High Court of Ireland Decisions
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Cite as: [2003] IEHC 6
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> C.(X.) v. T.(R.) [2003] IEHC 6 (2 April 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/6.html Cite as: [2003] IEHC 6 |
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1996 624sp
IN THE ESTATE OF ABC deceased
BETWEEN
PLAINTIFFS
DEFENDANTS
JUDGMENT of Mr. Justice Kearns delivered the 2nd day of April 2003.
This is an application brought under Section 117 of the Succession Act, 1965 by the three children of ABC, a retired businessman who died on the l0th August 1994 at the age of 64 years. Section 117 of the Succession Act, 1965, provides:-"(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 otherwise 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
The deceased had married LS in January 1954. He separated from her in December 1971, following which there was a separation agreement and subsequent divorce. Some years thereafter he met and remarried to RT in December 1977. His first wife LS remarried in April 1990 and no issue of any sort exists in relation to LS for whom there is adequate provision. RT was born in 1936 and is now 67. There were three children of the first marriage, the plaintiffs herein, namely:-devise or bequest to the spouse or any share to which the spouse is entitled on intestacy."
• X, a son, born in April 1957
• Y, a daughter, born in December 1959
• Z, also a daughter, born in May 1962.The deceased during his lifetime had been successful in business and he was the majority shareholder in a family enterprise in which the second named defendant, a brother of the deceased, also participated. This business, however, ran into difficulties at the end of the 1980's. In 1986 it was the subject matter of a management buy out. Having regard to the indebtedness of the business at the time, the consideration received by the deceased was fairly meagre. He was offered a life insurance policy which paid him a monthly income of £1,200 per month until death, but which did not provide for any widow's pension. In addition, it was agreed at the time of the buy out that the deceased should be paid a monthly sum of £610 over a four year period. Over the last few years of his life, the deceased was in poor health, suffering from breathing difficulties which were related to a childhood condition of
tuberculosis. His death, however, occurred quite suddenly at the home in which he lived with the first named defendant.
The deceased left a small amount of cash, amounting to just over £14,000, in a bank account deposit, a car and some prize bonds. There were debts to be paid, including funeral expenses of about £3,000 and probate tax of £10,500.The deceased's main assets were the joint share which he held with the first named defendant in their house, which is currently valued at about E3 million, and which passed to the first defendant by survivorship.
In addition, the deceased held shares in a company ME Limited. It in turn held no assets other than a shareholding in TI Limited. It had in turn had no assets other than a shareholding in WE Limited. At the date of death of the deceased, WE Limited owned five residential properties in Blackrock and a unit in Cookstown Industrial Estate. These assets were valued at £462,600 for probate tax purposes. The five residential properties were Section 23 properties purchased between 1988 and 1990. They were both an investment and at the same time a means of reducing the tax on rental income. The company structure was put in place to delay the payment of surcharge on undistributed dividends. None of the Section 23 properties could have been sold at the time of death without incurring substantial charges by way of claw-back of tax. At the date of death of the deceased, there were substantial borrowings of approximately £300,000 in WE Limited, which were being serviced via an interest-only loan. In this way, WE Limited could earn a net income from the rental of the various properties which it would then have to distribute within 18 months to avoid the surcharge. Once TI Limited received the dividend from WE Limited, it in turn would have to distribute it within 18 months to avoid surcharge."to pay out of the residue of the capital and any income arising from it to any one or more of my wife R, my children, my grandchildren, the spouses of my children and my brother K and his wife M in such shares and at such times as my trustees in their sole discretion shall think fit without obligation to make any payment to or for the benefit of my beneficiaries listed above or any of my children or to require equality among them and on the 20th anniversary of the death of the last surviving descendant of Eamon de Valera former President of
The Letter of Wishes, also dated 19th March 1993, was addressed to the defendants and the relevant portions are as follows:-Ireland such descendant having being alive at the time of my death to divide what remains of the capital and accrued income equally among my wife R, children then living without regard to payments already made to my said wife R children or grandchildren. All income received after my death shall be treated as income of my estate regardless of the period to which it relates and the statutory rules concerning apportionment and the rules in Howe v. Dartmouth and Allhausen v. Whittell shall not be applied."
"My wishes in relation to the discretionary trust which I have given to you are the following:
1. As far as my beloved wife R is concerned I would like her to have an immediate payment of £5,000. In regard to her current position of joint managing director with me of WE Limited, I would like my trustees to examine the situation in the light of the requirements at the time, and if necessary to consider the appointment of any other managing director if they deem it appropriate. In the meantime, she should of course, be paid a salary appropriate to her requirements for the rest of her life whether or not she acts in the capacity of director, managing director or not.
2. I know that you, R, will also give to my children and my immediate family including nephew and nieces any of the family heirlooms which were given to me by my family, and I know that you and K will be as fair in that distribution as possible.
3. When all of the other distributions under my will have been taken care of, the capital, if any, should be divided equally among my children.
4. In regard to my brother K, I would like my trustees to appreciate that he has been my lifelong loyal and devoted partner and friend in business that we shared together since he was 17 years of age, and while the companies are now all gone from our ownerships and they may only be enough to look after those mentioned, I would like nevertheless because of my deep affection, for K and his wife M to try and ensure that if certain circumstances arise that a helping hand in whatever way they think and find appropriate and possible shall but not be bound to be given to them as a small token of my love respect and gratitude for their help to me over the years. Specifically, I would like them to get a bequest of £20,000 as soon as possible. If there is enough funds around I would like a donation of say £5, 000 to be made to Abbeyfield Ireland Limited and £l,000 to St Vincent de Paul.
Before moving away from the will and Letter of Wishes, it is perhaps appropriate to record that the reference to any 'surviving descendant of Eamon de Valera' is to protect against any infringement of the 'Rule against Perpetuities.' The rule in Howe v. Dartmouth confines a tenant for life to the yields on authorised securities. The rule in Allhausen v. Whittell presumes that a testator intends that all beneficiaries shall take as equally as possible. The exclusion of these rules is not5. Finally I would like to record that 1 have chosen you as my executors and trustees because of your very intimate knowledge of all my affairs."
unusual, although counsel for the plaintiffs does attach some significance to the inclusion of these provisions as appears hereafter.
At the date of death of the deceased, his wife R was wholly dependant upon him for support. She now had a house but had no separate or independent assets or wealth. The deceased's mother was in a nursing home but subsequently died on the 30th of December 1995. While the deceased's mother had some income from a trust set up by his father, the deceased was concerned that during her final years in a nursing home it might not have been sufficient to pay for her care. During his lifetime, the deceased had made certain provisions for each of his children which I will briefly summarise, being mindful that such details must be extremely truncated having regard to the obligation of the court to avoid identifying the parties in anyway. X, a son, enjoyed private education at primary and second level in a well known Dublin college. The deceased offered to provide a university education which X undertook for one year, but opted to quit without finishing. He received a car on leaving school and was trained in the family business, part of such training being in England. The deceased paid the deposit on X's first house in Birmingham. On his return to Ireland, he was provided with employment in the deceased's firm. Thereafter, the deceased in 1984/85 provided X with a sum of £26,500 to start him in a business. This business got into difficulties with tax liabilities and X required to borrow money to avail of the tax amnesty. The deceased provided a guarantee of £10,000 to enable X to borrow moneys to fund a payment to the revenue. In January 1990 the deceased furnished X with a loan of £2,500, although this advance, and whether it was repaid or not, was a matter of dispute in evidence. In December 1992, certain banks were threatening to call in loans made to X, at which point the deceasedborrowed £5,000 which he gave to X to help him fend off the bank. It is agreed that this loan was not repaid to the deceased. The undisputed advances to X from his father amount to about £33,000.
Y, a daughter, was also sent to a private fee paying school at both primary and secondary level and all fees were paid by the deceased. Thereafter she did a one year secretarial course. She then went to college in London and Washington, all fees being paid by the deceased. The deceased also gave her a car, and provided her with £8,000 in 1985 by way of deposit for a house in south county Dublin. In 1986 Y married and the testator contributed approximately £5,000 to the cost of the wedding. The deceased also arranged for bank loans totalling £110,000, to Y and her husband part of which was a loan of £40,000 from WE Limited, to enable them purchase property. The loan of £40,000 was repaid after approximately one year. Z, a daughter was also sent at her father's expense to private fee paying schools at primary and secondary level and also did a secretarial course on leaving school. In 1980 she was also provided with a car and when in 1981 she ran up an overdraft with the bank, the deceased gave her a sum of £500 to assist in paying off the overdraft. In 1987/88, the deceased paid sums amounting to £13,000 towards the deposit and/or purchase price of a house. In early 1988 when she got married, the deceased contributed a sum of £5,000 towards the costs of the wedding. In May 1990, when she required a computer, the deceased purchased this for Z at a cost of £6,000. At the date of death of the deceased, X was operating a video business and print shop. He had got his debts under control by selling his house. He was then living in rented accommodation but was not married and indeed has not married since. He was and remains in good health and while he diligently applied himself to work,had an unfortunate history of failure in his business enterprises. He was then 37 years of age. Y was married, had her own house, family and business. Her husband was gainfully employed and has his own business which at the time was doing well. Both Y and her husband had shown a particular interest in property development and had already shown themselves to be quite successful in this regard. She was 34 years of age at the time and in good health. Z was also married and had her own family. She had her own house and her husband enjoyed an excellent position with a finance company. She was 32 years of age at the time and in good health.
As events transpired, the deceased pre-deceased his mother, as a result of which all three children received one-third of their father's share in the residue of their grandfather's trust - approximately £26,000 each. Furthermore, all three children still have a one-third interest in a trust (consisting of a holiday home property in Wexford) acquired from the proceeds of the trust monies provided for their mother by the deceased. She is currently in her 70's and in good health. They will receive these shares on their mother's death. For the sake of completeness, I propose to deal very briefly with the fortunes of the three children following the death of their father. X enjoyed a mixed relationship with his father, mainly due to the deceased's reluctance to bail X out of his various business failures. As X saw it, the deceased wouldn't help, although he had the wherewithal to do so. At the time of the deceased's death, X was living in rented accommodation and had little or nothing in the way of assets. A partial reconciliation seems to have taken place prior to the death of the deceased but X's pattern of unsuccessful business enterprises continued after his father's death. In 1998 he closed down his video business and borrowed heavily to establish an I.T. Training Centre in Dublin city centre. This business also collapsed in 2001, followingwhich X relocated the business and installed a new management team. This in turn collapsed in rancorous circumstances, albeit X was not himself part of the dispute which finally brought about an end to that business. He still lives in rental accommodation and is presently pursing a course in "life coaching", which he hopes will provide him with a career and living as a psychological counsellor. He is surviving on handouts from his mother and sister Y. He draws €128 per week social welfare and receives a small rent allowance. He recently was compelled to apply to St. Vincent de Paul for a donation of €800 to make ends meet.
The second named plaintiff now operates a design business in south county Dublin. She lives with her husband in a valuable property worth about €1.5 million in Wicklow, subject to certain borrowings amounting to one-third of the value of the property. They own cottages on the property which are let and provide an income. They have a Section 23 property in Wexford. She and her husband sold an industrial property in 2002 at a profit of €230,000 and also sold their interest in a holiday home company in Wexford for €425,000. The profits on the latter were somewhat reduced by an obligation to pay off various loans. However Y and her husband also have an apartment in Portugal, owned subject to a mortgage, which is of considerable value. In evidence, Y accepted that they had made significant money from their dealings in property. While her husband had been obliged in 2002 to liquidate the company in which he worked, he has recently found alternative employment in a Manchester based company as a sales rep. They have three children. Z is married and her husband works as a stockbroker with a leading Dublin firm. They enjoy a substantial income. Z works at home where she takes care of her three children. Z very fairly admits that her circumstances now are comfortable.payments could be made until they were disposed of. The present value of the properties comprised in the trust is estimated at €3,500,000.
In the course of the hearing evidence was given by accountants on both sides in relation to the tax implications of unravelling or unwinding the discretionary trust. Both accountants agreed that, the 10 year period having now elapsed, and the benefit of the surcharge arrangements having run its course, it was now desirable to unwind the property from its present corporate structure of ownership as otherwise the eventual tax liabilities would only increase. Their evidence was that there could in fact be two incidents of capital gains tax arising on any disposition of the properties, and the liability to tax on a property sale of, €3,500,000 would be close to €500,000. As of the date of hearing, a sum of about €193,000 stands to the credit of the estate, together with a sum of €44,000 which is retained by the third named defendant in the solicitor/client account. There is a further possibility that, if the discretionary trust becomes operative, tax on the trust at 6%, together with 1% per annum thereafter could also arise. The third named defendant gave evidence of the circumstances surrounding the making of the will by the deceased. It was his clear understanding that at the time of the making the will, the deceased had only enough in available funds to provide an income for himself and the first named defendant. Given the tax implications of selling any of the properties, the third named defendant certainly felt at the time that the setting up of a discretionary trust was by far the most prudent step for the deceased to take in terms of making any disposition of his assets. He had made an almost identical will in 1988. Furthermore, the deceased had kept an extremely careful and meticulous record of all advances made to each of his children, all of which had been taken into account by the deceased prior to the execution of his will.THE ARGUMENTS
On behalf of the plaintiffs, Mr. Farrell S.C. submits that the testator believed that the first named plaintiff had an inability to manage business affairs, a factor which increased X's call on his father's moral duty. He submits that it was clear by the date of death that X was unlikely to be consistently successful businessman. In relation to the other plaintiffs, Mr. Farrell in his submission states:-"The second named plaintiff and her husband have always struggled a bit and clearly could have done with more support from the testator during his lifetime. An ability to do up properties and sell them at a profit seems to have been their strong point. Y had had two children at the date of death and a third on the way. With three young children to support, she and her husband had heavy financial obligations. The third named plaintiff had been relatively the most comfortable of the three. Like her sister, she was pregnant with her third child when her father died. She took the decision to work full time in the home looking after the family and probably has little earning power. The plaintiffs submit that the provisions made by their father for them in his life time were ungenerous. They accept that he was prudent but submit that he was not just to them. The two girls were very disappointed that he was so careful about the cost of their weddings. "
commencement of proceedings, that they would not act as trustees. However, this still did not answer the exigencies of the case. Their involvement as trustees with the power to decide who got money and who did not was always likely to produce the result that the trust either would not work at all or would work in a manner which was unfair to the three plaintiffs. The need to avoid conflicts of interest is a vital part of the wider law of trusts. In Spencer v. Kinsella [1996] 2 I.L.R.M. 401 at 409 Barron J. saw a problem that some of the trustees were too closely identified with the interests of some of the users of the trust property. He felt that "where a conflict of interest arises it is doubtful that a continuation by such persons in office could be remedied. "
Mr. Farrell further submitted that the defendants as executors already hold the assets of the estate in trust for persons entitled by law thereto under and by virtue of Section 10 of the Succession Act, 1965. Given that the executors have power under Section 60 of the Succession Act to compromise or settle any dispute, claim or other matter relating to the estate of the deceased, it was open to the defendants to make provision for the various plaintiffs, something they had singularly failed to do. In reply, Mr. Sreenan argued that neither that the second named or third named applicant had even a stateable claim given that at the date of death, both had been well educated, were in good health, were married and had husbands who were in good gainful employment. In addition, he submitted, both had their own homes and both had had their own homes and both had had substantial provision made for them by the deceased during his lifetime. With regard to the first named plaintiff, while admitting he had fallen into straitened financial circumstances, he did at the date of death of the deceased have his own business and was in good health. He had had substantial provision put his way by the deceased, and his debts had been paid off. He had a string of failed investments behind him and had demonstrated unwillingness or inability to sticksuccessfully and profitably to any one project. No prudent parent could have concluded that in these circumstances further substantial payments should be made to X. This was particularly so, given that X was likely within a very short period of time to receive a substantial payment on the death of his grandmother of approximately £26,000 and given that he also had a benefit still to come from another trust in respect of his mother's home. It could not be said that a prudent or just parent would require the assets of the companies to be liquidated (with all the adverse tax consequences that that involved) in order to make an immediate and specific provision for X as distinct from leaving it to the discretion of the trustees to make that provision either out of income or capital as they saw fit.
Mr. Sreenan submitted that, at its core, the plaintiffs case was based upon an implicit assumption that the trustees in this case would or will act malevolently and in breach of their duty. If that be so, the beneficiaries would have remedies open to them. Mr. Sreenan further submitted that the tax consequences flowing from events subsequent to the date of death are irrelevant to the issues before the court. The fact that they should be addressed sooner rather than later should not lead the court to redraft the will in a more tax efficient manner through the mechanism of a Section 117 application. Any argument that the deceased was parsimonious with his children during his lifetime was, Mr. Sreenan submitted, a travesty of the truth. Having regard to all the circumstances, Mr. Sreenan submitted, the deceased had at the time of death, discharged all moral duties to the applicants. Insofar as X was concerned, a parent owes no moral duty to children to keep on giving them money well into their middle ages in circumstances where is likely to be lost on successive business ventures. Ifthe testator was still under any moral duty to any of the plaintiffs at the time of death, it was more than adequately discharged by naming them as beneficiaries in a trust in circumstances where he had made his wishes well known, namely, that once his primary moral duties to his mother and wife were discharged, the balance should be divided equally between the children.
THE LAW
A significant body of jurisprudence exists in relation to Section 117 of the Succession Act 1965. During the course of hearing, counsel from both sides referred extensively to quotations and passages from the decided cases, which included Re: Goods of JH deceased [1984] I.R. 599, FM v. TAM[1972] 106 I.L.T.R. 82, L v L [1978] I.R. 288, J de B v. HE de B [1991] 2 I.R. 105, CC v. WC [1990] 2 IR 143, EB v. SS [1988] 2 I.L.R.M. 141, J. McD deceased P. McD v. MN [1999] 4 IR 301 and MPD & Ors v MD [1981] I.L.R.M. 179.
Counsel on both sides were agreed that the following relevant legal principles can, as a result of these authorities, be said to derive under Section 117:-(a) The social policy underlying Section 117 is primarily directed to protecting those children who are still of an age and situation in life where they might reasonably expect support from their parents against the failure of parents, who are unmindful of their duties in that area
(b) What has to determined is whether the testator, at the time of his death, owes any moral obligation to the applicants and if so, whether he has failed in that obligation.
(c) There is a high onus of proof placed on an applicant for relief under Section 117 which requires the establishment of a positive failure in moral duty
(d) Before a court can interfere there must be clear circumstances and a positive failure in moral duty must be established.
(e) The duty created by Section 117 is not absolute.
(f) The relationship of parent and child does not itself and without regard to other circumstances create a moral duty to leave anything by will to the child.
(g) Section 117 does not create an obligation to leave something to each child.
(h) The provision of an expensive education for a child may discharge the moral duty as may other gifts or settlements made during the lifetime of the testator.
(h) 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".
(j) The duty under Section 117 is not to make adequate provision but to provide proper provision in accordance with the testator's means.
(k) A just parent must take into account not just his moral obligations to his children and to his wife, but all his moral obligations e.g. to aged and infirm parents.
(l) In dealing with a Section 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.
(m) Special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example, working on a farm he will ultimately become the owner of it thereby causing him to shape his upbringing, training and life accordingly.
(n) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong not to foster.
(o) Special needs would also include physical or mental disability.
(p) Although the court has very wide powers both as to when to make provisions for an applicant child and as to the nature of such provision such powers must not be construed as giving the court a power to make a new will for the testator.
(q) The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but rather, whether the decision of the testator to opt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.
(r) The court must not disregard the fact that parents must be presumed to know their children better than anyone else.
DECISION
This is a case which is notable for the absence of any singular feature in the behaviour of the deceased when arranging his affairs or making his will which would cry out for the court's intervention. I am satisfied from the evidence of both the plaintiffs and defendants that ABC deceased was a prudent and careful man whose philosophy was, as stated in evidence by his brother, to provide a good education for his children, provide them with seed money to buy their own homes and, where necessary, to rescue them from any of life's 'disasters' - in this context being disasters of the 'non-commercial' variety. It seems to me that the disimprovement in the deceased's business affairs from the mid 1980's onwards made him ever more meticulous and exacting about accounting for expenditure, be it advances to the children for educational or house buying purposes, or to his two daughters and notably his older daughter, in connection with their wedding expenses. Both daughters feel, particularly Y, that the deceased somewhat spoiled these occasions by (in Y's case at least) requiring her to account for every single item of expenditure and refusing to underwrite the cost of champagne at the reception. However, when seen against the wider backdrop of the provision made for each of the girls, and bearing in mind the altered circumstances in which the deceased found himself, these complaints fall well short of amounting to any failure of moral duty to make proper provision. At the date of death of the deceased, his daughters were well established, had married and had their own homes. There were struggles along the way, both then and since, but both daughters have succeeded in life to a significant degree. Both are comfortably well off with considerable asset backing. Y has a career of her own and Z is married to a successful stockbroker in a leading Dublin firm.On 7th April, 1993 the deceased wrote to the third named defendant, his solicitor, setting out in great detail the amounts expended on his three children with a view to showing, as he put it, "that I have tried to treat them nearly equally, in case there is any dispute after my departure". In drawing up his will and Letter of Wishes, the deceased had the full benefit of his solicitors advice and was ideally placed, not
least because he was in indifferent physical health, to take a considered view both of the requirements of his various dependants and how his assets could or could not be deployed to meet any perceived needs.
What is quite clear is that the deceased had little in the way of available cash and any direction to sell the residential properties in the immediate event of his death would have been folly. As the inflation in property values, including the unprecedented upsurge in the last few years, has demonstrated, the decision to place those assets under a trust arrangement, was a wise one, at least from the point of view of maximising the value of the assets. In the course of his submissions, Mr. Sreenan strongly urged the court not to intervene to "redraft the will" purely because the accountants on both sides agreed that the present arrangements for the ownership of the properties should be ended having regard to the ever growing tax liabilities associated with same. By the same token, however, it seems to me that the tax claw-back implications of any direction to realise any of the assets which might have been inserted in the will cannot be relied upon to absolve the testator from any moral duty under Section 117. I have come to the conclusion that the testator did still have an ongoing limited moral duty with regard to X at the time he came to make his will and that this duty was more marked than in the case of his daughters. In my view, it must have been apparent to the testator, given the astute businessman that he was, that X was a person who would probably require a level of support at times in the future because of his inability to manage his affairs or to cope adequately in life. This however brings me to the nub of the problem in the instant case. X and his sisters perceive that the defendants under the arrangements put in place do not or will not deal with them in a fair and even handed way. They point to the paymentswhich the first named defendant has enjoyed from the time of the deceased's death by way of contrast to a single payment of £5,000 made to X in circumstances of near destitution. Both the first and second named defendants in evidence stated, and had previously indicated, their willingness to step aside as trustees in the circumstances which had arisen. Furthermore, they adamantly assert that, until the present proceedings are disposed of, the trust could not be set up, nor could payments be made to any one, including X, and this was the legal advice given to them. The advances made to the first named defendant, they say, were by way of directors salary and legitimate director loans, all of which have been fully written up and accounted for. They say they are more than willing to help X when free to do so. The second defendant told the court he believed the company loan of €5,000 might in fact have been in breach of the companies legislation.
The court must obviously, in a S.117 application, avoid the temptation to enter into the arena of adjudicating on the manner in which, firstly, executors discharge their obligations in the administration of an estate and secondly, how trustees discharge their obligations to the beneficiaries of a trust. There are separate causes of action in cases where such failures are established. The only question which this court can resolve is whether in the circumstances in which he found himself when making his will, and having regard to the requirement that moral duty be assessed as of date of death, the testator, by setting up a discretionary trust in which all of the plaintiffs and the first two defendants were named beneficiaries, thereby discharged his moral duty under S.117, to X and his sisters. I have already found it was adequate to discharge any duty owed to his daughters. The duty to X was however in my view also discharged by the creation of a discretionary trust by the deceased's will, not least because it set in place,coincidentally or otherwise, the very apparatus and structure which was appropriate to meet the special needs which the deceased was clearly aware X had. Perhaps he could or should have selected different trustees. Perhaps he should have set up a separate trust for X. However, insofar as the deceased's duty was concerned, it seems to me that the trust arrangement should, all things being equal, have met and covered all the exigencies of this case, including the foreseeable difficulties X might later encounter.
I do not think it is appropriate for me to conduct an inquiry as to whether the defendants, qua executors, have failed to discharge their duties and functions by not making some sort of special or ongoing provision in relation to X, whether by virtue of Section 60 (8)(e) of the Succession Act 1965 or otherwise, or whether they have been precluded by these proceedings from doing so. I will therefore confine myself to saying there is a clear and present need to address X's position, not by the payment necessarily of any lump sum, but rather via the provision of some regular payment sufficient to meet his basis living needs and expenses, at least until his circumstances improve to the point where he can meet those costs himself. In refusing the plaintiffs claims, I am also very much bearing in mind that all three plaintiffs are named beneficiaries of the trust assets. They will, in addition, have additional provision coming to them from their mother's trust. Whether or not the defendants or any of them should now cease to act as trustees is entirely a matter for them. With an eye to avoiding any further problems from this point onwards, it is obviously an issue to which I feel however some consideration should now be given. There are clearly conflicting interests for those who are both trustees and beneficiaries.