J. De B. v H.E. De B
|19 June 1991
|[1989 No. 713 Sp. Ct. 5]
|19 June 1991
Succession - Will - Testator - Father - Moral duty - Widow and seven children - "Proper provision for the child in accordance with his means" - "Whether by his will or otherwise" - Application - Court - Consideration of "any other circumstances" - Decision "as fair as possible" - Succession Act, 1965 (No. 27), s. 117.
By a special summons issued on the 14th November, 1989, the plaintiff sought a declaration that the deceased had failed in his moral duty by his will or otherwise in his lifetime to make proper provision for the plaintiff in accordance with his means and an order making proper provision for the plaintiff out of the estate of the deceased. Following cross-orders for discovery the application came on for hearing on oral evidence before the High Court (Blayney J.) on the 20th February and 6th March, 1991.
The plaintiff was the youngest son of the deceased testator who left a widow and seven children. The estate consisted mainly of a family farm, valued at £160,000, cattle, stock and machinery, valued at £64,000, and debts, funeral and testamentary expenses of some £23,000, net value of approximately £200,000.
By his will the deceased left his estate as follows: to his widow the family farm for life together with all its cattle, stock and machinery and his motor car; to his eldest son H., one of the named executors to whom probate of the will was granted, the remainder interest of the farm charged with his debts, funeral and testamentary expenses, and the pecuniary legacies, and any residue (none); to his two daughters N. and P. a legacy of £3,000 each; to his daughters I. and A. and his son J. a legacy of £1,000 each; to the plaintiff a legacy of £5,000. The £1,000 legatees, I., A. and J. made no claim under s. 117; the daughters N., a spinster aged 58, and P., a widow aged 57, were in more difficult circumstances and their claims under s. 117 were settled by the sole proving executor H. for £44,000 (to include the £3,000 legacy) and £20,000 respectively.
H. completed a university degree and married in 1967 upon which the deceased conveyed to him a 173 acre farm adjoining the home farm. In the early 1970s at the request of his parents H. and his wife moved into the house on the home farm and carried out all its maintenance and furthermore built on a separate apartment annex in which his parents lived. H. was a horse trainer but on account of a heart condition was no longer able to ride horses and was on constant medication. He paid £5,000 a year rent to his mother for the home farm. J., the next brother, spent one and a half years at university and ultimately settled down to work in 1970 in a public house business owned by the deceased. In the late 1970s the business was restructured and he was given 49% of the equity; in 1985 the deceased sold him the remaining 51% for £10,000; at the time of the plaintiff's application the business was valued in excess of £180,000 with annual profits reaching £10,000 or so; the only income of J. and his wife from the business was worth some £17,000 and he paid £2,000 a year to his mother for her maintenance.
The plaintiff spent six years at university, and since 1979 had been a music producer and was married with three children. His net annual income was £16,500. In the early 1970s he bought a house for £6,000 on a £5,000 mortgage. When this fell into arrears the deceased helped him clear this debt. The deceased had also given him a painting, value £800 - £1,000. Further more his mother for many years paid the insurance on the plaintiff's car and on her husband's death gave him the deceased's car, value £3,000. In 1984 the plaintiff had written to the deceased suggesting he should leave him a 40 acre field from the home farm so that the plaintiff could live there and supplement his income. The deceased did not reply and died in September, 1988. The plaintiff issued a special summons in the High Court under s. 117 of the Succession Act, 1965, that the court might make provision for him out of his father's estate.
Held by Blayney J., in dismissing the plaintiff's claim, 1, that the only asset out of which the deceased could have made any provision for his children was the remainder interest in the family farm and that he was obliged to consider the position of each of his children so as to be as fair as possible to each.
2. That the deceased had to consider in particular the position of H., the defendant, who had moved with his family to the family farm and used it as part of his business of training horses, and for whom the family farm had always been intended and whether it would have been fair for the deceased, having encouraged that expectation, to have failed to fulfil it.
3. That in the circumstances surrounding H.'s involvement in the family farm, the deceased had not failed in his moral duty in refusing to comply with the plaintiff's request for a 40 acre portion since the deceased could justifiably have taken the view that he had a moral duty to H., taking precedence to any duty to the plaintiff, to leave the entire family farm to him; and the plaintiff had failed to discharge the relatively high onus of proof placed on an applicant for relief under s. 117 which required establishment of a positive failure in moral duty.
4. That the only other way the deceased could have made provision for the plaintiff was by giving him a bigger legacy, but since the remainder interest was already charged with £98,389 for legacies, debts and the other s. 117 settlements of £44,000 and £20,000, the court would not consider it fair to increase the burden on H. by adding to that charge in order to make further provision for the plaintiff and that the provision of £44,000 and £20,000 for the plaintiff's two sisters under the same section, although not made by the court, was "other circumstances which the court may consider of assistance in arriving at a decision."
5. That in coming to its conclusion the court had some regard to another circumstance, viz. that the plaintiff's mother had executed...
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