McD (P) v MN (Succession: Proper provision)

Judgment Date01 January 2000
Date01 January 2000
Docket Number[No. 1994/785 Sp.; S.C. No. 7 of 1999]
CourtSupreme Court

High Court

Supreme Court

[No. 1994/785 Sp.; S.C. No. 7 of 1999]
P. McD. v. M.N. (Succession: Proper provision)
In the matter of J. McD., deceased and in the matter of s. 117 of the Succession Act
P. McD.
M.N. (Senior)

Cases mentioned in this report:-

C.C. and Ch. F. v. W.C. and T.C. [1990] 2 I.R. 143; [1989] I.L.R.M. 815.

E.B. v. S.S. [1998] 4 I.R. 527; [1998] 2 I.L.R.M. 141.

F.M v. T.A.M. and Others (1972) 106 I.L.T.R 82.

J.H. v. A.I.B. [1978] I.L.R.M. 203.

Succession - Will - Proper provision - Child - Moral duty to make proper provision for child - Plaintiff claiming that testator had failed in moral duty - Onus of proof - Whether court entitled to have regard to behaviour of plaintiff - Succession Act, 1965 (No. 27), ss. 117(1), 117(2) and 120(4).

Special summons.

The facts have been summarised in the headnote and are fully set out in the judgments of McCracken and Barron JJ., infra.

By special summons dated the 18th October, 1994, the plaintiff instituted proceedings against the defendant in her capacity as executrix of the will of the testator, pursuant to s. 117 of the Succession Act, 1965. By order dated the 20th December, 1994, the Master of the High Court granted liberty to the parties to proceed by way of plenary hearing.

The matter was heard before the High Court (McCracken J.) on the 29th and 30th October, 1998 and the 27th November, 1998.

By notice of appeal lodged on the 12th January, 1999, the plaintiff appealed against the judgment and order of the High Court.

The appeal was heard by the Supreme Court (Barrington, Keane and Barron JJ.) on the 5th July, 1999.

Section 117(1) of the Succession Act, 1965, provides that where "… the court is of the opinion that the testator has failed in his moral duty to make proper provision for the child the court may order that such provision shall be made for the child out of the estate as the court thinks just".

Section 117(2) provides "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 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".

Section 120(4) provides "A person who has been found guilty of an offence against the deceased … punishable by imprisonment for a maximum period of at least two years … shall be precluded … from making an application under section 117".

The widowed testator, by will dated the 25th May, 1993, left all his property to a member of a family (not his own) with whom he had been residing since 1979, subject only to a payment of £5,000 to the plaintiff, his son. The defendant was the executrix of the will.

The estate included a farm of 156 acres, a further 114 acres, plus two smaller holdings amounting to 64 acres, and what had been the home farm with the family dwellinghouse. The plaintiff's only other sibling, his younger brother, was given lands by the testatorinter vivos.

In 1963, the testator had been badly injured and shortly after the injury the plaintiff left school and helped to run the farm, aged 14 years. When the plaintiff's mother died in 1968, the running of the farm was substantially undertaken by the plaintiff. Up to 1980, he had the benefit of 45 or 50 acres of tillage land, and his father ran an account for him in the local shop. By 1982 until 1984, the plaintiff effectively had the use of the testator's farm of 400 acres including a quarry, for which he paid nothing.

Then due to a change in the relationship between the plaintiff and the testator, which deteriorated to such an extent as to involve the intervention of the gardaí, a court order was obtained by the testator directing the plaintiff to vacate his lands by September, 1984. Mediation obtained an extension of time for the plaintiff, upon payment by him of £2,000, but he never had any intention of leaving, and breached the compromise. In August, 1986, the plaintiff was imprisoned for refusal to vacate the lands, and served 11 months rather than purge his contempt of court. He was finally released after an undertaking was given to the court.

While the plaintiff was in prison, the plaintiff's wife continued to run the farm, but the testator transferred some lands to the plaintiff's brother and also some lands to a non-relative.

This led to the total disintegration of the relationship between the testator and plaintiff. The plaintiff permitted a campaign of intimidation directed at the testator, who was over 70 years and against the people to whom his lands had been transferred; behaviour including efforts to organise boycotting, arson attacks, abusive telephone calls. The plaintiff and two local men were prosecuted for their role in these activities.

The plaintiff continued to occupy the home farm from 1986 to date without any further payment and in flagrant breach of the court order.

The plaintiff argued that he had left school at an early age to assist on the home farm, whereby the testator was under a moral obligation to provide for him, and in particular to allow him to remain on the lands.

Held by the High Court (McCracken J.), in dismissing the plaintiff's claim, 1, that the moral duty of the parent may be affected by the behaviour of the child toward the parent, even if such behaviour fell short of that envisaged by s.120(4) of the Act of 1965, as in this case. Such behaviour was a circumstance which should be taken into account together with the benefit which the plaintiff had in fact got over his lifetime.

2. That there was a relatively high onus of proof on an applicant for relief under s. 117 of the Act of 1965.

3. That the occupation of the testator's land and other benefits amounted to a considerable benefit to the plaintiff during the testator's lifetime, notwithstanding the appalling behaviour of the plaintiff. In these circumstances, the legacy had fulfilled the moral duty of the testator.

The plaintiff appealed to the Supreme Court.

Held by the Supreme Court (Barrington, Keane and Barron JJ.), in allowing the appeal, 1, that the moral obligation on the part of a parent towards a child, which was recognised by s. 117, was one which existed from the relationship of the parties and which was continuous from the birth of the child until the death of the parent unless it had been satisfied or extinguished.

2. That, while it was the factual situation at the time of the death of the testator which must be taken into account by the court in determining whether any moral duty to the plaintiff existed at that time, the probability was that if the plaintiff had not taken the stance he did in dealing with the testator the lands of the testator would have been dissipated and nothing would have remained for him, and that was a factor to be taken into account when considering whether any moral duty existed at the time of the testator's death.

3. That the testator's decision to eject the plaintiff from the lands must have been in breach of his moral obligation to provide for his son and, more particularly, the moral obligation which he owed his son for keeping the farm going.

4. That the bad behaviour of the plaintiff towards his father was a factor to be taken into account in determining whether the moral obligation of the testator had been extinguished or diminished, and in this case the plaintiff's behaviour did not extinguish his moral claim to the estate of his father but it did diminish it.

  • J.H. v. A.I.B. [1978] I.L.R.M. 303 considered.

5. That, while in the ordinary way benefits which would satisfy the moral obligation on a testator would be advancements, either on education which would enable the child to make his way in life or advancements of money which would enable the child to establish himself in life. The advancements to the plaintiff were limited by their temporary nature, and the learned trial judge overstated the benefit which the plaintiff had received from the testator during his lifetime.

6. That the plaintiff having remained on the land, while his brother decided to leave the land and was now in a position to earn his own living, it would have been expected that the plaintiff would have been left over half the lands but the testator having already disposed of some of the lands only 170 acres remained in the estate, so even allowing for the plaintiff's bad behaviour towards the testator, and allowing also for the limited advancements received and the legacy provided for in the will, the diminution in the testator's moral obligation should not be so great as to disentitle the plaintiff to any of the remaining 170 acres.

Cur. adv. vult.

McCracken J.

18th December, 1998

The plaintiff is the eldest son of J.McD. (hereinafter "the testator") who died on the 15th November, 1993. The testator was a widower at the date of his death and was survived by two children, namely, the plaintiff and T.McD.

By his will dated the 25th May, 1993, the testator appointed the defendant to be sole executrix thereof and after directing her to pay all his just debts, funeral and testamentary expenses, provided:-

"I GIVE, DEVISE AND BEQUEATH unto my executrix hereof in trust for her daughter, M.N., Junior, all of my property of every kind and description absolutely and forever when she shall attain the age of 18 years subject to the payment of £5,000 to my son, P.McD., in discharge of any moral obligations which it might be considered I have."

The plaintiff has brought these proceedings pursuant to s. 117 of the Succession Act, 1965, which provides as follows:-

"(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the...

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