H v H

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 21 January 2008
• Neutral Citation: [2008] IEHC 163
• Docket Number: [No. 46 SP/2006]
• Court: High Court
• Date: 21 January 2008

[2008] IEHC 163

THE HIGH COURT

[No. 46 SP/2006]

H v H

IN CAMERA

BETWEEN

H (A MINOR)

PLAINTIFF AND

AND

H

DEFENDANT

SUCCESSION ACT 1965 S117

STATUS OF CHILDREN ACT 1987 S31

FAMILY LAW (DIVORCE) ACT 1996 S46

SUCCESSION ACT 1965 S117(6)

SUCCESSION ACT 1965 S117(2)

SPIERIN SUCCESSION ACT 1965 & RELATED LEGISLATION: A COMMENTARY 3ED 2003

C (X) & ORS v T (R) & ORS 2003 2 IR 250

L v L 1978 IR 288

Abstract:

Property law - Probate law - Succession - Minor - Testate deceased - US -Entitlement - S. 117 - Farm - Succession Act 1965

Facts: An application was made pursuant to s. 117 Succession Act 1965 for the Court to make such provision as proper in respect of a minor against the defendant who was the sole beneficiary of the deceased testator. The defendant conceded that the Court should make an order for proper provision. The minor had a disorder warranting care and living assistance. Properties in the US and Ireland were the subject of the claim.

Held by Sheehan J. (ex-tempore) in considering the valuation on the Irish farm and the serious illness suffered by the minor, that a sum would be awarded of Eur9000 for a year in secondary school and the plaintiff would be paid €409000 out of the estate. The maintenance would continue at €9000 per annum, allowing seven months for the payment of the capital sum.

Reporter: E.F.

EXTEMPORE JUDGMENT of

Mr. Justice Sheehan

delivered on the 21st day of January, 2008

1 1. This is an application pursuant to s.117 of the Succession Act 1965 to make provision for the plaintiff, as this court thinks just The plaintiff S.A.H. is a minor and sues in the name of her mother and next friend, A.C. The defendant S.T.H. is the widow and legal representative of G.H., and is the sole beneficiary named in the last will and testament of the said deceased, G.H., who died on the 3^rd March, 2003. The plaintiff is the lawful daughter of G.H., who died testate. He made his last will and testament on the 6^th March, 2001, and later died without altering or revoking the said will, in respect of which a grant of probate was issued on the 18^th August, 2005, to the defendant as sole executrix.

2 2. Under the terms of his last will, G.H. bequeathed the entire of his estate to the defendant. The defendant, who has been making payments for the education and maintenance of the plaintiff since her husband's death, has simplified this Court's task by conceding that this Court should make an order for the proper provision for the plaintiff. Accordingly, the parties have agreed that this is the only matter which the court need concern itself with. The background to the case was opened by Mr. Dwyer, counsel for the applicant.

3 3. The deceased, G.H., and the plaintiff's mother were in a long term relationship when the plaintiff was born in 1991. G.H. went to work in the United States, and it was the understanding of the plaintiff's mother that she would be going to join him. But events did not unfold as planned. G.H. met the defendant, and they subsequently married in 1994. The relationship between G.H. and the plaintiff's mother ended. The plaintiff and her mother, who had been living on the 170 acre farm that G.H. subsequently inherited, vacated the said farm and are now living in rented corporation property in a Dublin suburb. The defendant and the plaintiff's father remained in the United States and they subsequently had two children. The plaintiff's mother has no assets of her own, and has a gross weekly income of €525.

4 4. In paragraph 7 of her affidavit, she states that she is the plaintiff's sole carer and has provided for all of her needs from her own resources other than sporadic maintenance payments made by the plaintiff's father during his lifetime. Payments have been made out of the estate for the plaintiff's education since her father's death. The plaintiff's mother also states at paragraph 8 of her affidavit that the plaintiff has no assets or means of her own and has never received, and has no prospect of receiving, any benefits from the estate of parties other than the deceased.

5 5. It is clear from the affidavit of the defendant, and indeed from the will of G.H., that he was mindful of the plaintiff in that he made provision for her in the event of his wife's death within thirty days of his death. At the time of his tragic early death, G.H. had returned to Ireland to make proper provision for her.

Assets

6 6. There are two estates; one in Ireland, and one in the United States. The estate here consists of a residential holding extending to 170 acres, and is described by the auctioneer who valued the holding for probate purposes, as "a most attractive dry stock in a good agricultural area. The lands are almost all sound and of good heart. Whilst they do not enjoy any significant road frontage, access is reasonably good." In valuing the property at €1.36 million on the 5^th March, 2003, he stated he was not aware of any quotas attaching to the property.

7 7. On the 5^th April, 2007, the auctioneer revalued the property at €1.7 to €2 million. Since inheriting the farm the defendant has been receiving a net income from it of €18, 548 per annum. The deceased's estate in the U.S.A. is comprised of partnership assets valued at $75,000 and a vehicle valued at $8,000. It is also relevant to note that there were two insurance policies, specifically for the benefit of the defendant, with a total value of $250,000, one of which was used by the defendant to clear the mortgage on the family home in America, which was valued at approximately $175,000 at the time of the death of G.H.

8 8. The defendant is a schoolteacher and mother of G.H's other two children. A.L., a son who was born on the 31^st January, 2000, and B.L., a daughter who was born on the 22^nd June, 2002. B.L. is now five years old and has been diagnosed with Rett Syndrome, a neurodevelopmental disorder.

9 9. In paragraph 35 of her affidavit, the defendant states inter alia, that:

"B.L. needs 100 per cent assistance for all of her daily living activities, such as feeding, bathing, dressing, communication systems with picture choices and communicative devices, since she is non-verbal and...