W. B v J. B

JudgeMs. Justice Máire Whelan
Judgment Date28 February 2019
Neutral Citation[2019] IECA 58
CourtCourt of Appeal (Ireland)
Docket NumberRecord No. 2014/659
Date28 February 2019

[2019] IECA 58


Whelan J.

Whelan J.

McGovern J.

Baker J.

Record No. 2014/659


W. B.


Jo. B.
- AND -
Ja. B.


S. B.

Pecuniary bequest – Moral duty – Proportionality – Appellants seeking to appeal against the judgment and orders of the High Court – Whether the testatrix had failed in her moral duty within the meaning of s. 117 of the Succession Act 1965 to make proper provision for the respondent in accordance with her means

Facts: The appellants appealed to the Court of Appeal against the judgment and orders of Murphy J of 3rd July, 2012. Murphy J determined that the testatrix, the parties’ mother, had failed in her moral duty within the meaning of s. 117 of the Succession Act 1965 to make proper provision for the respondent, in accordance with her means. The orders appealed against included consequential orders made pursuant to s. 117 providing for the respondent out of her estate.

Held by Whelan J that the respondent had failed to discharge the high onus of proof on him that, given her circumstances, his mother positively failed in her moral duty towards him. Whelan J held that the pecuniary bequest to him was proportionate and fair in all the circumstances as obtained at the date of her death. Whelan J held that the respondent had failed to establish that the decision of the testatrix to opt for the course she did, of itself and without more, constituted a breach of moral duty to the respondent.

Whelan J held that she would allow the appeal and set aside the order of the High Court.

Appeal allowed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 28th day of February 2019

The parties to this appeal are brothers. This is an appeal against the judgment and orders of Mr. Justice Murphy of 3rd July, 2012. He determined that the testatrix, their mother, M.B., had failed in her moral duty within the meaning of s.117 of the Succession Act, 1965 to make proper provision for her son, the Respondent, W.B. (hereinafter W.), in accordance with her means. The orders appealed against include consequential orders made pursuant to s.117 providing for W. out of her estate.


The testatrix was born circa 1918 and died on the 17th April, 2001 aged eighty-three years. At the time of her death she was a widow. Her husband, J.B., a publican, predeceased her having died on the 10th January, 1992. Five of her six children survived her. Apart from some savings, the primary asset in her estate was a 75% shareholding in J.B. Limited, a private family company. The said company was incorporated in 1932 and holds the title to the family business, a public house premises together with the seven day on licence.

Terms of last will

On the 7th April, 1993 the testatrix, then aged of 75, executed her last will, approximately eight years prior to her death. She appointed the Appellant Ja.B. (hereinafter J.) and another son, a solicitor, as her executors and trustees. It contains the following specific devise:-

‘I give devise and bequeath to my said son, [J.]., all my right title estate and interest howsoever arising in the licenced premises dwelling, out offices, stores and garden …. owned by [J.B. Limited] together with any shares which I own in the company, [J.B. Limited], or any other Company having an interest in the said licensed premises and together with the licence and the goodwill of the business carried on therein and together with all stocks, equipment, furniture and the contents of the dwelling house together with the benefit of any business debts due to me or to the said Company and subject to the liability to pay and discharge any debts or liabilities of the business.’


More than two and a half years later, on the 3rd January, 1996, the testatrix, who by then was aged seventy-eight years, executed a codicil to her will. It provided as follows: -

‘I hereby declare that the bequest of any interest to my son, [J.]., in the licenced premises, dwelling, out offices, stores and gardens …. or in the company, [J.B. Limited], shall be subject to a liability to pay and discharge any debts due by me or by my estate for any hospital or medical treatment or nursing treatment, or maintenance or other charges in any nursing home or dwelling in which I may reside at or prior to my death.’

It is common case that the testatrix resided in a nursing home for about fourteen months prior to her death.

The proceedings

The proceedings were instituted by way of Special Summons on the 13th December, 2004, over three years and eight months following the death of the testatrix. The Defendants were sued in their capacity as executors.


A Grant of Probate issued forth of the Probate Registry to the executors on the 25th January 2010, almost ten years subsequent to the date of death of the testatrix, and over five years after the institution of the within proceedings. There were considerable delays in the matter progressing to trial.

Position of Second Plaintiff

The said will included a pecuniary bequest to the testatrix's son Jo. B., the Second Plaintiff. Along with W., he was also one of four residuary legatees named in the will. Initially, he also pursued a s.117 claim against the estate of his deceased mother. However, this Court was informed that prior to the hearing in the High Court he had abandoned his claim pursuant to s.117 of the Succession Act, 1965. He is not a party to this appeal.

The hearing

The claim was heard before the High Court in two parts. Firstly, on 2nd November, 2011 the court considered the affidavit evidence and legal arguments and made a determination that the testatrix had failed in her moral duty to make proper provision for her son, W. in accordance with her means. Subsequently, on the 24th April, 2012, the High Court heard further argument and evidence, including a cross examination of J. on his affidavits, for the purpose of a consideration of argument as to the consequent provision that should be made for W. Judgment was delivered on the 3rd July, 2012, over eleven years after the date of death of the testatrix. The court made consequential orders which purported to make provision for W. by directing J. to pay to him a sum of €315,000 out of his share in the estate of the deceased.


J. has appealed the said determination and orders by notice of appeal dated the 20th November, 2012.

The claims of the Respondent

W. was over fifty-four years old at the date of death of his mother in April 2001. He was an autonomous, independent married man who worked in a managerial position abroad. He resided in his own home, which he held jointly with his wife subject to a mortgage. His wife was an employed nurse. He had two dependent children. His dependency on his parents had ceased thirty-seven years prior, when at the age of seventeen years he had left home in 1964 to pursue his chosen path in life.


In the Special Summons at para. 10 of the Special Indorsement of Claim, it is pleaded:-

‘The deceased, by leaving the vast bulk of the estate to just one of her sons, namely the first named defendant herein, which said legacy amounts to over 95% of the entirety of her estate, the bulk of which estate was bequeathed to her by her husband, [J.B.], has failed to make any or any proper provision for the Plaintiffs” herein in accordance with her means, and further has failed entirely to respect the clearly expressed wishes of her late husband who by his last will and testament provided that over 50% of his estate was divided amongst her four children other than the first named defendant herein.’


The 50% shareholding in the family company beneficially owned by her husband at the date of his death in 1992 came to vest in the testatrix under the terms of his will. The failure of the testatrix to respect ‘the clearly express wishes of her late husband’ was a recurring theme on the part of W. in support of his contention that she failed in her moral duty towards him and will be considered hereafter.

Circumstances of the Respondent, W

In his first affidavit sworn on the 8th December, 2004, W. deposes that the only provision made for him in the will was an entitlement to an equal quarter share in the residue. He indicated that the approximate valuation of this bequest was IR£10,000 (€12,697.38). He deposed that the value of the assets comprised in the private family company was IR£2m. (€2,539,476.10), of which J. was left ‘a 75% shareholding by the deceased’.


With regard to his involvement in the family business, W. deposed that whilst he and his siblings were growing up, their father was at one time the owner of two public houses one of which was later disposed of. From a relatively young age he worked in one of the pubs, including in the yard and outhouse; washing bottles and bottling stout, ale and beer. In an affidavit sworn by Jo.B., the Second Plaintiff, on the 2nd December, 2004, he deposed that many of the children began to work in the business from around the age of twelve years and that W., along with his siblings, helped out in both pubs in return for pocket money. They worked at weekends, nights and during school holidays. In his affidavit sworn on the 27th April 2005, J. deposes that W. worked away from the family business for a publican in Bray during his summer holidays from the age of fifteen years.

Departure from home at age 17

W. was born in November 1946. In 1964, when he was seventeen years of age, he made a decision to pursue a vocation with a religious order. He departed home and never resided there again. Between 1964 and 1971 he pursued his studies under the aegis of the religious order in question. He was ordained a priest in April 1971. Thereafter, he remained with the order...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT