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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> C. (A.) (A Minor) v. F. (J.) & Ors [2007] IEHC 399 (23 November 2007) URL: https://www.bailii.org/ie/cases/IEHC/2007/H399.html Cite as: [2007] IEHC 399 |
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Neutral Citation
No: [2007] IEHC 399
THE HIGHCOURT
[2005 No. 459 SP]
IN RE V.C.,
DECEASED
AND IN RE THE SUCCESSION ACT, 1965
BETWEEN
A.C.
(A MINOR SUING BY HER NEXTFRIEND
J.
W.)
PLAINTIFF
AND
J.F.,F.G.
AND P.McE.
AND
THE HIGHCOURT
[2005 No. 603 SP]
IN RE V.C.,
DECEASED
AND IN RE THE SUCCESSION ACT, 1965
BETWEEN
L.B.
PLAINTIFF
AND
J.F.,F.G.
AND P.McE.
EX TEMPORE JUDGMENT of Mr Justice Clarke
delivered
on the 23rd
day
of November, 2007
The deceased
named in the title of both of these proceedings
died
on the 14th September 2004. He
was
survived by the respective plaintiffs in these separate proceedings
who
are both non-marital
children
with
different
mothers. Both plaintiffs bring the relevant proceedings, alleging that the
deceased
failed
in his moral
duty
to make proper provision
for
them in his
will.
Both seek
declarations
to that effect and ask the
court
to exercise its jurisdiction under s.117 of the Succession Act 1965 in a manner such as to insure that proper provision is made
for
them. As both proceedings involve the same estate and
were,
therefore, in part potentially
dependent
one on the other, it
was
necessary that both be tried together. Happily there
was
little
factual
dispute
between any of the parties. It is, therefore, to those undisputed
facts
that I
first
turn.
The plaintiff LB is elder of the two children
of the
deceased
and
was
17 at the
date
of his
death.
The plaintiff AC is the younger of the two
children
and
was
three
when
her
father
died.
The
deceased
made and
duly
executed his last
will
and testament on the 30th July 2002 and unfortunately later
died
on the 14th September 2004. Probate of the
will
was
issued to the
defendants
in both proceedings as executors. The sums bequeathed to the various parties mentioned in the
will
were
expressed in Irish pounds and
for
convenience
I
will
retain, in
describing
the
will,
that
currency.
The plaintiff AC was
left a sum of IR£100,000 in her
father's
will.
The mother of the plaintiff AC ("AMG")
was
left a sum of IR£300,000. The amount left to AMG
was
left to her absolutely and there is no legal onus, arising out of the
will,
on the part of AMG to apply any of that sum
for
the benefit of AC. It
was
accepted on behalf of AC that, the
duty
to provide
for
AC is a joint one on the part of both of her parents but it
was
further
submitted that the moral
duty
on the part of her
father,
as established by the Succession Act 1965, had
crystallised
on his
death.
The plaintiff LB was
left the sum of IR£250,000 in the
will.
In addition the
deceased
left IR£75,000 and the residue of his estate to his mother
who
had survived him. He also left IR£10,000 to each of his brothers and sisters amounting in total to a sum of IR£60,000 to those siblings. The sums provided
for
both LB and AC
were
devised
to named Trustees on trust
for
the respective parties.
The value of the estate of the deceased
as of his
date
of
death
was
somewhat problematic.
While
the gross value of the estate
was
estimated at that time as being of the order of €1.3 million, the net value
was
stated to be just over €700,000. A number of the properties
comprised
in the estate of the
deceased
were
encumbered
with
mortgages and because of the
circumstances
in
which
the
deceased
died
there
were
questions as to
whether
many, if not all, of the insurance
companies
which
provided mortgage protection
cover
would
pay out on
foot
of those policies. In addition some of the assets have increased in value. However, in the events that have happened, it is now accepted that the amount of assets available
for
distribution
to the beneficiaries as a
whole
will
be approximately €1.6 million, less
whatever
costs
of these proceedings may be
directed
to be paid out of the estate. As it happens, therefore, there may not be a very great
disparity
between the gross value of the assets of the
deceased
as of the
date
of his
death,
allowing
for
the insurance policies now being paid, and
what
will
actually be available
for
distribution.
The deceased
was
unmarried and the only persons in respect of
whom
he owed a
direct
legal
duty
were
the two plaintiffs in the respective proceedings. There
was
no legal
duty
to make provision
for
either his siblings, his mother or AMG. I
will
return to the question of
whether
he owed a moral
duty
in respect of any of those parties and the effect of any such
duty
in
due
course.
So far
as LB is
concerned
the
following
facts
were
established at the hearing before me. LB
was
born in 1987 and is now 20 years of age and is of good health and of
full
mental
capacity.
She enrolled as a student in
Dublin
in the autumn of 2005 but
found
herself unable to
continue
with
her studies at that time and now resides at home
with
her mother, her mother's husband and their
children.
She is in receipt of no income
whatsoever
other than
certain
monies
which
she has received
from
the trustees of her late
father's
will
as an interim payment.
It would
appear that no
financial
assistance towards the upbringing of LB
was
provided by the
deceased
until approximately 1998
when,
as a result of actions taken by LB's mother, a modest sum of IR£150 per month
was
commenced
to be paid. That sum increased
from
time to time reaching ultimately an amount of €350 per month. It
would
not appear that any other
financial
assistance
was
provided by the
deceased
in
favour
of LB.
So far
as AC is
concerned
the
following
facts
were
established. As indicated earlier AC
was
only three years of age at the
date
of the
death
of her
father
and is now six years of age. The relationship between the mother of AC, AMG, and the
deceased
was
non-marital and unfortunately unhappy
differences
arose between those parties
which
led to
family
law proceedings
which
were
particularly
focused
on the provision of maintenance and access. As a result of those proceedings, terms of settlement
were
entered into
which
provided
for
the payment of monthly maintenance
for
AC, originally agreed at the sum of €856 per month. There
were
certain
other arrangements between the
deceased
and the mother of AC
concerning
an interest in property.
Since the death
of the
deceased,
AMG has
continued
to earn a sum of between €500 and €800 per
week.
In addition to those sums
certain
interim payments have been made by the trustees
for
the benefit of AC and the
combination
of those two income streams has provided
for
the support of AC and her mother.
I now turn to the other beneficiaries. It is not suggested that the mother of the deceased
is in need of
financial
support. She owns her own house and
would
appear to have sufficient income to meet her needs. Neither is any
case
made that any of the siblings
concerned
are in need.
Having identified the undisputed facts
it is, therefore, appropriate to turn to the legal principles by reference to
which
the
decision
in this
case
must be made. Happily in Re ABC, XC and Ors v. RT and Or [2003] 2 I.R 250, Kearns J. engaged in a significant review of relevant authority and set out the general principles to be
derived
from
those authorities in the
following
terms:
"(a) The social policy underlying s. 117 is primarilydirected
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, them must be
clear
![]()
circumstances
and a positive
failure
in moral
duty
must be established.
(e) Theduty
![]()
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 117does
not
create
an obligation to leave something to each
child.
(h) The provision of an expensive educationfor
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) Theduty
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 hischildren
and to his
wife,
but all his moral obligations, eg. to aged and infirm parents.
(l) Indealing
![]()
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) Specialcircumstances
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 specialcircumstances
might be a
child
![]()
who
had a long illness or an exceptional talent
which
it
would
be morally
wrong
not to
foster.
(0) Special needswould
also include physical or mental
disability.
(p) Although thecourt
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 notwhich
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) Thecourt
must not
disregard
the
fact
that parents must be presumed to know their
children
better than anyone else."
It is clear,
therefore, that the
court
must assess, by reference to those principles,
whether
there has been a
failure
to make proper provision. If the
court
is so satisfied, then an appropriate order should be made to endeavour to provide
for
any
claimant
in respect of
whom
proper provision has not been made.
In applying those general principles to the facts
of this
case,
it seems to me that two preliminary points need to be addressed. The
first
concerns
the time by reference to
which
the various assessments
which
the
court
has to
carry
out needs to be made.
Firstly
it is
clear
on the authorities that the
date
for
the assessment of
whether
the moral
duty
of a parent to a
child
has been met, must be the
date
of
death
of the parent
concerned.
The assets available to that parent need to be viewed as of that time. On the other hand, as a matter of practical reality,
when
the
court
comes
to exercise its role under s.117 in
circumstances
where
it is satisfied that there has been a
failure
of moral
duty,
then the
court
has to
deal
with
the assets as they are at that time, in that the assets as of that time are the pool of resources
which
are available to make provision
for
any successful
claimant
and, indeed,
for
those
who
remain entitled to benefit under the
will
itself.
It is worth
noting that that
difference
in
date
can
be potentially a
cause
of
difficulty
for
a
court
exercising its role under s. 117
where
there is a significant
difference,
by virtue of the lapse of time or otherwise, between the value of the assets available as of the
date
of
death
and the value of the assets
which
are available to the
court
as of the
date
of trial to meet any obligations
which
have been established. That
difference
can,
of
course,
operate in either
direction.
In recent times, until perhaps this year, it may
well
have been the
case
that one
could
have expected assets to have appreciated, and often significantly so, in value. On the other hand it is almost inevitable that some not insignificant amount of
costs
will
be incurred in
course
of litigation under s.117,
which
costs
will
be
directed
to be paid out of the estate. There may
well,
therefore, in some
cases,
be a
difficulty,
with
which
the
court
can
be
faced,
in attempting to
deal
with
the
fact
that the value of the assets by reference to
which
the initial moral
duty
of the parent
concerned
has to be assessed may be
different,
by a significant margin,
from
the value of the assets
which
may be available to the
court,
as of the
date
of trial,
for
distribution.
This matter may be of particular relevance in
cases
where
there is a
distinction
to be made between persons
who
are given a share of the estate or of the residuary estate (the value of
which
will,
of
course,
therefore, go up and
down
in accordance
with
the value of the assets available) on the one hand, and persons
who
are left a specific sum
which
is
fixed,
on the other hand. The relativity between such provision
can,
of
course,
alter in
cases
where
there has been a significant
change
in the value of the assets. It is, however, important to emphasise that there is no question of hindsight being used in relation to an assessment of the making of proper provision. The
fact
that the assets may now be more valuable
does
not, of itself, give rise to an entitlement on the part of the
court
to rewrite a
will
in
circumstances
where,
as of the
date
of
death,
proper provision
was
made.
However, it seems that this issue is unlikely to be of any great difficulty
on the unusual
facts
of this
case.
While
there
were
difficulties
in assessing the extent of the estate (including the availability of the
funds
that might have been expected
from
the insurance policies on the one hand, the increase in the value of property assets on the other hand, and in addition the
fact
that
certain
costs
will
now have to be borne) it appears that, in general terms, the gross value of the estate as of the
date
of
death
is not that
different
from
the sums that
will
now be available
for
distribution.
The second issue which
is perhaps unusual in this
case
compared
with
many of the
decided
cases
in this area
concerns
the position of AMG. It seems to me that two questions arise. The
first
is as to
whether
the
deceased
might be said to have owed a moral
duty
to AMG. It is
clear
that he owed no equivalent legal
duty,
for
the Succession Act, 1965
does
not make any provision
for
a partner
with
whom
a
deceased
has had
children
but
who
was
not married to the
deceased.
On the other hand it is equally
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. A parent of a
deceased
is not someone
who
has any entitlement to receive assets
from
a
deceased
who
dies
testate. Nonetheless it is
clear
from
the authorities that, in an appropriate
case,
a
deceased
may have a moral
duty
to make some provision
for
such a parent
which
moral
duty
can
be taken into account by the
court
in assessing
what
assets might properly be available
for
claimant
children
under s.117.
I am, therefore, satisfied that the class
of those to
whom
a moral
duty
may be owed
can
go beyond the
class
of those
who
might be entitled to make a legal
claim
on the estate if the
deceased
did
not make provision, or proper provision
for
them. It seems to me that that
category
of persons may include, in an appropriate
case,
a joint parent of a
child
or
children
who
remain in need of significant
care.
The reality is that it must be expected that,
for
the next significant number of years, the
care
of AC
will
be entrusted to her mother. AC is a
child
of the
deceased
and her upbringing
depends
in large part on the
fact
that her mother
will
be in a position to
care
for
her until she
can
be established in her own right.
In those circumstances
it
does
seem to me that, on the
facts
of this
case,
it
can
be said that the
deceased
did
owe a moral
duty
to AMG as its the mother of AC and that that is a
factor
to be taken into account.
The second aspect of this issue is as to whether
it is also appropriate to take into account any bequest to the mother of AC in
considering
AC's own entitlements. I am satisfied that it is, but only in part. I accept the submissions made on behalf of AC to the effect that the bequest to AC's mother is not attached
with
any
direct
legal obligations to provide
for
AC out of the
funds
bequeathed. At the same time, however, the practical reality of a
case
such as this is that the standard of living and
care
which
AC
will
receive over the next significant number of years is largely
dependant
on the standard of living that
will
be available
collectively
to her and her mother and in those
circumstances
I am satisfied that it is appropriate to have regard to any bequest to the mother of AC,
which
is not abated as a result of these proceedings in order to meet the needs of both AC and LB, in assessing the provision that needs to be made
for
AC. I say that it is so only in part because I am mindful of the
fact
that, in making proper provision, the
deceased
had to have regard to the
fact
that AC needs significant sums in her own right in respect of
which
no other
claims
can
be made other than that they are required to look after the needs and interests of AC. I
would
not like
what
I have said to be in any
way
interpreted as indicating that it is possible to make provision
for
an infant solely or substantially by making provision
for
a parent of that infant, save in the
case
of a married
couple
whose
child
might be a
claimant
under s.117 but
whose
claim
is
debarred
in respect of
diminishing
the entitlements of the parent
concerned.
Assets left to a non marital
co-parent
are a matter to be taken into account but such bequests are not a means by
which
the moral obligation of the other parent
can
be
fully
or substantially given effect to.
Having made those general observations it seems to me that, given that there is a broad equivalence between the assets at the time of death
and the assets available
for
distribution
now, I
can,
on the
facts
of this
case,
start
with
accessing
what
proper provision ought now be made
for
the two plaintiffs. Provided that that assessment leads to a
conclusion
that the actual provision that
was
made in the
will
falls,
to a significant and material
degree,
short of that standard then I should
conclude
that the
deceased
failed
to make proper provision and I should go on to use that assessment as the basis of the order to be made.
I propose starting with
the
case
of AC. I had the benefit of the evidence of Mr Lynch, the experienced actuary,
who
was
asked to assess, in a
capital
sum in today's money, the maintenance needs
for
AC
from
the
date
of the
death
of the
deceased
to the time
when
she
will
be 17 years and
four
months, that is
when
she
will
be the same age as LB
was
as of the
date
of the
death
of their
father.
While
that evidence
was
principally
designed
to
deal
with
what
might be
contended
to be an appropriate
differential
between AC and LB, it is also of general assistance in
coming
to a view as to the needs
which
both plaintiffs might have in respect of maintenance requirements.
Firstly
the
figures
produced by Mr Lynch suggest that the amount actually spent on the maintenance of AC in recent times approximates to €20,000 per annum. It seems to me that that sum represents a significant standard of living but not one
which
is incompatible
with
the means of the
deceased
in this
case.
It
would,
for
example, if translated into a
family,
whether
marital or non-marital, of two adults and two
children,
perhaps, suggest overall
family
expenditure of somewhat in excess of €100,000 a year based on a gross income of somewhat under €200,000 per annum. It is, as I have indicated, a significant but not unreasonable standard of living and, therefore, represents a reasonable basis
for
the assessment of the maintenance needs
for
both AC and LB.
The second element of Mr Lynch's calculation
was
based upon the need to provide housing
for
AC. However, having regard to the separate provision
for
the mother of AC
which
I am satisfied should remain to a material extent, notwithstanding the need to make additional provision
for
both of the
children,
that issue seems to me to be of less relevance. I must also take into account the
fact
that the provision of maintenance
for
AC is not the exclusive obligation of the
deceased
as, on the
facts
of this
case,
it is unlikely that assets provided by the
deceased
are going to be, or
would
have been anticipated to be likely to be the sole source of such maintenance. I
would
accept that in order to make proper provision a
deceased
would
be required to err on the side of safety, not knowing
what
might happen over the years, but nonetheless it
does
not seem to me to be appropriate to assess the maintenance needs of a
child,
in a position such as AC, solely on the basis of the provision of maintenance being an obligation on the part of her
father,
the
deceased.
Finally
I should note that the
figures
produced by Mr Lynch are really only useful as general guidance as to the broad level of assets that might be needed to make proper provision. It
does
not seem to me that the assessment of the total amount that requires to be provided is a matter
which
is
capable
of anything approximating to exact
calculation.
The sum
calculated
by Mr Lynch
was
in excess of €380,000 but in my view that sum needs to be significantly
discounted
for
the two
factors
which
I have analysed.
In those circumstances
I am satisfied that, in order to make proper provision
for
AC to maintain her up to the age of 17 years and
four
months, a sum of the order of €200,000 to €250,000
would
have been required. It is, of
course,
necessary to add to that a sum that
would
be required
for
her maintenance between that age and the time
when
she might be established in her own right and not require any
further
assistance. That time
could
be
for
a period of anything
from
five
to eight
further
years and, in the
circumstances,
it seems to me that it
would
be appropriate to regard a
further
sum of at least €100,000 as being required to provide maintenance
during
that period. In addition, it seems to me that a person
with
the means of the
deceased
would
need to insure that there
was
a
capital
sum available
for
the establishment of a
child
such as AC,
whether
that sum
was
required to provide
for
education, establishment in business, the provision of
capital
towards the purchase of a house or the like. It seems to me that, having regard to the means of the
deceased,
it
would
not be unreasonable to regard a sum of €250,000 as being required in that regard.
From
all of those
figures
it seems to me that in order to make proper provision
for
AC it
would
have been necessary to provide a sum somewhat in excess of €500,000 in order that she be provided
for
in the manner
which
the Succession Act
contemplates
having regard to the means of the
deceased.
I now turn to the position of LB. Obviously in LB's case
the question of her maintenance to the age of 17 years and
four
months
does
not arise because that period occurred prior to the
death
of the
deceased.
As against that, however, a number of matters need to be taken into account.
Firstly,
the income that is necessary to provide proper support
for
LB
from
17 years and
four
months up to
whatever
date
she might become independent is money
which
needs to be expended now or, indeed, in some part, has already been expended. There is, therefore, no possibility of a
fund
being provided
for
LB
which
would
appreciate in value until the time
when
it
was
required to be expended. In this regard LB is at a
disadvantage
relative to AC. Money required to be paid
for
AC's benefit into the
future
will
be needed, in significant part, perhaps sometime between 12 and 20 years
from
now. In the intervening period the assets
will
be available to be invested by the trustees. The
court's
experience in
dealing
which
actuarial valuations establishes that, notwithstanding inflation, and even allowing
for
assets being invested in no risk investments, (
which
investments trustees
would
be required to make) such investments
can,
nonetheless, obtain a real rate of return sometimes of the order of two and a half to three per
cent.
Therefore, it is necessary to have regard to the
fact
that AC
will
benefit by having her money now and such money as may be required
for
her maintenance between the age of approximately 17 or 18 and her
coming
to her own independent life
will
be needed at a time
when
that money
will
have had a
chance
to appreciate.
Secondly, while
fully
accepting the submissions made on behalf of AC that the moral
duty
of the
deceased
must be looked at as of the
date
of
death,
and that, therefore, it is not possible to
compensate
for
any
failure,
as such, on the part of the
deceased
to have provided adequate maintenance
for
LB in the past, I am, nonetheless, satisfied that the moral
duty
on the
deceased
as of the
date
of his
death
must include some reflection of making up
for
the past
failure
of his moral
duty
to make adequate provision
for
LB, particularly in her earlier years.
Finally,
for
the reasons
which
I have already addressed, it seems to me that some regard, though it be limited, must be had
for
the
fact
that provision is being made
for
the mother of AC
which
will
inure to the benefit of AC in terms of such provision assisting the general
family
income that
will
be available
for
the support of AC.
It is clear
from
that analysis that the proper provision
for
both of the plaintiffs
would
need to be of the order of at least €1 million or perhaps a little more.
It follows
that the provision actually made
falls
short, in both
cases,
and by a significant margin,
from
the standard of proper provision mandated by s. 117. In all the
circumstances
I am, therefore, satisfied that it
would
be appropriate to
direct
that 80 per
cent
of the available assets of the estate, after all liabilities, including the
costs
of these proceedings, have been paid, should be made available to the two plaintiffs,
divided
as to 45 per
cent
to AC and 35 per
cent
to LB. The
difference
is one of 10 per
cent
which
is likely to be of the order of perhaps €130,000 or a little more and it seems to me that that
difference
reflects the undoubted requirement,
which
I have already identified, to maintain AC up to the time
when
she is the same age as LB
was
at the
date
of
death,
but also reflecting the other
factors
that need to be set against that,
which
I have sought to analyse.
It seems to me that in relation to the balance of 20 per cent
of the estate I must have regard to the
fact
that,
for
the reasons
which
I have already indicated, the
deceased
did
owe a moral
duty
to AC's mother and it seems to me that this requires that there be a smaller abatement in her
case
than in the other
cases
in order to reflect that moral obligation. In the
circumstances
I
will
direct
that 15 per
cent
of the available assets should be made available to the mother of AC in her own right and 5 per
cent
of the assets
will
be available
collectively
to the mother of the
deceased
and the
deceased's
siblings to be provided pro rata as to the pecuniary bequests made to those parties in the
will.
Finally
I am satisfied that there is little practical benefit in requiring that the monies to be made available to LB should be placed in a trust. Such a
course
of action is likely to lead to unnecessary
costs
in bringing the trust to an end
with,
having regard to her age, no
corresponding
benefit.
The trust in favour
of AC as provided
for
in the
will
should
continue
but
with
the increased provision I have identified.
Approved: Clarke J.