High Court of Ireland Decisions

1. M S H (herein called “the testator”) died on 1st April 1998. By his last will dated 3rd August 1993 he bequeath certain pecuniary legacies and left his residence to his wife. He then bequeath the residue of his estate in the following terms:-

2. The respondents were appointed executors of the will and probate thereof was granted on 4th April 2000.

3. The testator was survived by his widow and ten children, including the applicants and the respondents. The youngest child, A H, suffers from Downs Syndrome and at present lives with her mother and works in a sheltered workshop. She is now 33 years of age and would be incapable of living on her own or looking after herself.

4. The first named applicant is now 47 years of age. She was educated up to Leaving Certificate standard and had wanted to be trained to be a teacher, but the testator would not agree to this and insisted that she immediately started to work as a shop assistant. She had in fact worked outside school hours in the testator’s business from an early age. While working in the shop she took a commercial or secretarial course which she paid for herself and subsequently obtained employment with a major business. She worked there for some 18 years and was working there in a supervisory position at the date of death of the testator. She is married with two children and her husband is a Chartered Company secretary and holds a managerial position. At the date of death of the testator the combined income of the first named applicant and her husband was approximately £68,000 per annum. They are joint owners of their home subject to a mortgage and also are owners of a holiday cottage in Co. Wexford. Her husband also appears to have some savings and investments. Her real complaint appears to be that her father during his lifetime failed to provide for her properly in that she was denied the opportunity of further education.

5. The second named applicant, is now 49 years of age. She left secondary school at the age of 16 without having sat for her Leaving Certificate. Like the first named applicant she frequently worked in her father’s business from a young age. After she left school she initially went to Temple Street Children’s Hospital and studied to be a sick childrens’ nurse, qualifying in 1972. She continued to work in Temple Street Hospital for a couple of years and then went to England and ultimately qualified there as a State Registered Nurse. In 1978 she went to the United States and worked as a nurse in hospitals in Little Rock.

6. In 1982 she married an American citizen who joined the United States Navy shortly after the marriage. Unfortunately, he was involved in a very serious traffic accident in December 1982 and suffered brain damage which has rendered him incapable of work. She has two children now aged 17 and 13 and has continued to work either part-time or whole time. Her husband suffers some memory impairment as a result of his injuries, and the prognosis is that he may suffer from Alzheimers disease in his sixties. He does receive a disability pension from the United States Navy and it would appear that at the relevant date, namely the death of the testator, the joint income amounted to some £50,000 per annum. They own their home, but it is subject to a mortgage.

7. It must be said that both the applicants feel very strongly that they were treated badly by the testator, particularly in their schooldays and in the question of further education. Both have acquired further education for themselves at their own expense. While certainly it is possible to criticise the testator, it must also be remembered that he had ten children and that the applicants grew up in the 1960s. They are both now claiming an entitlement to a share in the Testator’s estate pursuant to S. 117 of the Succession Act, 1965.

8. In one of the earlier cases under section 117, namely, In Re G.M. deceased: F.M. .v. T.A.M. 106 I.L.T.R 82, Kenny J. said at page 87:-

9. To these principles were added a qualification in the judgment of Finlay C.J. in the Supreme Court In the Estate of I.A.C. deceased: C.F. .v. W.C. and T.C. [1989] ILRM 815, where he said at page 819:-

10. In the present case what was left to the testator’s wife approximates to her legal right share, and she will also have a pension. The balance of the estate after also providing for some small legacies is in the region of £380,000. Of the testator’s ten children, the only one with serious financial difficulties is A, who sadly will never be able to look after herself, and realistically her mother is now 80 years of age and is going to need more and more assistance in looking after her. It should be said in fairness to all parties that they recognise her need and accept that everything possible should be done for her during her lifetime. The applicants have made it quite clear that any claim which they are laying to a share of the testator’s estate is only a claim to a share of the residue left after A’s death.

11. The applicants’ greatest complaint is that the testator did not make proper provision for them during his lifetime, which is of course one of the matters to be taken into account. Certainly both the applicants here had a very spartan upbringing and were expected to go and work the moment they left school. However, only one of the testator’s ten children was give a third level education, and the others all appear to have been treated in a similar way to the applicants. It is indeed a credit to the family that so many of them did manage to give themselves further education on their own initiative. However, what I have to determine is not whether the testator failed in some way in his moral obligation to the applicants thirty years before his death, but whether, at the time of his death, he owed any moral obligation to the applicants, and if so whether he failed in that obligation. This is the extent of the Court’s powers under the Act.

12. I also have to have regard to a passage in Barron J. in In the Goods of J.H. deceased [1984] IR 599, in which he said at page 608:-

13. Both applicants here are married with families, and at the relevant time had a reasonable family income, although I appreciate that part of the income was contributed by the applicants themselves. However, they are both capable of earning a reasonable amount of money. I do not think that the first applicant could in any way be said to have any special need either at the time of making the will or indeed now. The second applicant can point to the fact that her husband is disabled and unable to work, but he does have a permanent government pension. I do not consider that she has any immediate need such as would give rise to a moral obligation by the testator. As long as her husband is alive he will have a reasonably substantial pension, and of course she is in the same position as everybody else, in that if her husband dies there will be a loss of income. However, in my view this does not constitute a special need.

14. This case is complicated by the fact that it is acknowledged that the only provision which it could be said a testator was bound to make would be after the death of A. It is even more complicated by the fact that the will was a home-made will and the residuary bequest is open to two interpretations. The executors are directed to set up a trust in favour of A out of the residue “to support her for her lifetime and to enable her enjoy life as far as possible”. It is not clear whether it is intended that the executors could use capital as well as income for A under this clause, and the construction of the clause is not a matter that is before me. I have heard evidence from the second respondent that the residuary legatees would prefer that the capital would be used for A if necessary, and of course if all three persons entitled in remainder agree on this, then a trust can be created to that effect. It also seems to me to be the probable intention of the testator. That being so, the testator in fact may have made little or no provision for any of his children, as there may be little or nothing left after A’s death. In my view this would be a perfectly proper thing for him to have done in accordance with his moral duty to A.

15. Accordingly, I will refuse the application of both applicants.