Mfh v Wbh

• Jurisdiction: Ireland
• Judgment Date: 01 January 1984
• Date: 01 January 1984
• Docket Number: [1981 No. 1042 Sp.]
• Court: High Court

High Court

[1981 No. 1042 Sp.]

In the Goods of J.H. Deceased

In the matter of S.117 of the Succession Act, 1965 and in the goods of J.H., deceased. M.F.H., J.M.H., B.C.H., and M.F.H., Plaintiffs

and

W.B.H. (otherwise L.H.)

Defendant

Cases mentioned in this report:—

¹ F.M. v. T.A.M. and others (1970) 106 ILTR 82.

² In the matter of N.S.M., deceased (1971) 107 ILTR 1.

³ L. v. L. [1978] I.R. 288.

⁴ J.H. and C.D.H. v. Allied Irish Banks Ltd. (unreported McWilliam J. 17th November, 1978).

⁵ Re Allen v. Manchester (1922) N.Z.L.R. 218.

⁶ Bosch v. Perpetual Trustee Co. Ltd. [1938] A.C. 463.

Probate - Will - Testator - Moral duty of father - Testator's home left to wife for life with remainder to grandson - Farm left to one son - No provision made for other children - Succession Act, 1965, (No. 27) s. 117.

Special Summons.

The facts have been summarised in the head-note and they appear in the judgment infra. The plaintiffs applied to the High Court for an order pursuant to s. 117 of the Succession Act, 1965, which came into operation on the 1st January, 1967, by virtue of the Succession Act, 1965 (Commencement) Order, 1966 (S.I. No. 108) and s. 2 of the Act of 1965. A fifth child of the testator E.A.M.D. (née H.) was originally a plaintiff in the proceedings but did not proceed with her action and was struck out of the proceedings. The special summons was heard by Barron J. on the 13th and 14th July, 1982.

A testator, who died on the 30th May, 1980, was survived by the nine children of his first marriage and by his second wife. The defendant, one of his sons, had assisted the testator in his farming and agricultural business from 1974. On his second marriage the testator ceased to reside in the family home on the farm but lived in a bungalow with his second wife. The farm was occupied by the plaintiffs; the testator's two unmarried sons M.F.H. and J.M.H. and his unmarried daughters. B.C.H. and M.F. M.F.H. suffered from a disability and was not, together with J.M.H., in steady secure employment. B.C.H. did have steady employment and also looked after M.F., who required care and supervision and was not in steady employment.

By his last will dated 8th May, 1980, the testator appointed the defendant his sole executor and left the bungalow to his widow for life and after her death to a grandson, the son of one of his married sons. The residue of his estate including the farm was left to the defendant and the testator made no provision for any of the plaintiffs. The plaintiffs brought an application under s. 117 Succession Act, 1965, claiming that the testator had failed in his moral duty to make proper provision for them in accordance with his means, and asked for such provision to be made for them out of the testator's estate as the court thought just. The remaining five children made no claim against the testator's estate.

Held by Barron J., in granting the relief sought by the plaintiffs, 1, that, being required by s. 117 of the Succession Act, 1965, to approach the matter from the point of view of a prudent and just parent and to take into account the position of each of the children and any other circumstances which it might consider to be of assistance, the court must reach a decision as fair as possible in the circumstances to the applicants and, where there are other children who may be affected by the exercise of the Court's powers, to those too. Accordingly, in reaching a decision, the position of the applicants cannot be taken in isolation, as the quantum of what is proper provision in any particular case is not an absolute but is dependent on all the matters which the court must take into account and the standard which is applied depends on the means of the testator.

2. Although the court has very wide powers both as to when to make provision for an applicant child and as to the nature of such provision, these must not be construed as giving the court power to make a new will for the testator but only power to remedy a failure on the testator's part to fulfil the moral duty owed to his child. In general, this will arise where the child has a particular need which the means of the testator can satisfy in whole or in part. If no such need exists, even where no provision has been made by the testator whether by his will or otherwise, the court has no power to intervene.

3. The testator had failed to make proper provision for the plaintiffs. Although a prudent parent would not have divided up the lands but bequeathed them to an appropriate beneficiary—in this case the defendant—the testator ought to have made some provision for the plaintiffs.

4. Accordingly J.M.H. and M.F.H. would be granted a licence to reside in the family home until such time as each might marry in which case each would be provided with a site on the testator's lands upon which to build a home at his own expense. B.C.H. and M.F. would also be granted a licence to reside in the family home until each should marry. If B.C.H. continued to look after M.F. after her marriage both she and her husband should be entitled to remain in the family home during M.F.'s lifetime. In addition, the defendant should make reasonable provision for M.F. during any period she might be unemployed and should stock the land with a limited number of young cattle for the benefit of M.F. and any member of the family who was looking after her. The plaintiffs should be entitled to certain lands the subject matter of a recent planning application as tenants in common in equal one fifth shares with the defendant subject to the latter's right to use the land for agricultural purposes.

Cur. ad. vult.

Barron J.

In this case, the testator died on the 30th May, 1980, having made his last will on the 8th May, 1980. He was survived by his second wife and nine children all of whom were the children of his first wife. The testator was a farmer and also carried on business as an agricultural contractor. His first wife died in 1974. From then on, he was assisted in his farming and contracting business by his son W.B.H. otherwise L.H. (hereinafter referred to as "L.H.") the defendant herein. In 1977, he re-married and purchased a bungalow at Arden Heights in the town of Tullamore where he went to live with his second wife. From then on the farmhouse on his farm was occupied by his unmarried children. His assets at the date of his death comprised his farm of 48 acres at Spollenstown, Tullamore, now worth about £120,000; stock thereon and agricultural machinery valued together at £31,750; the bungalow in which he lived, now worth about £30,000; household contents valued at £1,500; £1,100 with the Credit Union; and a motor car valued at £5,000. Much of the machinery was subject to loans from the Agricultural Credit Corporation amounting in all to approximately £22,000. The purchase of the bungalow in Tullamore was financed by bank loans which at the date of his death amounted to some £25,000. He also had other liabilities amounting to approximately £12,000.

By his last will dated the 8th May, 1980, the testator appointed his son L.H. as sole executor and left his bungalow at Arden Heights to his widow for her life and after her death to a grandson, being the son of one of his married sons. He left the residue of his estate to his son L.H.. He made no bequest by his will to any of his other children.

Of his nine children, five, including L.H. were married. The remaining four, two sons and two daughters were unmarried. It is these latter who are the plaintiffs in the present proceedings. None of the children obtained more than a primary education. Each of them has essentially made his or her own way in life. N., the eldest, was born in 1943. He now owns his own farm and seeks nothing from the estate of his father. M.F.H., one of the applicants, was born in 1945. He left school at the age of fourteen and since then has moved from job to job in his occupation as a chef. His job has taken him away from home and he returned only...