O: like them, she was educated by the Sacred Heart nuns. However, at the first attempt she failed maths and French in her leaving certificate exam and was therefore not able at that point to go to university. Following this, she tried several different courses and careers and it is greatly to her credit that in the end she succeeded in getting an honours degree in social science at Coleraine University. This came after she had spent a year in Germany learning German, done wood carving, and attended Maynooth College for a BA without success.
Following her degree from Coleraine she went to Swansea University for a certificate in social work but suffered a breakdown that winter and had to return home to the G.. She then studied pottery in Galway and set up a wood turning business with her sister O. She also tried to become a nurse in London without success. Subsequently she spent a number of years working on FÁS courses including as a researcher for three years with Fingal County Council. She enjoyed this work greatly and produced two historical pamphlets which she feels when published will stand the test of time. She worked in the Kylemore Café, St. Stephen’s Green as a dishwasher from mid 1998 until the end of 1999 when her father who was suffering from pneumonia asked her to return to the G. to mind him and her mother which she did.
Her father agreed to pay her the same wage, €100 a week, as she was earning at Kylemore Café, which he increased to €150 shortly after she came home to mind her parents. She was living at home all found and had the use of a car without any cost to herself. After her father’s death she remained on at the G. to help mind her mother who needed round-the-clock assistance. Her mother’s committee in the Wards of Court Office, the Solicitor General, has increased her wage to €600 a week. There are other staff members at the G. who help mind her mother and the applicant is therefore free from time to time to visit her sister or do whatever she likes.
During his lifetime the testator gave the applicant a number of gifts including £10,000 worth of Bank of Ireland stock in 1973 when she was 21. This would have bought two average houses at the time. She received £1,000 in 1984 and further Bank of Ireland stock in 1992 to a value of £10,000 and in 1993 to a value of £6,000 and in 1996 to a value of some £5,000, these gifts totalling £32,000. The applicant used the dividends to pay for her education in Coleraine and has kept her capital intact. Today this shareholding is worth approximately €200,000.
At one point the applicant stayed in her sister O’s cottage paying her a small rent, but decided to leave and buy a portacabin for herself which she parked on O’s land and in which she lived until the winter of 1999 when she went to live in the G. to mind her parents and where she has been living ever since.
At no stage has the applicant been able to earn very much more than the unemployment benefit or the FÁS allowance. She has carefully husbanded her assets and was rightly described by her brother as a trier. She says that when she has to work with people this causes her difficulties after some time. Her brother expressed the view that she was better off in employment.
She gave an account of her ongoing tendency to depression and said that she is on continuing medication. This evidence was not challenged. Counsel for the respondent, however, submitted that it was of little or no weight because it was not supported by medical evidence: the applicant’s counsel responded that because the evidence had not been challenged there was no need for medical evidence and indicated that there was abundant medical records exhibited to the affidavits. The case was heard exclusively on oral evidence and I deliberately did not read the affidavits. However, in the situation just described I consider it would be unreal not to accept that the applicant has indeed a tendency to depression and is on medication for it.
Apart from my own general observation I accept her evidence on this because it is obvious that the applicant has a somewhat fragile personality, has suffered from it throughout her entire life and is unlikely to command more than the level of wage she has earned in the past at the Kylemore Café or under the FÁS schemes. The wood-turning enterprise with O., whilst producing quality work, was never a financial success. In this context it was suggested to the applicant that she is now qualified for a career as a carer given her experience at home minding her parents and her attempt to become a nurse. In my view the €600 paid to her weekly by the Solicitor General is a measure of her value to her mother rather than an estimate of her earning capacity in the open market, where she is unlikely to match it.
Issues
There are two issues, one of fact and one of law, which I have to decide before reaching my conclusions in this case.
Value of the G. in June, 2000
The G. was valued for probate purposes by Paul Doyle, Auctioneer, at slightly in excess of €3,500,000. He gave evidence supporting that valuation. I had evidence, as well, from Robert Craigie, auctioneer, that its value in June, 2000 was approximately €7 million. I prefer the evidence of Robert Craigie for two reasons, namely, he seems to me to have been the better qualified of the two to give evidence because he specialises almost exclusively in agricultural valuation and secondly, he gave comparisons to support his valuation which seemed to me to have been closer to the mark than those offered by Paul Doyle. Robert Craigie’s valuation in June, 2000 gives a price per acre of €36,000. One of his comparisons was a 121 acre farm sold in October, 2002 for €4.1 million giving a value of €33,884 per acre. Another was a sale of a stud farm in May, 2001 for a price yielding €38,000 per acre. A third comparison, a sale of 67 acres in September, 2000 at a price yielding €75,800 per acre was less strictly comparable because the successful purchaser had valuable land right nearby and the under-bidder was rumoured to be hoping to set up a waste facility on the land. By contrast the comparisons offered by Paul Doyle, who had valued The G. for probate purposes, struck me as less impressive. They were further away on average and one was in Wicklow. The lands and set-up of his comparisons were less comparable with the G., I thought, than of those offered by Robert Craigie. It may be that Robert Craigie’s valuation is on the high side but I think it is closer to the mark than that of Paul Doyle. Both these experts agree that the current value of the G. is €10 million.
Accordingly, in my opinion the testator’s estate at the time of his death was in the order of €9 million when his share holding and some other items are taken into account.
L.A.’s will
The second issue, of law, is as follows: in deciding whether or not the testator discharged his moral obligation to the applicant, do I credit him with the prescient foreknowledge that the applicant will in due course inherit a large sum from her mother? (If L.A.’s will stands she will get a third, if not most likely a quarter, of her mother’s estate which as things have turned out is one-third of the testator’s).
A deduction will, of course, have to be made in respect of the value of L.A.’s residence in the G. and environs which has been valued at €77,000 in the Wards of Court office and also for sums paid by the respondent for her maintenance at the G.. The evidence shows that this amounts to some €60,000 to €75,000 per annum. Taking a figure of €70,000 this expenditure will amount to some €425,000 up to next June being the fifth anniversary of the testator’s death. Meanwhile, of course, L.A.’s estate has been, on the valuation evidence, increasing in value.
I think it unlikely that L.A.’s estate will be worth less than €3,500,000 and accordingly unlikely that the applicant will receive thereunder less than some €1.2 million if L.A.’s will stands or some €900,000 if it does not. Either way, therefore, and making allowance for tax, the applicant will in due course receive a substantial sum. Do I or do I not take this substantial sum into account when considering whether the testator has discharged his moral obligation to her?
In Re N.S.M. deceased [1973] 1 I.L.T.R. the three younger children of four, two sisters and a brother, claimed under s. 117 of the Act that their father had not discharged his moral duty to them. The will left nothing to the sisters but the residue of the estate to the son. The court held that the testator had not discharged his duty to all three of them. Because of the incidence of estate duty and the costs of litigation nothing was left for the son. In holding that the testator failed in his duty not only to the sisters but also to the son, Kenny J. said:
“It is not an answer to say that the testator tried to make provision for (the son) and that this failed because of the large amount of estate duty and legal costs which will be payable. The court must attribute to the testator on the day before his death, knowledge of the amount of estate duty which will be payable on his estate and a remarkable capacity to anticipate the costs of the litigation which will follow his death. I realise that this is unreal, that the amount of estate duty payable is usually mercifully hidden from most testators and that it is impossible to anticipate what litigation will follow on death. I am convinced, however, that s. 117 must be interpreted in this way.”
A remarkable passage! The interpretation of the section is unreal. It is impossible to anticipate the litigation. Yet this is the way the Act has to be read. The judgment in N.S.M. has been adopted and approved by the Supreme Court in I.A.C. deceased [1989] ILRM 815. Although further principles were added constituting qualifications, the foregoing remarkable paragraph was not affected by them. On the contrary in JR v. JR (Unreported, 13th November, 1979) Keane J. (as he then was) acknowledged that the test is an objective, not a subjective one. If the test were a subjective one it could well be said in the present case that the testator well knew that his wife would never claim her legal right share and would accept his will. Objectively, however, he must in my view of the authorities be credited with the foreknowledge that she would be taken into wardship and that her committee would, on her behalf, elect to take her legal right, one-third share of his estate.
This interpretation appears to me to be consistent with the provisions of s. 117 (3) of the Act which provide that an order under the 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…”
It was submitted that the policy behind this provision is that one of two joint parents of children may cooperate with the other in discharging the statutory moral obligation of each. Under the subsection an order may not affect a devise or bequest even of the entire estate to a spouse if that spouse is also a parent of the testator’s children. The operation of the section would, in such a case, be postponed until after the survivor’s death. The subsection does appear to contemplate in certain circumstances the treatment of common parents as having what amounts to a shared obligation.
In considering the question whether he has discharged his moral obligation to the applicant, therefore, I take the testator as having been aware that the applicant would inherit not only the bequest to her under his own will of shares valued at €240,000 but that she would also inherit a substantial sum (either somewhat more or somewhat less than €1 million) from her mother. It is on this basis that I now come to consider whether he has discharged his moral obligation to the applicant.
In doing so I will, of course, be guided by the jurisprudence which has been extensively opened during the hearing, and not least by the comprehensive list of principles set out by Kearns J. in In the matter of the estate of A.B.C., deceased [2003] 2 I.R. 250
Conclusion
Under her father’s will the applicant will receive a bequest of approximately €240,000. Her own accumulated savings amount to approximately €200,000. She is likely to receive either slightly more than or somewhat less than €1,000,000 from her mother’s estate. In the round, therefore, and after making appropriate tax deductions under both estates, her assets, once her mother’s estate is distributed, are likely to amount to well in excess of €1 million.
Her earning capacity, as I have indicated, is quite limited and I would estimate that an earned income of €100 per week on average throughout any year up to age of retirement is probably about what she could achieve. Once she reaches the age when she is entitled to a State pension this may turn out to be something more than her own earnings. Her income from her shares is about €5,000 a year so she could expect to double this from her own earnings or pension.
Excluding the value of her shares, for the moment, the asset fund out of which she must purchase a home and provide an income stands somewhere in the region of €1,000,000. A home is likely to cost her around a quarter of a million euro or more, leaving a capital fund of some €700,000 to provide an income. This might yield an income of €20,000 a year which, together with the income from her shares and my estimate of her earning capacity, would produce a gross annual income of €30,000 after she has bought herself a house, that is, somewhat less than €600 per week (gross).
Whilst, it may well be said, that the applicant has shown an ability to get by with relatively straitened means, and a keen ability to conserve and husband her assets, under the section I must ask myself whether a prudent parent would be satisfied with these arrangements? In my opinion prudence dictates in this case that the applicant would have a somewhat greater security so that if circumstances beyond her control, for example if yields from investments were to perform worse than expected, she should nonetheless be able to continue to live at the reasonable and by no means luxurious standard which an income for a single person of something in excess of €600 gross per week would indicate.
With regard to the applicant’s clear concern for her old and late old age which is related in her mind to a history of family longevity and also a risk of mental frailty towards the end of her life, I consider that a prudent parent would ensure that if she had to live in a nursing home or equivalent for an extended period towards the end of her life she should be able to do so.
In the way I have approached my decision in the foregoing I have identified a figure of some quarter of a million euro or €300,000 whereby the applicant might buy herself a house and if she had to leave the house and reside permanently in a nursing home this of course could be sold and the proceeds used to pay her way in the nursing home. Whilst this is a genuine concern of the applicant’s I consider that in the way I have attempted to analyse her circumstances this concern would be met by the sale of her house.
My conclusion is that the applicant has demonstrated a need for greater security of income (after her mother’s estate has been distributed) than will have been catered for under her father’s will.
Further provision for the applicant
In my view I should, accordingly, make an order which would provide greater security of income for the applicant in the period following distribution of her mother’s estate. My estimate of the potential yield from her assets under her father’s will and after buying herself a house is that she would have something like €30,000 a year. In evidence she told me that she thought she would need €50,000 a year. I do not quite agree that she would be entitled to such an amount under an order in this case. My view is that the income which a prudent parent should have provided would be €800 a week or approximately €42,000 per annum. Provision on my calculation has been made for €30,000 and there is a shortfall, therefore, of €12,000 per annum.
Because there may be many considerations as to how best this should be provided I propose, having delivered this judgment, to allow counsel to assist me in regard to the particular order I should make so that such an income could be achieved.
Approved: O’Sullivan J.
A -v- C & Anor
[2007] IEHC 120 (28 March 2007)
Judgment of Miss Justice Laffoy delivered on 28th March, 2007.
A. Introduction
In this judgment I deal with the following three actions which were heard together:
(1) the proceedings which were initiated by special summons under the above title on 14th August, 2001 (the s. 117 application);
(2) a plenary action initiated on 15th October, 2001 between A and W, as plaintiffs, and C and D, in their personal capacities, as defendants (the trespass/personal injuries action); and
(3) a plenary action initiated on 15th August, 2002 between A and W, as plaintiffs, and C and D, as personal representatives of T deceased, as defendants (the title action).
By agreement of the parties, the s. 117 application was heard on oral evidence and the three actions were heard together in camera, because of the requirement of s. 119 of the Succession Act, 1965 (the Act of 1965).
B. The Section 117 Application
The claim
The claim in these proceedings is brought by the plaintiff (A) pursuant to s. 117 of the Act of 1965 seeking a declaration that his late father, T (the Testator), who died on 24th October, 1999, failed in his moral duty to make proper provision for A in accordance with his means and that the court make such provision for him as the court thinks just. The defendants are the personal representatives of the Testator on foot of a grant of probate of his last will dated 8th May, 1998, which issued to them on 19th February, 2001. The Testator died unexpectedly, following a stroke, at the age of 70 years.
The provisions of the Testator’s will
The Testator devised and bequeathed the property he described as “my dwelling house and lands with the contents thereof” (Blackacre) to his son, the first defendant (C), together with his livestock, his Fiat tractor and his machinery at Blackacre, subject to and charged with the following:
(1) payment of the sum of IR£40,000 to his son, A, within five years from the date of his death;
(2) payment of sufficient sums for their maintenance and support for their lifetimes and the life of the survivor of them for his wife, (the widow), and his daughter, E; and
(3) payment of the sum of IR£40,000 to his son, B, within a period of five years from the date of his death.
The Testator added a proviso to deal with an eventuality, which did not happen, that C should predecease him, in which case the Blackacre was to pass to the second defendant (D), and, in the event that he should predecease the Testator, the devise and bequest of the Blackacre was to pass to E.
The Testator devised and bequeathed his dwelling house and the contents thereof and his lands at Whiteacre to the widow for her lifetime and as and from her death for his son D and his daughter E as tenants in common in equal shares. He added a proviso that, should D predecease him, which did not happen, or predecease the widow, his tenancy in common interest should pass to E.
The Testator bequeathed certain plant and equipment to A (a tarrup silerator, a five-sod plough, a small dung spreader, a slurry tank and a tipping trailer) and he gave his sand screener and “all plant and machinery in the sand pit” and a loader to B.
The Testator devised and bequeathed the residue of his estate to the widow.
The Testator’s assets at the date of his death
The Testator was the owner in fee simple of the Blackacre at the date of his death. The farm was registered on two Land Registry folios, Folio —- County —- and Folio —- County —-. According to the folios the lands aggregated 85.641 hectares or 211.62 acres. The Testator had acquired the lands under a marriage settlement from his father, G F (the grandfather), dated 13th June, 1957 and he had become registered owner on the folios on 30th August, 1957. Contemporaneously with the marriage settlement, the Testator signed an agreement with the grandfather, his mother, G M (the grandmother) and his sister, S, under which, inter alia, he agreed that whenever called upon by the grandfather or the grandmother he would execute the charges necessary to charge the lands with certain rights and payments, including the right of the grandfather to reside in the dwelling house on the lands registered on Folio —-, that is to say, Blackacre House, and to be therein supported and maintained during his life and a similar right in favour of the grandmother for her life and also a right of residence in favour of S during her life, such right to cease on her marriage. The grandfather lived in Blackacre House until his death in 1973 or 1974. The grandmother died in 1987. The right of residence of S ceased on her marriage in the early 1960s.
Blackacre House comprises a three-storey period residence, most of which has been occupied by A and his wife (W), since their marriage in late 1983, although one room has been used for the purposes of the farm enterprise carried on by the Testator during his lifetime and by C since his death, a farm yard and farm buildings and agricultural land, to which there was attached a 60,000 gallon milk quota. In the title action, A and his wife (W) claim to have acquired a possessory title to Blackacre House and part of the farmland comprising about 30 acres. For the reasons set out in section D of this judgment, I find that A and his wife have not established their claim to a possessory title. The value of the Blackacre was given as IR£1 million as at the date of the Testator’s death on the Inland Revenue affidavit filed with the Revenue Commissioners in relation to his estate.
Whiteacre, according to the Inland Revenue affidavit, is registered on Folio —- County —- and Folio —- County —- and comprises 31 acres, 2 roods and 32 perches. It was valued on the Inland Revenue affidavit as at the Testator’s death at IR£280,000. The Testator bought Whiteacre in the mid-1960s and he built a dwelling house on the lands. He occupied the dwelling house with his family, including the grandmother, after it was constructed in the early 1970s. Since his death, the widow has resided there with C and E.
The machinery and equipment bequeathed to A was valued on the Inland Revenue affidavit at IR£12,600 and the plant and machinery bequeathed to B was valued at IR£6,500. The livestock and machinery which passed to C was valued at IR£86,535. The net value of the estate at the date of death was IR£1,364,307, there being debts and liabilities in excess of IR£82,000. The value of the residuary estate was in the region of IR£60,000.
Other relevant properties
In the late 1960s, around the time he acquired Whiteacre, the Testator acquired another property known as Greyacre, which comprised 44 acres, which remained in his ownership until 1991 or 1992, when it was sold. Through the 1970s and 1980s the Testator farmed the properties he owned (Blackacre, Whiteacre and Greyacre) and he also ran an agricultural contracting business. From the late 1970s through the 1980s, A, B and C worked for him in the farming and agricultural contracting enterprise.
In the late 1980s, probably 1988, an additional farm was acquired for the enterprise, which was situate at Brownacre. That farm comprised 88 acres. A site comprising about half an acre was carved out of the holding and was transferred to A. That was intended as the site of a house for A. The transfer of the remainder of the lands was taken in the names of A, B and C as tenants in common. The acquisition was funded by a loan from Allied Irish Finance Limited and the loan was, apparently, secured by three endowment policies on the respective lives of A, B and C. On the evidence, it is clear that the acquisition was actually funded by the Testator, in the sense that whatever payments were required during the currency of the loan and the endowment policies were discharged by the Testator. The endowment policies ultimately did not yield what had been anticipated. The lands at Greyacre were sold around 1991 or 1992 and the proceeds of sale were used to discharge the amount outstanding to Allied Irish Finance Limited. So the Testator cleared the debt off Brownacre.
The position, accordingly, at the date of the Testator’s death was that A, B and C were the owners as tenants in common of the lands at Brownacre, which it was agreed at the hearing were worth about IR£500,000 at the date of the Testator’s death. Those lands had effectively been provided for them by the Testator. After the Testator’s death there was a dispute between B and C, on the one hand, and A on the other hand, in relation to the disposal of the lands at Brownacre. Proceedings were initiated in this Court by B and C, as plaintiffs, against A, as defendant, for the partition of the lands or a sale in lieu of partition. Ultimately, that action was compromised in July, 2003 on terms that the lands would be sold and the proceeds divided between the three owners, the sum of €100,000 to come out of A’s share and to be paid to B and C as a contribution towards their costs. The lands were ultimately sold at a price of €2,550,000. The net proceeds were shared between the parties in accordance with the compromise, so that B and C each got €826,067.70 and A got €726,067.70.
Through the 1990s and down to the date of the sale, the lands at Brownacre were farmed exclusively by A. There was a sand pit on the lands which was opened around 1990 and was operated more intensively by the Testator in the two years before his death. This explains the reference in the Testator’s will to “all plant and machinery in the sand pit”, which he bequeathed to B.
The Testator’s family at the date of his death
The Testator was survived by the widow and five children:
(1) A, who was born on 14th May, 1958, and who, as I have stated, married W in 1983. At the time of the Testator’s death they had one child, F, who was born in October, 1998.
(2) B, who was born on 21st July, 1961;
(3) C, who was born on 30th March, 1963;
(4) D, who was born on 5th June, 1965; and
(5) E, who was born on 3rd October, 1967.
Although the widow was notified of her right of election in relation to the Testator’s estate under s. 115 of the Act of 1965, she has not elected to take her legal right share of one-third of the Testator’s estate. The evidence is that the widow is 76 years of age and is in good health. She is in receipt of a pension, the nature of which was not established at the hearing. As I have already stated, she resides in the house on Whiteacre with C and E.
Before considering the relevant facts in relation to the Testator’s children, I propose outlining the provisions of s. 117 and the jurisprudence which has evolved in relation to its application.
The law
Sub-section (1) of s. 117 provides as follows:
“Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.”
Sub-section (2) provides as follows:
“The court shall 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.”
As is frequently pointed out, the first attempt to lay down guidelines in relation to the application of s. 117 dates from 1970, when in B.M. v. T.A.M. (1970) 106 I.L.T.R. 82, Kenny J. stated as follows (at p. 82):
“It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death, and must depend upon
(a) the amount left to the surviving spouse or the value of the legal right if the survivor selects to take this,
(b) the number of the testator’s children, their ages and their positions in life at the date of the testator’s death,
(c) the means of the testator,
(d) the age of the child whose case is being considered and his or her financial position and prospects in life,
(e) whether the testator has already in his lifetime made proper provision for the child.”
More recently, in X.C. v. R.T. (Succession: Proper provision) [2003] 2 I.R. 250, in this Court Kearns J. set out eighteen relevant legal principles which, it was agreed by counsel on both sides in that case, as a result of the authorities which had been cited can be said to be derived under s. 117. One of the principles is that there is a high onus of proof placed on an applicant for relief under s. 117, which requires the establishment of a positive failure in moral duty. That moral duty is to make “proper provision” for the applicant in accordance with the testator’s means, not to make adequate provision. The principles set out in paras. (l) to (r) inclusive are relevant to the assessment this Court has to make in this case. They are as follows:
“(l) In dealing with a section 117 application, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.
(m) Special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example, working on a farm, he will ultimately become the owner of it, thereby causing him to shape his upbringing, training and life accordingly.
(n) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong not to foster.
(o) Special needs would also include physical or mental disability.
(p) Although the court has very wide powers both as to when to make provision for an applicant child and as to the nature of such provision, such powers must not be construed as giving the court a power to make a new will for the testator.
(q) The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but, rather, whether the decision of the testator to opt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.
(r) The court must not disregard the fact that parents must be presumed to know their children better than anyone else.”
As is pointed out in Spierin on The Succession Act, 1965 and Related Legislation, 3rd edition, at para. [700] it has been repeatedly stated that the court’s function in adjudicating on an application under s. 117 is a two-stage process. The first stage is that the court must decide whether the testator has failed in his moral duty to make proper provision for the applicant child and that decision is made by reference to the circumstances which prevailed at the date of the death of the testator. It is only when the applicant child overcomes what the Supreme Court has described as the “relatively high onus” of proof that there has been “a positive failure in the moral duty” (Re IAC [1990] 2 IR 143) that the court proceeds to the second stage, which is to decide what provision is to be ordered for the applicant child. As Carroll J. pointed out in M.P.D. v. M.D. [1981] I.L.R.M. 179 (at p. 188), when the court moves to the second stage, the provision must be just at the time the court makes its order, so that the court must have regard to the value of the entire estate at the date of the hearing.
It seems to me that the requirement that the provision made be just may, having regard to the particular circumstances of a case, require the court to take account of changed economic circumstances, any variation in the value of assets, and any variation in the capacity of assets which are or form part of an enterprise which has passed on death as a going concern to yield income, including any regulatory changes which affect the profitability of the enterprise (e.g. changes in European Union law in relation to subsidisation of agricultural enterprises) between the date of the Testator’s death and the date of the hearing
A’s circumstances and the provision made for him
At the date of the Testator’s death A was 41 years of age, he was married and had one child, aged one.
A’s schooling had finished when he was about sixteen years of age. He had attended Vocational School to Intermediate Certificate level. After he left school, he served his time as an engineering draftsman at T Engineering for four years. After four years at T’s he left because, as he testified, he did not take to the work. Farming was in his blood. When he left T he went to work on his father’s farming enterprise on a full-time basis. Before that, like his brothers, he had helped out on the farm in the evenings and at weekends.
Prior to his marriage in 1983 A lived with his grandmother, parents, brothers and sisters in the house on Whiteacre, which is about seven miles from Blackacre. After he returned to work on the farm and until he got married A was paid a very small amount of money each week by his father for his work, about IR£10 per week. His evidence was that his father’s objective was to build up the agricultural contracting business with a view to making money to buy a farm for him in the future, although the time span was not specified. A obtained a HGV licence after he left T.
After A got married a number of changes occurred. His father paid him a wage for working in the enterprise, initially at the rate of IR£80 or IR£90 per week, which eventually increased to about IR£120 per week by 1992. At the time his brothers, B and C, were also involved full-time in the farming enterprise, but they were still living at home on Whiteacre and were being paid lower wages than A. The impression given by A’s evidence was that his weekly wage compared unfavourably with the average wage of a farm labourer.
The second change was that A was allowed to move into Blackacre House, which was vacant at the time he got married. After the death of the grandfather it had been let to a succession of tenants, but it was vacant at that stage, although there is a conflict as to how long it was vacant. A’s evidence was that he moved in with the grandmother’s consent. However, as is outlined in section D later, the reality is that the Testator was the owner of Blackacre and it was with his father’s consent that he lived in Blackacre House from 1983 onwards. I am satisfied on the evidence that Blackacre House was barely habitable even by 1983 standards when it was decided that A and his wife would move in. From the summer of 1983 until he moved in with is wife in December, 1983, A worked in the evenings repairing, refurbishing and improving Blackacre House. The work continued after he moved in and I am satisfied that there has been a continuous process of improving Blackacre House over the years. Initially, A got financial assistance from his father in relation to the work, in that his father paid for the materials used.
A’s working relationship with his father changed in 1992. In the interim, Brownacre farm had been acquired. A’s evidence was that his understanding was that his father’s ambition was that each of his sons would have a farm and that he was to have Brownacre. That may well have been his ambition and his intention. Indeed, C’s evidence was that the Testator’s “grand plan” was to set them all (which I take to mean A, B and C) up. However, as counsel for the defendants submitted, that ambition foundered in the early 1990s. While the evidence is anything but precise, it would seem to have perished on the rock of inadequate returns from endowment policies and high interest rates which were prevalent in the early 1990s.
The position from 1992 onwards was that A ceased to draw wages from the Testator’s farming enterprise. Thereafter, he farmed Brownacre with the Testator’s permission. About half of Brownacre was in tillage and the rest was returned to grass. His evidence was that he had his own herd number. He also used 30 acres of farm land at Blackacre where he grazed cattle and sheep. As I find when dealing with the title action in section D, he used this part of Blackacre with the permission of the Testator. When the sand pit operations in Brownacre intensified around 1998 he worked part-time in the sand pit. He also continued doing contract work, for example, lime spreading. He also continued to help out in the Testator’s farming enterprise at Blackacre as needed.
Because of the existence of these proceedings and the other actions since the Testator’s death, A has continued to reside with his wife and son in, and occupy, most of Blackacre House. A has continued to farm the 30 acres of farm land at Blackacre. Brownacre has been disposed of, but he has received his share of the proceeds of sale as outlined previously. He continued to do haulage work, but denied that it was his main business. He does what he described as a “small bit” of contracting work.
The circumstances of A’s siblings
B was 38 years of age at the date of his father’s death. Like A he attended Vocational School and his schooling finished at Intermediate Certificate level. After he left school he went to work in the Testator’s farming and agricultural contracting business. Around 1989 or 1990 he branched out on his own and established a plant hire business. On the evidence, I am satisfied that he was in no way reliant on the Testator’s assets and was making his living independent of the Testator at the time of the Testator’s death. By then he had married. His daughter was born about six months after the Testator’s death.
C was 36 years of age at the date of the Testator’s death. He also got his second level education at Vocational School, finishing at Group Certificate level. At that stage, the dairyman having left the farm, he was asked by his father to work on the farm. He had expected to go to agricultural college, but that was postponed and, in fact, never materialised. With the exception of approximately a year spent in Australia in 1989/1990 following a car crash, he worked for the Testator until the Testator’s death and he remained on the Testator’s payroll. He lived with his parents in the house on Whiteacre. C’s evidence was that his wage when he returned from Australia was IR£45 per week. It increased thereafter and at the time of the Testator’s death it was around IR£60 or IR£70 per week. C was candid in his evidence that, if he wanted extra money from his father, he got it. Around June or July, 1999 he bought a house in [a nearby provincial] town as an investment and the Testator guaranteed the loan. He is unmarried and still lives with the widow and E in the house on Whiteacre, although, as he testified, that arrangement would not be suitable if he wished to live with a partner. He farms at Whiteacre in the widow’s name, in the sense that he does the physical work but she gets the income, and he also farms Blackacre other than the 30 acre portion farmed by A.
D was 34 years of age when the Testator died. After receiving a second level education at Vocational School, D attended the Regional Technical College [in the nearby provincial town] for three years. He had more of an academic bent than his siblings. As an adult he did not work in the Testator’s enterprise and he has always had employment independent of the Testator and an income independent of the Testator’s assets. He married around 1999.
E was 32 years of age at the date of the Testator’s death. While she attended secondary school and did secretarial courses after secondary school, she has never had a job. She is unmarried. While A accepted that E has “special needs”, my understanding is that that expression was not used in any clinical sense, but that the family recognise that the probability is that a home is going to have to be provided for her at Whiteacre or elsewhere and that her financial needs are going to have to be provided for for the rest of her life. It is unlikely that she will be in a position to earn a livelihood or that she will marry and she will be dependent on the provision the Testator made for her.
Failure by Testator to make proper provision for A?
Of the Testator’s five children, only B and D were, in reality, financially independent of him and his assets at the date of his death. Aside from providing for the widow, who had legal entitlements under the Act of 1965, which she has not enforced, the Testator had moral duty to make proper provision for E and also for C because of the former’s needs and the latter’s commitment to working at a low wage in the Testator’s enterprise all his adult life. Given A’s special circumstances, in my view, the Testator also had a moral duty to make proper provision for him.
Those circumstances were that, by the time of the Testator’s death, A and his wife had resided in Blackacre House for sixteen years. For about seven years he had been primarily reliant on farming the Brownacre lands and on his farming activities at Blackacre to provide an income for himself and his wife, who did not work outside the home, and latterly his child. For upwards of twenty years, A had been dependent upon the Testator or the Testator’s assets to provide him with a livelihood. On the evidence, I think he was led to believe, that he did believe and that he had reasonable grounds for believing that his father would endeavour to provide him with a farm which would enable him to earn his living from farming for the rest of his life.
The death of the Testator and the provisions of his will effectively deprived A of his home and his primary means of livelihood. The Testator must have anticipated that after his death Brownacre would be sold and the proceeds of sale divided equally between A, B and C. In assessing whether the Testator made proper provision for A in accordance with his means, the overall provision made by the Testator for A, one-third of the proceeds of the sale of the 88-acre farm at Brownacre, the site at Brownacre, IR£40,000 and machinery valued for inheritance tax purposes at IR£12,600, the aggregate value of which would have been in the region of IR£230,000 on the basis of the value of agricultural land in 1999, must be assessed against what A effectively lost on the Testator’s death. A lost the facility of living in Blackacre House and he lost the facility of farming the entire 88 acres at Brownacre and about 30 acres at Blackacre. While the Testator could have withdrawn permission for him and his family to reside in Blackacre House at any time between 1983 and 1999, and could have withdrawn the facility to enable him to maintain his herd of sheep and cattle on Blackacre, he did not do so. Moreover, on the evidence, it is clear that it was the Testator’s presence which enabled A to farm the farmland at Brownacre exclusively. There is no doubt on the evidence that A, B and C regarded the Testator as the boss and as the person who determined what use Brownacre was to be put to. C acknowledged that the Testator treated Brownacre as his.
Having regard to A’s age and his family commitments, and his primary reliance on the Testator’s assets or assets the Testator effectively controlled for his income in 1999, in my view, the Testator failed in his moral duty to make proper provision for A in accordance with his means.
Just provision for A
In reality, there are only two assets of the estate out of which provision can be made for A, Whiteacre and Blackacre. The disposition by the Testator of Whiteacre benefits the widow during her life, and after her death benefits E and D. Aside from the restriction contained in sub-s. (3) of s. 117, which provides that an order under s. 117 shall not affect any devise or bequest to a surviving spouse who is the mother of an applicant child, I do not think it would be proper or fair to interfere with that disposition. The Testator was obviously conscious of E’s limited prospects in life and endeavoured to provide properly for her. Therefore, it would not be appropriate to interfere with her benefit and, indeed, A accepted that. As regards D, unlike his three brothers, he did not benefit from the sale of Brownacre and enjoy the Testator’s bounty in that way. I think it is reasonable to surmise that the benefit given to him in relation to Whiteacre, apart from being a safeguard for E, was intended to make up for that. Therefore, I do not think it would be appropriate to interfere with his benefit, which is contingent on him surviving the widow.
That leaves Blackacre. In relation to that asset, the court has to bear in mind that it is subject to the rights of the widow and E and that it is also subject to the payment of IR£40,000 to B. The evidence would suggest that C bore the brunt of the Testator’s liabilities, at any rate his bank liabilities, and discharged them out of his share of Brownacre. That also has to be taken into account.
The valuation evidence before the court has related primarily to Blackacre, which is located two miles from the nearby provincial town and about fifty miles from Dublin. There is no real dispute as to the value of Blackacre House as it stands, including the farm room, with a shared driveway, serviced by a septic tank and pump outside its curtilage, and its location beside a working farmyard. A valuer who testified put a value of €500,000 on it. Counsel for the defendants accepted that valuation. As regards the lands of Blackacre around Blackacre House farmed by A, the valuer suggested that the valuation was about €30,000 per acre, perhaps more because of the proximity of the lands to the town. The court does not have valuation evidence in relation to the entirety of Blackacre as a single entity. C’s evidence was that some of the land was prone to flooding every year and his assessment was that half of the acreage occupied by him since the Testator’s death would fetch only €15,000 per acre. His response to the proposition put to him that Blackacre in its entirety is worth between €4 million and €5 million was that like a lot of farmers he is “asset rich but cash poor”.
The just provision for A has to be made out of Blackacre. Because of the burdens imposed by the Testator on Blackacre, which either cannot or should not be interfered with, and because of the necessity of ensuring that Blackacre is a viable farm, which can provide an income for C, I have come to the conclusion that it would not be appropriate to make the provision by giving A either the house or part of the land. The geography and layout of Blackacre was also a factor in reaching that conclusion. I consider the just provision involves giving A a sum of money charged on Blackacre which takes account of, and is aimed at redressing, the consequences of the Testator’s death and the provisions of his will for A but does not make it unrealistic for C to meet the other obligations imposed on him, including the ongoing obligations to the widow and E, while at the same time allowing him to earn a living out of the property. That provision has to be translated to present day values. While, having regard to the state of the evidence, to do so is anything but an exact science, I think that the just provision for A is to substitute the sum of €750,000 for IR£40,000 in the will of the Testator.
Otherwise the will stands.
C. Trespass / personal injuries action
Facts
These proceedings arise out of an event which occurred on 10th May, 2000, which was preceded by inter partes correspondence, which I consider puts the event in context. The first letter was a letter of 10th April, 2000 from the solicitors acting for C and D, in their capacities as personal representatives of the estate of the Testator. C and D are the defendants in these proceedings but, as I have already pointed out, they are sued in their personal capacities. The letter was to A and his wife, who are the plaintiffs in these proceedings. In the letter, the solicitors complained about the construction of a wall in the yard of Blackacre House, which A had commenced building on the previous day. The complaint was that the wall restricted access to the farmyard and to the main farm and that the construction had been commenced without any consent from the personal representatives. The plaintiffs were called on to stop the construction work immediately and to reinstate the property. Legal proceedings were threatened if they did not do so. There was a response dated 20th April, 2000 from the plaintiffs’ solicitors, in which it was stated that the Testator had been consulted and had agreed to the construction of the wall in the interests of confining F to the area immediately behind Blackacre House. It was stated that this agreement was being implemented in the interests of safety as, immediately behind where the wall was being erected, there were open slurry pits and various items of scrapped cars and machinery and also areas containing livestock and working machinery. It was denied that access to the farmyard and the house would be restricted.
That letter was followed by a further letter of 26th April, 2000 from the plaintiffs’ solicitors to the solicitors acting in the administration of the estate on behalf of the personal representatives, which contained a complaint that on that day a bulldozer, which was being driven by B, who is not a party to these proceedings, “careered” through a portion of the wall demolishing it, despite B having a “banksman” with him who could have directed the machine. Proposals for the compensation of the plaintiffs for the damage to the wall and an assurance that there would be no repetition were sought to avoid court proceedings. The response from the solicitors acting in the administration of the estate was a letter dated 5th May, 2000. It was stated that no consultation had been engaged in with the personal representatives before the building of the wall commenced. That statement was incorrect because the evidence of both A and C was that they discussed the construction of the wall before it commenced. It was asserted that the location of the route of the wall was not in keeping with what was agreed with the Testator and it was already causing severe disruption to farming operations at Blackacre. It was stated that, in particular, the milk lorry had great difficulty in manoeuvring in the farmyard. The hope was expressed that the matter could be resolved without the necessity of proceedings.
What happened on 10th May, 2000 was that early in the morning a loading shovel driven by B was used to demolish the wall. I am satisfied that this occurred at 6 a.m. A had already left Blackacre House to go to work on Brownacre. His wife was in bed in Blackacre House. B arrived accompanied by C, D and a neighbour. When the demolition work commenced the wife was alerted by the noise. She looked out the bathroom window and saw what was happening. She became hysterical. She tried to use the telephone but it was not working. She ran out of the house in her nightdress, having pulled on Wellington boots, and got into a jeep and tried to stop the demolition. The jeep was hit by the loader when she reversed by mistake. I have no doubt on the evidence that the wife suffered a severe shock as a result of the demolition of the wall. Her behaviour bears this out. C in his evidence used the expression “crazy stuff” to describe it. She testified that she drove to Whiteacre to see if the widow could stop the defendants, but she did not remember talking to her. She said her mind was racing. Her recollection was that she then went to the garda station. When she returned to Blackacre the guards were there and A was there. Criminal charges against both C and A in relation to the incident are pending in the District Court.
The defendants admitted cutting off the electricity supply while the wall was being demolished, but denied cutting off the telephone to Blackacre House.
I have absolutely no doubt, although C denied it when it was put to him in cross-examination, that the defendants acted in a highly irresponsible and an extremely provocative manner in demolishing the wall. The reason giving by C for not awaiting the outcome of the correspondence between the solicitors was that he and his co-executor were frustrated at the pace at which the matter was moving. When he was asked in cross-examination whether he considered the risk of a serious incident if A was at home, his response was that he kind of expected that, but added that the wall was demolished in less than two minutes. C likened A to a child who is told he cannot have a sweet or a bully in the school yard when one tries to stand up to him. He said he, C, felt no responsibility for what happened and he had no regrets in relation to the manner in which the wall was removed. The quickest and least stressful method had been used from his perspective.
The plaintiffs’ case as pleaded
In their statement of claim delivered on 7th August, 2002 the plaintiffs alleged that the demolition of the wall amounted to trespass to their property and they claimed to have suffered loss and damage and it was claimed that W had suffered severe personal injury. The case was put on an alternative basis that, in demolishing the wall, the defendants had been guilty of negligence and breach of duty as a result of which the plaintiffs suffered loss and damage and W had suffered personal injury.
Because of the view I take that the claim made in the title action cannot succeed, I am of the view that the claim of trespass cannot succeed. Therefore, the issues which remain in these proceedings are whether a claim in negligence has been established against the defendants for the psychiatric injury which W alleges to have suffered as a consequence of the actions of the defendants, and, if so, the measure of damages to which she is entitled.
The claim in negligence: the law
The court had the benefit of helpful written submissions on this issue, and indeed on the legal issues in the other two actions, from counsel on both sides.
Counsel for the plaintiffs relied primarily on the decision of the Supreme Court in Kelly v. Hennessy [1995] 3 IR 253 and submitted that W’s claim satisfied the five criteria set out by Hamilton C.J. in his judgment (at p. 258) which must be established in order to succeed in an action for damages for nervous shock. It was also submitted that it was arguable that the defendants’ actions would satisfy the higher test of the tort of intentional or reckless infliction of emotional harm, referring to the leading case of Wilkinson v. Downton [1897] 2 QB 57 and the commentary on the topic contained in McMahon and Binchy on The Law of Torts, (3rd Edition) at paras. 22.28 to 22.34. In my view, the plaintiffs’ case as pleaded does not encompass that tort. Notwithstanding the finding I have made as to the reckless behaviour of the defendants, having regard to the state of the pleading, I do not consider it appropriate to consider that tort further.
Counsel for the defendants, in their written submission, also considered the criteria set out by Hamilton C.J. in Kelly v. Hennessy, in addition to considering other authorities both in the United Kingdom and in this jurisdiction relating to the circumstances in which a plaintiff in a negligence action can recover damages for a psychiatric injury unaccompanied by a physical injury. They referred to recent observations of the Supreme Court in Fletcher v. The Commissioners of Public Works [2003] 1 IR 465. In opening his exposition of the law in Fletcher v. The Commissioners of Public Works, Geoghegan J. (at p. 491) made some general observations which I propose summarising for the purpose of putting in context the passage from his judgment which, in my view, throws light on how W’s claim should be approached. He stated that it was clear from leading cases in common law jurisdictions that reasonable foreseeability was not the only determining factor in imposing liability for psychiatric injury and that other elements such as proximity, reasonableness in the imposition of a duty of care and public policy may all play a role. He also pointed out that in the law of tort there is a double aspect to “reasonable foreseeability”, in that it is relevant in considering whether a duty of care exists and, if it does and it has been breached, it is relevant in determining whether a particular item of damage alleged to have resulted is recoverable. He also pointed out that it would seem from the authorities that the test for each type of foreseeability is different: the test of foreseeability for the purposes of liability to a non-primary victim, at least for psychiatric injury, is based on a person of “normal fortitude”, whereas in assessing damages on the application of reasonable foreseeability to items of damage, the “thin skull” principle would come into play.
Geoghegan J. then went on to state as follows in the passage which I think is enlightening for present purposes:
“In an ordinary motor accident or factories injury or even, indeed, a medical negligence action, the trial judge does not normally have to consider aspects of the tort of negligence other than reasonable foreseeability. The ‘neighbour’ of a motorist, for the purposes of negligence liability, is the person who can be reasonably foreseen he may injure through the negligent use of a motor car. It has always been considered reasonable that liability should arise in such circumstances and reasonable foreseeability and proximity effectively become merged. In the vast majority of negligence actions, therefore, a close analysis of the different constituents of the tort, i.e. duty of care, the breach of that duty and the damage which results, is not necessary.”
In my view, this case does not warrant the type of analysis which courts have had to embark on in the so-called “nervous shock” cases, such as Kelly v. Hennessy, or the so-called “fear of disease” cases, such as Fletcher v. The Commissioners of Public Works. It seems to me that this case is more akin to the ordinary motor accident or workplace injury case than to the nervous shock case. If an adjoining landowner, at 6 a.m., demolishes a contentious wall at the back of a house in which a family reside, which is within earshot and sight of the house, a person in the house whom it may reasonably be foreseen may be traumatised by the manner in which the demolition is carried out must come within the “neighbour” principle.
If I am wrong in that conclusion, then the criteria set out by Hamilton C.J. in Kelly v. Hennessy for recovery of damages for nervous shock are applicable. Adopting the truncated version of the criteria set out by Keane C.J. in his judgment in Fletcher v. The Commissioners of Public Works at p. 474, these are:
“1. A plaintiff must establish that he or she actually suffered ‘nervous shock’. This term has been used to describe ‘any recognisable psychiatric illness, and a plaintiff must prove that he or she suffered a recognised psychiatric illness if he or she is to recover damages for “nervous shock”’…
2. A plaintiff must establish that his or her reasonable psychiatric illness was ‘shock-induced’ …
3. A plaintiff must prove that the nervous shock was caused by a defendant’s act or omission …
4. The nervous shock sustained by a plaintiff must be by reason of an actual or apprehended physical injury to the plaintiff or a person other than the plaintiff …
5. If a plaintiff wishes to overcome damages for negligently inflicted nervous shock he must show that the defendant owed him or her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock.”
Application of the law to the facts
The construction of the wall by A had been the subject of the correspondence which I have outlined. The concerns of the plaintiffs in relation to the safety of F, who was then about eighteen months old, were specifically raised in the correspondence and must have been known to the defendants. While B, who is not a party to these proceedings, drove the machine, it was the defendants, as personal representatives of the Testator, who were objecting to the existence of the wall and they must be assumed to have been directing operations. The wall was within sight and earshot of Blackacre House. The defendants must have anticipated that W would be in the house and that, even if she was asleep, the noise of the demolition work would waken her. In the light of the correspondence which had passed between the solicitors, they must have anticipated that the demolition of the wall in the circumstances in which it was undertaken would cause her distress.
In relation to the application of the five criteria identified by Hamilton C.J. in Kelly v. Hennessy, the position is as follows:
1. It has been established that W actually suffered a recognisable psychiatric illness. This was clearly established by Dr. John A. Griffin, the Consultant Psychiatrist who has treated, and continued to treat, W in his reports of 30th April, 2001 and 30th January, 2005, which were put in evidence, and in his oral testimony.
2. There is no doubt, on the evidence, that W’s psychiatric illness was “shock-induced”, in the sense that, being vulnerable to stress and anxiety and having a history of psychiatric illness, the shock which the incident on 10th May, 2000 caused exacerbated her condition. This is evident from her behaviour on that day. It is also supported by the evidence of Dr. Griffin. It is consistent with the opinion expressed by Dr. David Shanley, who examined W on behalf of the defendants, in his report dated 12th June, 2006, in which he stated that it is likely that the wall and its subsequent removal may have been a contributory factor to her subsequent admissions to Hospital under Dr. Griffin’s care.
3. W’s shock and the reaction, stress and anxiety which ensued were caused by the defendants’ actions in having the wall demolished and the manner in which it was demolished.
4. Despite the urging of counsel for the defendants that this finding is not justified, in my view, the shock sustained by W was by reason of actual or apprehended physical injury to a person. While it would appear that she did not apprehend any physical injury to herself on the occasion, it is absolutely clear that the whole focus of her distress, stress and anxiety related to her perception that, because of the demolition of the wall, F was in imminent danger of serious physical injury. Dr. Shanley in his report expressed the opinion that it is reasonable to suggest that she was very concerned about F’s safety and became obsessed about that aspect. Dr. Griffin used the same word, obsessed, in his oral evidence. He said she was “obsessed” about the wall and that its demolition had a devastating effect on her mental health. When he first saw her after the demolition of the wall, which was on 11th November, 2000, she was very distressed and referred constantly to the demolition of the wall and her fears in relation to F.
5. I have no doubt that the defendants did owe a duty of care to W and that injury in the form of nervous shock to W was reasonably foreseeable. It is at this point that, because of the similarity to a motor accident or a workplace injury case, any deeper analysis can be dispensed with. However, viewing the factual circumstances objectively, in my view, a reasonable person would have foreseen that the actions which the defendants intended to embark on were likely to have serious psychological consequences for W.
Accordingly, I am satisfied that the defendants are liable in damages for the psychiatric injury which their actions in demolishing the wall caused W.
The medical evidence
W had a history of psychiatric illness before the wall was demolished. She first attended Dr. Griffin in November, 1983 suffering from stress and depression. At the time, although her symptoms were not severe, she was admitted to [a psychiatric hospital] for a period of about two weeks. Following treatment she made a good recovery. Her last out-patient appointment was on 14th March, 1984.
W was admitted to hospital again after the birth of F in April, 1999, suffering from stress and depression. At that stage she spent six weeks in [the psychiatric hospital]. Dr. Griffin’s evidence was that there was an element of post-natal depression involved. She was treated with anti-depressants, anxiolytic medication and sleeping tablets. When she was discharged she was normal.
After the demolition of the wall, before Dr. Griffin gave his first report in April, 2001, W had four periods of hospitalisation in the psychiatric hospital: between 9th November, 2000 and 20th November, 2000; between 4th December, 2000 and 11th December, 2000; between 12th December, 2000 and 23rd December, 2000; and between 4th January, 2001 and 5th March, 2001. Dr. Griffin’s opinion was that the worries and stresses about the safety of F played a part in each of those admissions. In between admissions he had seen her at numerous out-patient consultations and had to take telephone calls from her, perhaps, three or four times a week.
After Dr. Griffin gave his first report, W had a further period of hospitalisation in 2001 under his care: from 17th May, 2001 to 25th August, 2001.
W’s Voluntary Health Insurance cover ran out in August, 2001. She had two periods of hospitalisation in a midland psychiatric hospital, which I understand is a public hospital. The first was from 27th November, 2002 to 14th January, 2003 and the second was from 11th June, 2003 to 14th November, 2003. No medical evidence was adduced in relation to those periods of hospitalisation.
After her Voluntary Health Insurance cover resumed, W was back under the care of Dr. Griffin. She had a further period of hospitalisation, this time in the psychiatric hospital, from 6th November, 2003 to 10th February, 2004. Again she was treated with anti-depressants and anxiolytic medication. When she was discharged on 10th February, 2004, she was on maintenance doses.
W had eight periods of hospitalisation between November, 2001 and February, 2004 for periods ranging from one week to two months (2), three months, four months and five months. At the time of her first hospitalisation, F was only two years old. The fact that she was separated from him at that time understandably is a matter of great regret for her.
When Dr. Griffin reviewed W in his report of 13th January, 2005, he stated that she had been well for the previous three months. However, he recorded the medication she was on at the time and commented that she was on three powerful anti-depressants and mood stabilising medications which she required to take on a daily basis. He also reiterated his opinion that the constant distress she had suffered from in relation to the wall being knocked down and the fact that her son might fall into a drain or slurry pit had exacerbated and prolonged her clinical state.
At the hearing Dr. Griffin testified that W’s condition was very much improved. Since 16th August, 2006 she had had no need for anti-depressant or other medication. As regards the prognosis, he said it was guardedly good. She had coped reasonably well. He was guardedly optimistic that she could avoid hospitalisation but she would continue to need out-patient consultation.
The case was made by counsel for the defendants that W had many other stressors in her life at the time, apart from the demolition of the wall, the litigation in relation to the estate of the Testator and related matters being mentioned. This was put to Dr. Griffin, whose response was that she constantly talked about the wall rather than the other matters, which she adverted to at times.
In his report, Dr. Shanley said that when he examined W on 6th June, 2006 there was no evidence of depression. She had maintained that she remained well from a psychiatric point of view, largely because F had reached the age of seven and a half years and that much of the fears she had previously had receded by then.
In his first report of 30th April, 2001 Dr. Griffin referred to the adverse effect which W’s “legal case”, obviously referring to these proceedings, was having on her in a tone veering on desperation. He pointed out that unless and until the legal situation was resolved expeditiously, it would be very difficult to help her in a meaningful way. It was obvious in the course of the hearing that she was under severe stress. It is reasonable to assume that her stress will be alleviated and her condition will improve when these proceedings are out of the way.
Damages
There is no claim for special damages before the court. I assess the general damages to which she is entitled at €50,000, comprising €40,000 for pain and suffering to date and €10,000 for pain and suffering in the future.
D. The title action
The claim as pleaded and presented
The title action was the last of the three actions to be initiated. As I have stated in the introduction, the plaintiffs in the title action are A and W, whom I will refer to as the plaintiffs in this section, and C and D, qua personal representatives of the Testator, are the defendants. The property to which the title action relates is described in the schedule to the statement of claim as “the lands and premises known as Blackacre … consisting of a dwelling house, small yard front and back and entrance avenue shown outlined in red on the map annexed …”. However, the agreed position at the hearing was that the claim related to the entire of the area outlined in blue, including the area outlined in red on the map identified on the second day of the hearing. The land in issue comprises an area of about 30 acres. The case pleaded in the statement of claim, on my reading of it, seems to relate only to Blackacre House. However, I will deal with the case as presented at the hearing.
The case as pleaded by the plaintiffs is that in 1983, following their marriage and with the consent of the grandmother, they commenced to restore and occupy “the Property”. It was asserted that the grandmother was “the life tenant … under a family settlement” of “the Property” and that on her death in 1987 the remainder man under the family settlement was the Testator. The basis of the plaintiffs’ claim in the title action as pleaded is that, since the death of the grandmother in 1987, they have been in sole and exclusive occupation of “the Property” without acknowledging the title of the Testator or his estate and, accordingly, they have barred the title of the Testator’s estate. On that basis they claimed a declaration that all the estate or interest of the estate of the Testator in “the Property” had been extinguished by the adverse possession of the plaintiffs and that they are entitled to the entire legal and beneficial interest therein.
Two alternative claims were advanced in the statement of claim based on the assertion that the plaintiffs had carried out extensive work to restore “the Property” as a dwelling house fit for habitation. The first was an assertion that the estate of the Testator was estopped from recovering possession of “the Property”. The second was that the estate of the Testator had been enriched by the works and improvements carried out by the plaintiffs and that it would be just and equitable that the estate should compensate the plaintiffs in respect of the cost of the works and the enhancement of the value of the dwelling house and lands. The plaintiffs sought an injunction restraining the defendants from trespassing on “the Property” and damages as compensation for unjust enrichment.
As I have stated, the plaintiffs’ case was presented on the basis that the title claim extended not only to Blackacre House and yard but also to lands comprising about 30 acres, being part of Blackacre, which the plaintiffs asserted that A farmed to the exclusion of the Testator and his estate for upwards of twelve years prior to the initiation of these proceedings.
The defendants denied that the plaintiffs were in sole and exclusive occupation of Blackacre House since 1987 and contended that –
(a) the plaintiffs have only ever occupied a portion of Blackacre House, the remainder having been used by the Testator during his lifetime, and thereafter by C;
(b) the plaintiffs have never occupied the yard or the entrance avenue, but have made use of them in common with the Testator during his lifetime and, after his death, with C; and
(c) that the plaintiffs’ occupation of the portion of Blackacre House after 1987 and during the lifetime of the Testator was with the licence or permission of the Testator and was part of his consideration for working on the family farm.
It was also contended by the defendants that A used the farmland with the permission of the Testator. The defendants have counterclaimed for an injunction restraining the plaintiffs from trespassing on the Property, on the basis that the defendants, as personal representatives of the Testator, have revoked the permission given by the Testator to the plaintiffs. They also have claimed damages for trespass.
The law
The plaintiffs’ claim is that they have acquired title by adverse possession to the property in issue and that claim is based on the Statute of Limitations, 1957 (the Act of 1957). Section 13(2) of the Act of 1957 provides that no action to recover land shall be brought by any person, other than a State authority, “after the expiration of twelve years from the date on which the right of action accrued to the person bringing it”. The accrual of a right of action to recover land is dealt with in s. 18, sub-s. (1) of which provides:
“No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.”
Section 24 provides that, at the expiration of the period fixed for a person to bring an action to recover land, the title of that person to the land shall be extinguished.
Counsel for the defendants, in their written submissions, have referred to s. 51 of the Act of 1957 which, in effect, provides that, in the case of an action to recover land, if a person in possession acknowledges the title of the owner during the limitation period, the limitation period starts running again from the date of the acknowledgment. However, “acknowledgement” has a very specific meaning for the purposes of s. 51: by virtue of s. 58 it must be in writing and signed by the person making the acknowledgement. On the evidence, I am satisfied that s. 51 does not come into play, because no acknowledgement which complies with the requirements of s. 58 had been identified.
The real issue in this case is whether the plaintiffs have been in adverse possession within the meaning of that expression in s. 18 since 1987, as they contended, or, indeed, at any time.
The authorities on the meaning of the expression “adverse possession” in s. 18 address two concepts: the type of use and occupation of land which constitutes possession; and the circumstances in which possession is adverse. The law in relation to both concepts is well settled. Both concepts were considered in this Court by Costello J., as he then was, in Murphy v. Murphy [1980] I.R. 183. In relation to the first concept, he stated as follows (at p. 193):
“The first question of fact to be determined is whether the defendant was ever in ‘possession’ of the widow’s lands. In a passage which was quoted with approval in Treloar v. Nute [1976] 1 W.L.R. 1295, Lord O’Hagan in The Lord Advocate v. Lord Lovat (1880) 5 App. Cas. 273 at p. 288 of the report:-
‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.’”
In addressing the question whether the possession was adverse, Costello J. stated as follows (at p. 195):
“Turning, then, to the nature of the defendant’s possession, I think the test I should apply is this. Was the defendant’s possession inconsistent with and in denial of the widow’s rights as the legal owner of the land? … If it was, then the defendant would be ‘a person in whose favour the period of limitation could run’ within the meaning of s. 18 of the Act of 1957 and his possession would be adverse. In considering a problem of this sort, the relationship between the owner of the land and the person in possession and the nature of the lands in controversy are highly relevant matters to be taken into account. If a person is in possession of lands with the consent or licence of the owner, then his possession is not adverse: see Hughes v. Griffin [1969] 1 W.L.R. 1295. The inference of the existence of a licence is one that may be drawn more readily where the relationship is a family one than where no family ties exist.”
On the appeal to the Supreme Court in Murphy v. Murphy, which was dismissed, Kenny J. in his judgment (at p. 202), having traced the history of the concept of adverse possession, stated as follows:
“In section 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus it cannot run in favour of a licensee or a person in possession as a servant or caretaker or a beneficiary under a trust: Hughes v. Griffin …”
At the end of his judgment Kenny J. stated that whether a person in possession of land has been in adverse possession is ultimately a question of fact.
In Seamus Durack Manufacturing Limited v. Considine [1987] I.R. 677, Barron J. reiterated what Kenny J. had said in Murphy v. Murphy: that each case must be decided on its own facts. He then continued (at p. 683):
“Adverse possession depends on the existence of animus possidendi and it is the presence or absence of this state of mind which must be determined. Where no use is being made of the land and the claimant knows that the owner intends to use it for a specific purpose in the future, this is a factor to be taken into account. The principle has relevance only insofar as that when the factor is present it is easier to hold an absence of animus possidendi.”
More recently, what constitutes possession was considered by this Court (O’Hanlon J.) in the following passage in his judgment in Doyle v. O’Neill (Unreported, 13th January, 1995):
“In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of definite and positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.”
The last sentence in that quotation has no relevance to the facts of this case. In the case before him, O’Hanlon J. held on the facts that the acts of user which it was asserted constituted possession, which he found were casual, sporadic and of an inconclusive nature, were not such as to ground a claim to a possessory title.
The legal ownership
It is clear from the statement of claim in the title action that at the time it was delivered the plaintiffs did not have documentary evidence of the title to the lands registered on Folios —- and —– County —-. I have set out the details in relation to the title in section B of this judgment. The grandmother was not a life tenant of Blackacre House between 1957 and her death in 1987. She merely had a contractual right to be granted a right of residence, support and maintenance by way of charge. As such, she had no title to the house or land and she was not a person who could have brought an action to recover possession of the house or land. The Testator was the owner of the house and land in fee simple at all times after 1957 until his death and he was the person against whom the plaintiffs must show they were in adverse possession. The plaintiffs’ claim is that they were in adverse possession against him since 1987.
Adverse possession by plaintiffs?
In determining whether the plaintiffs’ use of either the part of Blackacre House occupied by A and his wife since 1983 or the 30 acres of farmland, the yard and farm buildings which A used for the purposes of his farming activities and for the maintenance of his sheep and cattle herds, was of a type which ousted the legal title of the Testator before his death or of his estate after his death, the core issue is whether such use and occupation amounted to adverse possession within the meaning of the Act of 1957. In my view, it did not because on the evidence the occupation of the house and the use of the land were with the permission of the Testator.
In their written submissions counsel for the defendants have listed a variety of factors which they contend illustrate that the actuality of the occupation and use by the plaintiffs of the property of which they claim they were in adverse possession is inconsistent with the concept of adverse possession: that A continued to draw wages from the farming enterprise until 1992; that the materials used for the initial repairs of Blackacre House in 1983 and 1984 were funded by the Testator; that a site for a house for A was provided at Brownacre when that property was acquired; that A believed that Brownacre was to be his; that the permission of the Testator and the executors were sought for the construction of the wall in the yard; and the sharing of resources and machinery and the shared use of the yard. Counsel for the defendants submitted that the evidence established that A had the express permission of the Testator to use the house and farm. Alternatively, it was submitted that the relationship between the Testator and A was such that a licence would inevitably have been inferred.
I have no doubt, taking an overview of the evidence, that the plaintiffs’ use and occupation of the part of Blackacre House which they have occupied over the years since 1983 and A’s use of the 30 acres of farmland was with the permission of the Testator. Moreover, I have no doubt that, whether the permission was actually expressed by the Testator in terms that, the occupation and use could continue for as long as the Testator wished, that was what A understood to be the position. On at least three occasions in the 1990s, the Testator demonstrated that he was in control of Blackacre and the plaintiffs did not demur.
First, in May, 1994 the Testator instructed his solicitors to write to A requesting that he remove all his stock, cattle and sheep which were his (A’s) property from the lands at Blackacre. The letter was dated 12th May, 1994 and the request was to remove the stock before 31st May, 1994. A’s evidence was that at the time there was dissention between him and the Testator. He wanted the Testator to buy extra machinery, but the Testator was “in trouble with the bank” and would not. A’s evidence was that the Testator dismissed everything he said and would lash back at him saying that, if A did not do what he told him, he was to get his sheep and cattle out of Blackacre. As A put it, the Testator would “fire up and cool down”. A’s evidence was that, while he was surprised to receive the letter, he did not respond because he thought things would cool down and they did until the next letter.
That next letter was a further solicitor’s letter of 21st December, 1994. There were two complaints in that letter. The first was that A’s sheep and lambs were grazing the lands of Blackacre with the result that in the following spring there would be no grass available for cattle, resulting in serious loss to the farming operation. A was asked to remove his sheep from the lands on or before 31st December, 1994. The second complaint was that an application had been made to the Department of Agriculture for sheep headage payments in the name of the Testator without his permission. It was stated that, if the practice did not stop immediately, the Testator intended bringing the matter to the attention of the appropriate authorities. The letter also stated that the Testator wished that the house at Blackacre be vacated on or before 30th June, 1995. Again, A did not respond to that letter. His evidence was that he thought it as well not to start an argument. In any event, he could not move out because he had no money. He also testified that he felt that the Testator was not entitled to make him leave because he had promised to buy him a farm and he, A, had worked hard for the Testator, having worked longer hours than the labourers.
The third occasion was in May, 1998 following an argument between A and the Testator after the Testator had tipped a load of sand on the drive to Blackacre House and during which argument the door of the Testator’s tractor was damaged. That incident resulted in a letter of 19th May, 1998 from the Testator’s solicitors to A in which A was admonished that there was to be no repetition of his conduct towards his father and was advised that the use of the lands should be vacated by the end of July, 1998. I think it reasonable to infer that the instructions for that letter were contemporaneous with the making of the Testator’s will on 8th May, 1998; it referred to the Testator having consulted his solicitor recently concerning the incident.
As counsel for the defendants put it, there was a rapprochement between the Testator and A when the Testator’s first grandchild, F, was born in October, 1998. Despite the arguments between them, the Testator never took steps to eject the plaintiffs from Blackacre House or the farmland. However, in my view, that did not alter the permissive nature of the plaintiffs’ occupation and use of Blackacre House and the farmland. In my view, it is clear on the evidence that A never had the animus possidendi necessary to render the occupation and use adverse possession within the meaning of s. 18 of the Act of 1957. In his evidence, A was very forthright about his expectations. He never expected that Blackacre would be left to him by the Testator. His understanding was that Blackacre would be split between C and B and that he would get Brownacre. His understanding and expectation when Brownacre was acquired was that it would be his. He would work with the Testator until the loan on Brownacre was paid off. His evidence was that the Testator said that when the loan was paid off he would get C and B “to sign off”. Having regard to the evidence, it is impossible to infer that A ever formed the intention of ousting the Testator’s title to Blackacre.
For all of the foregoing reasons the plaintiffs’ claim to have established title by adverse possession must fail.
In their written submissions, counsel for the plaintiffs, in making the case for the application of the doctrine of proprietary estoppel have outlined the relevant legal principles by drawing on the commentary and the authorities cited in Delany -on Equity and the Law of Trusts in Ireland, 3rd Edition, at p. 637 et seq. However, in applying the principles to the facts of this case, it seems to me that they have strayed beyond the parameters of the case made in the plaintiffs’ statement of claim, which has focussed on the works and improvements carried out by the plaintiffs to Blackhorse House, rather than the fact that A worked for the Testator for over ten years at low pay. Aside from that, it is clear on the evidence that the Testator never gave A an assurance that Blackacre House would be his. Moreover, A never had any expectation that Blackacre House would be his. It is reasonable to infer that the reason why A carried out the works and improvements to Blackacre House, the extent of which is disputed, was for the comfort and ease of living of himself and his family. The plaintiffs have had the use of the house free of rent since December, 1983. In my view, they have not made out a case for a claim in equity arising from the works and improvements they carried out to the house, nor for damages.
E. Orders
The court will make the following orders:
(1) In the s. 117 application, a declaration that the Testator has failed in his moral duty to make proper provision for the plaintiff in accordance with his means and an order providing that the devise and bequest of the lands of Blackacre to the first defendant shall be subject to and charged with the payment thereout of the sum of €750,000 to the plaintiff, in substitution for the sum of IR£40,000, provided for in the will, the said sum to be paid by 31st October, 2007.
(2) In the trespass/personal injuries action, an order that the defendants pay to the second plaintiff the sum of €50,000 for damages for negligence and an order dismissing the other claims.
(3) In relation to the title action, an order dismissing the plaintiffs’ claim and an order on the defendant’s counterclaim granting injunctions in the terms of paragraphs (a) and (b) of the prayer on the counterclaim with a stay until 31st October, 2007 or until the payment of the sum of €750,000 to the first plaintiff by the defendants as personal representatives of the Testator, whichever occurs last, and orders dismissing the other claims and counterclaims.
proved: Laffoy J.
H. (A Minor) v. H.
[2008] IEHC 163 (21 January 2008)
EXTEMPORE JUDGMENT of Mr. Justice Sheehan delivered on the 21st day of January, 2008
This is an application pursuant to s.117 of the Succession Act 1965, to make provision for the plaintiff, as this court thinks just. The plaintiff S.A.H. is a minor and sues in the name of her mother and next friend, A.C. The defendant S.T.H. is the widow and legal representative of G.H., and is the sole beneficiary named in the last will and testament of the said deceased, G.H., who died on the 3rd March, 2003. The plaintiff is the lawful daughter of G.H., who died testate. He made his last will and testament on the 6th March, 2001, and later died without altering or revoking the said will, in respect of which a grant of probate was issued on the 18th August, 2005, to the defendant as sole executrix.
Under the terms of his last will, G.H. bequeathed the entire of his estate to the defendant. The defendant, who has been making payments for the education and maintenance of the plaintiff since her husband’s death, has simplified this Court’s task by conceding that this Court should make an order for the proper provision for the plaintiff. Accordingly, the parties have agreed that this is the only matter which the court need concern itself with. The background to the case was opened by Mr. Dwyer, counsel for the applicant.
The deceased, G.H., and the plaintiff’s mother were in a long term relationship when the plaintiff was born in 1991. G.H. went to work in the United States, and it was the understanding of the plaintiff’s mother that she would be going to join him. But events did not unfold as planned. G.H. met the defendant, and they subsequently married in 1994. The relationship between G.H. and the plaintiff’s mother ended. The plaintiff and her mother, who had been living on the 170 acre farm that G.H. subsequently inherited, vacated the said farm and are now living in rented corporation property in a Dublin suburb. The defendant and the plaintiff’s father remained in the United States and they subsequently had two children. The plaintiff’s mother has no assets of her own, and has a gross weekly income of €525.
In paragraph 7 of her affidavit, she states that she is the plaintiff’s sole carer and has provided for all of her needs from her own resources other than sporadic maintenance payments made by the plaintiff’s father during his lifetime. Payments have been made out of the estate for the plaintiff’s education since her father’s death. The plaintiff’s mother also states at paragraph 8 of her affidavit that the plaintiff has no assets or means of her own and has never received, and has no prospect of receiving, any benefits from the estate of parties other than the deceased.
It is clear from the affidavit of the defendant, and indeed from the will of G.H., that he was mindful of the plaintiff in that he made provision for her in the event of his wife’s death within thirty days of his death. At the time of his tragic early death, G.H. had returned to Ireland to make proper provision for her.
Assets
There are two estates; one in Ireland, and one in the United States. The estate here consists of a residential holding extending to 170 acres, and is described by the auctioneer who valued the holding for probate purposes, as “a most attractive dry stock in a good agricultural area. The lands are almost all sound and of good heart. Whilst they do not enjoy any significant road frontage, access is reasonably good.” In valuing the property at €1.36 million on the 5th March, 2003, he stated he was not aware of any quotas attaching to the property.
On the 5th April, 2007, the auctioneer revalued the property at €1.7 to €2 million. Since inheriting the farm the defendant has been receiving a net income from it of €18,548 per annum. The deceased’s estate in the U.S.A. is comprised of partnership assets valued at $75,000 and a vehicle valued at $8,000. It is also relevant to note that there were two insurance policies, specifically for the benefit of the defendant, with a total value of $250,000, one of which was used by the defendant to clear the mortgage on the family home in America, which was valued at approximately $175,000 at the time of the death of G.H.
The defendant is a schoolteacher and mother of G.H’s other two children. A.L., a son who was born on the 31st January, 2000, and B.L., a daughter who was born on the 22nd June, 2002. B.L. is now five years old and has been diagnosed with Rett Syndrome, a neurodevelopmental disorder.
In paragraph 35 of her affidavit, the defendant states inter alia, that:
“B.L. needs 100 per cent assistance for all of her daily living activities, such as feeding, bathing, dressing, communication systems with picture choices and communicative devices, since she is non-verbal and non-signing. Most importantly she needs to be monitored fairly closely for her safety. B.L. will always need lifelong care and will always be financially dependent. I look after B.L. all the time save for when I am at work. I say that the cost of medical treatment required by B.L. is met by my own health insurance. I am concerned that if anything were to happen to me, B.L. would not be properly provided for financially, nor cared for properly.”
The defendant, whose annual teacher’s salary at the end of 2006 was $38,347, describes a gruelling daily schedule in getting up early and preparing her children for school, particularly B.L. This routine is only broken on two mornings a week by having the service of a respite care worker to assist her with getting B.L. ready. The defendant pays a neighbour $125 per week for assisting with B.L.
The Law
Section 117 of the Succession Act 1965, states as follows:
“(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.”
Section 117 of Act of 1965, was amended by s. 31 of the Status of Children Act 1987, which provided for the insertion of the following subsection;
“(1A) (a) An application made under this section by virtue of Part V of the Status of Children Act, 1987, shall be considered in accordance with subsection (2) irrespective of whether the testator executed his will before or after the commencement of the said Part V.
(b) Nothing in paragraph (a) shall be construed as conferring a right to apply under this section in respect of a testator who dies before the commencement of the said Part V.”
Section 177 of the Succession Act 1965, states that;
“(2) The court shall 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.
(3) 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.
(4) Rules of court shall provide for the conduct of proceedings under this section in a summary manner.
(5) The costs in the proceedings shall be at the discretion of the court.”
Section 46 of the Family Law (Divorce) Act 1996, amended s.117 (6) of the Succession Act 1965, to provide that an order under this section shall not be made except on an application made within twelve months from the first taking out of representation of the deceased’s estate.
The circumstances of this case obviously concern s.117 (2) of the Act of 1965 and, while both parties agree that the court has considerable discretion, Mr. Dwyer, counsel for the applicant, referred me to the relevant chapter in Spierin, The Succession Act 1965 and Related Legislation: A Commentary, (Dublin, 2003). Mr. McGrath, counsel for the respondent, referred the court to the decision of Mr. Justice Kearns in X.C. v. R.T. [2003] 2 I. R. 251, in which Kearns J., set out a number of general principles which the court should follow when considering what amounts to proper provision. I consider the principles set out at (g), (i), (l), (n) and (o), in the said judgment at p. 263 to be particularly relevant to the task this court has, and I set them out here:
“(g) Section 117 does not create an obligation to leave something to each child.
(i) Financing a good education so as to give a child the best start in life possible and providing money, which, if properly managed, should afford a degree of financial security for the rest of one’s life, does amount to making “proper provision”.
(l) In dealing with a s.117 application, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.
(n) Another example of special circumstances might be a child who has a long illness.
(o) Special needs would also include physical or mental disability.”
I also note the decision of Costello J. in L. v. L. [1978] 1 I.R. 288, and particularly the following extract from that judgment at p. 292;
“The Court must make an order that is just. The Court is required by s.117, subs. 2, to consider the application from the point of view of a prudent and just parent; it is required to take 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 or children who are claimants under the section and to the other children. A parent, in acting prudently and justly, must weigh up carefully all his moral obligations. In doing so, he may be required to make greater provision for one of his children than for others. For example, one child may have a long illness for which provision must be made; or one child may have an exceptional talent which it would be morally wrong not to foster.”
Decision
With regard to the valuation placed on the farm for the purpose of these proceedings, I hold that the value is €2 million. I note that when Mr Dwyer, counsel for the applicant, put the value of the farm at €2 million, the defendant did not disagree. Mr McGrath, counsel for the respondent, submitted that I should pay particular attention to the needs of the deceased’s daughter, B.L., and in reaching my decision, I have borne in mind her serious illness and ongoing future needs. I have also borne in mind the defendant’s assertion that she may require to carry out renovations to her family home to make it more suitable to the needs of her daughter. These will cost in excess of $100,000. I am conscious that the defendant has paid a sum of $34,000 for the maintenance and education of the plaintiff since the death of G.H. I am mindful of the fact that in the event of the farm being sold there will be a capital gains tax liability as well as disposal cost. I am aware that the costs of these proceedings must be met by the estate. I also take into consideration the position of the son, A.L., who will shortly be eight years old.
The matter that I attach most significance to on the defence side is the illness the defendant’s daughter suffers from and her ongoing extensive requirements relating to permanent care. In considering the plaintiff’s application from the point of view of a prudent and just parent, and bearing in mind the matters already referred to, I am conscious that the plaintiff has grown up largely without the support and presence of her father. This fact weighs more heavily with me than the fact that the plaintiff has grown up in a modest environment. In the circumstances of this case I hold that proper provision for the plaintiff requires that she be enabled to complete her second and third level education in relative comfort and be enabled to purchase a two-bedroom apartment not far from where she presently lives with her mother. As the plaintiff has one further year to go in secondary school, I would allow the sum of €9,000 in respect of that year.
I propose to order that the plaintiff be paid a sum of €409,000 out of the estate. Given what I have been told about the appropriate time for selling farm land, or in the event of the defendant choosing to raise funds in another way, I will allow seven months for the payment of this sum, provided that maintenance continues to be paid at the rate of €9,000 per annum. I will give both parties liberty to apply.
Approved: Sheehan J.
K v D
[2011] IEHC 22
JUDGMENT of Mr. Justice Birmingham delivered the 21st day of January 2011
This is an application brought by the plaintiffs pursuant to the provisions of s. 117 of the Succession Act 1965.
The litigation that now comes before the court has a long and unfortunate history. In the course of that history, Laffoy J. delivered a judgment on the 16th April, 2010, on foot of an application by the personal representatives seeking the court’s approval of the settlement of the proceedings, notwithstanding the opposition of the third named defendant J.R. In the course of that judgment Laffoy J. set out in some detail the history of the matter to that point. The summary that is now offered by way of background draws heavily on the narrative set out by her.
Background
M.K. (the testator) died testate on the 30th December, 1999. By his will dated the 16th September, 1997, he had appointed the first and second defendants (the personal representatives) to be executors and trustees thereof. On the 22nd November, 2001, the Grant of Probate of the will of the testator issued to the personal representatives.
The testator was survived by two sons M.K. and P.K. and by his daughter P.A. They are the plaintiffs in these proceedings. All of the plaintiffs were of full age at the date of the testator’s death. However, P.A. has had severe epilepsy since infancy. Dr. Norman Delanty, Consultant Neurologist, has reported that she is a person of unsound mind and incapable of managing her affairs. She lives with her mother A.K. When the proceedings commenced she sued as a person of unsound mind not so found by inquisition, but who was suing by her mother and next friend. By order of the President of the High Court dated the 21st October, 2010, P.A. was taken into wardship and her mother A.K. was appointed Committee of her person and of her estate.
The testator was a married man but he and his wife were estranged. Judicial separation proceedings involving the deceased and his wife, A.K. were compromised on the 11th July, 1996, as a result of which A.K.’s entitlement to any interest in the estate of the testator was extinguished. No claim against the estate of the testator by A.K. has been advanced.
So far as the defendant J.R. is concerned the evidence is that as of the time of the deceased’s death that she was his partner and that she had been in a relationship with him for some time, according to her since 1983. J.R. lived with the testator during the last three years of his life. The testator suffered two strokes in 1997 and the evidence of J.R. is that she took time off work to look after him and eventually left work so as to be in a position to take care of him on a full time basis. There is some controversy on the affidavits as to the extent of the incapacity of the deceased after his strokes and his requirement for care, but for present purposes that overview of the deceased’s last years is sufficient.
In summary, the position in relation to how the deceased dealt with his assets is that:-
(a) Under the terms of the will, the testator devised a house site on lands owned by him to J.R. for her absolute use and benefit. Subsequent to the making of his will, on the 14th November, 1997, the testator transferred the house site to himself and J.R. as joint tenants and subsequently a bungalow was built on that site in which the testator and J.R. resided. On the death of the testator, J.R. became solely entitled to the bungalow, by right of survivorship. The bungalow is quite a substantial one having five bedrooms and it comes with a garden of approximately one acre. At the date of death it was valued at €378,000 with bank loans amounting to €26,000 leaving a nett value at the time of €352,330. The premises are now valued at €400,000.
(b) The testator was the owner of a number of acres of agricultural land. At various stages, the acreage involved has been estimated at eight or ten acres. Prior to his death, he had entered into a contract to sell a site comprising approximately half an acre to a third party. This transaction gave rise to litigation and the sale was completed after his death. By his will, the testator devised a house site of half an acre out of the agricultural land to each of his sons, M.K. and P.K. However, of note is that he expressly provided that the devise was to be subject to his sons obtaining planning permission within 24 months of the date of his death. These sites have had a complicated planning history but the end result is that planning permission was not obtained by either son within the time prescribed. The application for planning permission by both sons failed before An Bord Pleanála following an objection which had been lodged by J.R. Subsequently her solicitors confirmed that she was not consenting to the extension of the time set out in the will for procuring planning permission.
(c) The testator owned a yard comprising three commercial units which at the time of his death were producing a rental income, though in the case of one unit the rent was significantly in arrears. By his will he devised this property which he described as his “commercial yard” to his sons M.K. and P.K., his daughter P.A. and J.R. in equal shares absolutely.
The testator’s residuary estate consisted of household contents and machinery and tools and money, including the proceeds of the sale of the site. The testator devised the residue of his estate to J.R.
In summary, therefore, the will devised the commercial yard to his three children and J.R. in equal shares. The residue of the estate he devised to J.R. In particular the agricultural lands, referred to by the testator as the “field” he devised to J.R. The “field” devised to J.R. comprised the entire field following the failure of his sons to obtain planning permission during the requisite period.
The Proceedings
I have referred to the fact that the proceedings have had a long and unfortunate history and it appears appropriate to refer briefly to that history. These proceedings were initiated by special summons issued on the 17th January, 2002. Initially, the plaintiffs’ claim was only under s. 117 of the Succession Act 1965, however, subsequently the plaintiffs sought and obtained liberty to amend the Special Summons so as to include a claim under s. 121 of the Succession Act for a declaration that the transfer of the house into the joint names of the deceased and J.R. be deemed to be a bequest made by will and to form part of the estate on the grounds that the transfer was made for the purpose of defeating or substantially diminishing his childrens’ entitlements. However the s. 121 application was later withdrawn and the matter proceeded at hearing as a claim under s. 117 simpliciter. Before the s. 121 application was withdrawn however, J.R. applied to be joined as a defendant and was joined by order of the Master of the High Court. As the case progressed, and progress was very slow for a number of reasons including the death of the solicitor for the plaintiffs, there were a number of applications to the court. Some of these were quite unusual. J.R. brought an application for an order directing the personal representatives to pay out from monies belonging to the estate a sum to her on the basis that she was in need of funds for her ongoing needs. On the 17th December, 2008, that application was refused on the basis that the court did not have jurisdiction to make the order sought.
By order of the Court made on the 16th January, 2009, it was directed that a preliminary issue be tried to determine where the liability for debts that were outstanding to Allied Irish Bank on foot of a number of accounts that appeared to be linked to the acquisition of the bungalow fell. A dispute had arisen as to whether these debts fell upon J.R., or upon the estate of the deceased or fell jointly upon J.R. and the deceased. On the 28th July, 2009, the Court made an order approving a settlement which had been negotiated by the personal representatives with AIB in relation to these debts. The debts in question at that stage amounted in total to €155,450.41 and the settlement involved a payment of €95,000 to the bank. The settlement was without prejudice to the determination of the issue where responsibility for the debts lay. Whilst stoutly maintaining the position that J.R. was as a minimum liable for half the debts, the plaintiffs and the personal representatives have subsequently agreed that no effort will be made to pursue this aspect further with J.R. This judgment takes account of that concession by the plaintiffs. The approach that they have taken has conferred a significant benefit on J.R.
By notice of motion dated 25th November, 2009, the personal representatives sought directions and in particular sought the court’s approval of a proposed settlement of these proceedings on terms which were put before the Court. J.R. opposed the settlement. That application by the personal representatives was refused as the Court felt that there was no jurisdiction to make the order sought.
The Legal Background
A significant body of jurisprudence now exists in relation to the provisions of section 117. Most, if not all of the cases are helpfully reviewed in The Succession Act 1965 and Related Legislation – A Commentary by Spierin with Fallon (Dublin, LexisNexis Butterworths, 3rd ed., 2003) at page 312 and subsequent pages.
The legal principles involved in cases of this nature were very succinctly summarised by Kearns J., as he then was, in the case of X.C. v. R.T. (Succession; Proper Provision) [2003] 2 I.R. 250 at pg. 262. There, he commented “counsel on both sides were agreed that the following relevant legal principles can, as a result of the authorities, be said to derive under s. 117;
(a) The social policy underlying s.117 is primarily directed to protecting those children who are still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents who are unmindful of their duties in that area.
(b) What has to be determined is whether the testator, at the time of his death, owes any moral obligation to the children and if so, whether he has failed in that obligation.
(c) There is a high onus of proof placed on an applicant for relief under s. 117, which requires the establishment of a positive failure in moral duty.
(d) Before a court can interfere, there must be clear circumstances and a positive failure in moral duty must be established.
(e) The duty created by s. 117 is not absolute.
(f) The relationship of parent and child does not, itself and without regard to other circumstances, create a moral duty to leave anything by will to the child.
(g) Section 117 does not create an obligation to leave something to each child.
(h) The provision of an expensive education for a child may discharge the moral duty as may other gifts or settlements made during the lifetime of the testator.
(i) Financing a good education so as to give a child the best start in life possible and providing money, which, if properly managed, should afford a degree of financial security for the rest of one’s life does amount to making “proper provision”.
(j) The duty under s. 117 is not to make adequate provision but to provide proper provision in accordance with the testator’s means.
(k) A just parent must take into account not just his moral obligations to his children and to his wife, but all his moral obligations, e.g. to aged and infirm parents.
(l) In dealing with a s. 117 application, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.
(m) Special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example, working on a farm, he will ultimately become the owner of it, thereby causing him to shape his upbringing, training and life accordingly.
(n) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong not to foster.
(o) Special needs would also include physical or mental disability.
(p) Although the court has very wide powers both as to when to make provision for an applicant child and as to the nature of such provision, such powers must not be construed as giving the court a power to make a new will for the testator.
(q) The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but rather, whether the decision of the testator to opt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.
(r) The court must not disregard the fact that parents must be presumed to know their children better than anyone else.”
The value of the estate as of the time of death and the current value of the assets
In seeking to apply these principles it is necessary in the first instance to identify the value of the estate both at the time of death and at the present time. It has consistently been stated in the Case Law that the relevant date for ascertaining whether there has been a failure to make proper provision is the date of the testator’s death. In F.M. v. TAM [1970] 106 ILTR 82 at 87 Kenny J. stated that “the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death.” As of the date of death the nett value of the estate was approximately €815,800. Of this the sum of approximately €417,000 was attributable to the commercial premises and €330,031 to the agricultural land. The personal representatives have averred that each of the sites devised to the sons of the testator had a value at the time of death of approximately €88,881 with the benefit of planning permission.
However, the decided cases indicate that if the stage is reached where a court has to decide what provision should be made for children regard has to be had to the value of the entire estate not only at the date of death but also at the date of the hearing. In M.P.D. v M.D. [1981] ILRM 179 at 188, Carroll J. held “in deciding what provision the Court should make for the children regard must be had to the value of the entire estate, not only at the date of death but also at the date of hearing.” These proceedings have been so long in gestation that the value of the estate has fluctuated widely rising sharply during the Celtic Tiger years and falling sharply in more recent times. It is estimated that the assets at present have a value of €543,450, made up as to €310,000 for the industrial units (€250,000 with vacant possession). €165,000 in respect of the agricultural land, €63,450 cash and €5,000 contents/farm machinery. One has to express disappointment that the resort to litigation and the conduct of the litigation has seen a significant fall in the nominal value of the estate. In real terms the fall is even greater, because obviously the purchasing power would have been significantly higher in 1999. That remark is made even before one begins to take into account the considerable legal costs that must have been incurred in these proceedings.
It is also necessary to consider the circumstances of relevant parties as of the date of death and as of the date of hearing.
Position of M.K.
M.K. was twenty-four years of age at the date of death of his father. At that time he was residing with his mother. He had left school at fourteen years of age without sitting the Junior Cert or Group Cert. When he left school he obtained work in a hardware store and at the date of death was an assistant manager. His affidavit, sworn in October 2002, refers to the fact that his nett take home pay was €520 per week, and he was contributing €100 at home. He did not have any real property but had a savings account with a balance of €11,500. He had an outstanding car loan of €6,300 which he was repaying at €250 per month. No unusual or particular provision was made for M.K. by his father during his lifetime save that he was given a gift of IR£500 towards the purchase of his first car in 1990.
His present position is that he is thirty five years of age, is married with two young children. He and his wife jointly purchased a home in September 2003 for €277,000 paying for the house by way of a deposit of €27,000 which came from savings and a mortgage of €250,000. They re-mortgaged the house in 2007 for €250,000. It is estimated that the property is currently worth approximately €270,000 with an outstanding amount in respect of the mortgage of approximately €220,000. He was made redundant in May 2009 and since then has been unemployed. His wife is also not working and the family are dependent on welfare payments for an income.
Position of P.K.
The position of the second named plaintiff P.K. is that he was twenty-one years old at the time of his father’s death. He was unmarried and was living with his mother. He had left school at sixteen years of age after transition year. On leaving school he obtained employment in a hardware store where he had worked part-time as a schoolboy. To date he remains in employment with that store. His affidavit sworn in October 2002 refers to the fact that he was earning €502 nett per week and contributing €90 to the household. At the time of his father’s death he had no significant assets though he had a savings account where the balance stood at €672. He had an outstanding car loan for something less than €4,500 which he was repaying. As in the case of his brother no particular or unusual provision was made for him during his father’s lifetime save that he too received assistance with the purchase of his first motor car. In this case the sum involved was €634. His present position is that he is thirty-two years of age working as an assistant manager. The downturn in the construction industry has rendered his position precarious. The number of hours that he works has been reduced and there have been a number of redundancies in the store leaving his future uncertain. He lives with his partner in an apartment owned by her, which is the subject of a mortgage.
So far as M.K. and P.K. are concerned their situation is broadly similar. It is true that as at the time of their father’s death that the position of M.K. was somewhat the stronger but today the situation has been reversed. However their situations have not diverged to such an extent that the court would be justified in treating them differently. Their father made identical provision for them and in so far as the plaintiffs and the third named defendant have canvassed possible approaches to settlement, it is has never been suggested that there was a need to differentiate between them.
The Position of P.A.
At the time of her father’s death P.A. was twenty-three years of age, was unmarried and was living with her mother. She was and is a very severe epileptic, having had part of her mid brain removed by surgery because of recurring grand mal seizures. At the time of her father’s death she was having frequent seizures on a daily basis. She was attending a community centre on a daily basis and her only source of income was disability benefit. She had no significant assets and at the time was incapable of managing her own affairs.
The present situation is that P.A. is thirty-four years of age and continues to attend the same community centre. She was, as we have seen, taken into wardship on 21st October 2010 and her mother was appointed as her committee. It is her mother who cares for her. P.A. averages two or three seizures per night and requires constant supervision including the administration of her medication three times daily. Understandably, her mother is finding it increasingly difficult to look after her. P.A. is in receipt of disability allowance, which at present is €204 per week. This is likely to remain her main source of income. As a result of recent developments in relation to the Government’s four year plan and the so called bailout agreement, it is unlikely that these welfare payments will increase in the short to medium term and on the contrary are very likely to be further reduced.
In considering whether the provision made by the testator amounted to proper provision, it is worth pausing to view the provision that was actually made for the children and indeed for J.R. in cash terms and percentage terms on a number of alternative suppositions.
On the basis of the net value of the estate in accordance with the Inland Revenue affidavit and on the basis that the house sites with planning permission each had the value of €88,000 attributed to them, the position would seem to be this; M.K. and P.K. in money terms would each have received approximately €193,000 while P.A.’s inheritance, one quarter of the commercial yard would have been valued at approximately €104,250. J.R. in money terms would benefit to the extent of just under €325,000. In percentage terms this amounts to 23.7% for each of his two sons, 12.8% for his daughter and 39.8% for his partner, J.R. (these figures are slightly different than calculations that were carried out by the plaintiffs which were referred to during the course of argument but nothing turns on this and the order of magnitude remains the same).
The plaintiffs in these proceedings have referred to the benefit to J.R. represented by the bungalow and indeed, as we have seen, went so far as to bring a claim under s. 121 of the Succession Act. If, for illustrative purposes, regard is had to the value of the bungalow, then the position would appear to be this; if the bungalow was brought back into consideration then the nett estate would have a value of approximately €1.167 million, this calculation being on the basis of the bungalow having a nett value of €352,330. On this basis the provision in percentage terms would amount to just over 73% for J.R. and just under 9% for each of the three children. Again, if one was to perform the exercise of adding the house to the value of the estate, but having regard to the sites as if planning permission had been obtained then the position would be that the share of each son would be approximately 16%, P.A’s share would remain unchanged at 9%, while J.R. on this assumption would take 59%. If one took the view that 50% of the bungalow was held by J.R. in her own right and that 50% was held in trust for the estate, then the nett value of the estate at the time of death was €991,165 with the provision for each of the three children amounting to 10.5%.
Decision
In a case where the parties have managed to agree on very little, there is in reality a consensus that proper provision has not been made for P.A. In their initial affidavit sworn on the 17th November, 2005, the personal representatives commented:-
“In relation to the deceased’s daughter, [P.A.] we say and believe that it would appear from the affidavit filed by her next friend that the deceased failed in his moral duty to make proper provision for her in accordance with his means. It would appear that she has a severe medical condition and that she is incapable of caring for herself or of generating an income, and that there is no realistic prospect of any significant improvement in her condition. In these circumstances, the deceased’s principle duty would have been to [P.A.] and the provision made by him for her in his will, amounting to some €104,000 would appear to have been somewhat meagre.”
J.R. in her affidavit sworn on the 21st August, 2006, comments:-
“In relation to the claim of [P.A.] suing through her mother and next friend, I say that she appears to be dependent on her mother and I believe that a court might view that the deceased failed in his moral duty to make proper provision for her, bearing in mind her care needs and lack of prospects in life.”
Later in the affidavit she observed “while provision was made for the third named plaintiff it may not be deemed proper provision by a court in light of her circumstances”. She has followed up on that while addressing possible terms for settlement by indicating a willingness to see her share adjusted to facilitate the making of additional provision for P.A. In her oral submissions to the court she indicated that she was prepared and had always been prepared to go further than the position that she appeared to be proposing in an affidavit sworn by her on the 2nd December 2009.
I am firmly of the view that there was a clear failure on the part of the testator to make proper provision for his daughter. Given his daughter’s medical situation and her inability to care for herself and provide for herself, there was a moral imperative for the testator to address his daughter’s needs and make proper provision for her.
So far as the position of the two sons is concerned, the situation is less clear cut. At the time of making the will and indeed at the time of death both were young men in good health making their way in life. The provision that he sought to make would seem to me to be unimpeachable. A quarter share in the commercial yard along with a valuable residential site which is what the testator sought to achieve in his will would seem to me to amount to proper provision and indeed to generous provision. However, where I do believe that there was a failure on the part of the testator, was in imposing conditions relating to the provision of the sites. The requirement that obtaining the sites was dependent on planning permission being obtained in each case within two years of death meant that the extent of the provision that he was making depended on decisions outside of the control of his sons and depended on judgment calls that would be made by the Planning Authority and An Bord Pleanála. Moreover, given the proximity of the sites concerned to the lands which were being left to J.R. this meant that she was being placed in a powerful position to attempt to block any planning application that was not to her liking. In the event this is what happened. No doubt in making his will the testator believed that he was making proper provision and no doubt it was his intention to do so but his intentions were not realised.
The testator was obviously very conscious of his obligations in relation to J.R. It is true that he had no statutory obligations towards her but in a situation where they were partners, and where she had reorganised her working and domestic life to support him after he became ill, I believe there was a moral obligation to make proper provision. Put slightly differently, I do not believe that the testator was acting immorally or wrongly or capriciously in seeking to make provision for J.R. As Clarke J. stated in A.C. (A minor) v. J.F., F.G. & P McE. [2007] IEHC 399 (at page 10 of his judgment) “it is clear from a number of the authorities that the persons in respect of whom a deceased may owe a moral duty are not confined to those persons in respect of whom a legal obligation arises”. However, obviously the deceased’s resources were finite, and his capacity to make provision for his children was defined by the extent of the provision that would be made for J.R. In considering what was required if proper provision was to be made for his children, the testator, in my view erred in failing to have regard to the fact that in providing that J.R. would acquire the bungalow by right of survivorship that he was conferring a significant benefit on J.R.
In order to make provision for all those who have a legitimate interest at this stage it would seem essential that all of the assets in the estate should be converted into cash and then distributed. I would direct that the nett assets then be distributed on the basis of 50% for P.A. and 16.66% for M.K., P.K. and J.R. It is a sad fact that this means that three of the beneficiaries will receive smaller inheritances than they would have done had these proceedings never been instituted. Unfortunately, the fall in the value of the assets makes that unavoidable. I am conscious that the outcome will not please M.K., P.K. and J.R. In particular J.R. is likely to be left with a sense of grievance. She is benefiting to a much lesser extent than the testator would clearly have wished. However, if provision is to be made for P.A. whose needs are very real and if any provision is to be made for M.K. and P.K. as the testator would appear to have wished to have made, that is also unavoidable. In departing from the terms of the will as I have been forced to do, I have been driven by the need to see provision made for P.A. and influenced by the fact that provision was made for J.R prior to the deceased’s death which does mean that J.R now occupies a fine home with only a very modest mortgage indeed. I am also influenced by the attitude that the plaintiffs have taken to the settlement by the estate of the debts to A.I.B. which meant that they conferred a significant benefit on J.R. Were it not for this they would not be benefiting now equally to J.R. as it was clearly their father’s intention to make greater provision for her than for them, and I would have wished to respect his decision.
In LC (a minor) v HS
[2014] IEHC 32
JUDGMENT OF MS JUSTICE M. H. CLARK, delivered on the 27th day of January, 2014.
1. This appeal from the Circuit Court has a chequered history. In February, 2006, the Appellant/ Plaintiff L.C. who was born on the 7th July, 2000 commenced her action seeking eleven reliefs which can be reduced to three headings;
(i) Declarations pursuant to Section 35 of the Status of Children Act 1987 that she was a child of the deceased W.S. who died on the 18th October, 2005;
(ii) An interim order restraining the Defendant who is the widow of W.S. from intermeddling with the estate of W.S.; and
(iii) Declarations that she was entitled to a share in the estate of W.S. whether under Section 117 of the Succession Act 1965 if he died testate or otherwise if he died intestate.
2. It is possible that on the issue of those proceedings, the Plaintiff was not fully aware whether W.S. had died testate or intestate. The pleadings assert that the Defendant had failed to acknowledge the Plaintiff as a child of the deceased notwithstanding the Defendant’s actual knowledge of the existence of the Plaintiff as the child of the deceased.
3. Letters of administration issued to the Defendant on the 25th May, 2006, some three months after the issue of proceedings. On an unstated day in February, 2006, the Plaintiff issued a motion seeking certain orders and injunctive relief. On the 26th July, 2006 Her Honour Judge Alice Doyle granted orders:-
(i) directing DNA testing of the Plaintiff, her mother and next friend, and the deceased;
(ii) restraining the Defendant from administering or intermeddling with the estate of W.S. until further order. However, if certain specified lands in Wexford were held on joint tenancy and documents were furnished to prove same, the Defendant was permitted to deal with those lands; and
(iii) restraining the Defendant from dealing with or distributing the estate of W.S. until the dispute as to the Plaintiff’s parentage was resolved and/or until the Plaintiff’s entitlement to her share in the estate of W.S. was established and/or until the application pursuant to Section 117 of the Succession Act 1965 was determined; and
(iv) the costs were reserved.
4. In February, 2008 the Plaintiff issued a motion for judgment in default of defence and in her grounding affidavit sworn on the 24th January, 2006,1 the Plaintiff’s mother and next friend averred that she was aware from the Defendant that the putative father of the Plaintiff died intestate and that her daughter was entitled to a share in the estate of her natural father. The affidavit then contradicts this statement as it avers that the Defendant had failed to acknowledge that the infant Plaintiff is the daughter of the deceased or that she has an entitlement to the estate of the diseased “whether on testacy or intestacy”, and further that the Defendant was seeking to develop the lands of the deceased to the exclusion of the infant Plaintiff.
5. It must be inferred that it was clear to the Plaintiff’s mother and next friend from as early as January, 2006 (and if that date was a typographical error then from at least the 26th July, 2006 when Judge Doyle made orders in relation to the case) that W.S. died intestate and that before his death in October, 2005, he and his wife had purchased lands as joint tenants in County Wexford.
6. On the 23rd January, 2008 a Defence was filed wherein the Defendant objected to the form of the pleadings and the Plaintiff’s failure to first lodge a caveat. The Defence otherwise admitted that W.S. died intestate survived by his widow (the Defendant), three marital children and three non-marital children including the infant Plaintiff. It was denied that the Defendant had intermeddled with the estate to the exclusion or disadvantage of the Plaintiff as alleged or at all; that the estate of W.S. had not been distributed at the time of the issue of the proceedings; and that the Defendant had ever denied that the Plaintiff was the child of W.S. as his six children were noted on the Internal Revenue affidavit.2 It was pleaded that the Plaintiff’s entitlement to a share in the estate under the rules of intestacy had never been denied and that this fact had been made known to the Plaintiff and that the Defendant was “at a loss to understand why the Plaintiff brings the within proceedings and why the Plaintiff seeks declarations of the court to parentage.” The Defence then states that the estate of W.S. who died intestate comprises a net estate of €112,143.32 and that under the rules of intestacy each of W.S.’s children was entitled to one-sixth of one-third of the estate making the Plaintiff’s share in or around €6,230.18.
7. Of relevance to this action the Defence delivered in 2008 specifically pleads that “the Defendant is prohibited from administering and distributing the estate of the said late [W.S.] (deceased) by virtue of a court order obtained by the Plaintiff on or about 26th July 2006 and which said court order restrains the defendant from in essence administering or intermeddling in the estate of the late [W.S.] (deceased) until further order of the Honourable Court. The Order sought on the 26th July 2006 was sought without regard for any difficulties, financial or otherwise that may be caused to the Defendant and in circumstances where the Plaintiff had been assured that any entitlements she may have under the rules on intestacy would be granted to her. Until this Order has been vacated the Defendant cannot hand over to the Plaintiff her said share of the estate of the said [W.S.] (deceased) being €6,230.18. The Plaintiff further had the said court order extended at a second sitting on the 26th July 2006 to include property which did not form part of the estate of the said late Mr. [W.S.] (deceased) pending the provision of proof to the Plaintiff that the title to said property was held by the Defendant and the said [W.S.] (deceased) as joint tenants despite assurances by the Plaintiff to the Defendant that such was the case and despite any difficulties that said restriction might place on the Defendant. The said proof was duly furnished by the Defendant and that part of the extended order restraining the Defendant from dealing with the family home and other said property which did not form part of the estate of the said [W.S.] (deceased) ceased forthwith on the furnishing of the said proof and as directed by the Honourable Court when making the extended order on or about 26th July 2006” (the Court’s emphasis).
8. On the 31st of August, 2009, some nineteen months after the Defence was served and a minimum of three years after the Plaintiff became aware that the Defendant was a joint owner with W.S. of lands at locations which will be referred to as “B” and “C”, and almost four years after his death intestate, the Plaintiff issued a second set of proceedings entitled a ‘Succession Law Civil Bill’ claiming inter alia:
(i) That the deceased had at various stages throughout his life acquired certain properties including (a) the family home and lands at a specified location “B” and (b) farmhouse and lands at a separate specified location “C”, which were put in the joint names of deceased and the Defendant hereto.
(ii) That upon the death of the deceased the entire beneficial ownership of the said properties vested in the Defendant and as such was a ‘disposition’ of property within the meaning ascribed by Section 121 of the Succession Act 1965; and
(iii) That the effects and purpose of the said dispositions was an attempt to defeat or diminish the Plaintiff’s share in the said estates.
9. A Defence was delivered in the second set of proceedings on the 29th April, 2010, where the key points pleaded were (once again) that the Defendant did not deny that the Plaintiff was entitled to a share on intestacy in common with the other children of W.S. as already acknowledged by her and that the Defendant was therefore at a loss as why the Plaintiff had recited that the Defendant had, despite request, failed to acknowledge that the Plaintiff’s entitlement to her legal share. The Defence then recites that the Defendant had been unable to pay any sum due to the Plaintiff on intestacy by virtue of the order obtained by the Plaintiff on or about the 26th July, 2006, prohibiting the Defendant administering the estate of W.S. It was specifically denied that the Plaintiff was entitled to any real estate as the estate of W.S. did not comprise any real estate. Details were then provided of the intestate estate of W.S. and it was pleaded that all this had been made known to the Plaintiff in the Defence of the Defendant delivered in respect of the previous Circuit Court proceedings. It was specifically pleaded that the family home and lands of the Defendant and W.S. at location “B” were purchased in 1985 in the joint names of the Defendant and W.S. as joint tenants, more than fifteen years prior to the birth of the Plaintiff, and thus could not have been a disposition within the meaning of Section 121 of the Succession Act 1965. It was also specifically pleaded that the farmhouse and lands at location “C” were purchased in November, 2003 in the joint names of the Defendant and W.S. as joint tenants and could not have been a disposition made for the purpose of defeating and substantially diminishing any share of the Plaintiff on intestacy or otherwise in circumstances where W.S. died suddenly and prematurely and in circumstances where properties purchased by the Defendant and her late husband were always purchased in their joint names and as joint tenants.
10. The matter appears to have been set down for trial on the 6th, 13th, and 14th October, 2011, before His Honour Judge Griffin. It seems that both sets of proceedings were consolidated at that stage and the only live issue was whether the purchase of the farmhouse and lands at location “C” in 2003 was a disposition made to defeat the rights of the infant Plaintiff within the meaning of Section 121 of the Succession Act 1965. The learned Circuit Court Judge made an order declaring that:-
(a) the Plaintiff was entitled to her legal share in the estate of W.S., being of one sixth of a one third share;
(b) the Defendant administer the estate of W.S.; and
(c) That the Plaintiff do recover from the Defendant the sum of €4,004.19 being one sixth of one third share in the estate of W.S.
11. Thus it appears that the Plaintiff essentially lost her claim under Section 121 of the Act of 1965 and was reduced to the intestate share which had been acknowledged by the Defendant some six years previously, shortly after letters of administration issued, and again in the Defence filed in response to the first Civil Bill in 2008 and to the second Civil Bill in 2009.
12. This Court was informed that when the Plaintiff’s appeal to the High Court was set down for hearing before Herbert J., the issue of the Statute of Limitations was raised for the first time by the Defendant. The case was remitted to the Circuit Court for that discrete issue to the determined. The issue was determined in favour of the Plaintiff but no reasons were provided in the order made. The infant Plaintiff’s appeal against the order of the Circuit Court was then set down for hearing before this Court in Kilkenny in December, 2013. The parties agreed that the first issue to be determined was the preliminary limitation point where the Defendant asserted that the Plaintiff was out of time to bring proceedings under Section 121 while the Plaintiff asserted that once her initial proceedings had been commenced under Section 117 of the Succession Act 1965 within the six month statutory period, then her claim under Section 121 could be brought at any time thereafter.
13. Due to time constraints the limitation issue was only part heard in December, 2013. The Court then raised its own concerns as to whether a purchase of lands subject to mortgage could be a ‘disposition’ within the meaning of Section 121 and invited the parties to prepare written submissions on that issue.
The Relevant Provisions
14. Section 117 of the Succession Act 1965 provides:
“(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
(1A) (a) An application made under this section by virtue of Part V of the Status of Children Act, 1987, shall be considered in accordance with subsection (2) irrespective of whether the testator executed his will before or after the commencement of the said Part V.
(b) Nothing in paragraph (a) shall be construed as referring to a right to apply under this section in respect of a testator who dies before the commencement of the said Part V.”
15. Thus it can be seen that applications under Section 117 apply only where the parent died testate. Where the parent died intestate, all children of the deceased are entitled to an equal share of the estate as under the intestacy rules governed by Section 67(2) of the Act of 1965: if an intestate dies leaving a spouse and issue, the spouse takes two thirds of the estate and the remainder shall be distributed among the issue in equal shares.
16. Applications under Section 117 must be brought within six months from the first taking out of representation of the deceased’s estate, pursuant to Section 117(6), as amended, and there is no provision for the extension of that short time limit where the applicant is under a ‘disability’, i.e. a minor of or unsound mind. Section 127 of the Act of 1965 – which extends the ‘disability’ provisions of the Statute of Limitations 1957 to actions in respect of a claim to the estate of the deceased person or a share in the estate – does not apply to applications by children under Section 117. This reflects the principle, identified by the Supreme Court in Moynihan v. Greensmyth [1977] 1 I.R. 55, that there is a public interest in the speedy administration of estates.
17. Section 121 of the Succession Act 1965 applies to a disposition of property (other than a testamentary disposition or a disposition to a purchaser) under which the beneficial ownership of the property vests in the donee within three years before the death of the person who made the disposition or on his death or later. These are sometimes referred to as ‘disinheriting dispositions’. Such a ‘disposition’ is defined to include a donation mortis causa but is not otherwise defined. If the disponee disposes of the property to a purchaser for value, Section 121 ceases to apply to the property and applies instead to the consideration given for the purchase. In other words, the sale itself is unaffected but the proceeds of the sale may be affected. Before any disposition can be made the subject of an order under Section 121 the Court must be satisfied that the disposition was made for the purpose of defeating or substantially diminishing the share of the disponer’s spouse or civil partner or the intestate share of any of his children, or of leaving any of his children insufficiently provided for. If the Court is so satisfied, it may order that the disposition shall be deemed, for the purposes of Parts VI and IX of the Act of 1965, to be a devise or bequest made by him by will and to form part of his estate, and to have no other effect. This may have the consequence that an application made by or on behalf of a child under Section 117 could succeed even if the deceased otherwise died intestate.
18. Of interest in this case, Section 121(5), as amended, provides that an order may be made under Section 121 either (a) in the interests of the spouse or civil partner, on the application of the spouse or civil partner or the personal representative, made within one year of the first taking out of representation, or (b) in the interest of a child, on an application made under Section 117. No time limit is expressly imposed in the case of an application made by a child, but Carroll J. held in MPD v. MD [1981] ILRM 179 that only one set of proceedings is necessary to bring an application under Sections 117 and 121, and that the time limit of six months from the taking out of representation imposed by Section 117(6) applies equally to an application under Section 121. In the second edition of his monograph Keating on Probate, Albert Keating expresses the view at p. 173 that an application made by a child of the deceased under Sections 117 and 121 beyond the statutory limitation period will not be entertained by the court for want of jurisdiction, no matter how serious the injustice caused to that child as a result, unless the defendant consents to the jurisdiction of the court. Keating suggests that legislation would be required to enable children to rely on the extending provisions of Section 127 of the Succession Act 1965
MPD v MD
19. The seminal judgment dealing with the interaction between Sections 117 and 121 is that of Carroll J. in MPD v MD [1981] ILRM 179. This was an appeal to the High Court from the order of the Master dismissing a claim brought by a widow under Section 121 because it was out of time. The case concerned the estate of a man who had two families – (i) his estranged wife and their four marital children who lived in the family home and (ii) his partner and their non-marital two children who lived in a house which he had acquired in their joint names. During his lifetime and within three years of his death, his partner acquired a half interest in his business and was joint tenant of their home. A grant of probate of his will issued on the 25th September, 1978. On the 16th October, 1979 (i.e. more than 12 months later) his widow issued two summonses against his partner seeking a declaration under Section 117 on behalf of the children of his marriage and the other seeking a declaration under Section 121 in the interests of the widow and in the interests of her four children.
20. Carroll J. held that the widow was barred from making an application under Section 121 in her own interest because the Section 121 summons issued outside of the one year time limit set by Section 121(5). She further held at p. 181 of her judgment that the success of the Section 121 application in the interest of the children was dependent on the success of the Section 117 application and accordingly, only one set of proceedings was necessary. The Section 117 time limit cannot be extended in the case of a plaintiff who is under a disability such as infancy as it is not a claim under a will or on intestacy or as a legal right, but rather “a claim made independently of the will and against its provisions” (Carroll J., at p. 183). The Court had no jurisdiction to make an order under Section 117 as the summons issued outside of the then-12 month limitation period. The Section 121 application was, therefore, also statute barred.
Analysis of the Limitation Issue
21. It is clear from MPD v MD that the six month time limit applicable to Section 117 applications applies equally to Section 121 applications, which can only be sought as a relief in Section 117 proceedings in cases where the order is sought in the interest of a child of the deceased. The Plaintiff in these proceedings clearly did not seek relief under Section 121 as part of her Section 117 application and indeed she did not seek relief under Section 121 until the 31st August, 2009 – long after the expiry of the six month time limit applicable under Section 117(6), which occurred in November, 2006. It is of some considerable significance that the Plaintiff (through her next friend) was fully aware since at the latest the 26th July, 2006 that the lands at location “C” had been purchased by the deceased and his spouse as joint tenants in 2004. The finding by Carroll J. in MPD v MD that one set of proceedings is sufficient to mount a claim under Sections 117 and 121 is a recognition of their connection under the Succession Act but is not a licence to use one set of proceedings to stay any statutory time limitations for the other. That is not to say that in an appropriate case, in order to ensure that proper provision has been made for the child of a testator in accordance with Section 117, the Court could not grant an order under Section 121, as part of its inherent jurisdiction to provide just relief, even if no such claim was made. The Court’s discretion would clearly depend on a number of pre-conditions being met; i.e. that (1) the Section 117 proceedings were commenced within the statutory time; (2) it would be unjust to ignore the disinheriting disposition; (3) there would otherwise be little or no estate available to provide just provision for the child; and (4) as soon as reasonably possible after becoming aware of the disputed disposition, the Plaintiff put the Defendant on notice that he / she would be seeking to have the disposition treated as a bequest or devise made by will and treated as part of the estate, in the context of the Section 117 proceedings. An order may only be made under Section 117 “on application by or on behalf of the child of a testator” and cannot generally be made if the deceased died intestate. However, as previously mentioned, Section 121 is not subject to that limitation and where an order is made under Section 121, the deceased is treated as though he made a bequest or devise by will, which potentially brings Section 117 into play even if the deceased otherwise died intestate (see the judgment of Carroll J. in MPD v MD).
22. In contrast to Section 121(5) (a), which provides that an order may be made in the interests of a surviving spouse “on the application of the spouse or personal representative of the deceased”, Section 121(5) (b) simply provides that an order may be made under Section 121 “in the interest of a child, on an application under section 117”. A heading seeking the relief of “Such further or other orders, declarations and reliefs as this Honourable Court shall deem meet and just”, as was included in the Plaintiff’s 2006 proceedings, may in appropriate circumstances be sufficient to provide jurisdiction to grant a Section 121 order in Section 117 proceedings.
23. Nonetheless, while it might be unnecessary to expressly seek a declaration under Section 121 in Section 117 proceedings, this does not equate to what happened in this case where more than three years elapsed between the time when Plaintiff became aware of the disposition and the date on which the Defendant was first put on notice of the Section 121 claim by way of the 2009 proceedings. Although the Section 117 proceedings were brought within time they were not appropriate to an intestacy and they did not include a claim under Section 121 nor was any claim brought to amend the pleadings within a reasonable time after the Plaintiff was aware that W.S. had died intestate and that it had been asserted by the Defendant that his estate did not comprise any real property. In those circumstances it is clear that her claim falls to be dealt with under the intestacy rules under Section 67, and it would be unconscionable for the Court to exercise its inherent jurisdiction to make an order under Section 121. The Court is satisfied that the action is statute barred.
The Second Issue: Was this a Disposition?
24. The second issue is whether, on the facts, the transaction which the Plaintiff / Appellant sought to challenge amounts to a ‘disposition’ within the contemplation of the statute.
25. The facts are that the deceased and his spouse the Defendant, who were married for more than twenty years before he died, were the owners of several parcels of agricultural land. In common with modern custom each purchase of land was registered in both their names as joint tenants. In early 2004 the couple entered into a contract to purchase a parcel of land at location “C”. The purchase was financed by a loan in the sum of €380,000 and a further private loan from the deceased’s brother in the sum of €450,000. Documents support the fact of these loans and the obligations of the deceased and his wife the Defendant under these loans. The charge of €380.000 appears as a burden on the folio when the property was first purchased and when the property was transferred to the Defendant following the death of her husband. The purchase was made within three years of the death of the deceased. W.S. was also obliged to take out an insurance policy indemnifying his repayments under the mortgage in the event that he would become incapacitated and unable to work. That policy was in place and it can be assumed that he had to attend for a medical examination before such policy issued. There was nothing suspect, unusual or uncommon about this purchase in the joint names of the husband and wife. On the death of the husband all the land passed held jointly passed by succession to his spouse subject to any charges by way of mortgage or otherwise.
26. The question is whether the purchase or acquisition of this land in their joint names and subject to a mortgage could be a ‘disposition’ within the meaning of Section 121 which applies to “a disposition of property (other than a testamentary disposition or a disposition to a purchaser) under which the beneficial ownership of the property vests in possession in the donee within three years before the death of the person who made it or on his death or later” (Section 121(1), emphasis added).
27. On the ordinary construction rules, in giving the natural meaning to words, an acquisition or purchase is not a disposition. The two words have opposite meanings and an acquisition of property by purchase / gift / inheritance cannot equate to the divesting of the beneficial ownership of property which involves the sale / transfer / gift by will or a donation mortis causa.
28. The intention of Section 121 of the Succession Act is to prevent the divesting of property in anticipation of death specifically to prevent the surviving spouse and children from enjoying the benefit of the deceased’s estate. While the Act is, as mentioned above, silent as to what amounts to a ‘disposition’, apart from the specific mention of a donation mortis causa, it cannot be inferred that the silence in the Act changes the meaning of what has heretofore been recognised as a disposition which is defined in the Oxford Dictionary of Law as “the transfer of property by some act of its owner, e.g. by sale, gift, will or exchange” and in Halsbury’s Laws of England ( 5th edition, Volume 102 , p. 12 ) as “the term disposition arises a number of times, the most relevant context being in relation to a consideration of the essential characteristics of a will”. It is noted that on death the testator’s will “crystallises and takes effect as an appointment, disposition or otherwise. A will must be distinguished from a disposition made inter vivos, such as a donation mortis causa…or a voluntary settlement with a power of revocation, or an instrument which is final on execution by the maker, although intended to take effect on some future event, or a nomination of a beneficiary under the trust deed and rules of a pension scheme operation by reason of the force of that deed and rules’. A disposition is further defined in Murdoch’s Dictionary of Irish Law (4th edition, p. 348) as ‘the passing of property whether by act of parties or act of law’ and Stroud’s Judicial Dictionary (7th edition, Volume 1, p. 738) quotes Lord Macnaghten in Northumberland v. Att-Gen [1905] A.C. 406, who said that “the terms ‘disposition’ and ‘devolution’ must have been intended to comprehend and exhaust every conceivable mode by which property can pass, whether by act of parties or by act of the law’’. All of these definitions anticipate that the person who engaged in the disposition was the owner of the land being disposed of; none envisage that the person who engaged in the disposition was acquiring property subject to a mortgage. None of those definitions include an acquisition of property by purchase or otherwise.
29. The same is true of Spierin, in ‘The Succession Act 1965 and Related Legislation, A Commentary’ (3rd edition, p. 370) who notes that Section 121 would “include the transfer by way of gift of property already vested in the deceased. It is also to be assumed that it would include more complex transactions under which a gift was made indirectly, for instance where property is purchased in the name of a third party (and where no resulting trust arises)”. In later considering the protection of purchasers at page 373 he notes that, “this section applies only to gifts”.
30. The Court is of the view that as the acquisition of property is not a disposition, it follows that the acquisition of property in joint names from borrowed funds is not a disposition within the meaning of Section 121 of the Succession Act 1965. While it could be envisaged that if, within the three years prior to his or her death, lands held in the sole name of a deceased were sold and the proceeds used to purchase lands in the joint names of the deceased and his spouse or marital children (to the exclusion of any non-marital children), or if the deceased’s available cash deposits were used to purchase land in joint names, in appropriate circumstances, as a gift to the joint tenant arises, the Court might interfere and direct that the disposition should be treated as a devise or bequest by will, bringing Section 117 into play. Similarly, the Court in appropriate circumstances might look with suspicion at a transfer of lands from the deceased’s sole name into the joint ownership of him / herself with another party. In each of those examples there has been a disposition by sale of property in the transferor’s estate to finance the acquisition or the use of cash deposits to purchase and a disposition by gift to the joint owner. Those examples are very far from the purchase in joint names of lands with borrowed funds where, on the death of the deceased, the surviving spouse takes on the sole obligation to discharge the mortgage as occurred in this case.
31. The infant Plaintiff’s mother and next friend claims that the Plaintiff has been insufficiently provided for and that the purchase of the lands in joint names should be treated as a bequest or devise by will and therefore potentially subject to an order under Section 117, because the land was purchased after her birth and within 3 years of the intestate death of her father. She submits that the passing of property into the sole name of the Defendant by virtue of the rule of survivorship is an act of law and under Section 121 the vesting of the beneficial ownership in a donee is when the disposition occurs. The fallacy in this argument is that the spouse was not a donee but a joint purchaser jointly responsible for the mortgage and when her husband died she became solely liable, although her husband’s share of the equity did pass to her by survivorship. While there is no doubt that transfers of land from sole to joint names can be deemed to be a ‘vesting of the beneficial ownership’ of the entire property in the survivor intended to defeat rights defined by the Succession Act, the purchase of property from borrowed money is not such a transfer and the rights of the joint tenant on survivorship do not constitute a disposition. The legal ownership of a mortgaged estate lies with the mortgagee while the equitable interest or mortgage of redemption lies with the mortgagor. Moreover, the potential estate of W.S. was not been interfered with or depleted in any way as a result of the purchase of lands from borrowed money and the sum of money to which the Plaintiff became entitled on intestacy is unaffected.
32. The Court is not called upon to hear evidence on the intention of the deceased intestate at the time of the purchase of the lands as the transaction was not a ‘disposition’ within the meaning of Section 121. However, even if the Court is wrong in this regard it is clear that the transaction was not of the nature envisaged by Section 121 which requires that the Court be satisfied that the disposition in question was made for the purpose of defeating or substantially diminishing the share of the disponer’s spouse or civil partner or the intestate share of any of his children, or of leaving any of his children insufficiently provided for. In this case the deceased died suddenly from a brain haemorrhage while still in his forties. He had not made a will. His death was not anticipated and the purchase of the lands in question could not have been an act designed to defeat the rights of the infant Plaintiff.
33. In the circumstances, the Court is satisfied that the Plaintiff is not entitled to an order under Section 121 of the Act of 1965 and it follows that the Court cannot grant an order under Section 117 as the deceased father of the Plaintiff cannot be construed as a testator in the absence of an order under Section 121.
1.The Court’s emphasis.
2.Filed in May, 2006.
C.(X.) v. T.(R.)
[2003] IEHC 6 (2 April 2003)
JUDGMENT of Mr. Justice Kearns delivered the 2nd day of April 2003.
This is an application brought under Section 117 of the Succession Act, 1965 by the three children of ABC, a retired businessman who died on the l0th August 1994 at the age of 64 years.
Section 117 of the Succession Act, 1965, provides:-
“(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
(2) The court shall 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 otherwise 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.
(3) 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
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devise or bequest to the spouse or any share to which the spouse is entitled on intestacy.”
The deceased had married LS in January 1954. He separated from her in December 1971, following which there was a separation agreement and subsequent divorce. Some years thereafter he met and remarried to RT in December 1977. His first wife LS remarried in April 1990 and no issue of any sort exists in relation to LS for whom there is adequate provision. RT was born in 1936 and is now 67.
There were three children of the first marriage, the plaintiffs herein, namely:-
• X, a son, born in April 1957
• Y, a daughter, born in December 1959
• Z, also a daughter, born in May 1962.
The deceased during his lifetime had been successful in business and he was the majority shareholder in a family enterprise in which the second named defendant, a brother of the deceased, also participated. This business, however, ran into difficulties at the end of the 1980’s. In 1986 it was the subject matter of a management buy out. Having regard to the indebtedness of the business at the time, the consideration received by the deceased was fairly meagre. He was offered a life insurance policy which paid him a monthly income of £1,200 per month until death, but which did not provide for any widow’s pension. In addition, it was agreed at the time of the buy out that the deceased should be paid a monthly sum of £610 over a four year period.
Over the last few years of his life, the deceased was in poor health, suffering from breathing difficulties which were related to a childhood condition of
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tuberculosis. His death, however, occurred quite suddenly at the home in which he lived with the first named defendant.
The deceased left a small amount of cash, amounting to just over £14,000, in a bank account deposit, a car and some prize bonds. There were debts to be paid, including funeral expenses of about £3,000 and probate tax of £10,500.
The deceased’s main assets were the joint share which he held with the first named defendant in their house, which is currently valued at about E3 million, and which passed to the first defendant by survivorship.
In addition, the deceased held shares in a company ME Limited. It in turn held no assets other than a shareholding in TI Limited. It had in turn had no assets other than a shareholding in WE Limited.
At the date of death of the deceased, WE Limited owned five residential properties in Blackrock and a unit in Cookstown Industrial Estate. These assets were valued at £462,600 for probate tax purposes.
The five residential properties were Section 23 properties purchased between 1988 and 1990. They were both an investment and at the same time a means of reducing the tax on rental income. The company structure was put in place to delay the payment of surcharge on undistributed dividends. None of the Section 23 properties could have been sold at the time of death without incurring substantial charges by way of claw-back of tax. At the date of death of the deceased, there were substantial borrowings of approximately £300,000 in WE Limited, which were being serviced via an interest-only loan. In this way, WE Limited could earn a net income from the rental of the various properties which it would then have to distribute within 18 months to avoid the surcharge. Once TI Limited received the dividend from WE Limited, it in turn would have to distribute it within 18 months to avoid surcharge.
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The same applied in ME Limited. This structure, which had been put in place as a result of professional advice, enabled the deceased as shareholder in ME Limited, to receive income by way of dividend in respect of which the tax charge had been deferred.
Accordingly, the `liquid’ means of the deceased at the date of death in reality amounted to an entitlement to a dividend from ME Limited amounting to about £60,000 per annum gross. It is of some significance that at both the time the deceased made his will, and indeed at the time of his death, it would not have been possible to collapse the company structure and liquidate the assets without exposing the companies and beneficiaries to very substantial tax charges.
The deceased made his last will and testament on the 19th March, 1993 wherein he appointed the defendants to be executors of his will and trustees of his estate. Probate of the said will was granted to the defendants on the 20th of December, 1995. The first named defendant has opted not to claim her legal right. By his said will, the deceased set up a discretionary trust. Having directed certain specific payments, including payment of debts and funeral expenses and that the trustees make provision for the deceased’s mother during her lifetime, the deceased thereafter directed the trustees –
“to pay out of the residue of the capital and any income arising from it to any one or more of my wife R, my children, my grandchildren, the spouses of my children and my brother K and his wife M in such shares and at such times as my trustees in their sole discretion shall think fit without obligation to make any payment to or for the benefit of my beneficiaries listed above or any of my children or to require equality among them and on the 20th anniversary of the death of the last surviving descendant of Eamon de Valera former President of
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Ireland such descendant having being alive at the time of my death to divide what remains of the capital and accrued income equally among my wife R, children then living without regard to payments already made to my said wife R children or grandchildren. All income received after my death shall be treated as income of my estate regardless of the period to which it relates and the statutory rules concerning apportionment and the rules in Howe v. Dartmouth and Allhausen v. Whittell shall not be applied.”
The Letter of Wishes, also dated 19th March 1993, was addressed to the defendants and the relevant portions are as follows:-
“My wishes in relation to the discretionary trust which I have given to you are the following:
1. As far as my beloved wife R is concerned I would like her to have an immediate payment of £5,000. In regard to her current position of joint managing director with me of WE Limited, I would like my trustees to examine the situation in the light of the requirements at the time, and if necessary to consider the appointment of any other managing director if they deem it appropriate. In the meantime, she should of course, be paid a salary appropriate to her requirements for the rest of her life whether or not she acts in the capacity of director, managing director or not.
2. I know that you, R, will also give to my children and my immediate family including nephew and nieces any of the family heirlooms which were given to me by my family, and I know that you and K will be as fair in that distribution as possible.
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3. When all of the other distributions under my will have been taken care of, the capital, if any, should be divided equally among my children.
4. In regard to my brother K, I would like my trustees to appreciate that he has been my lifelong loyal and devoted partner and friend in business that we shared together since he was 17 years of age, and while the companies are now all gone from our ownerships and they may only be enough to look after those mentioned, I would like nevertheless because of my deep affection, for K and his wife M to try and ensure that if certain circumstances arise that a helping hand in whatever way they think and find appropriate and possible shall but not be bound to be given to them as a small token of my love respect and gratitude for their help to me over the years. Specifically, I would like them to get a bequest of £20,000 as soon as possible. If there is enough funds around I would like a donation of say £5, 000 to be made to Abbeyfield Ireland Limited and £l,000 to St Vincent de Paul.
5. Finally I would like to record that 1 have chosen you as my executors and trustees because of your very intimate knowledge of all my affairs.”
Before moving away from the will and Letter of Wishes, it is perhaps appropriate to record that the reference to any ‘surviving descendant of Eamon de Valera’ is to protect against any infringement of the ‘Rule against Perpetuities.’ The rule in Howe v. Dartmouth confines a tenant for life to the yields on authorised securities. The rule in Allhausen v. Whittell presumes that a testator intends that all beneficiaries shall take as equally as possible. The exclusion of these rules is not
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unusual, although counsel for the plaintiffs does attach some significance to the inclusion of these provisions as appears hereafter.
At the date of death of the deceased, his wife R was wholly dependant upon him for support. She now had a house but had no separate or independent assets or wealth. The deceased’s mother was in a nursing home but subsequently died on the 30th of December 1995. While the deceased’s mother had some income from a trust set up by his father, the deceased was concerned that during her final years in a nursing home it might not have been sufficient to pay for her care.
During his lifetime, the deceased had made certain provisions for each of his children which I will briefly summarise, being mindful that such details must be extremely truncated having regard to the obligation of the court to avoid identifying the parties in anyway.
X, a son, enjoyed private education at primary and second level in a well known Dublin college. The deceased offered to provide a university education which X undertook for one year, but opted to quit without finishing. He received a car on leaving school and was trained in the family business, part of such training being in England. The deceased paid the deposit on X’s first house in Birmingham. On his return to Ireland, he was provided with employment in the deceased’s firm. Thereafter, the deceased in 1984/85 provided X with a sum of £26,500 to start him in a business. This business got into difficulties with tax liabilities and X required to borrow money to avail of the tax amnesty. The deceased provided a guarantee of £10,000 to enable X to borrow moneys to fund a payment to the revenue. In January 1990 the deceased furnished X with a loan of £2,500, although this advance, and whether it was repaid or not, was a matter of dispute in evidence. In December 1992, certain banks were threatening to call in loans made to X, at which point the deceased
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borrowed £5,000 which he gave to X to help him fend off the bank. It is agreed that this loan was not repaid to the deceased. The undisputed advances to X from his father amount to about £33,000.
Y, a daughter, was also sent to a private fee paying school at both primary and secondary level and all fees were paid by the deceased. Thereafter she did a one year secretarial course. She then went to college in London and Washington, all fees being paid by the deceased. The deceased also gave her a car, and provided her with £8,000 in 1985 by way of deposit for a house in south county Dublin. In 1986 Y married and the testator contributed approximately £5,000 to the cost of the wedding. The deceased also arranged for bank loans totalling £110,000, to Y and her husband part of which was a loan of £40,000 from WE Limited, to enable them purchase property. The loan of £40,000 was repaid after approximately one year.
Z, a daughter was also sent at her father’s expense to private fee paying schools at primary and secondary level and also did a secretarial course on leaving school. In 1980 she was also provided with a car and when in 1981 she ran up an overdraft with the bank, the deceased gave her a sum of £500 to assist in paying off the overdraft. In 1987/88, the deceased paid sums amounting to £13,000 towards the deposit and/or purchase price of a house. In early 1988 when she got married, the deceased contributed a sum of £5,000 towards the costs of the wedding. In May 1990, when she required a computer, the deceased purchased this for Z at a cost of £6,000.
At the date of death of the deceased, X was operating a video business and print shop. He had got his debts under control by selling his house. He was then living in rented accommodation but was not married and indeed has not married since. He was and remains in good health and while he diligently applied himself to work,
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had an unfortunate history of failure in his business enterprises. He was then 37 years of age. Y was married, had her own house, family and business. Her husband was gainfully employed and has his own business which at the time was doing well. Both Y and her husband had shown a particular interest in property development and had already shown themselves to be quite successful in this regard. She was 34 years of age at the time and in good health. Z was also married and had her own family. She had her own house and her husband enjoyed an excellent position with a finance company. She was 32 years of age at the time and in good health.
As events transpired, the deceased pre-deceased his mother, as a result of which all three children received one-third of their father’s share in the residue of their grandfather’s trust – approximately £26,000 each. Furthermore, all three children still have a one-third interest in a trust (consisting of a holiday home property in Wexford) acquired from the proceeds of the trust monies provided for their mother by the deceased. She is currently in her 70’s and in good health. They will receive these shares on their mother’s death.
For the sake of completeness, I propose to deal very briefly with the fortunes of the three children following the death of their father. X enjoyed a mixed relationship with his father, mainly due to the deceased’s reluctance to bail X out of his various business failures. As X saw it, the deceased wouldn’t help, although he had the wherewithal to do so. At the time of the deceased’s death, X was living in rented accommodation and had little or nothing in the way of assets. A partial reconciliation seems to have taken place prior to the death of the deceased but X’s pattern of unsuccessful business enterprises continued after his father’s death. In 1998 he closed down his video business and borrowed heavily to establish an I.T. Training Centre in Dublin city centre. This business also collapsed in 2001, following
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which X relocated the business and installed a new management team. This in turn collapsed in rancorous circumstances, albeit X was not himself part of the dispute which finally brought about an end to that business. He still lives in rental accommodation and is presently pursing a course in “life coaching”, which he hopes will provide him with a career and living as a psychological counsellor. He is surviving on handouts from his mother and sister Y. He draws €128 per week social welfare and receives a small rent allowance. He recently was compelled to apply to St. Vincent de Paul for a donation of €800 to make ends meet.
The second named plaintiff now operates a design business in south county Dublin. She lives with her husband in a valuable property worth about €1.5 million in Wicklow, subject to certain borrowings amounting to one-third of the value of the property. They own cottages on the property which are let and provide an income. They have a Section 23 property in Wexford. She and her husband sold an industrial property in 2002 at a profit of €230,000 and also sold their interest in a holiday home company in Wexford for €425,000. The profits on the latter were somewhat reduced by an obligation to pay off various loans. However Y and her husband also have an apartment in Portugal, owned subject to a mortgage, which is of considerable value. In evidence, Y accepted that they had made significant money from their dealings in property. While her husband had been obliged in 2002 to liquidate the company in which he worked, he has recently found alternative employment in a Manchester based company as a sales rep. They have three children.
Z is married and her husband works as a stockbroker with a leading Dublin firm. They enjoy a substantial income. Z works at home where she takes care of her three children. Z very fairly admits that her circumstances now are comfortable.
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Following the death of the deceased, all three took the view that their father had failed to make proper provision for them by the time of his death. All of them agreed they had been treated more or less equally by the deceased during his lifetime and all agreed that, generally speaking, their father had been a prudent and careful man who took a close interest in their education and careers. However, all felt that, by virtue of the setting up of the discretionary trust, they had effectively been denied any provision during the lifetime of the first named defendant. Apart from one payment made to X by way of company loan from one of the deceased’s companies in August 2002, no payments of any sort had been made to any of them. By contrast during that same period, the first named defendant drew from the companies firstly an annual salary of £14,000, up to 2000 then £28,000 from 2000 up the present. In evidence RT told the court how she managed the various properties, accounted for rents received, dealt with tenants problems and complaints and prepared the information for the annual audits. In addition, she had received directors loans amounting to approximately £90,000 from the time of the death of the deceased up to the present. These loans were sanctioned by the second named defendant and were paid to her to meet her overheads and living expenses when any need arose. As a result of changes in the tax laws, it had been possible over the last two years to increase her salary to £28,000.
While the evidence of the first and second named defendant made clear that the impoverished present circumstances of X were well known to the trustees, they nonetheless felt inhibited from making any form of payment to him by virtue of legal advice given to them by the third defendant to the effect that the institution of the present proceedings prevented the establishment of the trust and that accordingly no
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payments could be made until they were disposed of. The present value of the properties comprised in the trust is estimated at €3,500,000.
In the course of the hearing evidence was given by accountants on both sides in relation to the tax implications of unravelling or unwinding the discretionary trust. Both accountants agreed that, the 10 year period having now elapsed, and the benefit of the surcharge arrangements having run its course, it was now desirable to unwind the property from its present corporate structure of ownership as otherwise the eventual tax liabilities would only increase. Their evidence was that there could in fact be two incidents of capital gains tax arising on any disposition of the properties, and the liability to tax on a property sale of, €3,500,000 would be close to €500,000. As of the date of hearing, a sum of about €193,000 stands to the credit of the estate, together with a sum of €44,000 which is retained by the third named defendant in the solicitor/client account. There is a further possibility that, if the discretionary trust becomes operative, tax on the trust at 6%, together with 1% per annum thereafter could also arise.
The third named defendant gave evidence of the circumstances surrounding the making of the will by the deceased. It was his clear understanding that at the time of the making the will, the deceased had only enough in available funds to provide an income for himself and the first named defendant. Given the tax implications of selling any of the properties, the third named defendant certainly felt at the time that the setting up of a discretionary trust was by far the most prudent step for the deceased to take in terms of making any disposition of his assets. He had made an almost identical will in 1988. Furthermore, the deceased had kept an extremely careful and meticulous record of all advances made to each of his children, all of which had been taken into account by the deceased prior to the execution of his will.
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The third named defendant had advised the deceased of the possibility of an application under Section 117, so that the deceased was aware of his obligations in that regard and felt that by disposing of his assets as he did, he was discharging any obligation he had to his various dependants.
THE ARGUMENTS
On behalf of the plaintiffs, Mr. Farrell S.C. submits that the testator believed that the first named plaintiff had an inability to manage business affairs, a factor which increased X’s call on his father’s moral duty. He submits that it was clear by the date of death that X was unlikely to be consistently successful businessman. In relation to the other plaintiffs, Mr. Farrell in his submission states:-
“The second named plaintiff and her husband have always struggled a bit and clearly could have done with more support from the testator during his lifetime. An ability to do up properties and sell them at a profit seems to have been their strong point. Y had had two children at the date of death and a third on the way. With three young children to support, she and her husband had heavy financial obligations. The third named plaintiff had been relatively the most comfortable of the three. Like her sister, she was pregnant with her third child when her father died. She took the decision to work full time in the home looking after the family and probably has little earning power. The plaintiffs submit that the provisions made by their father for them in his life time were ungenerous. They accept that he was prudent but submit that he was not just to them. The two girls were very disappointed that he was so careful about the cost of their weddings. ”
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While accepting that the deceased had a moral duty to his second wife, Mr. Farrell submitted that the court should have regard to the fact that a very valuable house, not part of the deceased’s estate, had now passed into the sole ownership of the first named defendant by survivorship.
Moreover, the tone of the will and the Letter of Wishes – e.g. the use of the words “if any” in relation to a possible distribution of capital in the distant future suggests that the deceased contemplated that the plaintiffs might get nothing at all and the deceased apparently was not concerned by that. The insertion of the various legal rules was consistent with the provision of unduly favourable treatment for the first named defendant, and indeed the exclusion of the rule in Howe’s case could be taken as suggesting to the trustees that in substance the first named defendant was to be tenant for life of the entire estate. Existing lives at the death of President de Valera obviously included babies who could easily live to 80, so a time span of about 100 years could be involved. The express lack of any obligation to make payments to the children during that time could act only as an invitation to the defendants to act only as they had, in fact, done. The words “what remains of” in relation to the capital (and accrued income) were, Mr. Farrell agreed, consistent with the “if any” in the Letter of Wishes. The Letter of Wishes, Mr. Farrell submitted, revealed an absence of love or adequate concern for any of the plaintiffs, in marked contrast to the sentiments expressed in relation to the deceased’s second wife and in respect of his brother In effect, as things had worked out, the first named defendant was for all practical purposes a life tenant who could nominate her own income from the companies.
Mr. Farrell also submitted that there clearly was a conflict of interest between the first and second named defendants who were named both as beneficiaries and trustees. Mr. Farrell accepted that both had indicated in 2000, subsequent to the
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commencement of proceedings, that they would not act as trustees. However, this still did not answer the exigencies of the case. Their involvement as trustees with the power to decide who got money and who did not was always likely to produce the result that the trust either would not work at all or would work in a manner which was unfair to the three plaintiffs. The need to avoid conflicts of interest is a vital part of the wider law of trusts. In Spencer v. Kinsella [1996] 2 I.L.R.M. 401 at 409 Barron J. saw a problem that some of the trustees were too closely identified with the interests of some of the users of the trust property. He felt that “where a conflict of interest arises it is doubtful that a continuation by such persons in office could be remedied. ”
Mr. Farrell further submitted that the defendants as executors already hold the assets of the estate in trust for persons entitled by law thereto under and by virtue of Section 10 of the Succession Act, 1965. Given that the executors have power under Section 60 of the Succession Act to compromise or settle any dispute, claim or other matter relating to the estate of the deceased, it was open to the defendants to make provision for the various plaintiffs, something they had singularly failed to do.
In reply, Mr. Sreenan argued that neither that the second named or third named applicant had even a stateable claim given that at the date of death, both had been well educated, were in good health, were married and had husbands who were in good gainful employment. In addition, he submitted, both had their own homes and both had had their own homes and both had had substantial provision made for them by the deceased during his lifetime.
With regard to the first named plaintiff, while admitting he had fallen into straitened financial circumstances, he did at the date of death of the deceased have his own business and was in good health. He had had substantial provision put his way by the deceased, and his debts had been paid off. He had a string of failed investments behind him and had demonstrated unwillingness or inability to stick
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successfully and profitably to any one project. No prudent parent could have concluded that in these circumstances further substantial payments should be made to X. This was particularly so, given that X was likely within a very short period of time to receive a substantial payment on the death of his grandmother of approximately £26,000 and given that he also had a benefit still to come from another trust in respect of his mother’s home. It could not be said that a prudent or just parent would require the assets of the companies to be liquidated (with all the adverse tax consequences that that involved) in order to make an immediate and specific provision for X as distinct from leaving it to the discretion of the trustees to make that provision either out of income or capital as they saw fit.
Mr. Sreenan submitted that, at its core, the plaintiffs case was based upon an implicit assumption that the trustees in this case would or will act malevolently and in breach of their duty. If that be so, the beneficiaries would have remedies open to them.
Mr. Sreenan further submitted that the tax consequences flowing from events subsequent to the date of death are irrelevant to the issues before the court. The fact that they should be addressed sooner rather than later should not lead the court to redraft the will in a more tax efficient manner through the mechanism of a Section 117 application.
Any argument that the deceased was parsimonious with his children during his lifetime was, Mr. Sreenan submitted, a travesty of the truth. Having regard to all the circumstances, Mr. Sreenan submitted, the deceased had at the time of death, discharged all moral duties to the applicants. Insofar as X was concerned, a parent owes no moral duty to children to keep on giving them money well into their middle ages in circumstances where is likely to be lost on successive business ventures. If
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the testator was still under any moral duty to any of the plaintiffs at the time of death, it was more than adequately discharged by naming them as beneficiaries in a trust in circumstances where he had made his wishes well known, namely, that once his primary moral duties to his mother and wife were discharged, the balance should be divided equally between the children.
THE LAW
A significant body of jurisprudence exists in relation to Section 117 of the Succession Act 1965. During the course of hearing, counsel from both sides referred extensively to quotations and passages from the decided cases, which included Re: Goods of JH deceased [1984] I.R. 599, FM v. TAM[1972] 106 I.L.T.R. 82, L v L [1978] I.R. 288, J de B v. HE de B [1991] 2 I.R. 105, CC v. WC [1990] 2 IR 143, EB v. SS [1988] 2 I.L.R.M. 141, J. McD deceased P. McD v. MN [1999] 4 IR 301 and MPD & Ors v MD [1981] I.L.R.M. 179.
Counsel on both sides were agreed that the following relevant legal principles can, as a result of these authorities, be said to derive under Section 117:-
(a) The social policy underlying Section 117 is primarily directed to protecting those children who are still of an age and situation in life where they might reasonably expect support from their parents against the failure of parents, who are unmindful of their duties in that area
(b) What has to determined is whether the testator, at the time of his death, owes any moral obligation to the applicants and if so, whether he has failed in that obligation.
(c) There is a high onus of proof placed on an applicant for relief under Section 117 which requires the establishment of a positive failure in moral duty
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(d) Before a court can interfere there must be clear circumstances and a positive failure in moral duty must be established.
(e) The duty created by Section 117 is not absolute.
(f) The relationship of parent and child does not itself and without regard to other circumstances create a moral duty to leave anything by will to the child.
(g) Section 117 does not create an obligation to leave something to each child.
(h) The provision of an expensive education for a child may discharge the moral duty as may other gifts or settlements made during the lifetime of the testator.
(h) Financing a good education so as to give a child the best start in life possible, and providing money, which if properly managed, should afford a degree of financial security for the rest of one’s life does amount to making “proper provision”.
(j) The duty under Section 117 is not to make adequate provision but to provide proper provision in accordance with the testator’s means.
(k) A just parent must take into account not just his moral obligations to his children and to his wife, but all his moral obligations e.g. to aged and infirm parents.
(l) In dealing with a Section 117 application, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.
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(m) Special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example, working on a farm he will ultimately become the owner of it thereby causing him to shape his upbringing, training and life accordingly.
(n) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong not to foster.
(o) Special needs would also include physical or mental disability.
(p) Although the court has very wide powers both as to when to make provisions for an applicant child and as to the nature of such provision such powers must not be construed as giving the court a power to make a new will for the testator.
(q) The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but rather, whether the decision of the testator to opt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.
(r) The court must not disregard the fact that parents must be presumed to know their children better than anyone else.
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DECISION
This is a case which is notable for the absence of any singular feature in the behaviour of the deceased when arranging his affairs or making his will which would cry out for the court’s intervention. I am satisfied from the evidence of both the plaintiffs and defendants that ABC deceased was a prudent and careful man whose philosophy was, as stated in evidence by his brother, to provide a good education for his children, provide them with seed money to buy their own homes and, where necessary, to rescue them from any of life’s ‘disasters’ – in this context being disasters of the ‘non-commercial’ variety.
It seems to me that the disimprovement in the deceased’s business affairs from the mid 1980’s onwards made him ever more meticulous and exacting about accounting for expenditure, be it advances to the children for educational or house buying purposes, or to his two daughters and notably his older daughter, in connection with their wedding expenses. Both daughters feel, particularly Y, that the deceased somewhat spoiled these occasions by (in Y’s case at least) requiring her to account for every single item of expenditure and refusing to underwrite the cost of champagne at the reception. However, when seen against the wider backdrop of the provision made for each of the girls, and bearing in mind the altered circumstances in which the deceased found himself, these complaints fall well short of amounting to any failure of moral duty to make proper provision. At the date of death of the deceased, his daughters were well established, had married and had their own homes. There were struggles along the way, both then and since, but both daughters have succeeded in life to a significant degree. Both are comfortably well off with considerable asset backing. Y has a career of her own and Z is married to a successful stockbroker in a leading Dublin firm.
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While the first defendant lives in a fine house and has little in the way of outgoings, she is entirely dependent on the arrangements made by the testator during his lifetime and thereafter under his will. She sustains herself through the salary she earns in managing the five houses and the industrial property, efforts which it may be said redound in the medium and long term to the benefit of all the beneficiaries including the plaintiffs.
The court must consider moral duty as of the date of death of the testator. It is not in dispute that the testator had a moral duty to make adequate provision for the first named defendant and indeed his mother also who was in a nursing home. These moral duties must also be taken into account when assessing the moral duty owed by the testator to his children.
When one takes into account the various provisions made for both Y and Z by the deceased during his lifetime and having regard to both his and their circumstances at the time of the testator’s death, I am satisfied that he did, both by those provisions and by the further provisions in his will, discharge his moral duty in full towards his daughters. Their claims under S. 117 cannot in my view succeed. While they may feel uncomfortable with the terminology employed by the deceased in his Letter of Wishes, I am quite satisfied from the evidence that he cared deeply for his daughters and the use of affectionate terminology for the first and second named defendants simply arose from important events in his life history, being respectively his second marriage and his brother’s role in his business affairs. It seems to me that the testator most probably took it as a ‘given’ that his daughters in particular well knew of his love and affection for them. They have significant ongoing expectations under the will and trust, and also under the trust for their mother.
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The situation of X is more problematic. X has fallen on hard times and it would impossible not to feel a considerable measure of sympathy for his predicament. While he has a string of business failures, and has at times acted intemperately, notably with regard to his stepmother, he presented nonetheless as a decent person who grew up in the shadow of his father and who experienced great difficulty in trying to emulate his success. For reasons, therefore, which perhaps in no way reflect badly on him, he never became the kind of successful business man he undoubtedly aspired to be. It seems unlikely that any such ambitions, if he still harbours them, will ever now be realised.
There were major difficulties for X in 1992 which led to exchanges between his father and himself which are referred to in the deceased’s letter to X dated 5th December 1992. It is clear from that letter that the deceased had already come to the conclusion that X was a person who was going to have ongoing needs because of his perceived inability to manage his affairs. The letters and memos prepared by the deceased at that time illustrate graphically the tetchy and strained relationship which existed between father and son. In particular, the deceased appears to have been incensed that X continued to drive a Porsche instead of selling it at any price so as to minimise his indebtedness and avoid having to borrow further from his father. Fortunately, a reconciliation between father and son seems to have taken place in the year before the deceased’s death.
On 7th April, 1993 the deceased wrote to the third named defendant, his solicitor, setting out in great detail the amounts expended on his three children with a view to showing, as he put it, “that I have tried to treat them nearly equally, in case there is any dispute after my departure”. In drawing up his will and Letter of Wishes, the deceased had the full benefit of his solicitors advice and was ideally placed, not
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least because he was in indifferent physical health, to take a considered view both of the requirements of his various dependants and how his assets could or could not be deployed to meet any perceived needs.
What is quite clear is that the deceased had little in the way of available cash and any direction to sell the residential properties in the immediate event of his death would have been folly. As the inflation in property values, including the unprecedented upsurge in the last few years, has demonstrated, the decision to place those assets under a trust arrangement, was a wise one, at least from the point of view of maximising the value of the assets.
In the course of his submissions, Mr. Sreenan strongly urged the court not to intervene to “redraft the will” purely because the accountants on both sides agreed that the present arrangements for the ownership of the properties should be ended having regard to the ever growing tax liabilities associated with same. By the same token, however, it seems to me that the tax claw-back implications of any direction to realise any of the assets which might have been inserted in the will cannot be relied upon to absolve the testator from any moral duty under Section 117.
I have come to the conclusion that the testator did still have an ongoing limited moral duty with regard to X at the time he came to make his will and that this duty was more marked than in the case of his daughters. In my view, it must have been apparent to the testator, given the astute businessman that he was, that X was a person who would probably require a level of support at times in the future because of his inability to manage his affairs or to cope adequately in life.
This however brings me to the nub of the problem in the instant case. X and his sisters perceive that the defendants under the arrangements put in place do not or will not deal with them in a fair and even handed way. They point to the payments
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which the first named defendant has enjoyed from the time of the deceased’s death by way of contrast to a single payment of £5,000 made to X in circumstances of near destitution. Both the first and second named defendants in evidence stated, and had previously indicated, their willingness to step aside as trustees in the circumstances which had arisen. Furthermore, they adamantly assert that, until the present proceedings are disposed of, the trust could not be set up, nor could payments be made to any one, including X, and this was the legal advice given to them. The advances made to the first named defendant, they say, were by way of directors salary and legitimate director loans, all of which have been fully written up and accounted for. They say they are more than willing to help X when free to do so. The second defendant told the court he believed the company loan of €5,000 might in fact have been in breach of the companies legislation.
The court must obviously, in a S.117 application, avoid the temptation to enter into the arena of adjudicating on the manner in which, firstly, executors discharge their obligations in the administration of an estate and secondly, how trustees discharge their obligations to the beneficiaries of a trust. There are separate causes of action in cases where such failures are established.
The only question which this court can resolve is whether in the circumstances in which he found himself when making his will, and having regard to the requirement that moral duty be assessed as of date of death, the testator, by setting up a discretionary trust in which all of the plaintiffs and the first two defendants were named beneficiaries, thereby discharged his moral duty under S.117, to X and his sisters. I have already found it was adequate to discharge any duty owed to his daughters. The duty to X was however in my view also discharged by the creation of a discretionary trust by the deceased’s will, not least because it set in place,
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coincidentally or otherwise, the very apparatus and structure which was appropriate to meet the special needs which the deceased was clearly aware X had. Perhaps he could or should have selected different trustees. Perhaps he should have set up a separate trust for X. However, insofar as the deceased’s duty was concerned, it seems to me that the trust arrangement should, all things being equal, have met and covered all the exigencies of this case, including the foreseeable difficulties X might later encounter.
I do not think it is appropriate for me to conduct an inquiry as to whether the defendants, qua executors, have failed to discharge their duties and functions by not making some sort of special or ongoing provision in relation to X, whether by virtue of Section 60 (8)(e) of the Succession Act 1965 or otherwise, or whether they have been precluded by these proceedings from doing so. I will therefore confine myself to saying there is a clear and present need to address X’s position, not by the payment necessarily of any lump sum, but rather via the provision of some regular payment sufficient to meet his basis living needs and expenses, at least until his circumstances improve to the point where he can meet those costs himself.
In refusing the plaintiffs claims, I am also very much bearing in mind that all three plaintiffs are named beneficiaries of the trust assets. They will, in addition, have additional provision coming to them from their mother’s trust.
Whether or not the defendants or any of them should now cease to act as trustees is entirely a matter for them. With an eye to avoiding any further problems from this point onwards, it is obviously an issue to which I feel however some consideration should now be given. There are clearly conflicting interests for those who are both trustees and beneficiaries.
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More than anything else, these proceedings throw into sharp focus the difficulties which may arise under S. 117 of the Succession Act 1965 when a testator by his will creates a discretionary trust. It seems to me that other cases are bound to arise where the court may find it difficult, or even impossible, to determine if a testator who by so acting leaves it, in effect, to others to determine the apportionment of his assets, either between his children inter se, or between his children and others, has or has not discharged his moral duty under S. 117.
The children of a testator who so acts are also confronted with a very real dilemma, being one which is only accentuated in cases where, unlike the present one, no provision has been otherwise made for them by the deceased by way of assistance or advancement during his lifetime. Do they sit back and await the passage of time to see if the trust arrangements unfold in line with their hopes or expectations? Or, on the other hand, and particularly where trustees may be perceived to have an interest of some sort in competition with their own, do they resort to the remedy under S. 117?
While the facts of the present case have permitted the court to reach a view that the setting up of the discretionary trust in this instance did, for the various reasons stated, complete the discharge of the testator’s moral duty, the facts of other cases may obviously yield up different conclusions.
J. de B. v. H.E. de B.
[1991] 2 IR 107
Blayney J.
19th June 1991
The plaintiff is the youngest son of J.H. de B. deceased (hereinafter called the deceased) who died on the 20th September, 1988. The defendants, who are a son, daughter and the widow of the deceased, are the executors named in the deceased’s last will dated the 15th April, 1988. The plaintiff claims under s. 117 of the Succession Act, 1965, that the deceased failed in his moral duty to make proper provision for him in accordance with his means and applies to the court to make such provision for him. The first defendant, H. de B., extracted probate to the deceased’s will on the 30th March, 1990. The deceased was survived by his widow and seven children. His assets at the date of his death consisted of a residential farm of about 75 acres, situate at K. in County W., valued in the schedule of assets at £135,000 but which in my opinion, on the evidence of the valuers, was probably worth about £160,000, and cattle, hay, farm machinery and a motor car, valued together at £64,124. The deceased’s debts, funeral and testamentary expenses came to £23,389 so that the net estate was approximately £200,000 in value.
By his last will the deceased left his estate as follows:
(1) To his widow, his farm at K. for life, and the cattle, hay, farm machinery and motor car absolutely.
(2) To his eldest son H., his farm at K., subject to his widow’s life estate, and his residue, charged with his debts, funeral and testamentary expenses and the pecuniary legacies.
(3) To the plaintiff, a legacy of £5,000.
(4) To his daughters N. and P. a legacy of £3,000 each.
(5) To his daughters I. and A. and his son J. a legacy of £1,000 each.
By a codicil dated the 21st April, 1988, the deceased charged H.’s remainder interest in K. with payment of the debts, funeral and testamentary expenses, and the pecuniary legacies, if there should not be sufficient assets to pay them, which turned out to be the case as there was no residue.
The circumstances of the deceased’s seven children are as follows. The eldest daughter, I., is a widow in comfortable circumstances and makes no claim against the estate.
The next daughter, N., is aged 58 and unmarried. She left school at the age of 16 and did not have any third level education. According to H., she was always ill. She worked for some time in England looking after children. After coming back to Ireland, she never had a full-time job. She had some property which produced an income from lettings. In early 1988 she sold this. Her sole resources at the date of the deceased’s death were a capital of £58,000 and earnings of approximately £1,400 a year from teaching in the evenings. She now lives with her mother in a house which is owned by her sister A. She made a claim against the deceased’s estate under s. 117 and H. agreed in his personal capacity to pay her £44,000 in settlement of her claim, such sum to be in satisfaction also of her legacy of £3,000. The £44,000 is payable as follows:
£20,000 on or before the 21st August, 1991; £6,000 on or before the 21st November, 1991; £6,000 within one year of the death of the deceased’s widow; £6,000 within two years of the death of the deceased’s widow; and £6,000 within three years of the death of the deceased’s widow.
P. is a widow aged 57. She has a social welfare widow’s pension of £50 a week and also receives £50 a week rent from a letting. She made a claim under s. 117 as well and this was settled for the sum of £20,000 which has been paid to her by H. She has to be paid her legacy of £3,000 in addition to this.
H., the first defendant, the deceased’s eldest son, is aged 55. He is married and has four children. He was educated in Glenstal Abbey School, as were also his two brothers, and he then took a degree in University College Dublin. On his marriage in 1967, the deceased conveyed to him a farm of 173 acres immediately adjoining K. but continued to occupy this farm until his death in 1988. At the request of his parents, H. and his wife moved into the house at K. in the early 1970s and have lived there ever since. They have carried out all the maintenance which the house required and in addition H. built on an annex to the house which comprised a separate flat in which his parents lived. H. has had a horse trainer’s licence since 1973 and his principal business is training horses. He pays his mother a rent of £5,000 a year for K. In 1983 he had an attack of coronary thrombosis. He suffers from angina and is on constant medication. The general practitioner who attends to him said that he should not be subjected to undue stress or undue physical exertion. Because of his heart condition he is no longer able to ride horses.
A. is aged 54 and is married with two children. She is not making any claim against the deceased’s estate.
J. is aged 49 and is married with two children. After leaving Glenstal he spent a year and a half in University College Dublin. He then did a variety of jobs before starting to work in 1970 in a business in W. owned by the deceased (to which I shall hereinafter refer as D. Ltd.). This was a wholesale wine and spirit merchants. It is now a public house with two squash courts which had been built by H. between 1965 and 1967. In 1978 or 1979 the business was restructured and J. was given 49% of the equity in the company and also 49% of the ownership of the premises in which the business was carried on. In 1985 the deceased sold him the outstanding 51% in both the equity in the company and the premises for £10,000. The premises are valued at about £180,000. The company’s accounts show that the profit made by the business over the last four years was as follows:
In 1987, £11,145;
in 1988, £7,193;
in 1989 a loss of £494; and
in 1990 a profit of £13,296.
J. and his wife, and their two children who are now aged respectively 23 and 21, all work in the business. They live in a flat built over a former grain store in the business premises. The income of J. and his wife from the business is £15,200. In addition J. has a company car which is worth an additional £1,940 to him. J. is making a contribution of £2,000 a year to his mother for her maintenance.
The plaintiff after leaving Glenstal spent six years in Trinity. He first studied medicine but then changed courses and did a four year degree in general studies specialising in fine arts and music. He has an M.A. degree. His parents paid for all his studies. Shortly after finishing his degree in 1969 he got a job with R.T.E. Since 1979 he has been a salaried music producer. He is married and has three children aged respectively 13,9 and 8. The plaintiff’s current gross salary is £25,000 per annum and his net take-home pay after all deductions is £15,500. In addition the plaintiff earns approximately £1,000 a year, tax free, as a composer of music. The plaintiff bought his present house in County Dublin in 1971 or 1972 for £6,000. He borrowed £5,000 from a building society and paid the balance from his savings. The mortgage fell in arrears and he found himself called upon to repay £4,000. The deceased helped him to clear his debt. The plaintiff said in evidence that the deceased and he paid off the sum jointly. The plaintiff had additions built onto his house so that it is now worth between £90,000 and £100,000. They were paid for by obtaining a mortgage of £15,000 from the A.I.B. The monthly repayments in respect of the mortgage are £175. The plaintiff’s wife does not work outside the home. She suffers from trigeminal neuralgia. Their three children suffer from asthma. Chemists bills come to about £50 per month. Apart from assisting the plaintiff to pay off the debt of £4,000, the deceased gave him a present of a painting worth between £800 and £1,000. In addition, his mother, for many years, paid the insurance on his car. On the deceased’s death, the plaintiff’s mother gave him the deceased’s car which had a value of £3,000.
In 1969 the deceased sold off the manager’s house which was part of the premises of D. Ltd. and divided the proceeds amongst his daughters. There was no evidence as to how much each of the daughters received.
I now turn to the law. The application is brought under s. 117 of the Succession Act, 1965, the relevant sub-sections of which are as follows:
“(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
(2) The court shall 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.
(3) 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.”
In C.C. and Ch.F. v. W.C. and T.C. [1990] 2 I.R. 143, Finlay C.J. (with whose judgment the other two judges sitting on the Court, Griffin and Hederman JJ., concurred) adopted and approved of the following passage from the judgment of Kenny J. in F.M. v. T.A.M. and Others (1970) 106 I.L.T.R. 82, at p. 87, as being a correct statement of the law:
“It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend upon:(a) the amount left to the surviving spouse or the value of the legal right if the survivor elects to take this, (b) the number of the testator’s children, their ages and their positions in life at the date of the testator’s death, (c) the means of the testator, (d) the age of the child whose case is being considered and his or her financial position and prospects in life, (e) whether the testator has already in his lifetime made proper provision for the child. The existence of the duty must be decided by objective considerations. The court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive.”
Finlay C.J. then continued at p. 148:
“I would, however, add to it further principles which may to an extent be considered a qualification of it.
I am satisfied that the phrase contained in s. 117, sub-s. 1, ‘failed in his moral duty to make proper provision for the child in accordance with his means’ places a relatively high onus of proof on an applicant for relief under the section. It is not apparently sufficient from these terms in the section to establish that the provision made for a child was not as great as it might have been, or that compared with generous bequests to other children or beneficiaries in the will, it appears ungenerous. The court should not, I consider, make an order under the section merely because it would on the facts proved have formed different testamentary dispositions.
A positive failure in moral duty must be established.”
The question I have to decide is whether, applying the criteria laid down by Kenny J. and the additional principles enunciated by the Supreme Court, a positive failure in moral duty has been established in this case. It is necessary to start by pointing out that the moral duty is to make proper provision in accordance with the testator’s means whether by will or otherwise, and that what Kenny J. dealt with in the passage cited with approval by the Supreme Court was the criteria for determining the existence of a moral duty to make proper provision by will. He points out that one of the matters to be taken into account is “whether the testator has already in his lifetime made proper provision for the child”; and in an earlier passage in his judgment (at p. 87) he said:
“The obligation to make proper provision may be fulfilled by will or otherwise and so gifts or settlements made during the lifetime of the testator in favour of a child or the provision of an expensive education for one child when the others have not received this may discharge the moral duty.”
It is relevant accordingly to bear in mind that the plaintiff spent six years in Trinity and obtained an M.A. degree whereas his sister N. had no third level education and his brother J. only spent a year and a half at university. In addition the deceased helped the plaintiff to pay off a debt of £4,000 and gave him a gift of a painting worth between £800 and £1,000. So, prior to coming to make his will, the deceased had during his lifetime already made some provision for the plaintiff.
At the date of his death, the deceased’s only assets were his farm at K. and the stock, hay, etc., worth about £64,000. These were the sole means out of which he could make provision for his widow and his children by his will; and he had debts of £22,663. He chose to leave to his widow, as he was entitled to do, a life estate in K. and the cattle, hay, etc. The only asset, accordingly, out of which he could make any provision for his children was the remainder interest in K. and in deciding what to do with it he had to consider the position of each of his children so as to be as fair as possible to each. It seems to me that he had to consider in particular the position of H. He and his family had, at the request of the deceased and his wife, lived in K. since 1970. H. had no other house and the land was used by him as part of his business of training horses. According to J.’s evidence K. had always been intended for H. Would it have been fair for the deceased, having encouraged this expectation, to have failed to fulfil it? In a letter which the plaintiff wrote to the deceased in 1984, he suggested that the deceased should leave him a 40 acre field, known as the Big Bog, which was part of the lands of K. The plaintiff said he could build a house on the land and live there with his family. He could take an agricultural course and derive some income from the land and then supplement that income in various ways. That letter was not replied to by the deceased and there was no evidence as to what the deceased’s reaction to it was. But since the suggestion was put up to him, he must have considered it and turned it down. In my opinion he could not be said to have failed in his moral duty to the plaintiff in doing so. I consider that the deceased could justifiably have taken the view that in the particular circumstances he had a moral duty to leave the entire of K. to H. and that that duty took precedence to any duty he might have had towards the plaintiff.
There remains to be considered whether the deceased ought to have made further provision for the plaintiff by giving him a bigger legacy. That was the only way in which he could have made additional provision for him. But since the deceased had no liquid assets any additional legacy would have had to be charged on K. Would that have been fair to H.? This has to be looked at in the context of the claims of N. and P. against the deceased’s estate. If they had not been settled, but had had to be determined by the court at the same time as the plaintiff’s, I think their claims would have been very much stronger than his. And the only source from which they could have been met would have been the remainder interest in K. If provision had been made for them from this source, could any provision have been made for the plaintiff also? Obviously that would have depended on the extent of the provision made for them, but if it had been of the same amount as N. and P. are receiving from H. in settlement of their claims, in my opinion no further provision could have been made for the plaintiff. The remainder interest in K. would have been charged with the following sums:
(1) £11,000 in respect of legacies.
(2) £23,389 in respect of debts, funeral and testamentary expenses.
(3) £44,000 in favour of N. and
(4) £20,000 in favour of P.
TOTAL: £98,389.
In my opinion no court would consider it fair to increase the burden on H. by adding to that figure in order to make further provision for the plaintiff.
But the sums which H. has agreed to pay to N. and P. have not been determined by the court. They were arrived at by agreement between H. and his sisters. How am I to regard them? It was not suggested by the plaintiff that they were other than bona fide arms length agreements reached between the parties. It seems to me accordingly that they come within the category of “other circumstances which the court may consider of assistance in arriving at a decision” referred to in sub-s. 2 of s. 117, and consequently I am entitled to take them into account. In In the Goods of J.H. Deceased [1984] I.R. 599 at p. 607, Barron J. said:
“In my view, it is clear that what the court is being required to do is to be fair in all the circumstances. Since the court must see whether or not proper provision has been made in accordance with the means of the testator, it follows that ‘proper’ means what is fair in the light of the matters which it has to consider and that the standard to be applied depends on the means of the testator. The court must decide whether or not any or any further provision ought to have been made for the applicant child and, if so, what further provision would have discharged the testator’s moral duty. In reaching its decision on both these questions, the court must take into account all the matters indicated in sub-section 2. The position of an applicant child cannot be taken in isolation. The quantum of what is proper provision in any particular case is not an absolute but is dependent on all the matters which the court must take into account. The opening words of sub-s. 2, make this clear. If it had been otherwise, the opening words would not have been ‘the court shall consider the application from’ but would have been ‘the court shall consider any relief to be granted from.’ It is the duty of the court to consider the entirety of a testator’s affairs and to decide upon the application in this overall context. In other words, while the moral claim of a child may require the testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.
The court has to consider whether or not the testator has failed in his moral duty. This suggests that the duty existed at the date of death of the testator. Nevertheless, it is the decision of the court on the hearing of the application which has to be fair. Such a decision, would not, in my view, be fair if it disregarded a relevant factor merely because it occurred after the date of death of a testator. I would regard any such factor as being one of ‘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.’ In my view, the principles of fairness require every relevant consideration to be taken into account when the decision is being made.”
I agree with and adopt this very clear analysis of how sub-s. 2 of s. 117 should be construed. I have no doubt that it would not be fair to H. to impose a liability on him to pay out any more than the £98,389 which he already has to discharge and accordingly that the provision made for the plaintiff in the deceased’s will should not be increased.
I have had some regard also to another circumstance and that is that the plaintiff’s mother has made a will leaving her estate equally between the plaintiff, N. and P. The legacy to her in the deceased’s will has produced a capital in the region of £42,000 and accordingly, on her death, the plaintiff stands to receive an additional amount of approximately £13,000. Undoubtedly, the plaintiff’s mother could change her will, as was argued by the plaintiff’s counsel, but I think it is unlikely as this provision in her will gives effect to the legacy in the deceased’s will to the plaintiff, N. and P. in the event of the deceased’s wife predeceasing him, and it is clear from the evidence that the deceased and his wife collaborated closely in making their wills and always went together to consult their solicitor in regard to them.
In my opinion the plaintiff has not discharged the high onus of proof placed on an applicant under s. 117 to establish a positive failure on the part of the deceased in his moral duty to make proper provision for the plaintiff. The main argument put forward by the plaintiff was that H. and J. had been preferred to him. But even if this were so, it does not necessarily follow that the deceased failed in his moral duty towards him. If the plaintiff had been a farmer, he might have had a justifiable complaint in not being given any land, but he is not. He said in his evidence that it was music he was always interested in, not farming or running a pub. So it was reasonable that all the land should go to H. As for D. Ltd., that clearly could not be divided either. And as for J. being preferred by being given it, it has clearly taken an immense amount of work on his part to bring the business up to the level it has now reached, and he and his family have to work long hours to keep the business going. His gross earnings from the business, approximately £15,000 plus a company car, are less than the plaintiff’s gross salary. The plaintiff had exaggerated ideas unfortunately about his brothers’ wealth. While they are certainly better off in so far as capital assets are concerned, as regards income, J.’s earnings are less than the plaintiff’s and H.’s are not very much different. H.’s drawings from his training business in the years 1987, 1988 and 1989 were £16,781, £28,281 and £24,143 respectively. But the difference in the capital assets is something that the deceased could not avoid without being unfair to H. and J., and, as the Supreme Court pointed out in C.C. and Ch.F. v. W.C. and T.C. [1990] 2 I.R. 143, 148, it is not sufficient “to establish that the provision made for a child was not as great as it might have been, or that compared with generous bequests to other children or beneficiaries in the will, it appears ungenerous.” In my opinion the plaintiff’s claim fails and must be dismissed.
McC. (M.) v. M. (D.H.)
[2001] IEHC 152 (31st October, 2001)
Judgment of Mr. Justice McCracken delivered the 31st day of October 2001.
1. M S H (herein called “the testator”) died on 1st April 1998. By his last will dated 3rd August 1993 he bequeath certain pecuniary legacies and left his residence to his wife. He then bequeath the residue of his estate in the following terms:-
“I give, devise and bequeath all the rest residue and remainder of my estate onto my executors D H and E H all other assets and funds to set up a trust in favour of my daughter Miss A H (who is a Down Syndrome) to support her for her lifetime and to enable her to enjoy life as far as possible.
Cost of operating the trust to be reimbursed to both executors.
On A’s demise all the assets to be divided one third each between D H, E H, and P H.”
2. The respondents were appointed executors of the will and probate thereof was granted on 4th April 2000.
3. The testator was survived by his widow and ten children, including the applicants and the respondents. The youngest child, A H, suffers from Downs Syndrome and at present lives with her mother and works in a sheltered workshop. She is now 33 years of age and would be incapable of living on her own or looking after herself.
4. The first named applicant is now 47 years of age. She was educated up to Leaving Certificate standard and had wanted to be trained to be a teacher, but the testator would not agree to this and insisted that she immediately started to work as a shop assistant. She had in fact worked outside school hours in the testator’s business from an early age. While working in the shop she took a commercial or secretarial course which she paid for herself and subsequently obtained employment with a major business. She worked there for some 18 years and was working there in a supervisory position at the date of death of the testator. She is married with two children and her husband is a Chartered Company secretary and holds a managerial position. At the date of death of the testator the combined income of the first named applicant and her husband was approximately £68,000 per annum. They are joint owners of their home subject to a mortgage and also are owners of a holiday cottage in Co. Wexford. Her husband also appears to have some savings and investments. Her real complaint appears to be that her father during his lifetime failed to provide for her properly in that she was denied the opportunity of further education.
5. The second named applicant, is now 49 years of age. She left secondary school at the age of 16 without having sat for her Leaving Certificate. Like the first named applicant she frequently worked in her father’s business from a young age. After she left school she initially went to Temple Street Children’s Hospital and studied to be a sick childrens’ nurse, qualifying in 1972. She continued to work in Temple Street Hospital for a couple of years and then went to England and ultimately qualified there as a State Registered Nurse. In 1978 she went to the United States and worked as a nurse in hospitals in Little Rock.
6. In 1982 she married an American citizen who joined the United States Navy shortly after the marriage. Unfortunately, he was involved in a very serious traffic accident in December 1982 and suffered brain damage which has rendered him incapable of work. She has two children now aged 17 and 13 and has continued to work either part-time or whole time. Her husband suffers some memory impairment as a result of his injuries, and the prognosis is that he may suffer from Alzheimers disease in his sixties. He does receive a disability pension from the United States Navy and it would appear that at the relevant date, namely the death of the testator, the joint income amounted to some £50,000 per annum. They own their home, but it is subject to a mortgage.
7. It must be said that both the applicants feel very strongly that they were treated badly by the testator, particularly in their schooldays and in the question of further education. Both have acquired further education for themselves at their own expense. While certainly it is possible to criticise the testator, it must also be remembered that he had ten children and that the applicants grew up in the 1960s. They are both now claiming an entitlement to a share in the Testator’s estate pursuant to S. 117 of the Succession Act, 1965.
8. In one of the earlier cases under section 117, namely, In Re G.M. deceased: F.M. .v. T.A.M. 106 I.L.T.R 82, Kenny J. said at page 87:-
“It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend upon
(a) the amount left to the surviving spouse or the value of the legal right if the survivor elects to take this,
(b) the number of a testator’s children, their ages and their positions in life at the date of the testator’s death,
(c) the means of the testator,
(d) the age of the child whose case is being considered and his or her financial position and prospects in life,
(e) whether the testator has already in his lifetime made proper provision for the child.
The existence of the duty must be decided by objective considerations. The court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive.”
9. To these principles were added a qualification in the judgment of Finlay C.J. in the Supreme Court In the Estate of I.A.C. deceased: C.F. .v. W.C. and T.C. [1989] ILRM 815, where he said at page 819:-
“I am satisfied that the phrase contained in section 117(i) ‘failed in his moral duty to make proper provision for the child in accordance with his means’ places a relatively high onus of proof on an applicant for relief under the section. It is not apparently sufficient from these terms in the section to establish that the provision made for a child was not as great as it might have been, or that compared with generous bequests to other children or beneficiaries under the will, it appears ungenerous. The court should not, I consider, make an order under the section merely because it would on the facts proved have formed different testamentary dispositions.
A positive failure in moral duty must be established.”
10. In the present case what was left to the testator’s wife approximates to her legal right share, and she will also have a pension. The balance of the estate after also providing for some small legacies is in the region of £380,000. Of the testator’s ten children, the only one with serious financial difficulties is A, who sadly will never be able to look after herself, and realistically her mother is now 80 years of age and is going to need more and more assistance in looking after her. It should be said in fairness to all parties that they recognise her need and accept that everything possible should be done for her during her lifetime. The applicants have made it quite clear that any claim which they are laying to a share of the testator’s estate is only a claim to a share of the residue left after A’s death.
11. The applicants’ greatest complaint is that the testator did not make proper provision for them during his lifetime, which is of course one of the matters to be taken into account. Certainly both the applicants here had a very spartan upbringing and were expected to go and work the moment they left school. However, only one of the testator’s ten children was give a third level education, and the others all appear to have been treated in a similar way to the applicants. It is indeed a credit to the family that so many of them did manage to give themselves further education on their own initiative. However, what I have to determine is not whether the testator failed in some way in his moral obligation to the applicants thirty years before his death, but whether, at the time of his death, he owed any moral obligation to the applicants, and if so whether he failed in that obligation. This is the extent of the Court’s powers under the Act.
12. I also have to have regard to a passage in Barron J. in In the Goods of J.H. deceased [1984] IR 599, in which he said at page 608:-
“However, the Court has no power to ensure that all or any particular part of the testator’s disposable estate is divided between his children. The power of the Court arises only to remedy a failure on the part of the testator to fulfil the moral duty owed towards his child. In general, this will arise where the child has a particular need which the means of the testator can satisfy in whole or in part. If no such need exists, even where no provision has been made by the testator by his will or otherwise, the Court has no power to intervene.”
13. Both applicants here are married with families, and at the relevant time had a reasonable family income, although I appreciate that part of the income was contributed by the applicants themselves. However, they are both capable of earning a reasonable amount of money. I do not think that the first applicant could in any way be said to have any special need either at the time of making the will or indeed now. The second applicant can point to the fact that her husband is disabled and unable to work, but he does have a permanent government pension. I do not consider that she has any immediate need such as would give rise to a moral obligation by the testator. As long as her husband is alive he will have a reasonably substantial pension, and of course she is in the same position as everybody else, in that if her husband dies there will be a loss of income. However, in my view this does not constitute a special need.
14. This case is complicated by the fact that it is acknowledged that the only provision which it could be said a testator was bound to make would be after the death of A. It is even more complicated by the fact that the will was a home-made will and the residuary bequest is open to two interpretations. The executors are directed to set up a trust in favour of A out of the residue “to support her for her lifetime and to enable her enjoy life as far as possible”. It is not clear whether it is intended that the executors could use capital as well as income for A under this clause, and the construction of the clause is not a matter that is before me. I have heard evidence from the second respondent that the residuary legatees would prefer that the capital would be used for A if necessary, and of course if all three persons entitled in remainder agree on this, then a trust can be created to that effect. It also seems to me to be the probable intention of the testator. That being so, the testator in fact may have made little or no provision for any of his children, as there may be little or nothing left after A’s death. In my view this would be a perfectly proper thing for him to have done in accordance with his moral duty to A.
15. Accordingly, I will refuse the application of both applicants.
Rojack v Taylor and Buchalter,
unreported, High Court, Quirke J., February 10, 2005
JUDGMENT of Quirke J. delivered on the 10th day of February, 2005.
In this case the plaintiff claims that she has suffered financial loss and damage as a result of negligence and a breach of duty on the part of the defendants.
She claims that the defendants had agreed and undertaken for reward to act as solicitors in respect of the administration of the estate of the plaintiff’s late mother Dr. Hazel Boland. The plaintiff was an executrix in respect of the estate.
She claims that additional to the duty owed by the defendants to the plaintiff as her mother’s personal representative the defendants owed an independent duty to the plaintiff in the latter’s personal capacity as a beneficiary under her mother’s will. She claims that the defendants failed to discharge that duty because they failed to advise her that she had a potential cause of action against the estate of her late mother and that she should accordingly seek independent legal advice.
It is contended that independent legal advice to the plaintiff would have led to a claim by the plaintiff against her mother’s estate pursuant to the provisions of s. 117 of the Succession Act 1965 and a probable finding by the High Court that her late mother had failed to discharge her “…moral duty to make proper provision for…” the plaintiff. The plaintiff claims that in consequence she would have been awarded a larger share in her late mother’s estate than that which was provided for her under the terms of her mother’s will.
It is claimed that by reason of the defendants’ breach of duty the plaintiff failed to make an application to the court pursuant to s. 117 of the Succession Act 1965 within the (then) twelve months limited by the provisions of that Act for the making of such an application. The plaintiff is now barred by the provisions of the statute from seeking the appropriate relief.
The defendants contend that they were appointed and retained and agreed to act as the solicitors on behalf of the estate of the late Dr. Hazel Boland for the purpose of administering that estate.
They admit that they owed a duty of care to the plaintiff but contend that the duty owed to the plaintiff was a duty to her in her capacity as executrix of the estate of her late mother. It is contended on behalf of the defendants that they were not retained by and did not agree to act on behalf of the plaintiff in her personal capacity as a beneficiary under the will of her late mother. They agree that they had acted for the plaintiffs on an earlier occasion in respect of a personal injuries action and that Mr. Don Buchalter of the defendants was on familiar social terms with the late Dr. Hazel Boland and with the Boland family.
In particular the defendants reject the contention that any bona fide or potential cause of action against the estate of Dr. Hazel Boland was vested in the plaintiff after the death of her late mother or at any time thereafter. They contend that proceedings pursuant to the provisions of s. 117 of the Succession Act 1965 or any other proceedings claiming an additional interest in the estate of Dr. Hazel Boland on behalf of the plaintiff would have been unsuccessful as a matter of probability. They argue that accordingly there was no breach on the part of the defendants of any duty owed by the defendants to the plaintiff and no consequential loss or damage sustained by the plaintiff.
FACTUAL BACKGROUND
The following facts are relevant to these proceedings.
The plaintiff was the second of the four children of Dr. Stanley Boland
and Dr. Hazel Boland. The Boland family home was a substantial five bedroomed home at no. 43 North Ave. Mount Merrion in Co. Dublin (hereafter “North Avenue”).
The plaintiff was born in 1995. Her siblings were:-
(i) Maurice Boland who was born in 1949,
(ii) Gary Boland who was born in 1952 and
(iii) Jane Cathcart (nee Boland) who was born in 1956.
The plaintiff left school in 1969. She worked in Dublin and London for a short time before travelling to the United States. In 1976 she married a U.S. citizen Mr. Tom Rojack. There were five children of the marriage:-
(i) Barry who was born in 1979,
(ii) Melissa who was born in 1981,
(iii) Susan who was born in 1985,
(iv) Stanley who was born in 1988 and
(v) Julie who was born in 1990.
The plaintiff, who was then the mother of two children returned to Ireland in 1982. Her father Dr. Stanley Boland had been diagnosed with cancer. The plaintiff moved, with her children, to live with her parents in North Avenue. Shortly thereafter the plaintiff’s husband Tom Rojack joined his wife and children. Later that year the plaintiff’s father died.
The plaintiff’s husband returned to the United States in 1984 and thereafter maintained a relationship which the plaintiff described as “intermittent” until 1988 when, by order of a U.S. Court, the plaintiff and her husband were divorced by consent.
I am satisfied on the evidence that the divorce of the plaintiff from her husband was affected for the purpose of enabling the plaintiff to successfully claim social welfare benefits within this jurisdiction.
Between 1983 and 1993 the plaintiff lived with her mother Dr. Hazel Boland at North Avenue. During that time the plaintiff obtained part-time employment in a book shop in Dun Laoghaire. She also operated a small stall in the Blackrock market in Co. Dublin. Her earnings from those sources were insubstantial. During that time Dr. Hazel Boland continued to practice medicine and it is probable that the financial support for the plaintiff and her children came largely from her mother’s income.
The plaintiff’s divorce from her husband enabled her to apply successfully for and receive social welfare benefits as a lone parent.
On 24th day of June, 1992 Dr. Boland, with the assistance of her then solicitor Mr. John Hooper, executed a will. The terms of the will provided that the plaintiff Vanessa Rojack and Dr Boland’s son, Maurice Boland were appointed as executors and trustees of the will which inter alia purported to give, devise and bequeath:
“…my dwelling house and premises at 43 North Ave. Blackrock, Co. Dublin together with the household chattels therein…unto my daughter Vanessa absolutely.”
The will provided further that all of the remainder of Dr. Hazel Boland’s “…real and personal estate of whatsoever nature and whosesoever situate…” should be held upon trust for the purpose of dividing the residue equally between the plaintiff and her three siblings, Maurice Boland, Gary Boland and Jane Cathcart.
On the 8th February, 1993 the sum of IR£16.051 was lodged in the plaintiffs account. This was a gift to the plaintiff from her mother who had inherited money upon the death of an aunt.
On 11th May, 1993 the sum of IR£5,042.39 was lodged in the plaintiff’s account. This was also a gift to the plaintiff from her mother.
The plaintiff indicated that her siblings had also received monetary gifts from her mother. No evidence was adduced indicating the nature or extent of such gifts or when they were made. Evidence was adduced of a loan made by Dr. Boland to her son Maurice between 1983 and 1986 (see below).
In 1993 Dr. Hazel Boland, after discussion with the plaintiff, decided to sell North Avenue and to purchase a larger house in Shrewsbury Lawn in Cabinteeley, Co. Dublin (hereafter called “Shrewsbury Lawn”).
The objective of the purchase was two-fold that is:-
(a) to provide Dr. Boland, the plaintiff and the plaintiff’s five children with larger accommodation and
(b) to assist in reducing the financial difficulties which the plaintiff and her mother were then encountering.
Dr. Hazel Boland consulted Mr. Don Buchalter of the defendants with whom she was on friendly terms and retained him for the purpose of providing the appropriate legal service relative to the sale of North Avenue and the purchase of Shrewsbury Lawn. Mr. Buchalter, who testified in these proceedings, but is in ill health, has a recollection that Dr. Boland consulted him by telephone and indicated that she wished Shrewsbury Lawn to be purchased in the joint names of Dr. Boland and the plaintiff.
Mr. Buchalter recalled a conversation during which he explained to Dr. Boland the essential difference between the purchase of the property by the plaintiff and her daughter by way of a joint tenancy and the purchase by them as tenants-in-common.
Mr. Buchalter said that he then asked Dr. Boland whether she wished to purchase Shrewsbury Lawn as a joint tenant or as a tenant-in-common with the plaintiff. He suggested that Dr. Boland might wish to consider the matter and “…let me know”.
He said that the following day she telephoned and told him that she wished to purchase the premises as a tenant in common with the plaintiff because by doing so she would not be “…disinheriting her other children…” in respect of the premises at Shrewsbury Lawn.
The plaintiff, in evidence, recalled advice from Mr. Buchalter on the difference between a tenancy in common and a joint tenancy. She said that Mr. Buchalter “mentioned” this distinction to her mother. She said that that this advice was “more of a mention than an explanation”.
On the 8th June, 1993 Mr. Don Buchalter, who is a defendant in these proceedings, prepared a memorandum in which he expressed serious misgivings about the purchase of Shrewsbury Lawn and the sale of North Avenue.
By appointment with Mr. Buchalter, the plaintiff and her mother attended at the defendant’s office on the 9th day of June, 1993. Mr. Buchalter explained to them in detail his misgivings in respect of the proposed purchase of Shrewsbury Lawn and required that they sign the memorandum which he had prepared. The memorandum provided “inter alia” as follows:-
“….The house will be purchased in the names of Dr. Hazel Boland and Vanessa Rojack as tenants-in- common………..The house is being taken in both names. The proceeds of sale of 43, North Avenue, Mount Merrion properly belong to Dr. Hazel Boland. The fact that Dr. Boland is utilising the net proceeds of sale to buy the new house in the two names is effect to a gift in favour of Vanessa Rojack to the exclusion of her other children. I understand that this is what is intended and are my instructions…..
I am not at all happy that either of you are in a position to make the substantial monthly repayments required….”
North Avenue was sold for a sum of IR£126,000.
The purchase of Shrewsbury Lawn for the sum of IR£142,500 was funded by way of, (a) the sum of IR£62,500 from the proceeds of the sale of North Ave and, (b) a mortgage from Irish Permanent Building Society in the amount of IR£80,000.
The balance of IR£63,500 from the proceeds of the sale of North Avenue appears to have been dissipated entirely within the two month period immediately following the sale of North Avenue.
It was the evidence of the plaintiff that the sum of IR£27,680 which
was lodged to her account from the proceeds of the sale was largely spent on the purchase of furniture for Shrewsbury Lawn. The remaining balance appears to have gone towards defraying the then existing debts and liabilities of Dr. Hazel Boland and of the plaintiff.
The sale of North Avenue and the purchase of Shrewsbury Lawn had been completed by the 2nd July, 1993. Dr. Boland, the plaintiff and the plaintiff’s children took occupation of Shrewsbury Lawn immediately after its purchase was completed.
The mortgage in the amount of IR£80,000 with Irish Permanent Building Society was executed at this time. By arrangement, the plaintiff’s former husband Mr. Tom Rojack agreed to make the repayments due on foot of the mortgage of the premises. These repayments amounted to the sum of IR£657.71 monthly. Mr. Rojack appears to have made most of these repayments between July of 1993 and February of 1994.
On the 12th March, 1994, Dr. Hazel Boland died unexpectedly.
On the date of her death, Dr. Boland was the mother of four living adult children, the eldest of whom (Maurice) was 45 years old and the youngest of whom (Jane) was 38 years old. The plaintiff was then 43 years old. On that date;
(a) Maurice Boland was married, a father of three children. He lived in Spain with his family. His financial circumstances were not good. He had borrowed sums totalling IR£20,000 from his mother between 1983 and 1986. He had repaid only £750 at the date of Dr Boland’s death.
(b) Gary Boland was married, was the father of three children. He lived in California with his family. No evidence has been adduced which would indicate that he was then suffering financial hardship and
(c) Jane Cathcart (nee Boland) was married, was the mother of three children and lived with her family in Loughlinstown, Co. Dublin. Her husband was unemployed. Her financial circumstances were grave. She required an urgent advance from her interest in the estate of her late mother in the amount of IR£10,000 shortly after Dr. Boland’s death.
The plaintiff, in evidence, stated that in the immediate aftermath of her mother’s death she was in shock. She retained Mr. Buchalter to “do whatever he had to do…” in respect of the estate of her mother.
She said that she was under the impression that she would inherit Shrewsbury Lawn under the provisions of the will which her mother had made in 1992. However she said that her sister Jane advised her that the relevant section of the will was now “null and void” and that she would not inherit the house.
She stated that she had then telephoned phoned Mr. Don Buchalter. She said she was “frantic” and asked if there was “anything I could do…” She said that Mr. Buchalter told her that there was “nothing I could do”.
She said that she received that advice during the telephone conversation with Mr. Buchalter.
There was a conflict between the evidence of the plaintiff and that of Mr. Buchalter as to whether or not Mr. Buchalter advised the plaintiff to seek independent advice during this conversation.
Mr. Buchalter, in evidence, stated that the plaintiff was “under the impression” that she would inherit Shrewsbury Lawn from her mother and wanted to know if she could take any steps to give effect to what she believed were her mother’s intentions.
Mr. Buchalter in evidence stated that he advised the plaintiff that, having regard to the circumstances, there was nothing which she could do but if she wished to pursue the matter further she should consult another solicitor.
The plaintiff, when asked whether or not Mr. Buchalter advised her to consult another solicitor, replied “absolutely not”.
A grant of Probate of the will of Dr. Hazel Boland was extracted on 20th July, 1994, and shortly thereafter Shrewsbury Lawn was sold for the sum of IR£174,000.
After distribution of the assets of the estate the plaintiff received the proceeds of her 50% interest in Shrewsbury Lawn, (IR£42,729). She also received the sum of IR£22,000 being her share, (with her siblings), in the balance of Dr Boland’s estate.
The balance of the estate comprised inter alia, (i) Dr Boland’s 50% interest in Shrewsbury Lawn, (ii) a pension of IR£24,000, (iii) a tax free fund in the amount of IR£4,500, (iv) a motor car with a value of IR£4,500, (v) household goods to the value of IR£5,000 and (vi) two properties (at Chapel Ave. and Bath Ave. in Dublin) which were retained by the estate in the short term. The two properties was occupied by “controlled tenants” within the meaning ascribed to that term by the Rent Restrictions Act. That fact rendered them of little immediate value to the estate. Subsequently the Bath Avenue property was sold and the proceeds of the sale, (just in excess of IR£100,000), were distributed equally between the plaintiff and her three siblings.
On 29th July, 1994 the plaintiff lodged the sum of £42,729 (her interest in the proceeds of the sale of Shrewsbury Lawn) into her bank account. By 17th January, 1995, the plaintiffs account was overdrawn.
After the sale of Shrewsbury Lawn the plaintiff and her five children sought and obtained rented residential accommodation largely in the Blackcock and Stillorgan areas of Dublin.
Later the plaintiff established a recruitment agency called “Second Shift” She received a modest grant (IR£5,000 each for two persons) from the government agency FÁS for this project. In evidence she indicated that this business made money “from time to time” but was ultimately unsuccessful. It was closed by the plaintiff in 2000.
When the plaintiff had exhausted her share of the proceeds from the sale of Shrewsbury Lawn she was obliged on at least two occasions to draw sums (in the amount of IR£2,500) from her share in the residue of the estate.
In evidence the plaintiff acknowledge that in total a sum in excess of IR£54,250 was paid out of her bank account between July 1994 and January 1995. She stated that it had been paid out “largely in the payment of debts…” because the “…immediate…” payment of those debts was required at that time.
The relationship between the plaintiff and the late Dr. Boland was a very close one. Dr. Boland provided the plaintiff and her children with living accommodation, maintenance, (including sustenance), and very substantial financial support for the entire of the ten year period between 1983 and 1993. She was devoted to the plaintiff’s children (her grandchildren) and treated them with great kindness and generosity.
Mr. John Costello from Messrs. Eugene F. Collins and Company Solicitors and Ms. Paula Fallon from Messrs. Paula Fallon and Associates Solicitors testified as expert witnesses in these proceedings. Both are acknowledged experienced and established experts in the administration of the estates of deceased persons and in the law relating to Probate. Both are or were members of the Probate Committee of the Law Society.
There was little if any inconsistency in their testimony.
Both agreed that good practice requires solicitors who are retained to advise executors that the primary duty of an executor is to protect the interests of the estate and to ensure that, so far as is practicable, no step is taken which will affect the interests of the estate to its detriment.
Both agreed that it is inappropriate practice for a solicitor advising the estate to advise the executor on the prospects of that executor making a successful claim against the estate. That is so because it is inconsistent with the duty of a solicitor acting on behalf of the estate to give advice which might have the effect of jeopardising the interests (and, perhaps the proper administration) of the estate.
Both agreed that circumstances in a particular case could arise which would impose a concurrent tortious duty, (separate from the solicitors contractual duty), on a solicitor advising an executor. Ms. Fallon could not envisage such circumstances. She said that ” any solicitor in the exercise any duty must exercise a duty of care.”
Mr. Costello said that such a tortious duty could arise from an earlier personal relationship between a solicitor and an executor. He said that if the discharge of that duty could have consequences detrimental to the interests of the estate then the duty of the solicitor was to advise the executor to seek independent legal advice.
Both agreed that good conveyancing practice required that, before completing the sale or purchase of property on behalf of a client, a solicitor should remind the client that the sale or purchase may have implications in respect of any will made by the client prior to the proposed disposition of property.
Mr. Costello said that if he had been in Mr. Buchalter’s position he would have felt it necessary to write to the Probate Committee of the Law Society seeking advice. Ms. Fallon did not agree. She said that it was the express policy of the Probate Committee to refuse to give advice in individual cases.
THE LAW
The general duty of a solicitor to his client is well established. The duty of a solicitor who has been retained to advise the personal representative of a deceased person is to advise and assist the personal representative in the due and proper administration of the estate in accordance with the directions contained within the testator’s will.
No obligation has been imposed, by statute or otherwise, which requires a personal representative to notify the children of a testator of their right to make an application under s. 117 of the Succession Act 1965. It follows that no such obligation or duty is imposed upon the solicitor retained to advise the personal representative.
It follows further that no duty is imposed upon such a solicitor which would require (a) scrutiny by the solicitor of the personal circumstances of each beneficiary for the purposes of establishing if they have a potential claim under s. 117 of the Act of 1965, (b) advice from the solicitor to beneficiaries to the effect that either (1) that they have such a potential claim or (2) that they may have such a claim and should seek separate independent legal advice.
It has been correctly pointed out by Mr. Speirin in his excellent work “The Succession Act, 1965 and Related Legislation, A Commentary” 3rd Ed. (Dublin 2003).” At p. 353 that:
“[it] has even been suggested that it might be unwise for a personal representative to give such advice……it is argued that he would be imprudent (particularly if he was a professional executor), to do anything by way of notifying the child, or otherwise, which would encourage or instigate proceedings under s. 117. The bringing of such an application would to some extent frustrate the directions contained in a will and would prejudice beneficiaries thereunder to whom the executor would be accountable.”
I am satisfied on the evidence (and indeed it is not disputed) that Mr. Buchalter was, in the first instance, retained by the plaintiff to advise her in her capacity as the personal representative of her late mother. Accordingly, the duty imposed upon Mr. Buchalter was the duty imposed upon any solicitor who has been retained to advise a personal representative in the administration of an estate.
Accordingly, no duty was imposed upon Mr. Buchalter to give unsolicited advice to the beneficiaries of Dr. Boland’s will either (a) as to the existence or prospects of any potential claim they might have pursuant to s. 117 of the Act of 1965 or (b) that they should seek independent legal advice simpliciter.
The fact that a personal representative is also a beneficiary does not give rise to such a duty. There is no basis for drawing a distinction between one child who is a personal representative and another child who is not
It follows that there was no duty upon Mr. Buchalter to give the plaintiff unsolicited advice or notice of the kind referred to above either in her capacity as a beneficiary of the estate of her late mother or in her joint capacity as executrix and beneficiary.
A solicitor advising a personal representative who receives an enquiry from the child of the relevant testator in relation to a potential claim by that child against the estate pursuant to s. 117 of the Act of 1965 has a duty to the estate and possibly to the child to advise the child to seek independent legal advice upon the matter.
For the reasons outlined above a solicitor who, in similar circumstances, receives no such enquiry has no such duty.
Mr. Boyle S.C. on behalf of the applicant argues that in addition to the contractual duty owed by a solicitor advising a personal representative, a concurrent tortious duty may arise in particular cases. He says that this duty may result from an independent proximate relationship between the solicitor and the personal representative.
He says that such a relationship exists in this case because Mr. Buchalter had formerly acted on behalf of the plaintiff in the conduct of court proceedings. He had acted on her behalf in connection with the procurement of social welfare benefits. He was on familiar social terms with her.
It is contended that this social and former “solicitor and client” relationship imposed a duty upon Mr. Buchalter to give unsolicited advice to the plaintiff to the effect that either (a) that she had a potential claim against the estate pursuant to s. 117 of the Act of 1965 or (b) that she should seek independent legal advice. It is argued that this advice should have been given because, in the circumstances of this case, the plaintiff had a potentially successfully claim against the estate pursuant to the provisions of s. 117 of the Succession Act.
It is difficult to understand how, for practical purposes, Mr. Buchalter could have advised the plaintiff to seek independent legal advice without identifying why she should seek such advice.
It is not outside the bounds of possibility that particular circumstances might arise in an individual case which would impose upon a solicitor such as Mr Buchalter a tortious duty, independent from and concurrent with the contractual duty owed by him to the estate, to protect the interests of a beneficiary. I make no finding on that issue.
However I cannot envisage any circumstances where such a duty would not be wholly discharged by advice to the beneficiary to seek independent legal advice. I can envisage no circumstances where further advice of any kind could be given to the beneficiary by the solicitor having regard to the solicitor’s obligations to the estate.
In the instant case I am satisfied that the relationship between Mr. Buchalter and the plaintiff at the time of Dr. Boland’s death and immediately thereafter did not give rise to any duty of the kind contended for on behalf of the plaintiff.
There is, however, another reason why there was no obligation upon Mr. Buchatler to give advice to the plaintiff of the kind referred to, whether solicited or otherwise. That is because I am satisfied, on the evidence, that the plaintiff had no cause of action whatever against the estate pursuant to the provisions of s. 117 of the Act of 1965.
THE CLAIM UNDER SECTION 117
Section 117 of the Act of 1965 provides inter alia:-
“(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
(2) The court shall 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 would be as fair as possible to the child to whom the application relates, and to the other children…”.
In M(F) v. M(T) [1970] 106 I.L.T.R. 82 the principles applicable to applications made by the children of testators pursuant to s. 117 of the Act of 1965 were identified by the High Court (Kenny J.) in the following terms:-
“It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death, and must depend upon:
(a) The amount left to the surviving spouse, or the value of the legal right if the survivor elects to take this,
(b) The number of the testator’s children, their ages, and their positions in life at the date of the testator’s death,
(c) The means of the testator,
(d) The age of the child whose case is being considered, and his or her financial position and prospects in life,
(e) Whether the testator has already in his lifetime made proper provision for the child.”
The onus of proving that the testator has failed in his or her moral duty to make proper provision for a child rests upon the applicant under s. 117. That onus has been described as “relatively high” (see C. C. and Anor v. W.C. and Anor. [1990] 2 IR 143).
In that case the Supreme Court (Finlay C.J.) confirmed additionally that the applicant pursuant to s. 117 must establish a positive failure in moral duty on the part of the testator and a need for the provision on the part of the applicant.
It is decidedly not the function of the court to seek to stand in the shoes of the testator and intervene on the ground that the court would, as testator, have made a different testamentary disposition. (see C.C. v. W.R. (Supra)).
Applying the criteria identified in M.(F) v. M(T) to the instant case (on the basis that Dr. Boland left no surviving spouse on the date of her death) it is clear that the outcome of any claim made on behalf of the plaintiff against the estate would be dependent upon consideration by the court of all of the facts as they existed at the date of Dr. Boland’s death and in particular:-
A. Dr Boland’s means,
B. the number, respective ages, and the positions occupied by all of her surviving children,
C. the plaintiff’s age, financial position and prospects in life and
D. whether Dr. Boland had already in her lifetime made provision for the plaintiff.
A. Dr. Boland’s means
The net value of Dr. Boland’s’ estate was estimated by the Revenue Commissioners at IR£88,783.60 on the date of her death (the properties at Chapel Ave. and Bath Ave. were deemed to have little value on the date of death).
Under the terms of Dr. Boland’s will the estate was divided equally between her four surviving children and each received a sum of approximately IR£22,000. Subsequently each received equal shares in the proceeds of the sale of Bath Avenue.
The value of Dr. Boland’s interest in Shrewsbury Lawn at the date of her death was roughly equivalent to the net value of her estate as estimated by the Revenue Commissioners.
Accordingly, if Dr. Boland had bequeathed to the plaintiff her interest in Shrewsbury Lawn then there would have been no residual assets in her estate for distribution between the plaintiff and her siblings at the date of Dr. Boland’s death.
B. Dr. Boland’s children, their ages, and the position in life which they
occupied at the date of Dr. Boland’s death.
At the date of Dr. Boland’s death she was the mother of four adult children of whom the eldest (Maurice) was 45 years old and the youngest Jane was 38 years old. The plaintiff was then 43 years old.
All four of Dr. Boland’s children were married with children. The plaintiff was the mother of five children. They all lived with Dr. Boland. The plaintiff’s three siblings were each parents of three children whom they were supporting in family circumstances.
Two of the plaintiff’s siblings (Maurice and Jane) were in difficult financial circumstances on the date of Dr. Boland’s death. Jane required an urgent advance from Dr. Boland’s estate in the amount of IR£10,000 shortly after Dr. Boland’s death.
Her husband was unemployed at that time.
C. The plaintiff’s age, financial position and prospects in life at the date of
Dr. Boland’s death.
On the date of Dr. Boland’s death the plaintiff was 43 years old and was the mother of five children.
She was divorced form her husband Tom Rojack who apparently made intermittent small payments to her. He had made some mortgage repayments in respect of Shrewsbury Lawn in the amount of IR£657.71 monthly.
No evidence was adduced in these proceedings indicating that the plaintiff had ever taken steps against Mr. Tom Rojack seeking maintenance or support payments from him for herself or for their five children.
D. Provision made by Dr. Boland for the plaintiff during Dr. Boland’s lifetime.
During the early part of her life the plaintiff was provided by her parents with a full private education, maintenance, financial and emotional support and a standard of living commensurate with her parents’ means.
Between 1982 and the date of her death in 1994, Dr. Boland provided the plaintiff and her five children with a substantial comfortable home. She paid all of the costs associated with the provision of that home. The household, maintenance clothing, recreational expenses and educational costs for the plaintiff and for the plaintiff’s children were all borne largely by Dr. Boland during this entire period.
In February 1993, Dr. Boland gave the plaintiff a gift in the amount of IR£16.051. In May of 1993, Dr. Boland made a gift to the plaintiff of the sum of IR£5,042.39.
In July of 1993, Dr. Boland provided the plaintiff with a 50% interest in Shrewsbury Lawn. That interest had a net value of IR£42,729.00 immediately after Dr. Boland’s death in July of 1994.
Although the plaintiff, in evidence, indicated that Dr. Boland had, from time to time provided the plaintiff’s siblings with gifts, no evidence was adduced identifying any particular gift. It is unclear if the gifts were monetary. No attempt was made by the plaintiff to estimate their value.
Maurice Boland had borrowed sums totalling IR£20,000 from Dr. Boland between 1983 and 1986. Those sums were provided as loans from Dr. Boland. The evidence adduced indicated that she expected to be repaid that sum with interest. On the date of Dr. Boland’s death Maurice had made only one repayment (in the amount of IR£750.00).
Responsibility for the maintenance, upkeep, education and welfare of the plaintiff and her children has, at all material times, rested upon the plaintiff and her husband Mr. Tom Rojack. It was not the responsibility of Dr. Boland between 1982 and the date of her death in 1994. However Dr. Boland undertook the greater part of that responsibility throughout this entire time. She discharged it in a particularly generous manner.
I am satisfied on the evidence that prior to her death Dr. Boland made substantial and generous provision for the maintenance, welfare and upkeep of the plaintiff. By providing maintenance, upkeep and educational and financial support for the plaintiff’s children Dr. Boland further supplemented her generous provision for the plaintiff.
CONCLUSION
In addition to providing the plaintiff and her children with maintenance, care upkeep and financial support Dr. Boland made a number of monetary gifts to the plaintiff, particularly in 1993.
It is contended on behalf of the plaintiff that the moral duty owed by Dr. Boland to the plaintiff required Dr. Boland to bequeath her beneficial share in Shrewsbury Lawn to the plaintiff.
Such a disposition would have excluded all three of the plaintiff’s siblings, from any share in their mother’s estate (other than a (then) doubtful future contingent property interest).
The provision for the plaintiff made by Dr. Boland prior to her death and by her will was substantially greater than any commensurate provision made by her for the plaintiff’s siblings, two of whom were, at the time, suffering financial hardship.
Taking into account the factors identified by the High Court (Kenny J.) in M(F) v. M(T) and having regard to the generous provision made for the plaintiff by Dr. Boland prior to her death and in her will I consider it most unlikely that any court would have found that Dr. Boland, “…by (her) .. will or otherwise…” had “failed in her moral duty to make proper provision for the plaintiff in accordance with her means”.
It follows that in the circumstances of this case the plaintiff had no prospect of making a successful claim against her mother’s estate pursuant to the provisions of s. 117 of the Act of 1965.
It follows inescapably that Mr. Buchalter could not have been obliged or under a duty to give the plaintiff unsolicited advice that she had such a claim or indeed that she should seek independent legal advice.
It follows further that the plaintiff’s claim fails.
DC v DR
[2015] IEHC 309
JUDGMENT of Ms. Justice Baker delivered on the 5th day of May, 2015
1. Section 194(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 (the “Act of 2010”) for the first time in Irish law makes possible an application by a person who claims to have been in an intimate cohabiting relationship that financial provision be made out of the estate of a deceased cohabitant. The plaintiff claims to have been in an intimate cohabiting relationship with JC who died intestate on the 7th August, 2014, and now seeks that provision be made for him from her estate. The defendant is the personal representative in the estate of the said J.C., having extracted letters of administration intestate in her estate on the 3rd December, 2014.
2. The case raises a number of questions of law and fact, and the defendant denies that the plaintiff was a cohabitant of his late sister, and further denies that if is found that the plaintiff was a cohabitant that it is proper that provision ought to be made for him from the estate.
3. The proceedings were consolidated by order made on the 2nd February, 2015 with other proceedings, 2014 No. 10022 P., brought by the estate against this plaintiff and it was accepted that the cohabitation proceedings would be heard and determined first.
4. At the inception of the hearing I made an order under s. 199 of the Act that proceedings be heard in camera and that nothing would be published that might identify the parties.
5. I am told by counsel that the area is effectively free of authority and no written or ex tempore judgment of any of the Superior Courts exists that might guide my deliberations and whilst it seems likely that the legislation has been considered in the Circuit Court no judgment of that Court was offered to assist. For that reason the judgment is perhaps longer than I might have hoped, and some degree of repetition has crept into my considerations of the legislative factors.
Introduction
6. The plaintiff is 64 and is a farmer and horse trainer. He was party to a previous marriage which was annulled and he has no children by that relationship or by any other marriage or relationship. The deceased J.C. never married and had no children, and was 69 when she died. The couple met in and around the year 1994 when the plaintiff first assisted the deceased in the training of her ponies and in the preparation of the ponies for show. At that stage the deceased was living with her mother in her former family home in a town in the south of Ireland. The evidence of the plaintiff is that he and the deceased became intimate in 1995 and the relationship became a committed one when the mother of the deceased died in 1996. His evidence was that between then and 2004 when his own mother died he spent two or three nights a week with the deceased at her home at K House, a detached house some miles from a market town in the south of Ireland. On the day his own mother died in 2004 he moved to the house at K and has resided there since. He says that his move was in the context of an intimate and committed relationship which continued until J.C. died of cancer in August 2014.
7. The couple shared an interest in horses, and specifically in the training and showing of ponies, and the plaintiff was acknowledged as being an excellent horse trainer with expertise in this particular niche area. The respondent and his two brothers do not deny that the plaintiff played a part in the life of their deceased sister but it is denied that they were ever sexually intimate and they assert that the relationship was one of close friendship.
8. In 1982 the plaintiff took an inter vivos transfer from his mother of lands comprising 112 acres or thereabouts situate in a townland not far from the home of the deceased. The brother of the plaintiff at that time or some time thereafter received a gift from his mother of the old family homestead, where he still lives, and an adjoining field.
9. The plaintiff derives a relatively small income from his horse training activities and from his farming, and the plaintiff has no interest in any dwelling house nor has at any time since his own mother died rented or been a tenant in any residential premises.
10. The deceased inherited substantial lands from their mother when she died in 1996 and these lands were rezoned as a result of which they came to have a very significant value. Lands were sold in and around the year 2005 as a result of which the deceased realised the net sum after tax of €3.1 million. The plaintiff says that this had the effect that their lifestyle as a couple changed to some extent, and that they each acquired a larger car, that the deceased spent a large sum of money refurbishing her old family home, and that they enjoyed a good social life, became members of a leisure club, had frequent holidays, had meals out and joined the local golf club.
11. In 2009 the deceased was diagnosed with cancer but she recovered. However, in late 2013 the cancer returned and it soon became clear that her prognosis was poor and that the secondary cancers she had developed were not amenable to a full cure. The deceased spent some time in hospital in the months leading up to her death but she primarily resided at K House, and she died in a hospice some two weeks or thereabouts after she was admitted into its care.
12. The deceased was 69 at the date of her death and she died intestate leaving her surviving three brothers as her only next of kin entitled to succeed in her estate. She died leaving an estate with an approximate value of €1.4 million, comprising the former family home of the C family at K House, two rental properties in the same housing estate in a local town, fourteen acres of land close to K House, and personal chattels.
13. The applicant claims to have been a cohabitant of the deceased and seeks that provision be made for him out of her estate pursuant to s. 194 of the Act of 2010. Under s.172(1) a cohabitant is defined as:
“one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.”
14. Section 172(5) provides that the Act applies only to relationships of five years or more, unless the couple had children:
“(5) For the purposes of this Part, a qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period—
(a) of 2 years or more, in the case where they are the parents of one or more dependent children, and
b) of 5 years or more, in any other case.”
15. A claim may be made provided the relationship had not ended two years or more before the death of the other, save where the payments from the deceased were being made either under court order or agreement.
16. The power of the court to make provision for the applicant is contained in s. 194 (3) and this provides as follows:-
“The court may by order make the provision for the applicant that the court considers appropriate having regard to the rights of any other person having an interest in the matter, if the court is satisfied that proper provision in the circumstances was not made for the applicant during the lifetime of the deceased for any reason other than conduct by the applicant that, in the opinion of the court, it would in all the circumstances be unjust to disregard.”
17. The court must have regard to the rights of any other person having an interest in the estate and may make a provision for a qualified cohabitant provided it is satisfied that proper provision was not made for him or her during the lifetime of the deceased. The court is also entitled to refuse to make an order if it would in all the circumstances be unjust to disregard certain conduct of the applicant.
18. It is noteworthy that there is no requirement in the legislation that an applicant seeking relief under the section show that he or she was financially dependent on the deceased.
19. There is no legislative constraint on the provision that may be made by the court, save s. 194 (7) which provides that a court may not by order under the section award to an applicant more than that amount to which that person would have been entitled had he or she been a spouse or a civil partner of the deceased. Section 197 of the Act provides that each of the qualified cohabitants and ipso facto the personal representative of a deceased cohabitant, shall give to the other particulars of his or her property or income that may be reasonably required for the purposes of the proceedings. The court must accordingly look not merely to the value of an estate but also to the other income and financial resources of an applicant who seeks provision.
The evidence of cohabitation
20. A claimant under the legislative scheme must be a qualified cohabitant as defined in the Act. The fact of cohabitation is denied.
21. The legislation requires that a cohabiting relationship be more than one of mere friendship but involved or had involved sexual intimacy. The legislation defines a “cohabitant” in s. 172, and although I will come back later to the definition, at this juncture I merely pause to note that the relationship must be shown to be intimate and committed, although a relationship does not cease to be an intimate relationship for the purposes of the relationship merely on account of the fact that it was no longer sexual in nature.
22. The evidence of the plaintiff was that the relationship between himself and the deceased became intimate some months after they met, and that it remained close and intimate until she died. At that time the deceased was living with her mother at K House, and while he was a frequent visitor to that house he did not stay over but he and the deceased saw one another almost every day during the working week, and spent holidays together.
23. It would be fair to say that both the plaintiff and the deceased were dutiful children to their elderly mothers, and neither felt free to fully and openly engage in an intimate relationship until their mothers had died. The plaintiff gave evidence that while the mother of the deceased was alive he never spent a night with the deceased at K House, but that when Mrs C died in 1996 he thereafter came to spend two or three nights a weeks at the house.
24. The couple then discussed their living arrangements, and the discussion focused on the possibility of obtaining planning permission to build on the plaintiff’s lands, or on lands adjoining K House. However, the deceased had a great affection for her old home and good memories of living there, and although the plaintiff was not entirely comfortable with the arrangement he was persuaded by the deceased to come and live permanently with her in her home once her mother died and the house became hers.
25. As his own mother had became unwell and needed full time care, the plaintiff cared for her jointly with his only sibling, his brother, who owns and continues to live in their former family homestead. I consider it noteworthy that the plaintiff says that he moved to reside fully with the deceased on the day his own mother died.
26. The plaintiff said that he and the deceased shared a double bed and continued to do so until her illness came to interrupt her sleep to such an extent that both of them preferred to sleep in single beds, albeit that they remained sleeping in the same room.
27. The plaintiff’s evidence was that he and the deceased always breakfasted together and that as neither of them was interested in cooking, they ate their main meal out in a restaurant together almost every night. The deceased paid for these meals, and it cannot be doubted that the income and resources of the plaintiff were not such that he could support a lifestyle such as the one they enjoyed. They joined a leisure centre and the plaintiff was particularly animated in describing the pleasure they got from using the facilities at the centre several nights a week.
28. The main and abiding interest of the deceased was in ponies and this was an interest which the couple shared and in which they continued to be jointly involved up to the time of the death of the deceased. They both went to shows and a particular enthusiasm was shown by them for the annual Dublin Show. The ponies belonged to the deceased but they were kept on the lands of the plaintiff who was mostly involved in their day-to-day care and in training them and preparing them for shows.
29. The plaintiff’s evidence was that in the course of their 20 year relationship they attended some 40 weddings together as a couple, including the wedding of one of the nephews of the deceased in Canada and to which he was invited as the companion of the deceased by her three brothers. He says that they openly stayed in the same hotel and in the same room. They also attended together the weddings of two nieces of the deceased.
30. The deceased was described by all of the witnesses as a very warm and sociable woman and she held in the course of the year a number of parties to which she invited her friends and family, and which were a matter of some local interest. Formal invitations were sent to these parties, one of which was always held just before Christmas and the form the invitations took came to take on importance in the course of the trial. Several invitations were tendered in evidence. The plaintiff said that the invitations were generally speaking sent by the deceased, and that the parties were known as J’s parties rather than their joint party. The invitations requested that an RSVP be sent to either the deceased or to the plaintiff himself, although some invitations shown to me made reference only to J. herself. The plaintiff said he took a lead role as host at these parties and that his role in a committed relationship with the deceased was well known and recognised in their circle of friends, and that the three brothers of the deceased could not but have known this.
31. A source of controversy in the case was the postal address used by the plaintiff. He accepted that at all material times, his post was sent at his direction to the home farm. He explains this by virtue of the fact that he was farming the lands there, and maintained an office on those premises. The defendant asked me to note that it had to be significant that the plaintiff never received any post at K House.
32. The plaintiff produced a number of Christmas, birthday and Valentine cards sent from the deceased to him, and in each of these he is referred to “My Dear” or “My Dearest” and love and friendship is expressed. The cards sent by the deceased during 2013 and 2014 thanked him also for his help during her illness and the card sent in December 2013 contained a promise by the deceased that she would get well so that they could “continue to enjoy a great life together”.
33. In Christmas 2006 the deceased gave the plaintiff a gift of a Land Rover motor vehicle, and in the course of the relationship she also gave him some cash gifts.
34. The plaintiff also said that he sent Valentine cards and other greeting cards to the deceased but although these were kept by her and were displayed for long periods of time by her these were not with the papers of the deceased.
35. The plaintiff gave evidence that the first person he called with good news was the deceased and she equally shared her good, and indeed bad, news with him and that they were confidants and close friends and supported one another through good times and bad times. He said they were in phone contact every two hours or so during the working week.
36. When the deceased developed cancer in 2009 she recovered quickly and no surgery was indicated. They continued with their old lifestyle and in particular continued with their mutual interest in ponies and preparing ponies for show. Even in November 2013, when a secondary cancer was diagnosed, the deceased insisted on continuing with her old life and continued to work in her job as a school secretary until the summer term in 2014, taking then just the normal school holiday, and expressing a firm intention to return for the new school year. She had extensive chemotherapy treatment during her final illness, and the plaintiff says, and this is not contraverted, that it was he who brought her to hospital for treatment, stayed with her there and brought her home. The plaintiff says that the deceased showed great courage and resilience through her illness but that when she became despondent he bought her a horse which then went on to win a number of races and from which she derived great enjoyment. The plaintiff says that he was the person with whom doctors engaged in discussing treatment options and the progress of the disease.
The events at the hospice
37. The deceased had been admitted to a private hospital some time in July 2014, and even though it was clear that her disease was progressing and incurable, she persisted in a belief that she would be discharged from hospital and be restored substantially to her former life. She very reluctantly agreed to avail of hospice inpatient care and on the 28th July, 2014 she was admitted to a hospice and died there some two weeks later.
38. In the course of the case before me evidence was given as to various exchanges and interactions between the plaintiff and the brothers and other family members of the deceased at the hospice. The plaintiff said he was ignored, and that active steps were taken to exclude him from the company of the deceased in the days leading up to her death. This was denied although the brothers of the deceased, who clearly loved her dearly as their only sister, did accept that they knew the time with her was short and they took advantage of as much of that time as they could.
39. An important event occurred about a week before the deceased died. The plaintiff says that he received a phone call from the deceased and also from one Father O’B. and in the course of these conversations the deceased expressed a wish that he and she would get married. She suggested that he would contact his solicitors to ascertain how this could happen and the evidence was that this did occur and he did attend at his solicitor to discuss marriage, and he was by then aware of the three months’ notice requirement in civil law for such a marriage. It would seem that the priest who advised both the deceased and the plaintiff told them of the three months’ notice requirement, but no advice was given to them as to the possibility of court application to abridge that time. Part of the difficulty that the plaintiff envisaged with the possible marriage was that he had previously been married and did not have ready access to the decree of Church and State annulment.
40. The evidence was that the couple had discussed marriage a few years earlier and a number of considerations are apparent in the minds of both the plaintiff and the deceased arising from these conversations. The plaintiff described himself as having been “burnt” as a result of his previous marriage which had been annulled but not before he had built and paid for a house on the lands of his then partner, and in respect of which he received no recompense. The plaintiff in the course of evidence expressed a view that the money that had been inherited by the deceased was capable of and did on occasion act as a barrier in their relationship, and he recalled a conversation when the deceased, albeit jokingly said to him that were they to marry he could be seen locally as a “gold digger”. I regard the fact that the couple discussed marriage as an indicator of the strength and nature of their bond, and that it is noteworthy that they continued to live together after each of them in their own way, and for their own reasons, chose not to marry.
41. Two Roman Catholic priests attended at the bedside of the deceased in the days leading up to her death and one of these priests gave evidence before me and he said that the deceased told him that she wanted to marry. This was the night before she died.
42. When she was in the hospice the deceased directed the plaintiff to a document which she kept in a box in their bedroom. This document she described as her will, but the document was not executed and could be described as nothing more than instructions for a will or a statement of intent. The deceased did tell the plaintiff to ring her solicitor, which he did, but, it being August, the solicitor was about to go on annual holiday and no arrangement was made for him to attend at the hospice to take instructions for or arrange the execution of a will by the deceased.
43. I have been furnished with this document which refers to the plaintiff as “my best friend” and gives his address as the address of his own home of origin and not at K House.
44. I will return later to the contents of that document insofar as it might guide me in making provision should provision be required to be made for the plaintiff.
Marriage?
45. The plaintiff said that he asked the deceased to marry him on a few occasions, but the last time this had happened was five years before her death. He said his mother wanted him to marry and her mother had also expressed the same wish to him. He says he was not going to “rush into” marrying the deceased and he was “cautious about marriage” having been badly burnt both financially and emotionally in his previous relationship which had resulted in an annulment. The deceased herself had an attitude to marriage, and she often said that her view was that women post childbearing age had no reason to marry, and she had said to him that marriage would not improve or change their situation “one bit”. The plaintiff said however that his own attitude to marriage changed in the time leading up to the death of the deceased and that he would have at that stage have enthusiastically married her because that is what she wanted. He said it would have meant at that stage a lot to him to be married to her and that that would have provided both of them with comfort in her final illness.
46. He said in evidence that the relationship was sexual until close to the end of the life of the deceased.
Independent evidence
47. The deceased had a number of close personal friends and developed relationships with a number of members of staff, some of who gave evidence before me. Each of them gave evidence that they knew the plaintiff and the deceased as partners and as a couple. Some of these witnesses described the deceased and the plaintiff as friends, but not one viewed them as “mere friends” and each of the 10 witnesses described their relationship as being close and supportive. The brother of the plaintiff gave evidence that the plaintiff had never stayed in the old family homestead on any night since 2004 when their mother died.
48. One of the witnesses one A.M., was aware that the deceased was in receipt of the living alone Department of Social Welfare pension and she had tried to dissuade the deceased from claiming the pension for fear there would be penalties were it to be discovered that she was, as this witness believed, residing with the plaintiff.
49. The principal of the school where the deceased had worked described them as a couple in a long relationship and described a lot of communication between the deceased and the plaintiff during the day about very small things. This witness, E.M., confirmed that it was the plaintiff who collected the deceased from school to take her to chemotherapy sessions and that he occasionally delivered her medication to the school for her. She described the deceased as being private about her illness, and that she remained insistent until very close to her final days that she would return to her job in the new school term.
50. Another teacher at the school, A.M., became friendly with the deceased and came to meet the plaintiff and the deceased at social occasions as a couple and visited them at home. She said the deceased was constantly talking about the plaintiff and was frequently on the phone to him during the day. She said that he considered them to be a “normal, happy couple devoted to one another”. She said that on one occasion when she was visiting the deceased in her home and had cause to go upstairs with her the deceased identified to her the single beds in her bedroom as being her bed and that of the plaintiff. This witness also confirmed that it was the plaintiff who took the deceased to hospital for chemotherapy appointments.
51. Mr McC is formerly from the townland were the plaintiff grew up and now resides in a midland town gave evidence that he knew the plaintiff since he was 13 years of age and he knew him through his own interest in horses and horse riding. He said he knew the deceased through the plaintiff and considered the relationship to be “no different from that of other married couples I knew”. He described their relationship as being physically intimate and “natural and normal”. He spent a lot of time in K House, and considered it to be the home of the deceased and the plaintiff and described how he would visit them there at night and that the plaintiff clearly in his view treated that house as his own. The deceased and the plaintiff were guests at his own wedding and he said his own wife never met the couple other than at K House. He describes the deceased as a very warm woman, very affectionate towards him, whom she treated almost like a son, and towards his wife and his young children. He said that the plaintiff and the deceased were to some extent like an aunt and uncle to him. Mr McC gave evidence of having made three visits to see the deceased at the hospice. He described what was confirmed by other witnesses, namely that she was quite convinced that her stay in the hospice was short term and that she expected to be out and ready to resume her school job in September. He described the atmosphere around her room as hostile and that the relationship between the plaintiff and the family of the deceased was almost one of strangers, and where there was no shared sadness, and where indeed he felt that the plaintiff was not even acknowledged by the family of the deceased if they met in a corridor.
52. On the first visit that he made on Monday 29th July the deceased asked him to take care of the plaintiff and she spoke to him about marriage and said that it would give her “the greatest honour” to marry. She told him that the process had begun towards them marrying and that she was ecstatic about the thought as they were devoted to one another and that it seemed to her that it would “feel right” that they would marry. On that occasion she spoke in some detail about a ring that she wanted to have to celebrate her wedding and indeed talks of commissioning a ring were mentioned by other witnesses. On the second visit Mr McC said that the deceased seemed mentally very well and happy, but on his third visit, he stayed with the plaintiff and the deceased throughout the night until she died.
53. Under cross-examination Mr McC confirmed that he lived in a midlands town some 100 miles or thereabouts from the home of the deceased and that his visits to that town became less after he married and had children. In response to a question as to how he knew the couple shared an intimate type of relationship he pointed to the fact that he himself had booked a double room for them at the hotel when he himself got married and they were guests.
54. Evidence was also given by C.L. a manager in a restaurant which the deceased and the plaintiff frequented. She became friendly with them and considered them to be a couple from their descriptions of their lives and from visits she made to K House home, and from socialising with them together both there and in public. She also had an interest in horses and she often for that reason called to K House early in the morning at 6am and she would ring the house phone to wake them. She said that she received birthday cards and other cards marking events in her life jointly from the deceased and plaintiff.
55. The evidence of C.L. was particularly important in the context of objective evidence of intimacy. She described when the deceased was very unwell and weak through her last illness and she would frequently assist the deceased in the personal hygiene matters and in dressing and undressing. When cross examined with regard to the possibility that the deceased and the plaintiff might have married she said that she remembered a conversation once with them where they described themselves as “happy out” without being married and she recalled no further conversation about marriage.
56. I also heard evidence from T.O’B, a local vet who is married to the sister of the plaintiff and who is a brother of Father O’B. He described the mutual interest that the couple had in horses and in particular in showing their ponies at the Dublin Horse Show. He said that he recalled an event when he called to K House late at night and that the plaintiff was there. He also described being in the house late in the evening on social visits and that the plaintiff would lock the gate after him when he left. He said that, while the couple seemed to share their lives, each of them paid separately for the veterinary fees of their own animals. He described the parties at K House as being parties thrown by the couple, and that each of them played a role as host at these events.
57. I also heard evidence from Father O’D, a priest, who was visiting the hospice and who did not know the plaintiff or the deceased save by repute. He said that the deceased raised the question of marriage with him and asked him how this could be arranged and who might be witnesses to the marriage. Under cross examination he denied that he had raised the question of marriage and said that the topic had been raised by the deceased herself and that he would never have raised such a topic with a woman whom he believed to be terminally ill and in hospice care, and that such intimate matters would not be appropriate for him to raise with a woman he barely knew. He described her as being “confident in her love” for the plaintiff and said it was quite clear to him from description that the relationship was not platonic or not one of mere friendship.
Evidence of the defendant
58. What is remarkable about the case is the degree of lack of unanimity in the perception of the relationship between the witnesses who gave evidence for the plaintiff and those who gave evidence for the defendant. The difference was not so much one as to whether the deceased and the plaintiff were friends, and it was acknowledged by all parties that they presented as friends and that they had a number of interests in common which resulted in them spending time together both in their home town and at horse shows, in particular the annual Dublin Horse Show at the RDS. It is the intimate nature of the relationship, and whether the couple lived together that is in dispute.
59. The deceased died leaving her surviving three brothers and each of them gave evidence. One of the brothers in particular, C.C., had a strong bond with the deceased and she and he spoke almost daily.
60. The youngest brother D.C., the personal representative of the estate, described frequent visits to K House, as often as once or twice a week, and he would call when he was in the area although he lived in a town some 60 or 70 miles away from that house. He said he was not aware that the plaintiff was living with the deceased and that she never mentioned it to him. He said he thought that they were “best friends”, and their friendship was centred on their love of horses. He outlined how the deceased was in receipt of a social welfare (living alone) allowance and he believed that she obtained this in the year 2010 and noted on the documentation submitted by her on the 12th August, 2010 to the Department of Social Welfare that she described herself as “single” and did not select the option of “cohabitating” which was available on the standard form. This witness described the visit from Father O’D and gave evidence that it was the priest who had first mentioned marriage, and he asked the deceased after she herself had mentioned the plaintiff whether they had ever thought of “tying the knot”.
61. This witness gave what I regard to be a particularly important piece of evidence and he said that his mother had always said to her children that a woman who was not of child bearing age, or indeed any person not intending to have children, ought not to marry. He also said that the deceased while she was brought up as a Roman Catholic had, as he put it, had “a foot in both camps” and she played the organ at a Church of Ireland Church, and supported local Roman Catholic churches and Church of Ireland churches. Their parents were from what used to be called a “mixed marriage” and he described a comfortable childhood in their old family home which was inherited by the deceased. He said that the deceased moved into the bedroom of her parents after her father died and that she slept in the same bedroom as her mother during her mother’s last years.
62. After the inherited lands were rezoned and sold the deceased spent considerable monies in refurbishing the house and changed it from a five bedroom to a three bedroom house and did other extensive renovations to the house and gardens. He was firm in cross examination that he did not believe that the deceased and the plaintiff were intimate but he did admit that he never asked either his sister or the plaintiff what the precise nature of the relationship was. He said he had a very good relationship with his sister and that there was no trace of a man in the house, and that there were no male toiletries in the bathroom, and after his sister died he found very few men’s clothes in the wardrobe in the main bedroom. He did admit that he did not know many of his sister’s close friends, and he could not really identify who these friends were as he had gone to live in his now home town in 1979.
63. He knew the plaintiff casually, and he also knew his sister who was his hairdresser. He never met the plaintiff in his sister’s house.
64. He accepted that the plaintiff was a guest at several family weddings of and that he came as the guest of his sister who in the normal way was invited to come herself and bring a guest of her choosing. He said that he never saw between his late sister and the plaintiff any signs or expressions of affection or sharing of emotions. He was unable to say who had looked after his sister when she was ill, who had cooked for her, looked after her house and taken her to and from the hospital for chemotherapy treatment.
65. He accepted in cross examination that neither he nor his two brothers thought to concern themselves with regard to the security of his sister’s house when she was in the hospice because, as he put it, he knew the plaintiff was there and would look after that house. He described the plaintiff very affectionately as the “constant companion” of his sister, but was surprised at any suggestion that they might have been intimate.
66. This witness gave useful evidence as to the expenditure by the deceased of the proceeds of her inheritance. The amount realised by each of the four siblings on the sale of the inherited lands was €3,100,000 after tax, the first €750,000 of which was received in 2004, and the balance in 2005. The deceased purchased two residential investment properties, one for €600,000 and the other for €400,000, and a farm of 14 acres with €300,000. She spent up to €500,000 refurbishing the house and gardens at K House which she had also inherited. She bought new and expensive cars. Another residential investment property had been purchased by her which she was unable to manage and was sold to one of her brothers after the economic crash, and it appears that she made a significant loss in that transaction.
67. He was surprised how little cash was left in the bank accounts of the deceased and she seemed not to have been careful with her money, and his surprise was also in the context of the fact that the deceased had a rental income and from her job as a school secretary. He said her tax affairs were up to date.
68. The second brother of the deceased, C.C., was very close to the deceased and he described the deceased as his “best friend”. He said he had no idea that the plaintiff was living in the house, and he said that he saw the plaintiff in the house only three or four times although he visited frequently, at least every week. In retrospect he thinks the plaintiff may have “joined” the deceased at her home in 2011, after the deceased had been involved in a road traffic accident, and that the relationship might have evolved into an intimate relationship, because the deceased was then feeling particularly vulnerable, and because she was having a problem with a tenant in one of her residential investment properties. He said his sister never told him however that this had happened, but if there had been an intimate relationship it was very short lived. He said his sister described the plaintiff as her friend, and introduced him as such, and sometimes in fact mentioned that he was her horse trainer. He says that because he was particularly close to his sister he would have expected that she would have told him of an intimate relationship if such existed. He also said he did not see any special or intimate expressions of affection between them.
69. He was of the view that the plaintiff’s grief at the death of the deceased was similar to that expressed or felt by many of her other friends.
70. This witness struck me as a warm man, very close to his sister and still grieving her loss. He was tearful in some of his evidence. He also struck me as particularly private in his grief and somewhat old fashioned in his views of intimacy. He thought of his sister, who was older than him, as being unlikely to have engaged in a sexual relationship at her age, and given that she was unmarried. He was quite clear from the history of his sister’s relationships that she never wanted to marry, and that she had had close relationships with other men but marriage was not part of her life choice.
71. He described their mother as a strict Presbyterian who would never have approved of any of her children living with a member of the opposite sex or being in an intimate relationship outside marriage. He said that some of his children had lived with their respective partners before they married and that he himself was open minded about such matters.
72. This witness also accepted that he knew little or nothing of his sister’s financial affairs, save that he did know that she had acquired certain residential investment properties but only after she had closed those sales.
73. W.C., a chartered accountant, and another brother of the deceased, also gave evidence. He made tax returns for the deceased, but was not involved in her daily financial affairs. He was in the hospice when Father O’D came into the room and he too rejected any suggestion that the issue of marriage was raised by his sister, and his description of the conversation is that the priest in a light hearted fashion, when the conversation turned to her relationship with the plaintiff, commented, rather than asked, that the couple had “never made it down the aisle”. His sister’s response was consistent with that described by other family members, that she said that marriage was “not for me” and that marriage was for females of childbearing age.
74. This brother also said that he found it incredible that the question of marriage was discussed either in the hospice or elsewhere, and that he expected that he would have known had his sister intended to marry. He said he was a frequent visitor to her home after she became ill first in 2009 and that he visited at least once a week for an hour a day or so. He said he never met the plaintiff at K House, although he did accept that he and the plaintiff would have kept different hours and that the plaintiff would have been involved early every morning with his farming and horse training activities. He too said that there is no evidence of any male toiletries or clothing in the house but admitted that he did know that the plaintiff stayed in the house once his sister became very ill in her last illness. He said that she, and the family, were happy that her close friend would be there to protect her and again her fear of being on her own in an isolated house was noted.
75. This witness put it simply that he would be surprised to hear that his sister and the plaintiff were ever lovers. He himself was on his annual holidays in August 2014 when the deceased was admitted to the hospital and he did not cut short these holidays. This is consistent with evidence already given, that the deceased seems not to have accepted that she was terminally ill and believed that, even if she were, that her life would not be cut short so quickly at the end.
76. I also heard evidence from D.M., a first cousin of the family, who said he frequently did meet the plaintiff in his cousin’s house but he thought that this was because the deceased was very nervous of being alone in her house which was quite isolated and detached from any neighbours. He described an occasion when he saw the plaintiff in the bedroom of his first cousin and although he was somewhat surprised to see him there, he did not ask any questions, as it was “none of my business”. He did tease his cousin in friendly banter or chat afterwards. He said he knew there was a friendship but that that it had never been intimate. He said he was surprised that this was now being asserted by the plaintiff.
The legislative framework: what constitutes cohabitation?
77. To make claim under the legislation a person must satisfy the court that he or she is a cohabitant within the meaning of s. 172 of the Act. To claim relief persons, whether of the same sex or the opposite sex, must show that they have lived together as a couple, for a period of two years or more where there are dependent a children, or five years or more in any other case. The relationship must be between two persons living together as a couple in “an intimate and committed relationship”.
78. Section 172 (2) provides certain factors to which a court must have regard in determining if two adults are cohabitants and I will set these out in full: –
“In determining whether or not 2 adults are cohabitants, the court shall take into account all the circumstances of the relationship and in particular shall have regard to the following:
(a) the duration of the relationship;
(b) the basis on which the couple live together;
(c) the degree of financial dependence of either adult on the other and any agreements in respect of their finances;
(d) the degree and nature of any financial arrangements between the adults including any joint purchase of an estate or interest in land or joint acquisition of personal property;
(e) whether there are one or more dependent children;
(f) whether one of the adults cares for and supports the children of the other; and
(g) the degree to which the adults present themselves to others as a couple.”
79. A relationship must be or have been sexually intimate, and this is implicit from s. 172 (3) which provides that a relationship does not cease to be an intimate relationship for the purposes of determining whether a person is a qualified cohabitant merely on account of the fact that it is no longer sexual in nature. The requirement that the relationship be a committed one remains, and the couple must be residing together.
80. I turn now to my findings of fact having regard to these statutory tests
Were the parties living together?
81. Turning now to the elements of the test, the first question I must ask is whether the applicant has satisfied me that he was living with the deceased for a period of five years or more. His evidence is that he took up permanent and full time residence at K House with the deceased in 2004 when his mother died, and indeed his evidence was that he did so on the precise day his mother died. The brothers of the deceased do accept that the deceased came to live under the same roof as their sister some time around the time when she became ill with cancer in 2009, or in the case of one brother, in 2013 when her illness returned and when she became both more physically fragile and psychologically fearful of being on her own. I accept the evidence of the plaintiff that he took up full time permanent residence in the home of the deceased on the day his mother died in 2004, I do so for a number of reasons as follows:
82. The plaintiff resided with his mother for approximately half of every week in his old family homestead until his mother died. He did this to care for her in her old age, and he shared that care with his brother. He never made provision for his own accommodation needs outside of this arrangement, and I consider this to arise from the fact that he commenced a committed and long-term relationship with the deceased some ten years earlier in 1995 or 1996. Some evidence was given in the course of the trial that the plaintiff left little or, indeed in the case of the evidence from one brothers of the deceased, no personal effects at all at K House, but the plaintiff himself in the course of cross examination, and in his affidavit evidence, pointed to the fact that much of his clothing was in drawers which were not searched and not in the wardrobe of which photographs were adduced in evidence, and that he did keep personal toiletries in the bathroom. He struck me as a man of modest and minimal material needs, and I accept that he kept his relatively few personal effects at the house. I also accept that they came to permanently reside together in 2004.
Was the relationship committed and intimate?
83. I regard as particularly significant the plaintiff’s evidence that he went to reside with the deceased on the day his mother died, and that suggests quite clearly that the reason he and she did not live together on a full time basis before then was because of his arrangement with his brother that they would jointly share the care of their widowed mother. This is also consistent with the scheme of the Act which entitles the court to look inter alia to the duration of the relationship and the “basis” in which the couple lived together and I consider it improbable that this couple discussed their living arrangements and agreed to move to live together on the day the plaintiff’s mother died. It is much more probable that they had for a number of years wanted to share their living arrangements but the care of the plaintiff’s elderly mother prevented this happening.
84. In that regard I consider the duration of this relationship between the plaintiff and the deceased was 19 years and that the relationship commenced in 1995 or thereabouts in the context of their shared interest in horses, and that they became committed to one another shortly thereafter.
85. The next question that must be determined as a matter of fact is whether this couple was or had been at some stage in an intimate and committed relationship. The court is mandated to have regard to certain matters to determine in particular the extent of commitment which a couple have to one another, and those matters include the duration of the relationship, the degree of financial interdependence, the nature of any financial arrangements, and the way in which the couple present themselves to the world as a couple. As this couple had no children either from this relationship or from any other relationship some of the other parts of the test in s. 172(2) have no relevance.
86. The Act offers no assistance as to what is meant by an intimate relationship, but having regard to s. 172 (3) it is clear that a relationship must have been at some point in time a sexual relationship for intimacy to be found. The intimacy that is intended is a sexual intimacy and not merely the intimacy of close friendship.
87. I accept the evidence of the plaintiff that he and the deceased became intimate many years ago sometime in 1995 or thereabouts. I also accept his evidence that this intimate sexual relationship lasted up to a short period before the death of the deceased. He was not cross examined as to exactly when this was, but that was a sensitive and realistic approach to the question having regard to the fact that the Act does not require intimacy to continue through all of the vagrancies of a relationship, provided sexual intimacy can be said to have been part of the relationship at some time in the past. It is unlikely in the absence of illness or other disability that a person would be very briefly intimate with another and commence to cohabit many years after the sexual intimacy had ended between them. I accept that the brothers of the deceased were not aware of the intimate nature of the relationship, although I do note that none of them expressed any surprise that the plaintiff might have been living under the same roof as their sister, albeit it they did not accept that this arrangement had continued for as long as 10 years, and that they wholly discounted the possibility that some degree of intimacy was an element in their relationship.
The perspectives and state of mind of the deceased
88. I was in a position to assess the perspectives of the deceased from certain evidence I heard. I have already noted the evidence of her first cousin D.M. who said that while he was somewhat surprised to see the plaintiff in the bedroom of his first cousin, he did not ask him on the occasion when he saw this why or for what purpose he was present in her room. It strikes me that this witness was honest and forthright in giving his evidence, and that he did not consider that he ought to pry in the private and intimate relationship of his cousin, or indeed of the plaintiff whom he hardly knew. Thus his evidence has limited value as to the fact of intimacy, although I consider the fact that the plaintiff was openly present in the bedroom of the deceased showed the degree of ease he had in the house, and points to him at least treating the relationship as one of shared living there. It is unlikely in my view that the plaintiff would have been in the bedroom of the deceased had they not been in an intimate and committed relationship, especially if one considers the degree of privacy in her life that the deceased sought.
89. This evidence, and that of C.C., offered me a key to the state of mind and perspectives of the deceased and the context of the relationship of the deceased and the plaintiff. Her strict family upbringing, and perhaps to some extent her age, and the role that her family had played in the local area as good living and staunchly Roman Catholic in their behaviour and social attitudes, might have led her not so much to hide her relationship with the plaintiff, but not to shout it from the roof tops. Each of the brothers in their evidence described the value they placed on personal privacy, and each of them in their own way in evidence said that they would not have considered it proper or appropriate to have asked their sister the precise nature of her relationship with the plaintiff. Each of them had a clear view of what was or was not their business, and how certain private and intimate matters might not be shared between members of a family.
90. Each of the brothers also gave evidence that marriage was seen by them as partly for the continuation of the family, or at least that people married in the hopes that they would have children. I also consider that each of the brothers took the view that marriage has the inevitable effect of diluting an inheritance and that such dilution should occur only in the context of marriage.
91. One factor that influences me in any consideration of the evidence is that C.C. one brother of the deceased, gave evidence that he never witnessed the plaintiff preparing any of his sister’s ponies for show and although he accepted that the plaintiff was a very good horseman and trainer he did not know of his interest in Connemara ponies specifically. That evidence is striking because of all of the other witnesses who gave evidence in the case accepted that the relationship between the deceased and the plaintiff found its roots in their mutual interest in these ponies and this gap, as I consider it to be, in the knowledge of C.C. of his sister’s social and personal life explains to some extent how he might not have known of his sister’s intimate and close relationship with the plaintiff. I consider that the evidence points to some considerable degree of separation in the life of the deceased of various activities involving her close family and her friends, and she did, I believe intentionally, keep these separate although her friends and family did mingle at weddings, her very popular Christmas parties and at other social events. She seemed however to me to have lived her social life, primarily with her friends, and her social life to some extent revolved around her interest in the ponies, which was not an interest any of her family members shared.
92. I was struck by a number of features in the personality and family background of the deceased, and one factor that weighed heavily on her lifestyle was the degree of privacy and separateness that she sought in her life. This was a characteristic that she shared with the three brothers, and the plaintiff kept various elements of her life separate, Thus it seems to me that the deceased enjoyed a very close relationship with her three brothers, and particularly with her middle brother C, but she did not share with him all of her interests. I accept that she was a very creative woman, full of life and full of interest in the world, and full of affection for her family, her nieces and nephews and those with whom she came in contact with, but she had the wish and the energy to enjoy certain parts of her life separate from the others. It is understandable too that she might not have wanted to upset her siblings by informing them of her, what I believe to have been a sexual relationship with the plaintiff, and that was because of their shared religious beliefs, and shared social and interpersonal values. All of the brothers were married, all of her brothers had children, and she was the only one of the four siblings whose life was different. That context also explains how Mr M, the first cousin of the deceased, who lived in Northern Ireland, was unaware that the plaintiff was living under the same roof as his first cousin for at least 10 years. He said he visited almost every year but that he never saw the plaintiff in the house. I consider that there are two reasons for this, one was Mr M’s sensitivity to the privacy of his cousin, which is precisely the factor which lead him not to question the plaintiff when he saw him in his first cousin’s bedroom, and on the other hand the sensitivity that the deceased herself felt was necessary to show towards the values and mores or her first cousin.
93. I consider that the couple had a very close and intimate relationship, and that they exchanged tokens of their relationship on a frequent and appropriate basis. I note that W.C. did accept in cross examination that there may have been old Valentine cards in some of the boxes removed by the family from the house after the deceased died. I consider that response to indicate that there were such Valentine cards, although I expect having regard to the degree of privacy which the family respected in one another, that the brothers never looked to see from whom these cards had been sent.
94. I also consider as important and accept the evidence of C.L. that she did not think the deceased, who was after all a woman in her late 60’s, would have permitted a man to assist in the intimate and personal task of dressing if he had been merely a friend.
The basis of cohabitation
95. As to the statutory test of the “basis” in which a couple live together, found in 172(2)(b) this is a broad test and encompasses much more than financial or property arrangements which are specifically dealt with in subs. (c) and (d) of s. 172 (2), and which I consider below. The basis of a relationship involves a number of interconnected elements such as the degree of shared activities that persons enjoy, such as shared meals, especially evening meals and breakfast, shared activities, shared division of household chores and shared holidays. I am of the view that this couple did live together in a committed relationship and that their commitment was found in the degree of contact that they had with one another on day-to-day basis, which I accept was very frequent indeed, and I accept in particular the evidence of the friends of the deceased and of her work colleagues that the couple phoned and exchanged text messages with one another very frequently during the normal working day.
96. This couple shared a joint interest which was in part the source of income for one of them, and enjoyment for both. They each had farming land, albeit that only the plaintiff was a farmer in any true sense, but both of them frequented the farmlands of the other and both of them publicly and visibly spent time together in each property.
97. Counsel for the plaintiff asked me to take particular note of the fact that the plaintiff cared for the deceased during her illness and that it was this time of crisis in particular that brought their relationship into sharp focus. I accept that the couple had some discussion about marrying in the days before the deceased died, and they took advice from the Roman Catholic priest who visited the deceased in the hospice with regard to the legal requirements. Whilst they were told that three months’ notice was required under State law before a marriage could be solemnised, they were not told that the court could abridge the notice period on application.
Presenting as a couple
98. The degree to which the adults presented themselves to others as a couple is a factor to which the court under 172(2)(g) is mandated to have regard in assessing whether a couple is in a committed relationship and while expressions of physical affection in public might in some cases be a mode by which a couple show their intimate and committed relationship to the world, this is not always the chosen means by which a couple present themselves. Some of the witnesses described the couple as being physically affectionate towards one another in company, and others said they were not. It can easily be the case that some physical expressions of friendship such as hugging are found even when a relationship has no sexual element. I find that the evidence on balance points to the fact that this couple did present themselves to the world as a couple in a sexual and intimate relationship, and one must recall in that context that both the plaintiff and the deceased were in their 60’s and the deceased was almost 70 when she died. Even deeply committed and devoted married couples show relatively little obvious physical affection in public and I consider that this couple was no different from any other in that regard.
99. I take particular note of the fact that the friends of the deceased regarded her and the plaintiff as a couple, and indeed the witnesses called by the plaintiff described the relationship as that of a “normal couple” and not one of them regarded the relationship as remarkable in any way. Some of the witnesses indeed considered the couple to be married as they behaved like any other married couple who got on well with one another and spent a lot of time together.
100. Marriage of course is regarded by many persons in our society as the ultimate way by which a couple show the world the degree of commitment that they have to one another, and I return below to the question of how and why this couple never came to marry but the legislation is specifically designed to allow provision to be made for cohabiting couple who choose for one reason or another not to marry. This legislation is the first time that the Oireachtas has recognised a legal basis for a claim by a cohabitant, and the Oireachtas did so in the clear knowledge that the cohabitant relationship was one which might have arisen through choice or circumstance, and where neither was anxious to or in a position to wed. The law recognises a fact of modern life, namely that a couple can present themselves to the world as cohabiting partners, or indeed as partners who do not cohabit, when they are not married or when they do not intend to marry. The relationship in this case was in my view one in which the couple presented themselves to the world as a couple, albeit I accept that the deceased did not for her own reasons present the full nature of her relationship with the plaintiff to her immediate family. I have already explained what I believe to be the reasons for this.
Financial dependence and interdependence
101. The Act also regards the degree of financial dependence as relevant to the question of cohabitation: 172(2)(c) and (d). The couple had relatively little financial interdependence in the early years of the relationship, and indeed in certain aspects of their relationship they continued to maintain separate financial arrangements, such that for example the deceased paid all household utilities and other bills, they had an informal arrangement for buying food and groceries for the household, but each of them separately paid their veterinary and other similar bills. The degree of financial interdependence changed once the deceased came to be a woman of means and it was at that stage that they came to enjoy a fuller life, possible then because of the resources of the deceased. They played golf together and joined a health club, each of which activity involved membership of a private club at a cost which was way beyond the income resources of the plaintiff. Neither of them was interested in cooking and they ate their main meal in a restaurant almost every evening. Again that was outside the income resources of the plaintiff but this is how the deceased chose to live with her chosen companion and is how this couple in their joint lives chose to enjoy the fruits of the inheritance from the deceased’s mother. I consider that the deceased wished to have the company of the plaintiff, and that the “relationship cost” meant that it was she who paid for these extras, which she wished to enjoy and would best enjoy in his company. This is a financial interdependence, albeit it is not a dependence for the basics of life, and the financial interdependence was one that evolved in the context of a significant discrepancy between the income and financial resources of each of the parties.
102. I accept what was said by the plaintiff with regard to the inheritance that the deceased received. Their relationship had started long before the lands were rezoned and that inheritance came to have a significant value when the mother died and the lands were rezoned and although the deceased had a high standard of living and lived in a beautiful detached home, neither she nor the plaintiff had any great financial resources in the form of income until the inherited lands were sold or were agreed to be sold. The plaintiff expressed on a number of occasions a view that to some extent “the money came between us”, and that he would have been happier had their financial resources been more equal. I consider that the plaintiff was not interested in having money from the defendant and that this was one reason why he felt that it might not be necessary or indeed proper for them to marry. They kept their financial resources separate, each of them to some extent had a concern to do this. The plaintiff was cautious financially, and he had been financially damaged as a result of a financial commitment to his first marriage which was ultimately annulled. The deceased it seems to me had relatively little knowledge of financial affairs, had come from a family where there was no great financial pressure, but she was conscious of the role of inherited wealth in her life and considered that one purpose of marriage, possibly even the only purpose, was to preserve wealth and pass it to the next generation. Thus while kept many of their finances separate, this arose because of their respective attitudes to money, and because of the very significant difference between them in financial resources. I consider that the relationship was no less committed by reason of the absence of financial interdependence, and agreed financial interdependence is to be found in the fact that the deceased paid for holidays, most if not all social events and meals out, and new and expensive motor vehicles for each of them. This was, as I have said, the “relationship cost” which the deceased in my view was happy to incur.
103. The degree of financial interdependence as opposed to financial dependence may of course be relevant when a court comes to consider whether and what provision ought to be made from the estate of the deceased person on an application by his or her cohabitant. I find as a matter of fact that this couple were not financially dependent for the basics of life, but that a degree of financial dependence had come to evolve between them with regard to certain elements of their personal and social spending. The degree of this was such as to suggest a relationship of shared commitment.
The rituals of death as indicative of the role
104. I am conscious of the importance in community of the rituals of death. The deceased was removed from and waked in her home and this was done at her express request. The funeral arrangements were made by the plaintiff and Mr McC and the plaintiff remained during the wake and removal ceremony positioned at the head of her coffin to receive sympathisers. Before the coffin was closed he was given time by the family to be with her alone. At the removal he walked directly behind the hearse and he was in the front row in the church at the funeral mass itself. He was one of the persons who carried the coffin, and he played this role at the beginning of the walk from the church to the graveyard and at the end, as did her brothers. Other family members carried the coffin in between. I consider that the funeral arrangements acknowledge the degree of commitment between the deceased and the plaintiff and the importance of that relationship in her life. The rituals around death are important in Ireland and are an important way by which a person’s relationships are recognised in the community. The funeral arrangements often give rise to difficulty when married couples are divorced or informally separated and when the deceased was cohabiting or remarried. This is because as a society we place particular importance on the ritual, and positioning in the ritual of members of the family of a deceased and of their friends and loved ones.
105. I am also very conscious of the fact that the three brothers of the deceased themselves had a particular approach to the funeral and removal rituals and her closest brother in particular expressed his choice of expressing his grief privately and of avoiding a public display of grief. I do not accept the argument that the fact that the plaintiff carried the coffin at the beginning and at the end of the deceased’s last journey from her church was a matter of no great consequence, and this particular ritual is one which is only given to close and intimate friends and family. I accept the evidence of the brothers of the deceased that their way of expressing grief and their family rituals surrounding death were different from those of the plaintiff and some of these rituals were informed by the rituals of the Presbyterian Church of which their mother was a member.
Conclusion on cohabitation
106. It seems to me to be that the various indices of the relationship and the public presentation of that relationship must be taken as a whole and in the context of the social mores and perhaps even of the age of the participants in the relationship, and I do not consider that the fact that the brothers of the deceased were unaware of the intimate element of the relationship to be a determining factor. Their knowledge must be seen in the context of their relationship with their sister, and with their wider family social mores and in particular with the fact that they regarded emotional matters as private.
107. The scheme of the Act envisages the court looking at the seven identified factors in s. 172(2) not as conclusive as to the nature of the relationship but as indicative of that relationship and how it is to be properly characterised. I consider that the test requires the court to determine whether a reasonable person who knew the couple would have regarded them as living together in a committed and intimate relationship, and that the individual and many factors in how they are perceived must be taken into account
108. I conclude having regard to the evidence and to the factors indicating the state of mind of the deceased that I have identified, some of which explain why the fact of cohabitation is so controversial, that the plaintiff was cohabiting with the deceased in an intimate and committed relationship at the date of her death and had been so cohabiting in excess of five years prior to her death. I consider that the cohabitation commenced when the mother of the deceased died in 2004, and that the couple would have to come to cohabitant before then were it not for the care needs of the mother of the plaintiff.
Provision from the estate
109. The Act provides for application by a qualified cohabitant for provision out of the net estate of a deceased cohabitant. I will turn below to the meaning of net estate for the purposes of the section. The court has a discretion as to the provision it may make on an application by a qualified cohabitant but the provisions of s. 194(3) and (4) temper this discretion.
110. Section 194 (4) of the Act sets out a number of factors to which the court shall have regard as follows:-
“In considering whether to make an order under this section, the court shall have regard to all the circumstances of the case, including—
(a) an order made under section 173 (6), 174 , 175 or 187 in favour of the applicant,
(b) a devise or bequest made by the deceased in favour of the applicant,
(c) the interests of the beneficiaries of the estate, and
(d) the factors set out in section 173 (3).”
111. Section 194(3) gives the court power to make such provision as it considers appropriate but the court is mandated to have regard to the rights of any other person having an interest in the matter. I consider that there is no other person to whom the deceased had a financial commitment or in respect of whom she might have had an obligation to provide. The court is at large as to what provision it may make save that it may make what is described as “proper provision” if it is satisfied that provision was not made for the plaintiff in the lifetime of the deceased, and it must in the light of the statutory factors make provision only if it is just and equitable to do so. The court is entitled to have regard to the conduct of the plaintiff if it would in the circumstances be unjust to disregard that conduct in refusing to make relief but no question arises with regard to any conduct of the plaintiff that might disentitle him to relief in this case.
112. The court is mandated to have regard to the factors set out in s. 173(3) of the Act, and certain of these factors are relevant and I turn now to consider these. Some overlap is found between the facts that give rise to a finding of cohabitation, and those to which regard it to be had in making provision, and I have already made findings in regard to some of them. I deal now with those factors I consider relevant.
The nature of the relationship
113. Section 173(3)(e) requires regard to be had to the duration of the relationship, the basis in which the couple entered into the relationship and the degree of commitment of the parties to one another. This relationship is one of 20 years duration or thereabouts, and the relationship was entered into on the basis that the couple had no particular wish or need to marry, both of them not wishing to have children, and in the case of the deceased she being no longer of child bearing age when the relationship commenced. I consider that the evidence points to the fact that the relationship was a happy one, and I take particular note of the fact said to have been made to the plaintiff by the deceased during her lifetime, which was repeated by one of her friends, that being married would have added nothing to the relationship, and that the couple was perfectly happy without marriage. I consider that the couple might have married in the last days of the lifetime of the deceased had they been able to arrange a marriage, and had they understood that the law enabled them to apply to dispense with the three months notice requirement imposed by s. 46(1)(a) of the Civil Registration Act, 2004. I consider that their reluctance to marry however, was to some extent still present even in the last days of the life of the deceased, and there were a number of reasons for which I consider bear comment.
114. The plaintiff regarded the significant financial disparity between himself and the deceased as somewhat of a burden, although no difficulty arose in the relationship from the fact that the deceased that paid for most of their social events and holidays. The plaintiff was conscious of public perception, and conscious not to in any sense appear to be, as I accept he was not, a “gold digger”. He is a modest man and money did not interest him. I am satisfied that he may not have brought this application at all had it not been for the fact that he found himself in his mid-60’s without any home and where he did not have the resources to house himself. I note too in this context that the first proceedings issued were those brought by the estate for an injunction requiring him to deliver up possession of K House and the lands nearby and of the animals of the deceased.
115. I have already made findings as to the nature of this relationship and noted the fact that the couple chose not to marry, perhaps because the deceased may have been somewhat reluctant to upset her family members and that she perceived that a marriage to the plaintiff might have that effect, as all of her family were of the view that the purpose of marriage was the continuation of the family line, and that a woman who was post child bearing age had no reason to marry. This is not an unknown consideration in families, particularly in families with a history of landownership or wealth, and while the family of the deceased would not have been called wealthy they were certainly financially comfortable and were such even at a time when many people in Ireland had relatively few financial resources. They were all well educated and had university or post school qualifications and degrees, and they would have received their education at a time when there was little or no State aid in the form of grants and where their education was paid for by their family. I consider that this couple entered into this relationship on the basis that it was a committed and an intimate one, but one in which they had no particular desire or wish to cement by means of a marriage, and that the question of marriage in the last days of the life of the deceased came to have an emotional importance to her and to offer her comfort in her final days. I consider that had her final illness not been terminal or had she not died as quickly as she did that arrangements may have been made for a marriage, but I do not consider that marriage was in any sense a key factor in the relationship, or a key wish of either the plaintiff or the deceased.
Contribution to welfare and resources
116. The court is also required under s. 173(3)(f) to have regard to the contributions made by the cohabitants to the welfare of either of them and to any contribution made by either of them to the earning capacity or property and financial resources of the other. I consider that the plaintiff made a considerable contribution to the mental and emotional welfare of the deceased in the years of her illness, and in particular in the last few months of her illness when he was her constant companion and assisted her in the difficult chemotherapy treatments that she received. I however consider that the home activities of the deceased included her hobby of ponies and that the plaintiff played a considerable part in advancing and encouraging that activity, and indeed his part resulted in her achieving many awards and prizes at competitions. This it seems to me is was a factor in the enjoyment she had in her life and such an element is in my view an element of her welfare which I ought to have regard.
117. I accept that the plaintiff and the deceased each made contributions to the welfare and life of the other, and I consider that the term “welfare” in s. 173(3)(f) of the Act includes welfare in the broad sense and not merely the physical welfare of a person.
118. The other part of ss. (f) requires the court to have regard to any contribution that the cohabitants made to the income earning capacity, property or financial resources of the other. I consider that the plaintiff made little or no contribution to the income or earning capacity or other property of financial resources of the deceased, but equally I do not consider that the couple’s relationship was based on such financial contributions, and this test is often more useful when a couple have children, or when one of them is ill and in need of physical care. Indeed apart from her relatively small income her assets were derived from her family inheritance. The import of s. 173(3)(f) is to allow the court on an application under the Act of 2010 to have regard to the source of the financial resources of each party to a cohabiting relationship. Thus I consider that the fact that both the plaintiff and the deceased each had the benefit of substantial inheritance, and that the deceased derived the bulk of her income from those assets is a factor that must be taken into account in making financial provision. Inherited property, and property and financial resources acquired before the relationship commenced and independently of any direct or indirect contribution form the other, must in my view be treated as somewhat different from property acquired in the course of a cohabiting relationship, whether that property was acquired in joint names or in the sole name of either of the parties to that relationship. This is not in my view to say that inherited property cannot be called into account, but that it does not readily fall to be considered as joint property, and if other financial resources are sufficient to enable provision to be made then some caution should be exercised in bringing the entire of an inherited estate into account. I deal further with this question below.
Contributions in looking after the home
119. The court is also obliged under 173(3)(g) to have regard to the contribution either of them made in looking after the home, and traditionally this particular provision would have benefited a cohabiting woman who did not work outside the home but who provided services such as cooking and home making in a general sense. The deceased had the benefit of a full time housekeeper nearly all of her adult life, and it would be fair to say that neither the plaintiff nor the deceased had any interest in, or engaged in, any particular degree of activity in the form of cooking etc. They breakfasted together and each of them bought the basic necessary groceries that would have been demanded, and the deceased had an active interest in gardening.
Conduct
120. Section 173(3)(j) mandates the court to have regard to the conduct of each of the cohabitants if in the opinion of the court it would be unjust to disregard it. The conduct thus referred to does not have to be poor conduct or bad behaviour towards the other. The conduct can equally be conduct that has had a beneficial effect on the other party to the relationship, and overlaps to a large extent with the provisions in s. 173(3)(f), and, as with my findings with regard to that part of the test, I consider that the dedication that the plaintiff showed to the deceased in her last illness ought not to be disregarded by me, and his care of the deceased, taking her to hospital visits, looking after the home when she was ill, all combine to positively supports the application of the plaintiff.
Financial circumstances
121. Section 173(3)(a) requires consideration be given to “the financial circumstances, needs and obligations of each qualified cohabitant existing as at the date of the application or which are likely to arise in the future”.
122. The deceased died leaving the substantial property at K House and the balance of her assets, leaving aside the small liquid assets and personal effects, comprised of investment properties, and a small farm of land, acquired by her with the benefit of inherited resources. The plaintiff himself has an inherited farm albeit that it produces a small income. He has no pension and no home. The financial factors are more fully considered at the end of this judgment.
Statutory requirement to have regard to the interests of others
123. The deceased did not leave a surviving spouse or a civil partner or a former spouse or former civil partner, and accordingly Section 194(4)(c) mandates that I must have regard to the interests of the beneficiaries following her death intestate, The persons entitled to inherit on the death intestate of the deceased are her three brothers who will share equally in her estate. No guidance is given in the legislation as to what factors the court should take into account in displacing the rights of the beneficiaries on a death whether testate or intestate of a deceased, but having regard to the fact that the scheme of the legislation is to make financial provision for a qualified cohabitant following the death of the other, it seems to me that the interests to which I primarily must have regard are the financial interests, and ipso facto the financial demands or needs of those beneficiaries. I have heard nothing in the course of evidence before me that would suggest that the three brothers of the deceased are in any financial difficulty, and indeed they too inherited an amount equivalent to the amount inherited by the deceased from their late mother and each of them is in professional employment. Thus it seems I must engage to some extent in weighing the financial demands or needs of the plaintiff against those of the other persons who would benefit in the estate of the deceased, and while it is the case that provision may be made under s. 194 even when financial dependence is not shown, the degree of financial needs must inform the extent of provision that the court will make if any, and the extent to which the court will displace an interest of a beneficiary.
Proper provision
124. A qualified cohabitant may make application to the court for provision under the net estate of a deceased cohabitant. The court may make such provision if it is satisfied that proper provision was not made for the applicant during the lifetime of the deceased. I consider that the direction to the court to have regard to the factors set out in s.173 (3) imports a degree of objectivity, thus the motivation of a deceased in not making provision in his or her lifetime for a cohabitant is not of itself determinative of the question, and the court must look to the provision actually made inter vivos and test that against a provision that the court would consider to be appropriate in the circumstances of a surviving cohabitant.
125. I also accept the argument by counsel for the defendant that as this legislation is part of the nexus of family and succession legislation and that some assistance can be derived from the jurisprudence of the courts under s. 117 of the Succession Act 1965. In particular she asked that I note the judgment of Kearns J. in X.C. v. R.T. (Succession: Proper provision) [2003] 2 IR 250 to the effect that an adult child with sufficient financial resources is not likely to obtain an order that provision be made out of the estate under s. 117 and this approach has found favour in the approach of the courts. As with a claim under s.194 there is no automatic right to a share but successful claims may be made by adult children under s.117 even when they are financially independent, but the courts have pointed to a “relatively high onus” to discharge, see Re IAC [1990] 2 IR 143.
126. I reject the proposition advanced by counsel for the plaintiff that section 117 is not useful as an analogy merely on account of the fact that proceedings under that section may be brought only on the death testate of a parent, as the law provides for an automatic inheritance by a child on the death intestate of a parent. There is no such automatic inheritance in the case of a cohabitant, and this can explain why s. 194 does not depend on whether a deceased died testate or intestate.
127. Proceedings under s. 117 are founded on a claim that a parent has failed in a moral duty to a child to make proper provisions for that child and section 194 uses also the language of “proper provision”. The power of the court to make provision under s.194 is however constrained by statute by the requirement to have regard to the factors identified in s. 173(3), and the right to make a claim is not, as with a child, founded on the mere fact of the relationship, and regard has to be had to the indices of the relationship and all of the circumstances. This imports an obligation on the court to engage with a consideration of the duration and nature of the relationship and the mutual contribution to welfare made in the cohabiting relationship.
128. I reject the argument made by counsel for the plaintiff that there is no person who can be identified in the circumstances of this case to whose interests regard is to be had, and that the scheme of the legislation intended consideration to be given to the interests of spouses or children of a deceased only, and not siblings. I reject this argument because the court is mandated under s. 194 (4)(c) to have regard to the interests of the beneficiaries in the estate, and the siblings of the deceased are such. There is no limiting factor that requires that the beneficiaries be spouses or children or be financially dependent. The mere fact that they are entitled to succeed on intestacy makes their rights ones to which I must have regard.
129. I consider that the provisions of s. 194 import a different test from that found in s. 117 of the Act of 1965 but the myriad of factors relevant to a claim under s. 117, as elucidated by Kearns J. in X.C. v. R.T. (Succession: Proper provision)., shows the extent to which the courts have strained to adopt general guidelines: see Re IAC. I am of the view however that there is no “relatively high onus” on a claimant under s. 194, as has been identified in the jurisprudence under s. 117, where an adult child is concerned, and of course as the Act of 2010 can confer benefits and obligations on adults only it can be expected that in many cases these adults can have a degree of separate financial resources..
130. Equally, too it seems to me that I must have regard to the fact that under Irish law marriage enjoys a constitutionally protected status, and also that the legislation did not choose to make automatic provision for a qualified cohabitant arising on the death testate or intestate of the other, as is found in the Act of 1965.
131. Had the plaintiff and the deceased been married he would have inherited the entire of her estate on a death intestate, and had she died testate he would have taken by way of legal right share one half of the estate, the deceased not having any children. The legislation makes it clear that the maximum that the court may award by way of financial provision under s. 194 shall not by virtue of s. 194 (7) exceed any share that the applicant might obtain in the estate of the deceased qualified cohabitant had they been married. In many cases that particular provision would guide the making of provision by the court and the maximum would be set by the fact that the deceased had children that would inherit on a death intestate or testate. For that reason it seems to me that there being no children, on the death intestate of the deceased the exercise I must conduct is to balance the interest of the siblings of the deceased who benefit on her death intestate with the factors that suggest that provision ought to be made for the applicant.
132. There might be cases where that approach would mandate equality between the persons succeeding such that a qualified cohabitant might be declared to be entitled to a provision equal to that of other beneficiaries, but I do not believe it is appropriate to consider that provision may be made by virtue of any rule of thumb. Provision must objectively speaking be proper provision in all of the circumstances and the legislation does not lend itself easily to the adopting of a rule of thumb of this kind. I consider that a similar approach is shown in the jurisprudence on section 117 of the Act of 1965.
133. Counsel for the defendant also makes the point that were the plaintiff to be seeking financial orders on a divorce that the case law would suggest that capital provision in the form of approximately one third of the estate would be the most apposite, and that this may be gleaned from the judgment of the Supreme Court in T. v. T [2002] 3 IR 334 where a lump sum provision of approximately that percentage was directed by the Court. The making of provision on divorce or separation does not depend on the application of a formula nor is the court guided by pre-determined percentages. The one-third provision made in the case of T v. T was in the context of an ample resources case, and what was sought was to achieve a class of clean break between the couple.
134. I consider that not much assistance can be gleaned from the jurisprudence of the courts dealing with divorce and judicial separation under the Family Law Act 1995 or the Family Law (Divorce) Act 1996. This is because the decline in existing living standards which will inevitably result from a divorce or judicial separation is not a factor at play in the case of a claim following the death of a cohabitant and unlike, for example in the case of J.V. v. R.H. [1996] 3 I.R. 257 where Barr J. noted the difficulty of the continuation of existing living standards in the context of a distribution or division of assets, no such is required in the case where one party to a cohabiting relationship is deceased.
Is the fact that the deceased died intestate a consideration?
135. I consider that the deceased had sufficient knowledge of legal matters, and sufficient access to local or other solicitors to have made a will, and that accordingly her death intestate did not result from inadvertence. Furthermore, and although that I accept that she was not wholly convinced that her illness was terminal, or at least not immediately so, I consider that she knew by 2013 or thereabouts that the secondary cancer which had been diagnosed was likely to be fatal. I consider that she must have known at that stage that were clear provisions to be made for the plaintiff that this ought to be done by her will.
136. In that regard I note that the document which contains either the plaintiff’s wishes and/or draft instructions for her will made on the 1st November, 2013 might have been made in the context of her perceived need to consider the making of clear provision for the plaintiff. I note that in that document she expressed a wish that K House would pass to her brother W, that the premises at 1Cresent and 8 the Fairways, both of which were rented, would pass to the plaintiff whom she described as “my best friend”, and that the 14 acres of land be sold and distribution of €10,000 each be made to her three brothers, her six nieces and the plaintiff, and the balance after this payment of €130,000 to be paid to the plaintiff. She also expressed a wish that her monies in AIB would pass to the plaintiff and her shareholding to her brother D. She expressed a wish that the plaintiff would find homes for her animals, and I am confident that she expected him to do so having regard to their mutual love for the animals they kept.
137. I consider that the circumstances point to the deceased having made a choice not to make a will, but I also consider that this document must someway inform my thinking. This is because immediately before she died the deceased directed the plaintiff to where this document would be found, and it may be that she hoped that her estate would be distributed in accordance with its contents, and that she intended some weight to be given to it in the distribution of her estate.
138. I consider that her choice to die intestate however was a deliberate one and must be respected, and this choice may arise from the same individual factors that lead her not to profess her wish to marry the plaintiff until the end of her life. Her desire for privacy and to live the different aspects of her life and to enjoy the different relationships in her life in separate spheres were the factors that influenced her
139. I accept the argument made by Counsel for the defendant that a choice to die intestate is not necessarily accidental or inadvertent, and that to choose to die intestate must be regarded as one way by which a person chooses to dispose of his or her property on death. I find as a matter of fact that the deceased did understand that the plaintiff would not automatically succeed to her estate on her death intestate, and I note in particular that she did give consideration to the making of a will, and chose not to do so.
140. Accordingly I regard it as proper to make provision for the plaintiff not on the assumption that he and the deceased might have married had circumstances been different, and that he should be regarded as her spouse such that the entire estate should pass to him. I must respect the choice of the deceased to die intestate and unmarried, and this points me to the conclusion that provision may be made for him making provision form part of the estate. I turn now for that purpose to consider the value of the estate in regard to which there was some degree of contention.
Valuation of estate
141. I have the benefit of the Inland Revenue affidavit prepared for the purposes of probate on the 25th November, 2014 from which it appears that the estate had a net value of €1,410,901. The bulk of the estate consists of real property, and available liquid assets comprised no more than €1,300 in round figures. A debt claimed by the estate from the plaintiff in the sum of €10,000 was removed by agreement and it is acknowledged that that money was gifted by the deceased to the plaintiff. The liabilities of the estate are stated to be €17,918 comprising funeral expenses and small trade creditors and utility bills.
142. I heard valuation evidence from the plaintiff and from the estate. The real property owned by the deceased at the date of her death is as follows:
(i) The house and grounds at K House, described as being refurbished to a very high standard and being situate on three acres of cultivated gardens, was valued by the plaintiff at €550,000, and by the defendant at €495,000. The valuation tendered by the defendant was the valuation at the date of death of the deceased, 7th August, 2014 and the valuation given by the valuer called to give evidence on behalf of the plaintiff was the valuation at the date she visited the premises, 5th February, 2015. The difference may have arisen by virtue of some uplift in residential property prices between the two valuation dates, but the difference does not seem to me to be of any great significance. I am prepared to take a value midway between the valuation given on behalf of the plaintiff and that given on behalf of the estate. While splitting the difference between valuations is not always an appropriate way to deal with differences in valuation, that way of dealing with the conflict of valuation evidence is suitable for my purposes having regard to the view that I take, which I explain below, that it is appropriate to distribute assets to the plaintiff in specie, the actual market value of the properties is no more than a factor and not a determining factor in my judgment.
(ii) A residential premises at 8 The Fairways, a detached premises in the local market town, valued at €300,000 by the defendant and €320,000 by the plaintiff held subject to a letting agreement made on the 6th April, 2011, the precise term of which is unclear to me, at a monthly rent of €1100. I take the mid value of €310,000
(iii) A residential premises at 1 The Crescent also in the same town valued at €350,000 by the defendant and €345,000 by the plaintiff, held subject to a 12 month letting made on the 10th October, 2013 and for month to month thereafter at the rent of €1200 per month. I take a value of €350,000, as a round figure.
(iv) The contents of one of the rental premises of €26,320, was prepared by the auctioneer who gave evidence on behalf of the plaintiff from “information supplied” to her and without seeing these contents.
(v) Lands comprising 14 acres or thereabouts situate some three miles from K House. The estate valued this property at €140,000, and the plaintiff at €310,000. The land is currently zoned as A2 agriculture, it has limited if not poor access, and the main gas line runs through the premises. While the lands have good road frontage, it is the access and not the road frontage, and the possibility of obtaining an exit onto the road that would give it value outside its agricultural value. I accept the evidence of the defendant’s expert that the absence of access, or the likelihood of obtaining access onto the main road and road frontage is a reliable indicator for valuation, and I also accept his evidence that it is unlikely that planning would be obtained for access directly onto the busy national road. The valuation evidence on behalf of the plaintiff with regard to the value of this land placed too much emphasis on road frontage and not sufficient consideration was given to the improbability that vehicular access would be permitted off the land onto the very busy national road which adjoins it. I do not, however, accept the valuation of the estate of €10,000 per acre and I value this land at €12,000 per acre giving it a value of €168,000.
143. I value the estate then as follows:-
1) 14 acres of land – €168,000
2) Premises at K House – €525,000
3) Premises at 8 The Fairways – €310,000
4) Premises at 1 The Crescent – €350,000
This gives a total valuation of the real property of €1.353 million. Adding another €53,000 for the house contents, (the figure I take from the Inland Revenue affidavit and which I understand to include all house contents of all three properties at €25,000), a motor vehicle at €10,000, jewellery at €5,000, cash in hand of €13,000 gives a total value of €1.410 million.
Valuation of the property of the plaintiff
144. A significant dispute arose between the valuers as to the value of the 112 acres of land in the ownership of the plaintiff zoned A2 Greenbelt in the current county development plan, of which 100 acres are of good agricultural quality. The valuation evidence of the plaintiff is that these good lands are valued at €8,000 per acre and the remaining poor quality lands have a value of only €200 per acre. She took that view on the grounds that she considered those 12 acres to be land locked but I do not accept her evidence, and I do not regard the correct approach is to treat these lands as separate from the entire land holding of 112 acres, of which they are an integral part. No sensible vendor would sell these lands apart from the other 100 acres of which they are clearly farmed as one unit. I accept however that some of the plaintiff’s lands do need to be reclaimed although they can still be grazed. No evidence was adduced as to the cost of reclamation works. I also note that the plaintiff’s valuer did not value the farm sheds on the lands, and I am of the view that these are an integral part of the farming enterprise carried on there, and in particular I note the evidence from the valuer who was called to give evidence for the defendant that the yard and outhouses includes a shed and lean-to premises and five box stables with open yard front very suitable for horse schooling. There is also a newly constructed farm shed on the property. All the buildings were described as being in excellent condition. The estate values the land holding of the plaintiff at €1,620,000, comprising 100 acres at €12 per acre and valuing the 12 acres at €10,000 per acre and the outhouses at €300,000 in total. The plaintiff gives a total value of €80,000 for the lands and chattels at €20,000.
145. I do not accept that the outhouses and the yard have a value of €300,000 but they must be valued in any attempt to value the entire land take. I accept that they have a value of €150,000, and that the 12 acres of poor land have a value of €8,000 per acre. I accept the valuation of €12,000 per acre as the proper valuation of the 100 acres of good land in this plot. Accordingly I value the plaintiff’s land and buildings at €1,446,000. I pause to note that the defendant’s valuer values the good lands of the plaintiff at €12,000 an acre and he did not adequately explain how he had a similar value €12,000 per acre is not appropriate in respect of the 14 acres in the title of the deceased.
146. Valuations were also given of the farm machinery and animals of the plaintiff but as these are his stock in trade and income from the animals and he needs the machinery for the purposes of generating that income, I do not consider that they are readily disposable by him without the loss of all of his income. The valuation given by the defendant’s valuer of these is €55,000 and this figure is agreed. The animals include yearling bullocks, and a number of sheep and horses. I do not consider the value of the animals to be relevant to my determination as this is a milking farm and their number value will accordingly vary.
Net Estate
147. The legislation provides that provision may be made for a qualified cohabitant out of the net estate of the deceased, and there is express reference to the net estate in s. 194(1) which in turn is defined in s. 194 (11) as follows:-
“For the purposes of this section, “net estate ”, with respect to the estate of a person, means the estate that remains after provision for the satisfaction of—
(a) other liabilities of the estate having priority over the rights referred to in paragraphs (b) and (c),
(b) any rights, under the Succession Act 1965 , of any surviving spouse of the person, and
(c) any rights, under the Succession Act 1965 , of any surviving civil partner of the person.”
148. I do not consider that the legislation intended that a court would consider the net estate to be the estate after all real property has been realised, and that the court should notionally deduct the likely costs of sale and/or any tax that might reduce the amount available for distribution. The provisions of the Act are clear and define the net estate is the estate, whether it consists of money or real property, after provision had been made for liabilities of the estate and rights under the Succession Act 1965 of any surviving spouse or civil partner of the deceased.
149. For that reason it seems to me that in making provision for the deceased I am not obliged to have regard to the considerations expressed in the Supreme Court judgment of T. v. T namely that in making provision the court should deduct the costs of sale or any capital gains tax that might accrue. I consider that the court in looking at the value of an estate for the purposes of making provision under the Act is constrained by statutory provisions which are clear, and that the court is therefore free to direct provision to be made by the distribution in specie of certain property, or should it be desirable or appropriate for the sale of some or all of the assets of the deceased and the payment of money.
150. I consider that the difference between the approaches taken by the Supreme Court in T v. T and the approach mandated by s. 194 (11) can be explained by virtue of the fact that on a divorce or judicial separation and especially when the court intends to make provision on a clean break basis, and when that provision is to be made not by the distribution of assets in specie, that the costs and taxation liabilities arising from the disposal of assets must be bourn in mind in order for the court to understand the true value of the property available for distribution.
151. Further, and while there may be cases where the realisation of the assets in an estate is required for the purpose of distribution following a determination by the court of what is required by way of provision for a cohabitant, the property that is available for distribution in this case in order to make provision for the plaintiff is such that it may not be necessary or desirable that the properties be sold. In particular I am satisfied that provision can be made, as I will explain below, by the distribution in specie to the plaintiff of property and that in those circumstances the costs of sale are not required by me to be taken into account in ascertaining the value property out of which provision can be made.
Conclusion on provision
152. Having concluded that the plaintiff is a qualified cohabitant I consider that provision ought properly be made for him out of the estate by an order that there be vested in him the two residential investment premises at 1 the Fairways and 8 the Crescent, together with their contents. I do this bearing in mind the following factors:
153. An application under s. 194 for provision from the estate of the deceased cohabitant does not require that the applicant can show financial dependency, and such dependency must be shown in the case of an application for financial redress in respect of cohabitant who is still alive. In that context I accept that while s. 172(2) requires the court to look to the degree of financial dependence for the purpose of ascertaining whether a couple are cohabiting, such financial dependence is not essential in the case of a claim for provision from an estate. I consider that this means that in a case where relatively little financial dependence or interdependence can be shown, the court may still make provision for a surviving partner provided the court is satisfied that the lack of financial interdependence or dependence did not signify a lack of commitment, and in the light of the provisions of section 173(3).
154. In that regard I take account of the following individual factors, some of which I have dealt with above but by way of summary outlined by me below:-
a) The duration of the relationship: I consider that the deceased and the plaintiff were in a committed and intimate relationship for 20 years or thereabouts and that they were cohabiting or de facto cohabiting for almost the entire of that period, since the mother of the deceased died.
b) The plaintiff and the deceased enjoyed many mutual activities, he was closely involved in her day to day life, and in particular in those past-times and activities which gave her most pleasure, primarily the training and showing of ponies. I consider that the deceased and the plaintiff each made substantial and important contributions to the welfare of the other during the currency of their relationship. Their relationship was to an outside observer akin to a marriage, but it would not be appropriate for me to award him the entire estate for the reasons identified, including the fact that they chose not to marry, that they kept some of their finances separate, that the bulk of the estate consists of assets inherited by the deceased, and that the plaintiff has income and real property of his own.
c) I do consider that a degree of financial dependence arose by virtue of the significant discrepancy between the plaintiff’s income and financial resources and those of the deceased. The financial resources of the plaintiff do not produce any income of note, and his gross income on an annual basis is stated to be €45,000, which after expenses and tax gives him a very small income of some €15,000 per annum. I consider that the degree of companionship and commitment that the plaintiff and the deceased had to one another lead to their enjoyment of a very full social life, and that at this point after her death to deprive the plaintiff not merely of the company of his long term cohabitant, but also of some of those activities which gave him pleasure, such as membership of a sports club, membership of a golf club, meals out and holidays, while they might not be as enjoyable for him without her company, are still activities from which he can be expected to continue to derive pleasure, and which it would now in my view be unreasonable to expect him to have to forego merely for absence of resources. I consider that the income of the plaintiff is not sufficient for his needs.
d) I consider that there are no other persons in respect of whom the deceased had any obligation to provide financially, and accordingly that the interests of the beneficiaries who will succeed on her death intestate may best be achieved by making provision for the plaintiff of less than the entire estate, leaving the balance to her brothers.
e) I consider that the plaintiff was or became dependent upon the deceased for his accommodation needs. I accept that the legislation does not require actual dependence or financial dependence to be shown, but such dependence must be a factor in considering what provision ought to be made for him. I consider provision may be made for his accommodation needs by directing that there be vested in him the premises at 1 The Crescent together with the contents of that property. This house was for a long number of years perhaps jokingly or perhaps with some degree of banter referred to as “D’s house”, and I expect that he will derive some pleasure in living there and that it is suitable for his needs. I am of the view having heard him in evidence that while he enjoyed living in the larger detached house in a country setting with substantial gardens, I do not consider that the plaintiff would wish to reside there alone. I also consider that that house has particular emotional importance for the other members of the C family and that due respect and consideration can be given to the fact that it was inherited by the deceased from her mother, by not directing that that house be vested in the plaintiff.
f) Provision can be made for the plaintiff out of the estate of the deceased other than by awarding him the entire of her assets, partly because of the value of the estate and because the estate comprises in the main of real property, some of which is income producing. I consider that I may properly respect the interests of the brothers of the deceased by awarding them the balance of the estate and this also takes account of the fact that the assets of the deceased could broadly be speaking be said to be inherited.
g) That the plaintiff himself has an inherited farm, albeit that it produces a small income. I am conscious of his age and the impossibility of him now taking up another form of employment or of turning his own farm to provide more income. I consider that he has long since foregone the possibility of making investments for himself or of being in a position to purchase a house in which he might live, and that this difficulty has arisen because he was persuaded by the deceased to live with her and not to build or buy a home for himself. I consider that it would be unreasonable to suggest that the plaintiff might now sell his farm, and I heard no evidence at all as to how the proceeds of sale might provide him with a secure income into the future, nor that part of those lands could be sold to provide him with capital with which he might purchase a home, and still leave him with an asset capable of producing an income.
h) The deceased undoubtedly intended to make provision for the plaintiff, and the contents of the document of 2013, while it does not have testamentary force or effect, ought not to be ignored. I say this especially in the light of 173(3) and consider that it is just and equitable to have regard to her wishes. The provision that I mandate now follows to a large extent these wishes, and this fact supports my views, but of itself that document provides no more than one of the many factors guiding my discretion.
155. The effect of my determination is to make provision for the plaintiff of approximately 45% of the estate. The percentage arose more from the value of the separate assets and because I consider it to be possible and proper to make provision by a distribution of real property in specie. A greater or less percentage might be appropriate in another case, and I do not regard that the legislation mandates or permits of a rule or even a rule of thumb that directs a particular percentage, or range.
156. The single most important factors in the provision I direct is the need to provide for the accommodation and income needs of the plaintiff. Whilst it could be said that the plaintiff has lands with a value broadly identical to that of the estate, the fact is that these lands do not contain a house in which he might live, and produce a small income. No evidence was adduced to show that the lands were capable of producing a larger income, and a greater discrepancy is present than appears at first glance. I am conscious too of the fact that the legislation enjoins me to have regard to the likely future needs of the plaintiff and that he has made no pension provision for himself, and that it may be too late for him to do so now.