J.H. v Allied Irish Banks Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice McWilliam
• Judgment Date: 17 November 1978
• Neutral Citation: 1978 WJSC-HC 2660
• Court: High Court
• Docket Number: 1978/578P
• Date: 17 November 1978

1978 WJSC-HC 2660

1978/578P

H. v. ALLIED IRISH BANKS

J. H. AND C. D. H.

.v.

ALLIED IRISH BANKS LIMITED AND OTHERS.

1 Judgment delivered by Mr. Justice McWilliam on the 17th day of November 1978

2 These proceedings have been brought by the Plaintiffs for a declaration that W. H. D. (hereinafter described as the Testator) failed in his moral duty to make proper provision for them and for an Order in accordance with Section 117 of the Succession Act, 1965, making provision for them out of the estate of the Testator.

3 Subsection (1) of Section 117 is as follows:- Where, on application by or on behalf of a child of a testator, the court is of 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.

4 Subsection (2) is as follows:- 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 to be 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.

5 This section has been considered in a number of cases, first, possibly, by Kenny, J., in F.M. v T. A.M. 106 I.L.T.R. 82. I am aware that the decision in this case was appealed and that the proceedings were eventually compromised but, at p.87, Kenny J., stated certain principles to be applied in operating section 117 and these principles were adopted as correct by Hamilton. J., in judgments in cases of Bray v. Bray and Walsh v. Allied Irish Banks Limiteddelivered on 25th February 1977, and 2nd March, 1977, respectively. Kenny, J., said - "It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend upon (a) the amount left to the surviving spouse or the value of the legal right if the survivior elects to take this, (b) the number of the testator's children, their ages and their position in life at the date of the testator's death, (c) the means of the testator, (d) the age of the child whose case is being considered and his or her financial position and prospects in life, (e) whether the testator has already in his lifetime made proper provision for the child. The existence of the duty must be decided by objective considerations. The court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive." In a judgment delivered on 2nd November, 1977, in a case of M.L. & A.W. v M.L., Costello, J., made the following observations:- "A parent acting prudently and justly must weigh up carefully all his moral obligations. In doing so, he may be required to make greater provision for one of his children than for others. For example, one may have a long illness for which provision must be made; or he may have an exceptional talent which it would be morally wrong not to foster. But a just parent in considering what provision he should make for each of his children during his lifetime and by his will must take into account not just his moral obligations to his children and his wife, but all his moral obligations. The father of a family may have many. Again to give an example, a father may have aged and infirm parents who are dependent on him and to whom he clearly owes a moral duty..........It follows therefore that if, after his death, a child of the testator claims that insufficient provision was made for him, the court, when considering whether this was so or not, must bear in mind all the moral duties which the testator may have had and all the claims on his resources thereby arising. In considering the validity of the judgments which the testator made during his lifetime and by his will and how he fulfilled his moral obligations it is obviously not relevant to consider only those obligations which could be enforced under the Act."

6 The Plaintiffs are the only children of the Testator, who is also survived by his widow. The Testator and his wife were married in the...