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

• Jurisdiction: Ireland
• Judgment Date: 01 January 1999
• Date: 01 January 1999
• Court: High Court

(H.C., S.C.)

McD

and

N. (M.)

- Children - Moral duty of testator 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), 120 (4).

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 25 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 testator inter 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...