The estate of J.L.W.(Deceased) and s. 117 of the Succession Act 1965. C.W v L.W

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 23 February 2005
• Neutral Citation: [2005] IEHC 325
• Docket Number: [2001 No. 519 SP]
• Court: High Court
• Date: 23 February 2005

[2005] IEHC 325

THE HIGH COURT

[No. 519SP/2001]

W (C) v W (L)

IN THE MATTER OF THE ESTATE OF J. L. W., DECEASED AND

IN THE MATTER OF THE SUCCESSION ACT, 1965 AND

IN THE MATTER OF SECTION 117 OF THE SUCCESSION ACT, 1965

BETWEEN

C. W.

APPLICANT

AND

L. W.

RESPONDENT

SUCCESSION ACT 1965 S117

M (NS) (DECEASED), IN RE 1973 107 ILTR 1

C (C) & F (C) v C (W) & C (T) 1990 2 IR 143 1989 ILRM 815 1989/4/967

RYAN v RYAN UNREP KEANE 13.11.1979 1979/12/2148

SUCCESSION ACT 1965 S117(3)

C (X) & ORS v T (R) & ORS; C (AB) (DECEASED), IN RE 2003 2 IR 250 2003 2 ILRM 340 2003/8/1591

SUCCESSION

Will

Children - Proper provision - Moral duty - Whether testator failed in moral duty to make proper provision for child - Gift under other parent's estate - Joint obligation -Whether gift from other parent's estate can be taken into account when considering whether testator has discharged moral duty - Objective test - Whether testator can be credited with knowledge of value of gift due to child under other parent's will - Whether two joint parents of children may cooperate in discharging statutory moral duty of each - Succession Act 1965 (No 27), s 117 - Order made under s 117 (2001/519Sp - O'Sullivan J - 23/2/2005) [2005] IEHC 325; [2005] 4 IR 349

W (C) v W (L)

1 O'Sullivan J. delivered the 23rd day of February, 2005.

Introduction

2 The applicant seeks an order under s. 117 of the Succession Act, 1965 ("the Act") that her father, the late J. L. W. ("the testator") failed in his moral duty towards her in the disposition of his estate. The testator died on 27th June, 2000 aged 91 and was survived by his wife L.A., then aged eighty four, and his four children, M., then aged sixty, L., the respondent, then aged fifty seven, O., then aged fifty one and C., the applicant, then aged forty seven.

The Testator

3 The testator, an only child, inherited approximately 1,000 acres of farmland at Clonee, Co. Meath in 1931 but had to pay substantial estate duty and determined not to let this situation arise again. He was a farmer all his life. In about 1970 he gave a substantial farm of 287 acres ("N. G.") to the respondent, the only one of his children who had showed interest in being and trained as a farmer. There was, and is, a substantial house at N. G. and at the time there were tenants in it; the respondent moved into it, as a bachelor, in 1978. The respondent had already been given parcels of land, portions of N. G., by his father a few years before and had been farming these. At the same time the testator gave a farm of some 131 acres ("L.") to O. The testator continued to farm L. paying O. a rent. L., however, clearly belonged to O and she was paid the compensation money for part of it which was compulsorily acquired later by the Roads Authority.

His Estate

4 At the time of his death the testator's estate consisted primarily of a remaining farm of some 202 acres ("the G."). There was also a substantial holding of shares, mainly in the Bank of Ireland, worth somewhat more than one million pounds.

5 There is a dispute as to the value of the G. at the date of the testator's death; it was valued for probate purposes at slightly in excess of €3.5 million and this is the value contended for by the respondent. The applicant says that it was worth approximately €7 million at the time. Both parties are agreed that the G. is now worth €10 million.

The Wills

6 The testator's will was made on 16th September, 1999 at home at the G. and witnessed by Ciaran Feighery, solicitor, and his wife. On the same occasion L.A. made her will. On that occasion the testator asked Ciaran Feighery whether he thought L.A. was capable of making a will and Ciaran Feighery who had spoken with her and knew her said he thought she was. The testator agreed. Both the testator and L.A. gave Ciaran Feighery permission to discuss each of their wills with the other.

7 Shortly before he died the testator instructed the respondent to arrange for the sale of sufficient Bank of Ireland stock to produce three bank drafts each of £190,000 to be given to his three daughters. These were to form part of their bequests under his will: he was anxious to ensure that they would receive an immediate payment. M. accepted this arrangement. The applicant rejected her bank draft suggesting that it was a trick to trap her into accepting her father's will; so did O.

8 By her will, L.A. left her entire estate to be divided equally between her three daughters: nothing was left to the respondent. The main provisions of the testator's will were to leave the G. to trustees on trust for L.A. for her life and thereafter absolutely to the respondent subject to some minor provisions not relevant here. In addition there were the bequests to each of his three daughters of Bank of Ireland shares to the value of £190,000 (a figure I am told which was close to the estate duty threshold).

L.A.

9 L.A. married the testator in 1938. They had four children referred to above. As already indicated the testator was sufficiently concerned about her mental capacity to raise this issue with his solicitor at the time of making his will in September, 1999. At the time of the testator's death in June, 2000 L.A. was suffering from dementia and a month later the High Court made her a Ward of Court. This order was made on the occasion of a successful application by the respondent that because of his mother's mental incapacity he be permitted to act as sole executor of the testator's will notwithstanding that it named both of them joint executors. Subsequently the Solicitor General was appointed L.A.'s committee and was directed to elect on her behalf to take her legal right share in the testator's estate.

10 Ciaran Feighery gave evidence that L.A. made no will with him after the one made in September, 1999 and it is clear that she became incapable of doing so before the testator's death. Accordingly, that will is her last will. Ciaran Feighery's evidence establishes that it was made in proper form and satisfied me that it is unlikely to be challenged on any technical basis. The respondent gave evidence that he will not bring s. 117 proceedings in relation to L.A.'s estate. That estate, accordingly, now substantial after an election having been made on L.A.'s behalf, will be divided equally between L.A.'s three daughters or in the seemingly unlikely event of s. 117 proceedings being brought by any of them possibly into four equal shares. Either way the applicant will receive a substantial inheritance under L.A.'s will.

M.

11 M. accepted the bequest under the testator's will and has brought no proceedings under s. 117.

12 After initial years at home being minded by staff and a governess she was educated by the Sacred Heart nuns at Leeson Street Dublin and Roscrea where she was later joined by the applicant. She went on to qualify as a teacher and did some teaching in this country before she emigrated to Australia where she married and settled down and had four children. She is now separated and working and owns a house. During her lifetime she received gifts from the testator which enabled her to buy a family home in Australia. The testator also gave gifts to her four children which were obviously substantial because they were sufficient to buy a house in Australia for the four children. The gift to M. was also clearly substantial although I am not told exactly what it was.

L.

13 Aged fifty seven when his father died, the respondent is married with four children and farms the 287 acre farm at N. G. which he has owned for some three decades and where he is now living with his family in a substantial house on the lands. Both sides agree that today N. G. is worth €12 million. It was valued for probate purposes at slightly in excess of €3.5 million. I will return later to the issue of its value at the time of the testator's death.

14 After attending secondary school at Clongowes Wood College the respondent chose the more practical farming course at Warrenstown College rather than a Bachelor of Agriculture degree at university. After this he went to the United States to continue learning farming for the best part of a year. He had been interested and active in his father's farm since he was a boy and it was understood that he would be given a farm of his own when he finished his training. N. G. was given to him in stages around 1970 when at the same time his sister O. was given L. The respondent was always on good terms with his father and they helped each other out as neighbours with the loan of men and machinery as occasion required. In later years he occasionally himself worked for his father who remained active, albeit decreasingly, in farming until his 88th birthday at which stage his activities had reduced themselves to owning three cattle on a paddock around the house at the G., the remainder of the farm then having been let out to neighbours at a rent which was increasingly less than market value.

15 In evidence the respondent said he always got on well and continues to do so with his sister M. in Australia: rather less so, I gathered, with O. and the applicant. He broke off relations with the latter two when they initiated proceedings against the testator's estate. O's proceedings were withdrawn on the first day of the hearing before me: that was not surprising given that the current value of L. is somewhat short of €6 million.

16 The respondent said that he visits his mother at the G. in recent times only when the applicant (who has been minding her mother since her father's death and who minded both parents for over a year before he died) is not there because if she is, she causes rows and unpleasantness with him which are apparent and upsetting to his mother despite her dementia.

17 The testator gave substantial...