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Cite as: [2008] IEHC 163

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Neutral Citation No: [2008] IEHC 163

IN CAMERA

THE HIGH COURT

2006 No. 46 SP

BETWEEN

H. (A MINOR)

PLAINTIFF

AND

H.

DEFENDANT

EXTEMPORE JUDGMENT of Mr. Justice Sheehan delivered on the 21^st day of January, 2008

This is an application pursuant to s.117 of the Succession Act 1965, to make provision for the plaintiff, as this court thinks just. The plaintiff S.A.H. is a minor and sues in the name of her mother and next friend, A.C. The defendant S.T.H. is the widow and legal representative of G.H., and is the sole beneficiary named in the last will and testament of the said deceased, G.H., who died on the 3^rd March, 2003. The plaintiff is the lawful daughter of G.H., who died testate. He made his last will and testament on the 6^th March, 2001, and later died without altering or revoking the said will, in respect of which a grant of probate was issued on the 18^th August, 2005, to the defendant as sole executrix.

Under the terms of his last will, G.H. bequeathed the entire of his estate to the defendant. The defendant, who has been making payments for the education and maintenance of the plaintiff since her husband's death, has simplified this Court's task by conceding that this Court should make an order for the proper provision for the plaintiff. Accordingly, the parties have agreed that this is the only matter which the court need concern itself with. The background to the case was opened by Mr. Dwyer, counsel for the applicant.

The deceased, G.H., and the plaintiff's mother were in a long term relationship when the plaintiff was born in 1991. G.H. went to work in the United States, and it was the understanding of the plaintiff's mother that she would be going to join him. But events did not unfold as planned. G.H. met the defendant, and they subsequently married in 1994. The relationship between G.H. and the plaintiff's mother ended. The plaintiff and her mother, who had been living on the 170 acre farm that G.H. subsequently inherited, vacated the said farm and are now living in rented corporation property in a Dublin suburb. The defendant and the plaintiff's father remained in the United States and they subsequently had two children. The plaintiff's mother has no assets of her own, and has a gross weekly income of €525.

In paragraph 7 of her affidavit, she states that she is the plaintiff's sole carer and has provided for all of her needs from her own resources other than sporadic maintenance payments made by the plaintiff's father during his lifetime. Payments have been made out of the estate for the plaintiff's education since her father's death. The plaintiff's mother also states at paragraph 8 of her affidavit that the plaintiff has no assets or means of her own and has never received, and has no prospect of receiving, any benefits from the estate of parties other than the deceased.

It is clear from the affidavit of the defendant, and indeed from the will of G.H., that he was mindful of the plaintiff in that he made provision for her in the event of his wife's death within thirty days of his death. At the time of his tragic early death, G.H. had returned to Ireland to make proper provision for her.

Assets

There are two estates; one in Ireland, and one in the United States. The estate here consists of a residential holding extending to 170 acres, and is described by the auctioneer who valued the holding for probate purposes, as "a most attractive dry stock in a good agricultural area. The lands are almost all sound and of good heart. Whilst they do not enjoy any significant road frontage, access is reasonably good." In valuing the property at €1.36 million on the 5^th March, 2003, he stated he was not aware of any quotas attaching to the property.

On the 5^th April, 2007, the auctioneer revalued the property at €1.7 to €2 million. Since inheriting the farm the defendant has been receiving a net income from it of €18,548 per annum. The deceased's estate in the U.S.A. is comprised of partnership assets valued at $75,000 and a vehicle valued at $8,000. It is also relevant to note that there were two insurance policies, specifically for the benefit of the defendant, with a total value of $250,000, one of which was used by the defendant to clear the mortgage on the family home in America, which was valued at approximately $175,000 at the time of the death of G.H.

The defendant is a schoolteacher and mother of G.H's other two children. A.L., a son who was born on the 31^st January, 2000, and B.L., a daughter who was born on the 22^nd June, 2002. B.L. is now five years old and has been diagnosed with Rett Syndrome, a neurodevelopmental disorder.

In paragraph 35 of her affidavit, the defendant states inter alia, that:

"B.L. needs 100 per cent assistance for all of her daily living activities, such as feeding, bathing, dressing, communication systems with picture choices and communicative devices, since she is non-verbal and non-signing. Most importantly she needs to be monitored fairly closely for her safety. B.L. will always need lifelong care and will always be financially dependent. I look after B.L. all the time save for when I am at work. I say that the cost of medical treatment required by B.L. is met by my own health insurance. I am concerned that if anything were to happen to me, B.L. would not be properly provided for financially, nor cared for properly."

The defendant, whose annual teacher's salary at the end of 2006 was $38,347, describes a gruelling daily schedule in getting up early and preparing her children for school, particularly B.L. This routine is only broken on two mornings a week by having the service of a respite care worker to assist her with getting B.L. ready. The defendant pays a neighbour $125 per week for assisting with B.L.

The Law

Section 117 of the Succession Act 1965, states as follows:

"(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."

Section 117 of Act of 1965, was amended by s. 31 of the Status of Children Act 1987, which provided for the insertion of the following subsection;

"(1A) (a) An application made under this section by virtue of Part V of the Status of Children Act, 1987, shall be considered in accordance with subsection (2) irrespective of whether the testator executed his will before or after the commencement of the said Part V.

(b) Nothing in paragraph (a) shall be construed as conferring a right to apply under this section in respect of a testator who dies before the commencement of the said Part V."

Section 177 of the Succession Act 1965, states that;

"(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.

(3) An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy.

(4) Rules of court shall provide for the conduct of proceedings under this section in a summary manner.

(5) The costs in the proceedings shall be at the discretion of the court."

Section 46 of the Family Law (Divorce) Act 1996, amended s.117 (6) of the Succession Act 1965, to provide that an order under this section shall not be made except on an application made within twelve months from the first taking out of representation of the deceased's estate.

The circumstances of this case obviously concern s.117 (2) of the Act of 1965 and, while both parties agree that the court has considerable discretion, Mr. Dwyer, counsel for the applicant, referred me to the relevant chapter in Spierin, The Succession Act 1965 and Related Legislation: A Commentary, (Dublin, 2003). Mr. McGrath, counsel for the respondent, referred the court to the decision of Mr. Justice Kearns in X.C. v. R.T. [2003] 2 I. R. 251, in which Kearns J., set out a number of general principles which the court should follow when considering what amounts to proper provision. I consider the principles set out at (g), (i), (l), (n) and (o), in the said judgment at p. 263 to be particularly relevant to the task this court has, and I set them out here:

"(g) Section 117 does not create an obligation to leave something to each child.

(i) Financing a good education so as to give a child the best start in life possible and providing money, which, if properly managed, should afford a degree of financial security for the rest of one's life, does amount to making "proper provision".

(l) In dealing with a s.117 application, the position of an applicant child is not to be taken in isolation. The court's duty is to consider the entirety of the testator's affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.

(n) Another example of special circumstances might be a child who has a long illness.

(o) Special needs would also include physical or mental disability."

I also note the decision of Costello J. in L. v. L. [1978] 1 I.R. 288, and particularly the following extract from that judgment at p. 292;

"The Court must make an order that is just. The Court is required by s.117, subs. 2, to consider the application from the point of view of a prudent and just parent; it is required to take 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 or children who are claimants under the section and to the other children. A parent, in acting prudently and justly, must weigh up carefully all his moral obligations. In doing so, he may be required to make greater provision for one of his children than for others. For example, one child may have a long illness for which provision must be made; or one child may have an exceptional talent which it would be morally wrong not to foster."

Decision

With regard to the valuation placed on the farm for the purpose of these proceedings, I hold that the value is €2 million. I note that when Mr Dwyer, counsel for the applicant, put the value of the farm at €2 million, the defendant did not disagree. Mr McGrath, counsel for the respondent, submitted that I should pay particular attention to the needs of the deceased's daughter, B.L., and in reaching my decision, I have borne in mind her serious illness and ongoing future needs. I have also borne in mind the defendant's assertion that she may require to carry out renovations to her family home to make it more suitable to the needs of her daughter. These will cost in excess of $100,000. I am conscious that the defendant has paid a sum of $34,000 for the maintenance and education of the plaintiff since the death of G.H. I am mindful of the fact that in the event of the farm being sold there will be a capital gains tax liability as well as disposal cost. I am aware that the costs of these proceedings must be met by the estate. I also take into consideration the position of the son, A.L., who will shortly be eight years old.

The matter that I attach most significance to on the defence side is the illness the defendant's daughter suffers from and her ongoing extensive requirements relating to permanent care. In considering the plaintiff's application from the point of view of a prudent and just parent, and bearing in mind the matters already referred to, I am conscious that the plaintiff has grown up largely without the support and presence of her father. This fact weighs more heavily with me than the fact that the plaintiff has grown up in a modest environment. In the circumstances of this case I hold that proper provision for the plaintiff requires that she be enabled to complete her second and third level education in relative comfort and be enabled to purchase a two-bedroom apartment not far from where she presently lives with her mother. As the plaintiff has one further year to go in secondary school, I would allow the sum of €9,000 in respect of that year.

I propose to order that the plaintiff be paid a sum of €409,000 out of the estate. Given what I have been told about the appropriate time for selling farm land, or in the event of the defendant choosing to raise funds in another way, I will allow seven months for the payment of this sum, provided that maintenance continues to be paid at the rate of €9,000 per annum. I will give both parties liberty to apply.

Approved: Sheehan J.