M. v M

• Jurisdiction: Ireland
• Judgment Date: 01 January 1973
• Date: 01 January 1973
• Court: High Court

(H.C.)

M

and

M

Moral duty - Testator's children having substantial independent income - Whether testator made proper provision for his children in accordance with his means - Effect of estate duty - Succession Act, 1965 (No. 27), s. 117.

The testator died leaving an estate worth approximately £430,000 gross. He had been divorced from his first wife in England by whom he had four children, all of whom at the date of the present proceedings were of age. All the children had been provided for by their grandfather and each had a substantial private income as a result. The testator had married a second time but had no children by his second wife. Each wife claimed to be the testator's legal spouse under Irish law. By his last will the testator, after a legacy to one of his executors, gave the entire residue to his executors upon trust to realise it and pay his debts, funeral and testamentary expenses and then to pay the income thereof to his second wife for her life or until remarriage. On her death or remarriage he gave his shares in various companies to his eldest son and then gave the residue of his estate absolutely to his younger son. He made no provision for his two daughters, stating that they were already well provided for out of other funds. He later made a codicil whereby he gave his residence and lands to his second wife absolutely. The testator's two daughters, and his younger son brought two applications under s.117 of the Succession Act, 1965, claiming that their father failed in his moral duty to make provision for them in accordance with his means and asked the court to do so out of the testator's assets. By reason of the levy for estate duty and legal expenses, if the will stood there would be nothing left for the younger son when the testator's second wife died. Held by the High Court (Kenny J.) 1. If there were a moral duty on the testator to make proper provision for his three younger children in accordance with his means, he failed to do it and the court would have to...