G. S. v M. B

JurisdictionIreland
JudgeMs. Justice Stack
Judgment Date21 January 2022
Neutral Citation[2022] IEHC 65
Docket Number[2017 231 SP]
Year2022
CourtHigh Court

In the Matter of the Estate of T.N.

In the Matter of the Succession Act, 1965

And in the Matter of Section 117 and 121 of the Succession Act, 1965

Between
G. S.
Plaintiff
and
M. B.
Defendant

[2022] IEHC 65

[2017 231 SP]

THE HIGH COURT

PROBATE

JUDGMENT of Ms. Justice Stack delivered on the 21st day of January, 2022.

Introduction
1

This is an application by the plaintiff pursuant to s. 117 of the Succession Act, 1965 (“the 1965 Act”) for proper provision out of the estate of his mother, T.N., deceased (“the deceased”). The defendant is a niece of the deceased and is sued in her capacity as executrix of the estate of the deceased. The deceased died on 9 June 2015 at an advanced age. She made a will on 17 December 2004 appointing the defendant to be executrix of her will, and making the following bequests:

  • (a) leaving her dwelling house and land (which comprised a farm of approximately 70 acres) to her nephew, M., subject to two sites comprising a half acre at least to be made available to two of her other nephews, S. and D., cousins of M.;

  • (b) leaving the contents of her dwelling house to the defendant;

  • (c) leaving the sum of €5,000 to another niece, P., and the sum of €6,000 to a friend;

  • (d) directing that her livestock would be sold and the proceeds of sale divided equally between her nieces H., J. and the defendant;

  • (e) leaving the sum of €300 to the local curate for the saying of Masses;

  • (f) leaving the residue of her estate to the defendant.

2

At the date of death, the gross value of the estate was €671,533 and its net value was €663,998. I am told that the current net value of the estate is €778,998.

3

Apparently, at the date of death, the lands left to the deceased's nephew, M., were worth €590,000. The sale of the livestock and a tractor yielded €13,413.14, and the deceased left the sum of €61,483 in a permanent TSB account, from which debts of €7,535 were deducted. The lands were worth approximately €705,000 by the date of hearing, and I can take into account this value: A. v. C. and D. [2007] IEHC 120.

4

The plaintiff was born in 1955 and took early retirement from his employer company in 2011. He is currently in receipt of a pension from that company in the sum of €313.97 per week, which is not index linked. He now feels it was perhaps a mistake to take early retirement as he has retired eight years too early to get the full pension. He has only worked casually since retirement and his gross income in the three years prior to the death of his mother was €8,159.00.

5

However, the plaintiff and his wife have significant assets. As set out in his grounding affidavit, as of the date of death of his mother, he and his wife had the benefit of the following real assets:

  • (i) A dwelling house situate in the town where he grew up which was valued as of June 2017, at the time of swearing of the affidavit, at €175,000. There is no mortgage on this house, and it is owned jointly by the plaintiff and his wife.

  • (ii) A semi-detached dwelling house in a provincial city in the name of the plaintiff's wife, valued as of June 2017 at €200,000. There is no mortgage on this house and it is currently rented. The court was not informed of the amount of income accruing to the plaintiff and his wife on those rental payments.

6

In addition to the foregoing, at the date of death of the deceased, the plaintiff also had the following personal assets:

  • (i) €30,000 in an account at Permanent TSB.

  • (ii) €104,000 in an account with An Post.

  • (iii) €50,000 in a Bank of Ireland account.

  • (iv) An Irish Life policy in credit in the sum of €200,000.

  • (v) A 2010 motor car valued in 2015 at approximately €11,000 (which the plaintiff is still using and which he now estimates is worth about €4,500).

7

In addition to that, the plaintiff's wife had a number of personal accounts containing a total balance of €62,000. The plaintiff's wife gave up work when their son was born approximately 20 years ago. She has recently sought work as a home help, but this yields only about €10 per hour and the plaintiff says it does not cover the cost of fuel to drive to the person she is caring for. I accept that the plaintiff's wife does not have any real earning capacity.

8

The plaintiff expressed the view in his evidence that his wife's assets should not be considered for the purpose of this application. However, I am satisfied that this is incorrect. The plaintiff's current financial circumstances and his future prospects cannot be considered without taking into account his wife's assets, as this is material to whether the deceased owed a moral duty to the plaintiff which obliged her to leave him something in her will.

Plaintiff's life circumstances and relationship with his mother
9

The plaintiff placed great stress in these proceedings on his upbringing and the fact that his mother and her family never provided for him at any time during his life. The plaintiff was born in 1955, in a very different Ireland, and his mother was unmarried. His father died in an accident a couple of months before he was born. The plaintiff believes that he was born in a mother and baby home, and he gave moving testimony to the effect that other children in his situation had been accepted by and integrated into their maternal families in their adult lives, but this had not happened for him.

10

Instead, the plaintiff was brought up by another family, Mr. and Mrs. S, to whom he was apparently given by the deceased, possibly some months after he was born. There was no formal adoption and no objection was raised to the right of the plaintiff to maintain this application as a child of the deceased within the meaning of Part IX of the Succession Act, 1965, as amended, other than that the defendant insisted that the plaintiff supply DNA evidence of his relationship to the deceased, which he was able to do. The plaintiff was significantly distressed by this. His evidence, which I accept, was that it was well known in the family of the deceased and the wider community that he was the child of the deceased, and therefore his distress was understandable.

11

The plaintiff was clear that he was loved and cared for by Mr. and Mrs. S, who also fostered two older girls, one of whom is now deceased. They were not people of means. They lived in local authority housing and Mr. S. worked first in the army, then for a local authority, and cut turf in his free time for extra money.

12

The plaintiff has confirmed to his consultant psychiatrist that it was a happy and a loving childhood, even though it is clear that the plaintiff lived in very modest circumstances. He retains a grievance about the class distinctions of the time and the fact that children like him were treated differently by some of their teachers in school.

13

However, it appears that Mr. and Mrs. S. did stress the value of education, and the plaintiff did his Group Certificate, Intermediate Certificate and, in 1974, his Leaving Certificate. He obtained honours in Building Construction, Metalwork and Mechanical Drawing, and passed Irish, English and Maths.

14

He was then accepted into a Civil Engineering course in a local Regional College. This was a two-year certificate course, from which one could progress to a three-year diploma, and ultimately a degree. Unfortunately, at the end of the second year, the plaintiff failed one of the exams. It is a key part of his case that, because of the straitened circumstances of Mr. and Mrs. S., he could not afford to repeat this exam. He accordingly left third level without a qualification. He gave evidence that he had excelled in his results in other subjects and that nine of the eleven students in his class had progressed to studying engineering.

15

However, his aptitude for mathematical and technical subjects appears to be not in doubt, and he obtained skilled employment with several major companies as a draftsman and in other skilled, technical roles, until he took early retirement in 2011.

16

The plaintiff submitted a number of expert reports, which were agreed and not controverted in any way. These included a report of Dr. William Kinsella, an educational psychologist attached to University College Dublin. He concluded that the plaintiff was best described as someone who presented with very good visual spatial skills, an excellent memory but with poor verbal language skills, the latter reflecting his social and cultural experience and the level of education he had received. Dr. Kinsella concluded that the plaintiff's psychological profile would give expectations of good academic achievement. While the plaintiff's numeracy skills were in keeping with those expected of a person of his level of intellectual functioning, his literacy skills were not in keeping with his intellectual ability, the inference being that the plaintiff had under achieved educationally.

17

Ultimately, Dr. Kinsella concluded that the plaintiff should have been capable of performing sufficiently well within the third level certificate course in Civil Engineering in order to be able to progress to study at diploma and possibly at degree level in that area. He was of the view that the plaintiff's low level of vocabulary and poor literacy skills very much reflected his social and cultural background and educational opportunities, that the plaintiff's deficits in vocabulary and literacy skills would suggest that his standard of education was less than adequate, and that he had not achieved his potential in relation to literacy skills.

18

On the other hand, the plaintiff's above average skills in other areas indicated very good mathematical ability. He offered the opinion that if the plaintiff had been better supported financially in his youth and had received a better education, it is most likely that his career trajectory would have been different and that he would have pursued a career in Civil Engineering, a...

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