C (A) v F (J)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Clarke |
| Judgment Date | 23 November 2007 |
| Neutral Citation | [2007] IEHC 399 |
| Docket Number | RECORD NO. No. 459 SP/2005 |
| Court | High Court |
| Date | 23 November 2007 |
[2007] IEHC 399
THE HIGH COURT
BETWEEN
AND
BETWEEN
AND
SUCCESSION ACT 1965 S117
C(AB) DECEASED & C (X), C (Y) & C (Z) v T (R), U (K) & L (J) 2003 2 IR 250
Probate - Succession - Will - Proper provision for children in will - Whether deceased failed in his moral duty to make proper provision for children - Succession Act 1965, s. 117
The deceased was survived by the respective plaintiffs in these separate proceedings who were both non-marital children with different mothers. Both plaintiffs brought proceedings alleging that the deceased failed in his moral duty to make proper provision for them in his will. Both sought declarations to that effect and asked the court to exercise its jurisdiction under s. 117 of the Succession Act 1965 in a manner such as to insure that proper provision was made for them.
Held by Clarke J. that the proper provision for both of the plaintiffs would need to be of the order of at least €1 million and it followed that the provision actually made fell short, in both cases, and by a significant margin, from the standard of proper provision mandated by s. 117. It was appropriate to direct that 80 per cent of the available assets of the estate, after all liabilities, including the costs of the proceedings had been paid out, should be made available to the two plaintiffs divided as to 45 per cent to the first plaintiff and 35 per cent to the second plaintiff.
Reporter: R.W.
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 Act1965 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 1 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 inRe 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 "(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, them 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...
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