P McD v MN
| Jurisdiction | Ireland |
| Judge | Mr. Justice McCracken |
| Judgment Date | 18 December 1998 |
| Neutral Citation | [1998] IEHC 183 |
| Docket Number | Record No. 785 Sp/1994 |
| Court | High Court |
| Date | 18 December 1998 |
[1998] IEHC 183
THE HIGH COURT
BETWEEN
AND
Citations:
SUCCESSION ACT 1965 S117
B (E) V S (S) 1998 2 ILRM 141
M (G), IN RE; M (F) V M (T) 1972 106 ILTR 82
C (C) V C (W) 1990 2 IR 143
SUCCESSION ACT 1965 S117(1)
J H V ALLIED IRISH BANK LTD 1978 ILRM 203
SUCCESSION ACT 1965 S120(4)
Synopsis
Succession
Will; contest; adequate provision allegedly not made for the plaintiff in the will as child of the testator; plaintiff had occupied and worked testator's lands for his own benefit against testator's wishes; plaintiff had refused to comply with court order to vacate the lands and permitted campaign of intimidation against the testator; whether a moral duty exists in general for a testator to make provision for his children; whether and to what extent the behaviour of the plaintiff towards the testator affected the testator's moral duty to make proper provision for the plaintiff in accordance with his means under s.117, Succession Act, 1965; whether s. 120(4), Succession Act, 1965 Held: Claim dismissed; the moral duty of the testator was affected by the plaintiff's behaviour McDonald v. Norris - High Court: McCracken J. - 18/12/1998 - [1999] 4 IR 301 - [1999] 1 ILRM 270
The moral duty of a parent to make proper provision for a child must be judged on the facts at the date of death and depends, inter alia, on whether the testator has made proper provision for the child during his own lifetime. The court may take into account any circumstances which it considers of assistance in arriving at a decision which will be as fair as possible to all the children.
In this case, the plaintiff had fallen out with his father, the testator, who moved into the home of the defendant. The plaintiff continued to live with his wife and child on the testator’s lands. The testator sought vacant possession of the lands but the plaintiff refused to leave and was eventually committed to prison for contempt.
The testator eventually left his lands in trust to the daughter of the family with whom he was living. He left £5,000 to the plaintiff in discharge of any moral obligation which it might be considered he had.
The plaintiff brought proceedings under s.117 of the Succession Act 1965, claiming that his father had failed in his moral duty to make proper provision for him in accordance with his means.
The court said a positive failure in moral duty must be established by the plaintiff and a parent’s moral obligation may be affected by the behaviour of the child. In this case, the plaintiff had permitted and encouraged a local campaign of intimidation against his father. He had also obtained substantial benefit from the lands during the testator’s lifetime, and the testator was entitled to take that into consideration when making his will.
delivered the 18th day of December, 1998 .
The Plaintiff is the eldest son of James McDonald (hereinafter called "the Testator") who died on 15th November, 1993. The Testator was a widower at the date of his death and was survived by two children, namely, the Plaintiff and Thomas McDonald.
By his Will dated 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, Mary Norris, 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, Peter McDonald, in discharge of any moral obligations which it might be considered I have."
The Plaintiff has brought these proceedings pursuant to Section 117 of the Succession Act,1965which provides as follows:-
2 "(1) Where, on application by or on behalf of a child of a testator, the Court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his Will or otherwise, the Court may order that such provision shall be made for the child out of the estate as the Court thinks just.
(2) 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."
The history of the relationship between the Plaintiff and the Testator is a very sad one, and unfortunately it is necessary to relate the background in some detail for the purpose of determining this application. The Testator had originally been a substantial farmer in Mullinavat in County Kilkenny and in particular had been the owner of a farm of 156 acres in the townland of Ballynomey East, another of 124 acres at Ballyquin and what had been the home farm with the family dwellinghouse and 114 acres at Ballinclea. In addition, he had two smaller holdings of land amounting to some 64 acres. He had engaged in mixed farming, and had always had an interest in horses. In 1963 the Testator was badly injured in an accident, and thereafter was physically unable to work the farm. At this stage the Plaintiff was 14 years of age and was attending the local technical college, although he acknowledged in evidence that he was not good at the books. He left school shortly after his father's injury and helped his mother to run the farm. She died in 1968 and the Plaintiff and the Testator remained on in the family home at Ballinclea. At this stage I am satisfied that the day to day running of the farm was substantially undertaken by the Plaintiff, although there was a local labourer employed for two or three days a week. The Testator did the dealing with the cattle at the mart and looked after the horses.
The Testator had become very friendly with the Norris family, who were also local farmers and who were related to him. There appeared to have been a number of dealings with horses which he undertook in conjunction with the Norris's. He began dealing in horses, and also buying horses on behalf of other people. During the 1970's he would at times stay with the Norris's, although I am satisfied that at this stage it was only on an occasional basis.
Thomas McDonald, the Plaintiff's younger brother, also left school at about 15 years of age and for a short time worked on the farm, but he was not content with a farming life, and in 1967 got a job in Clover Meats for one year. In 1968, at about 17 years of age, he got employment with Waterford Glass, and became a skilled glass cutter, but he continued to live in the family home with the Plaintiff and the Testator until he married in 1978. His evidence, which I find more reliable than that of the Plaintiff, is that during this period, while the running of the farm was left to the Plaintiff, the Testator did provide for them in that he ran an account in the local shop, from which they could get their day to day needs. In addition, it would appear that the Plaintiff had 45 or 50 acres of tillage land which he farmed for his own benefit, although the Testator may have taken some of the produce for feed for his horses. In relation to the period up to 1980 I find that the Plaintiff was primarily responsible for working the farm, other than the horses that were kept on it by the Testator, and did not get paid anything in the nature of a regular wage. On the other hand, I do not accept that he was effectively left to fend for himself, as he had his food provided for him from the local chop and he had the benefit of the tillage land.
The real problems appear to have begun about the year 1980. The Testator had been spending more and more time with the Norris's, and by about 1979 he seems to have been residing with them permanently. In 1980 the Plaintiff got engaged to be married to Breda Irish. The Testator appears to have had a dislike for the Irish family, and was opposed to the marriage. This was the beginning of a serious rift between the Testator and the Plaintiff.
In January 1981 the Plaintiff married Breda Irish. The Testator did not go to the wedding and did not make any form of settlement on the Plaintiff, but the Plaintiff and his wife continued to live on the lands. At this stage the Testator had some 150 cattle on the lands, as well as some horses. In July 1982 Mrs. Breda McDonald, the Plaintiff's wife, got a herd number, and the Testator seems to have assented to this as the land owner. About the same time the Testator removed all his own cattle from the land and sold them, despite the protests of the Plaintiff. The Plaintiff put his own cattle on the lands and has now built up a herd of some 75 cattle. From this time on the Plaintiff effectively occupied the lands for his own benefit, and he also opened up a quarry on the lands of Ballyquin which he worked for his own benefit.
I have no doubt that in or around the time of the Plaintiff's marriage, and in the year or eighteen months thereafter, both the Plaintiff and is brother, Thomas, put considerable pressure on the Testator to sign the lands over to them. At this stage he was living with the Norris's and not working the lands. The Testator had been the master of the local harriers, and kennelled the dogs on his lands. As part of the pressure being put on him, the Plaintiff and his brother threatened not to feed the dogs and for a period blocked the way into the kennels. Matters deteriorated between the Testator and the Plaintiff to the extent that in August 1982 the Testator and his son, Thomas, who by...
To continue reading
Request your trial