THE SUPREME COURT

1988 No. 86
Finlay CJ
Griffin J
Hederman J

In the Matter of the Succession Act 1965, s. 117
and in the Estate of I.A.C. Deceased
Between
C. and F.
Plaintiffs
And
 
W.C. and T.C.
Defendants
[Griffin and Hederman JJ concurred with the judgment of Finlay CJ]

Judgment of Finlay CJ  delivered 24th July 1989
 
This is an appeal brought by the first-named defendant against an order made in the High Court on 9 October 1987 by Costello J pursuant to s. 117 of the Succession Act 1965.
 
The deceased testatrix made her last will on 5 November 1981, and died on 17 May 1985.
 
She was at the date of her death a widow and left her surviving four children who were:
 
T., a son aged 44;
W., a son aged 42;
C., and Ch., twin daughters, aged 41
 
The position and circumstances of these four children at the date of the death of the testatrix was found as a fact by the learned trial judge on evidence adduced before him which supported such findings, and must accordingly be accepted by this Court for the purpose of determining the issues on this appeal.
 
The position so found of each one of the children was as follows; 
 
T. was a permanent invalid, having sustained brain damage. He was married with one child and his sole income was apparently a disability pension payable by the United Kingdom Government where he had been residing at the onset of his disability. 
 
W. was married with three sons aged approximately ten, seven and six, and one of them was severely disabled by deafness. He was the owner of the family business of grocery and newsagents which had been transferred to him by his mother during her lifetime, but that business was to the knowledge of the testatrix, in financial difficulties before the time of her death.
 
C. had married in 1969 but was separated from her husband since 1974. She had four children: two girls who were twins aged approximately eleven. She received maintenance from her husband for the support of herself and the children at the time of her mother’s death, of approximately £240 per month. She was in steady employment, earning approximately £10,000 gross, per year at the time of the hearing in the High Court, and had been so employed, earning approximately £6,000 at the time of the death of her mother. She was the owner of a house in which she resided with her children, and which was subject to a relatively small mortgage
 
Ch. was living with her husband and her two children who were twin girls aged about seven. Her husband was apparently the sole owner of the house in which the family lived, but she and her husband were joint owners of a residential property in Spain where the family had lived for some time. The learned trial judge found that prior to the death of the testatrix Ch.'s marriage was in difficulties to the knowledge of the testatrix and he concluded that a just and prudent parent would have made provision for the fact that it was probable that this marriage would break up. On the evidence the marriage did break up after the death of the testatrix and Ch. is now separated from her husband.
 
Benefits received by children in the lifetime of the testatrix
 
It was proved that in a period of approximately ten years before the death of the testatrix each of the four children had received the following benefits from his or her mother.
 
T. received £7,000 in cash in 1983.
 
W. received a total of £ 10,000 to £20,000 in cash over this period, much of which consisted of injections of cash by his mother into the business from which the learned trial judge was satisfied he (W.) must have derived some benefit. He had been transferred the family business by his mother in 1979 and it was after the death of the testatrix sold for £38,000.
 
C. received sums in cash between 1976 and 1985, together with a motor car which was registered in her mother's name, the total value of which was approximately £18,500.
 
Ch. received £3,000 in 1981, and between 1983 and 1985 while her mother was living with her, received approximately £2,400 per annum in respect of the upkeep of her mother.
 
Value of the estate
 
The learned trial judge assumed the net value of the testatrix's estate, on the evidence adduced before him, to be in the figure approximately of £122,000.
 
The provisions of the will
 
The testatrix left her estate as follows: 
 
To T.:
Cash						£10,000
ESB shares					£7,900
Quarter share of residue, approximately 	£12,900
Total: 		£30,800
 
To W.:
Premises at Dorset Street, valued at 		£50,000
(viewed by the learned trial judge 
as probably an under-estimate) 
Quarter share of residue			£12,900
Total: 		£62,900

To C.:
A bequest of a motor car that was registered in the testatrix 's name, which by the time of her death was of no value.
One quarter share of the residue, say, 	£12,900
 
To Ch.:
Silver valued at 				£     200
Plus one-quarter share of the residue, 		£12,900
say, 						£13,100 (total)
 
Order of the High Court
 
The learned trial judge found that the testatrix had failed in her moral duty to make proper provisions, according to her means, for both C. and Ch., and made provision for them by varying the devise of the Dorset Street premises to W. so as to make C. and Ch. joint tenants with him in those premises in the respective shares of one-ninth to C. and two ninths to Ch.
 
S. 117 of the Succession Act 1965
 
The provisions of s. 117 relevant to the issues arising in this case are those contained in sub-s. (1) and sub-s. (2) of that section and are 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.
(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 it would be as fair as possible to the child to whom the application relates and to the other children.
 
The law
 
In the course of his judgment as a judge of the High Court in the case of In re G.M. Deceased: F.M. v T.A.M. 106 ILTR 82, Kenny J, at p. 87, stated as follows:
 
It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend upon
 
(a) the amount left to the surviving spouse or the value of the legal right if the survivor elects to take this.
(b) the number of the testators children, their ages and their positions in life at the date of the testators death,
(c) the means of the testator.
(d) the age of the child whose case is being considered and his or her financial position and prospects in life.
(e) whether the testator has already in his lifetime made proper provision for the child.
 
The existence of the duty must be decided by objective considerations. The court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive.
 
I would adopt and approve of this general statement of the principles applicable to an application under s. 117 as being a correct statement of the law.
 
I would, however, add to it further principles which may to an extent be considered a qualification of it.
 
I am satisfied that the phrase contained in s. 117(1) 'failed in his moral duty to make proper provision for the child in accordance with his means' places a relatively high onus of proof on an applicant for relief under the section. It is not apparently sufficient from these terms in the section to establish that the provision made for a child was not as great as it might have been, or that compared with generous bequests to other children or beneficiaries in the will, it appears ungenerous. The court should not, I consider, make an order under the section merely because it would on the facts proved have formed different testamentary dispositions.
 
A positive failure in moral duty must be established.
 
In a case such as is the instant case where evidence has been given of the testatrix's financial support of her children during her lifetime indicative of a concerned assistance, to all the members of her family, and where, as was established to the satisfaction of the learned trial judge in this case, the relationship between the testatrix and her children, and in particular, between the testatrix and her daughters, was one of caring and kindness, the court should, it seems to me, entertain some significant reluctance to vary the testatrix's dispositions by will. Quite different considerations may apply, as have been established in some of the decided cases under this section, where a marked hostility between a testator and one particu1ar child is established to the satisfaction of the court.
Applying these principles to the facts as found by the learned trial judge in this case, I have come to the following conclusions.
 
Whilst the provision made for Ch. in this will probably was at the time of the making of the will, in 1981, a proper provision it had, in my view, ceased to be so before the death of the testatrix in 1985. Accepting as I do the finding of the learned trial judge that by that time the testatrix was aware of the difficulties in Ch.'s marriage to the extent that as a just and prudent parent she should have made provision for the probability of the break-up of that marriage, it seems to me that bearing in mind that of all her four children Ch. had up to that time received the least financial benefit from her by a very considerable margin, that a proper provision for this particular child necessarily involved either a further testamentary disposition by codicil or otherwise, or the making of a gift inter vivos.
 
The testatrix by her provision for C. during her lifetime indicated in a very definite fashion her appreciation of the particular problems facing a daughter whose marriage had broken up. The logical consequence of that view would, it seems to me, have been that she should have made some improved provision for her daughter Ch., having regard to the learned trial judge's finding on the evidence that she was aware of the likelihood of a break-up of that marriage also.
 
I cannot agree, however, on the evidence with the learned trial judge's conclusion that in the case of C. the provision made by the combined operation of gifts by the testatrix during her lifetime and the provision contained in the will fell short of the testatrix's moral obligation to make proper provision for her daughter. The evidence would appear to indicate that at the time of the death of the testatrix that C. was established, living with her four children in a house subject to a relatively small mortgage, and in a steady, well-paid job, though not at an extravagant salary, and was receiving a reasonable contribution from her husband towards the maintenance of her children. Her difficulties from the time of her separation in 1974 to 1985 had been substantially aided by sums totalling just under £20,000.
 
In these circumstances, I cannot accept the conclusion that the provision made for her in the will of a one-quarter share in the residue was less than proper.
 
I would, accordingly, allow this appeal to the extent of varying the order made in the High Court by setting aside the finding of a failure properly to provide for the plaintiff, C., by affirming the finding of a failure properly to provide for the plaintiff, Ch., and by affirming the appropriate variation in the administration of the estate of the deceased to make just provision pursuant to that finding as being to declare Ch. entitled to a two-ninths share in the premises in Dorset Street which were devised to W.