Browne v Sweeney
| Jurisdiction | Ireland |
| Judge | Lavan J. |
| Judgment Date | 05 July 1996 |
| Neutral Citation | 1996 WJSC-HC 2773 |
| Docket Number | No. 1994/139 Sp. Ct. 5 |
| Court | High Court |
| Date | 05 July 1996 |
1996 WJSC-HC 2773
THE HIGH COURT
BETWEEN
AND
Citations:
SUCCESSION ACT 1965 S117
M (F) V M (TA) (1972) 106 ILTR 82
C & F V C (W) & C (T) 1989 ILRM 815
COONEY SUCCESSION & JUDICIAL DISCRETION IN IRELAND S117 CASES 15 IJ (NS) 62
MEE THE SUCCESSION ACT: S117 & LIFE AFTER DEATH 1995 GILS 67
NSM, IN RE (1973) 107 ILTR 1
SUCCESSION ACT 1965 S117(2)
H (J) DECEASED, IN THE GOODS OF 1984 IR 599
DE B, IN RE 1991 2 IR 105
B V BANK OF IRELAND UNREP BLAYNEY 27.7.88 1988/7/1757
SUCCESSION ACT 1965 PART IX
SUCCESSION ACT 1965 S117(1)
ELKINSON V JACOB UNREP BARRINGTON 11.1.80 1980/2/226
L V BANK OF IRELAND 1978 ILRM 160
Synopsis:
SUCCESSION
Testator
Moral duty - Breach - Proof - Absence - Son - Adult - Adequate provision made in lifetime of testatrix - Dissipation of finances - Reform after death of testatrix - Unemployed married man with children - No benefit under will - Residual estate bequeathed to charities - Succession Act, 1965 (No. 27), s. 117 - (1994/139 Sp - Lavan J. - 5/7/96)- [1998] 4 IR 527
|Browne v. Sweeney|
WILL
Testator
Moral duty - Breach - Child - Adult - Provision - Absence - Substantial provision made for son in lifetime of testatrix - No breach of moral duty - (1994/139 Sp - Lavan J. - 5/7/96) - [1998] 4 IR 527
|Browne v. Sweeney|
WORDS AND PHRASES
"Moral duty"
Parent - Child - Provision - Will - Son - Exclusion - Substantial provision made for son in lifetime of testatrix - No breach of moral duty - (1994/139 Sp - Lavan J. - 5/7/96)- [1998] 4 IR 527
|Browne v. Sweeney|
The Plaintiff is unemployed and resides at 70, Beaumont Road, Churchtown, in the City of Dublin.
The first-named Defendant is a Company Director and resides at Silverwood, Sandyford, in the County of Dublin.
The second-named Defendant is a Married Woman and resides at Ballinapark House, Avoca in the County of Wicklow.
The Plaintiff is a son of the Deceased named in the title hereof late of 12, Coolnamara, Marine Terrace, Dun Laoghaire in the County of Dublin, widow, Deceased who died on the 9th day of December, 1992.
The Deceased made and duly executed her last Will and Testament on the 24th March, 1992 and later died without revoking or altering the said Will and Probate of which issued on the 26th day of May, 1993 out of the Probate Office Principal Probate Registry to the Defendants as the Executrices named in the said Will and they are sued in that capacity.
By her said Will the Deceased made a number of specific legacies and some pecuniary legacies to her grandchildren and then left all the rest, residue and remainder of her property of every nature and kind and description wheresoever situate to five charities, namely:-
(a) Simon Community, 21, Marlborough Place in the City of Dublin,
(b) Cancer Research Fund of St. Luke's Rathgar in the City of Dublin,
(c) Society of St. Vincent de Paul, Cabra Road in the City of Dublin,
(e) G.O.A.L., Third World Agency, 7, Northumberland Avenue, Dun Laoghaire in the County of Dublin.
7. The Deceased by her Will did not make any provision for the Applicant, her son.
8. The Applicant is unemployed with dependent wife and three dependent children, all of whom are minors and is living on unemployment assistance.
9. In all the circumstances of the case the Deceased has failed in her moral duty to make proper provision for the Plaintiff, her son, in accordance with her means.
1. A Declaration that the said Deceased failed in her moral duty to make proper provision for the Plaintiff herein, her son, in accordance with her means by her Will or otherwise having regard to all the circumstances of the case.
2. An order of the Court making such provision for the plaintiff as to this Honourable Court seems just pursuant to the provisions of Section 117 of the Succession Act,1965.
3. All necessary orders and consequential reliefs.
4. All necessary accounts, directions and enquiries.
5. Further or other order.
6. Costs.
The Plaintiff gave evidence that he was 40 years old, married and now separated. His late father was a very successful businessman who, upon his death in 1985, left an estate worth over £1,000,000. Both the Plaintiff's father and mother fully provided for their three children. The Plaintiff attended excellent schools at both primary and secondary level as did all his sisters. He later attended University for one year. Thereafter, he worked for his father's company for some three years. Following that, he moved to a number of European countries where he obtained casual employment over a period of four years. In 1980 he returned to Ireland and established a small Haulage Business obtaining business from his father's firm. By 1983, the Plaintiff with his father's support decided to attend University. He was supported financially in this endeavour during the course of each academic year and worked his vocations in the family firm. He completed three of that four year course.
In 1988, he married. He now has three children aged 12, 10 and 8 years. On his own evidence he says he is maintaining this action on their behalf. He made it clear he is not maintaining an action on his own behalf. In 1983, his father put him into occupation of his residence which is in the joint names of the Plaintiff and his sister M.
His mother was left a large estate in excess of £1.3 million. Her character, on the evidence, was impeccable at all times. Suffice it to say after a short period of widowhood, she decided that her fortune ought to be divided amongst her children.
I found the evidence of Mr. Halpenny, Solicitor compelling in the context of this case. With the profound and compelling evidence of a professional will-drawer, he described the deceased as "a lady not for turning". He has left me in no doubt that the deceased was a sensible, caring, understanding mother. The deceased's decision to give each of her children part of the estate when, on the evidence, she took the view that they needed it then rather than upon her death impressed me greatly.
In relation to her commitments, her beliefs and her obligations to each of her children, I accept as fact Mr. Halpenny's evidence. This was a sensible lady who fully understood her duty to each of her children. I therefore accept Mr. Halpenny's testimony in full as accurately describing the testamentary capacity of this deceased lady immediately upon her demise.
When this case is reduced to it's essentials, I am faced with a claim, by the Plaintiff on behalf of his children and no other claim.
The Plaintiff makes no challenge against his mother's moral duty. Essentially, he wants another bite of the cherry on behalf of his children.
As will be clear from the foregoing I accept the evidence adduced by the executors.
Section 117 of THE SUCCESSION ACT,1965provides "inter alia" as follows:-
2 "117-(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 by 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 remaining sub-sections of Section 117 are not relevant.
The Plaintiff in these proceedings is the son of Linda (otherwise Belinda Margaret) Browne ("the testatrix") and he claims the testatrix, his mother, failed in her moral duty to make proper provision for him in accordance with her means. The Plaintiff is one of four children of the testatrix and none of the other children makes any similar claim. The testatrix by her will conferred no substantial benefit upon her children giving to her children certain items of personal effects. The testatrix by her will left pecuniary legacies of the sum of £5,000.00 each to her grandchildren and left the residue of her property among five charities:-
(a) The Simon Community.
(b) Cancer Research Fund.
(c) Society of St. Vincent de Paul.
(d) Concern.
(e) G.O.A.L.
The Plaintiff is unemployed, and was unemployed at the date of death of the testatrix, he has a wife who is dependant upon him and who is also unemployed and has three dependent children, all of whom are of school-going age at primary or secondary level. The testatrix in 1987 made substantial provision for each of her children. At the date of death of the testatrix, the Plaintiff has dissipated the benefit conferred on him by his mother, was in very poor financial circumstances, was suffering from drink and drug addiction and was experiencing marital difficulties.
The Plaintiff claims that notwithstanding the substantial provision made for him in 1987 that in view of his circumstances at the date of death of his mother that further provision should have been made for him and in failing to make that provision the testatrix has failed in her...
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