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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> C. (C.) & Anor v. C. (W.) & Anor [1989] IESC 1; [1990] 2 IR 143; [1989] ILRM 815 (24 July 1989) URL: https://www.bailii.org/ie/cases/IESC/1989/1.html Cite as: [1990] 2 IR 143, [1989] IESC 1, [1989] ILRM 815 |
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1988 No. 86
Griffin J
Hederman J
Between
Plaintiffs
[Griffin and Hederman JJ concurred
with
the judgment of
Finlay
CJ]
Judgment of Finlay
CJ
delivered
24th July 1989
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
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 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 incash
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.
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: £30,800ToW.:
![]()
Premises at
Dorset
Street, valued at £50,000
(viewed by the learned trial judgeas probably an under-estimate)
Quarter share of residue £12,900
Total: £62,900ToC.:
![]()
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
ToCh.:
![]()
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 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) Thecourt
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 testatorschildren,
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.
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 one particu1ar
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.