L v L

• Jurisdiction: Ireland
• Judge: Costello. J.
• Judgment Date: 01 January 1978
• Neutral Citation: 1977 WJSC-HC 955
• Docket Number: No. 167SP/1977,[1977 No. 167 Sp.]
• Court: High Court
• Date: 01 January 1978

1977 WJSC-HC 955

THE HIGH COURT

No. 167SP/1977

L v. L

IN THE MATTER OF THE ESTATE OF L. DECEASED

AND

IN THE MATTER OF SECTION II OF THE SUCCESSION ACT 1965

BETWEEN:

M.L. AND A.W.

Plaintiffs

and

M.L.

Defendant

1 Succession Act, 1965- Application under Section 117 by two children of the testator's first marriage - Claim that second marriage was invalid because the Court would not recognise the validity of a prior English divorce - Claim by Plaintiffs that the Court should not take into account the wife of the second marriage and two children of that marriage in exercising its jurisdiction under the section - The moral duty owed by the Testator to the wife and children of the second marriage, irrespective of its validity - Evidence relating to the English divorce irrelevant.

2 Costello. J.- Judgment delivered the 22 day of November 1977

3 The plaintiffs" mother married the deceased, on the 5th of August, 1939 in Dublin. There were two children of this marriage the plaintiffs herein. The first-named Plaintiff is now aged thirty seven and his sister the second-named Plaintiff is now aged thirty three. Their mother was the deceased's first wife. She applied to the High Court in Liverpool, England for a divorce and on the 18th of February, 1951 a decree nisi was granted, the decree nisi being made absolute on the 11th April 1951. The deceased remarried in the month of July 1951, and his second wife is the defendant in these proceedings. There were two children of this second marriage, a son who was born on the 3rd of July 1953 and a second son who was born on the 14thof June, 1956. The deceased's first wife also remarried - in the month of June, 1952. The deceased died on the 19th of September 1973. He had made two Wills. The first was dated the 17th of December 1951 and in it he had made certain limited provision for the children of his first marriage (the Plaintiffs herein). This Will, however, was revoked by a Will of the 23rd of August 1960 in which no provision was made either for his first wife or the children of his first marriage. Under the provisions of his second Will he bequeathed his property to his named Trustees (his second wife - the Defendant herein - and his Solicitor Mr. Boyle) in trust for his second wife absolutely should she survive him for a period of six calendar months and he provided that if she did not so survive him then in trust for the issue of his marriage with his second wife living at the date of his death or that of his second wife whichever should be the later as tenants in common in equal shares. As the Defendant has survived the deceased she became entitled to the entire of the deceased's estate under the terms of the second will.

4 The Plaintiffs bring this present claim under Section 117 of the Succession Act 1965. They ask the Court to hold that the deceased failed in his moral duty to make proper provisionfor them in accordance with his means whether by his Will or otherwise and they seek an Order that proper provision be made for them by the Court out of the deceased's estate as the Court thinks just. In the course of opening the case on behalf of the Plaintiffs Mr. Morris made the following submissions. He stated that he proposed to call evidence which would establish that the Deceased's first wife was forced to go through the divorce proceedings in England; and that neither herself or her husband was domiciled in England at the time of those proceedings (or ever). He said that the legal effect of that evidence is that the English Court had no jurisdiction to grant the decree; that the decree was, in the eyes of Irish law, a nullity and recognition cannot be given to it and he referred to Gaffney .v. Gaffney 1975 I.R. 133. It would follow, he said, that as the second marriage of the deceased was not a valid one that the two children of it are, in the eyes of the law of this country, illegitimate. Because of this he then claimed that "the children of the second marriage have not any legal rights under the Succession Act"; that the wife of the second marriage has no rights under the Act; and that the second family should not be taken into account in considering the Plaintiffs" application under Section 117. As a further logical step in this argumentit was claimed that the deceased's first wife is the "spouse" for the purposes of Part IX of the Succession Act 1965and that she accordingly became entitled to one-third of the estate as a legal right under the Act. I was told however that the wife of the first marriage waived this claim. Based on these submissions Counsel for the claimants stated that the Court should divide the entire of the estate equally between the two children of the first marriage; or alternatively, if it considered that the suggested waiver could not be validly made, that it should divide two-thirds of the testator's estate equally between them.

5 It is clear that the validity of the Plaintiffs" submissions depends partly on a determination of certain questions of fact (namely, whether the first wife was coerced into the divorce proceedings, and the domicile of the parties at the time of those proceedings) and partly on how Section 117 should be interpreted. Mr. Butler, on behalf of the Defendant urged on me the undersirability of hearing evidence in relation to the validity of the divorce decree and of making a decision in relation to the validity of the second marriage unless it was absolutely necessary for me to do so. He agreed with the viewwhich I expressed that if the section was interpreted contrary to thePlaintiffs" submissions that the result might be that evidence in relation to the divorce and the validity of the second marriage would not be relevant. Having heard Counsel on the matter I decided that in the particular circumstances of the present case I should adjourn the application to consider, in the light of the submissions made, how the section should be construed. To that task I now turn.

6 At the outset, I should say that this is not a case in which a claim having been made by a child under the section a question is raised as to whether the claimant is a legitimate child of the testator. Accordingly, I do not have to consider in these proceedings whether an illegitimate child is entitled to apply under the section for an order in its favour. The issue raised is a different one. Here, the claimants are legitimate but it is suggested that in considering their claim the position of the testator's two children of his second marriage should not be considered because they are illegitimate. Basically, there are two issues which may require to be determined in all proceedings under the Section. Firstly, the Court must determine whether there has been a failure on thepart of the testator of the moral duty referred to in the section which he owed to...