C.C. v W.C.

Judgment Date01 January 1990
Date01 January 1990
Docket Number[S.C. No.86 of 1988]
CourtSupreme Court
C.C. and Ch.F. v. W.C. and T.C.
C.C. and Ch.F.
W.C. and T.C.
[S.C. No.86 of 1988]

Supreme Court

Succession - Testator - Moral duty to make proper provision for child - Breach - Onus of proof - Estate - Unjust disposition - Testatrix making inter vivos gifts to four adult children - Testatrix's knowledge of threatened break-up of daughter's marriage - Plaintiff receiving least of four children in inter vivos gifts - Second plaintiff relatively secure financially - Second plaintiff receiving financial support from testatrix when her marriage broke up - Plaintiffs receiving less than defendants under will - Criteria for judging existence of moral duty to make proper provision for child - Onus of proof in establishing failure in duty - Whether court should be reluctant to vary will where testator had caring relationship with all her children - Whether provision for plaintiffs proper at time of testatrix's death - Succession Act, 1965 (No. 27), s. 117, sub-ss. 1 and 2.

Statute - Interpretation - Phrase "failed in his moral duty to make proper provision for the child in accordance with his means" - Criteria for judging existence of moral duty - Onus of proof in establishing failure in duty - Succession Act, 1965 (No. 27), s. 117, sub-ss. 1 and 2.

Section 117, sub-s. 1 of the Succession Act, 1965, provides that where "on application by or on behalf of a child of a testator, the court is of the 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, sub-s. 2 of the Act of 1965 provides that 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 deceased testatrix made her last will on the 5th November, 1981, and died on the 17th May, 1985. The parties to the action were her four surviving children.

T., (the second defendant) a permanent invalid, was married with one child and his sole income was a disability pension. The value of the disposition to him under the will was £30,800.

W., (the first defendant) was married with three dependant children one of whom was severely disabled. W. was the owner of the family business which had been transferred to him by the testatrix during her lifetime, but the business was, to the knowledge of the testatrix, in financial difficulties before her death. The value of the disposition to W. under the will, which included a premises at D valued at £50,000, was £62,900.

C., (a plaintiff) was separated from her husband and had four dependant children. She had been in steady employment at the time of the testatrix's death, was receiving maintenance from her husband and was the owner of her home which was subject to a relatively small mortgage. The value of the disposition to her under the will was £12,900.

Ch., (a plaintiff) was living with her husband and their two young children at the time of the testatrix's death. Ch's marriage was in difficulties to the knowledge of the testatrix. The High Court (Costello J.) had held that a just and prudent parent would have made provision for the fact that it was probable that this marriage would break up, which it did after the testatrix's death. Ch. received a disposition to the value of £13,100 under the will.

In the period of ten years before the death of the testatrix T. had received £7,000; W. had received £10,000 to £20,000 in addition to the family business and although much of this was for investment in the family business, he derived some benefit from it and the business was sold for£38,000; C. received benefits valued at £18,500, Ch. received £3,000 and had received £2,400 per annum in respect of the upkeep of the testatrix when she was living with her between 1983 and 1985.

The High Court (Costello J.) found that the testatrix had failed in her moral duty to make proper provision, according to her means, for both C. and Ch. and made provision for them by varying the devise of the D. premises by declaring C. entitled to a one ninth share and Ch. to a two ninths share in them. The first defendant appealed against the order of the High Court.

Held by the Supreme Court (Finlay C.J., Griffin and Hederman...

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