B. (E.) v. S. (S.) & Anor [1998] IESC 68; [1998] 4 IR 527; [1998] 2 ILRM 141 (10 February 1998)
THE SUPREME COURT
Keane J.
Lynch J
Barron J

1996 No. 261

In the Matter of the Estate of L.B. and in the Matter of the Succession Act 1965 and in the Matter of an application by E.B.

E.B.
Plaintiff
And
S.S. and G. McC
Defendants

Judgments by Keane J. (Lynch J. concurring) & Barron J.

JUDGMENT of Mr. Justice Keane, delivered on the 10th day of February 1998 (Lynch J concurring)

1.	The facts in this case are not significantly in dispute and may be shortly stated.

2.	The plaintiff's father built up a successful business, called BMB Ltd, from what appears to have been a relatively modest foundation. At the date of his death in 1985, he owned 56% of the shares in the company, to which his widow, the plaintiff's mother and the testatrix in this case, then became entitled. There were four children of the marriage, the plaintiff, who at the date of the trial in the High Court (1995) was aged 40, and his three sisters, S.S., G. McC. and M. who are older than him and who at the date of the trial were in their mid-forties.

3.	All four children went to secondary school. The plaintiff left at the age of eighteen having achieved two honours in his leaving certificate. He went on to university to study commerce, but dropped out in his first year. He worked at various jobs between 1974 and 1983, initially in his father's business, and during that time also lived in London for a while and in the Netherlands. In 1983, with his father's financial assistance, he returned to university and achieved a BA (Mod), a pass degree, in German and history from Trinity College.

4.	The plaintiff developed a major problem with drink and drugs in the mid 1980s. His alcoholism became extremely serious in 1987 and in the years 1991/1993 he received treatment in St. John of God's Hospital, The Rutland Centre and Cluain Mhuire. His evidence at the trial was that, since his discharge from Cluain Mhuire in 1993, he had not taken alcohol or drugs.

5.	The plaintiff married in 1988. His wife does not work. They have three children, two girls and a boy, who, at the date of the trial, were aged twelve, ten and eight respectively. They were all attending non fee paying schools. They live in a house which was given to him and his sister M. by their father and which is worth approximately £120,000.

6.	The plaintiff's sisters S.S. and G. McC., who are the defendants in these proceedings, are both married, have families and are comfortably off. So too is his sister M, who is unmarried.

7.	In the year 1987 the plaintiff's mother (hereafter `the testatrix') instructed a solicitor, Mr Michael Halpenny, to draft a will for her. She described the plaintiff to Mr Halpenny as `happy go lucky', a `ne'er do well' and `still a student at 32 years of age'. At that time, her assets consisted of a house, an apartment, money in the bank and stocks and shares, including, of course, the shares in BMB Ltd. Her total assets appear to have been in excess of £1 million. She made it clear to Mr Halpenny that she wished to treat all her children equally and to make substantial provision for them in her lifetime. She decided to do this by transferring all her shares in BMB Ltd to them. Since the husband of S.S. already owned 100 shares in the company, this was achieved by transferring 66 shares to S.S. and 166 shares each to the remaining three children, including the plaintiff. The plaintiff's shares, after payment of gift tax, realised a sum of approximately £275,000.

8.	On 5 October 1988, the testatrix again saw Mr Halpenny and told him that she wished to make a new will. She had decided to leave the residue of her property, after some relatively small legacies to her children and grandchildren, to a number of charities. She told her solicitor that she was taking this course, because of the ample provision she had already made for each of the children in her lifetime. Mr Halpenny suggested to her that `charity begins at home', but she remained adamant and reiterated her view that the plaintiff was `an eternal student'.

9.	The plaintiff unhappily dissipated the sum of £275,000 within a relatively short time. It had all gone by the year 1992.

10.	On 20 March 1992, the testatrix called to Mr Halpenny again and said that she wished to make a new will. The changes were, however, minor. She was insistent that the charities were still to be the beneficiaries. She also told Mr Halpenny on that occasion that the plaintiff was an alcoholic and was having marital problems. It is accepted that she was aware of the fact that he had squandered the money he had been given and was in relatively straitened circumstances.

11.	The testatrix died on 9 December 1992. The terms of her will have already been summarised: she gave legacies of £5,000 to each of her grandchildren (of whom there were ten at the date of her death) and a nebuliser to the plaintiff. She left the residue of her estate to the following named charities:

(a) The Simon Community;

(b) The Cancer Research Fund of St. Luke's Hospital, Rathgar;

(c) The Society of St. Vincent de Paul;

(d) Concern;

(e) Goal.

12.	The gross value of the estate as shown in the Inland Revenue affidavit was £335,027.30 while the nett value was £302,499.78.

13.	The plaintiff at the time of the trial was unemployed and in receipt of social welfare assistance of approximately £135 per week. He has no savings and no assets, other than the half share in the house to which I have already referred.

14.	The present proceedings have been instituted by the plaintiff under s. 117 of the Succession Act 1965 (hereafter `the 1965 Act'), claiming a declaration that the testatrix had failed in her moral duty to make proper provision for the plaintiff in accordance with her means by her will or otherwise, having regard to all the circumstances of the case. He further claimed an order making such provision for the plaintiff as seemed to the High Court to be just. S.S. and G. Mc.C, who had been named as the executrices in the will, were joined as the defendants.

15.	At the trial before Lavan J, the plaintiff, Mr Halpenny and G. McC. gave evidence. While counsel on behalf of the executrices resisted the claim under s. 117, it was made clear that they would have no personal objection to provision being made for their brother out of the estate. It would appear that the named charities were also consulted and indicated that they would abide by whatever order the court made.

16.	It was agreed in the High Court that the first issue which had to be determined was whether the testatrix had failed in her moral duty to make proper provision for the plaintiff in accordance with her means, whether by her will or otherwise. If that issue was resolved against the plaintiff, it would follow, of course, that the court would not be concerned with the extent of any provision that should be made for him. In a reserved judgment, Lavan J concluded that the plaintiff had not established that the testatrix had failed in her moral duty to make proper provision for him and dismissed the claim under s. 117 (1). From that decision, the plaintiff now appeals to this Court.

Submissions of the parties

17.	On behalf of the plaintiff, Mr Finnegan SC submitted that, in determining whether the testatrix had failed in her moral duty to make proper provision for the plaintiff, the court had to sit `in the testatrix's chair' on the eve of her death, to use the language of Kenny J in In re G.M.: FM v. T.M. (1972) 106 ILTR 82. While he accepted that subs. (2) was primarily directed towards the extent of the provision that should be made once it had been established that the testatrix had failed in her moral duty, he submitted that its language was also relevant in determining whether the testatrix had so failed. The court was, accordingly, required to consider the first issue from the point of view of ‘a prudent and just parent', taking into account the position of the child whose provision was in issue and all the circumstances of the case. This was an objective test, he said, and the fact that the testatrix might genuinely have thought that she had made appropriate provision for the plaintiff was not a relevant consideration.

18.	Mr Finnegan submitted that, while it was not disputed that the testatrix had made generous provision for the plaintiff by the transfer of shares in 1987, it was also clear that she was aware, at the time she made her will in 1992, that all that money had been squandered and that the plaintiff was in relatively straitened circumstances. She was also aware that his problems were due in significant measure to his alcoholism and drug addiction. Since that situation remained unchanged at the date of her death, Mr Finnegan urged, a just and prudent parent would have made at least some provision, even of a relatively small nature, for him in her will. The understandable fear that might have been felt by the testatrix that this money would also be dissipated could have been met by vesting the funds in trustees who could advance sums to the plaintiff at their discretion. He submitted that the testatrix having failed so to provide, the High Court could authorise the establishment of such a discretionary trust, citing in support the decision of Costello J, as he then was, in H.L. v. Bank of Ireland [1978] ILRM 160.

19.	Mr Finnegan submitted that the critical factor in applications under s. 117 was the need of the applicant child. Where, as here, a need was established beyond any doubt, the only remaining question was as to whether the testatrix had discharged her moral duty to meet that need, having regard to her own means. In this case, he submitted, it was clear that she had not.

20.	On behalf of the defendants, Mr Paul O'Higgins SC submitted that s. 117(1) did not create a moral duty which rested on parents to make proper provision for their children in accordance with the parent's means: it recognised that such a duty existed. He urged, however, that the burden of establishing that a parent in any given case had failed in his or her moral duty was a heavy one, citing in support the dicta of Finlay CJ in In re L.A. C. deceased; C C. v W. C. [1990] 2 IR 149; [1989] ILRM 815. He also relied on the observation by the learned Chief Justice that to meet the comparatively high threshold set by the section, it was not sufficient that the High Court judge should take the view that he or she would have made a particular provision for the applicant child. It had to be shown that the testatrix, in this case, could not reasonably have adopted the course she did.

21.	Mr O'Higgins submitted that, applying that test, which was not a subjective test, it could not plausibly be suggested that the testatrix in this case had not reasonable grounds for deciding not to make any further provision for the plaintiff. Having made what was conceded to be generous provision for him during her lifetime, the testatrix was perfectly entitled to take the view that she should use the rest of her money in support of the particular charities concerned and thus benefit people whose needs were beyond doubt. It would be a serious incursion on the freedom of testamentary disposition guaranteed under Article 40.3.2° and Article 43 of the Constitution if the right of the testatrix to make that choice were to be frustrated.

22.	Mr O'Higgins further submitted that the testatrix may well have thought that, having regard to what had happened in the past, providing the plaintiff with further benefits under her will might not have been in his interest. That was a view which a parent who had unarguably made proper provision for a child in the past might well take and it was not the function of the court under s.117 to set it aside.

The applicable law

23.	S. 117 of the 1965 Act provides inter alia 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 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.

24.	The policy underlying these provisions is clear. Until its enactment, it was possible for a testator to dispose entirely of his or her property without any regard to the needs of his or her spouse or children. The Oireachtas in dealing with this possible social evil chose, in the case of the children, to adopt a scheme similar to those in other common law countries which allowed a degree of flexibility to the court in determining whether provision should be made for them.

25.	In a frequently cited passage in In re G.M.: F.M. v. T.M. (1972) 106 ILTR 82, Kenny J, sitting as a High Court judge, said:

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 testator's children, their ages and their positions in life at the date of the testator's 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.

26.	That statement of the law was approved by Finlay CJ speaking for this Court in C.C. v. W.C., subject to one qualification which he expressed as follows:

I am satisfied 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.

27.	The circumstances of the present case are somewhat unusual. Typically in applications under s.117, the applicant child contends that there has been a failure of moral duty in relation to him or her, having regard to the provision made either by will or during the lifetime of the testator for other members of the family. Here the plaintiff has no complaint as to the division of the shares between him and his three sisters in the inter vivos transaction in 1987. His claim is that, having regard to his circumstances at the date of the death of the testatrix. she should have made provision for him at the expense of the other beneficiaries, i.e. the charities.

28.	It is also clear that the court in the present case was not entitled to take into account, in considering whether the testatrix had failed in her moral duty within the terms of s.117(1), the fact that the plaintiff, since his discharge from Cluain Mhuire in 1993, had not taken alcohol or drugs. Since his recovery from his addiction for that period was subsequent to the death of the testatrix, it was not relevant to the discharge or otherwise of her moral duty to him. It could only become relevant if the court were of the view that she had failed in her moral duty and was going on to consider, under subs. (2), the extent of the provision that should be made for him.

29.	It is also obvious that it is not necessarily an answer to an application under s.117 that the testator has simply treated all his or her children equally. The maxim ‘equality is equity' can have no application where the testator has, by dividing his estate in that manner, disregarded the special needs (arising, for example, from physical or mental disability) of one of the children to such an extent that he could be said to have failed in his moral duty to that child. At the same time, the proper and understandable anxiety of parents to avoid any friction among their children by effecting, so far as possible, an equal distribution of their property among them must also be recognised. Thus, the clearly expressed wish of the testatrix in this case to treat all her children equally, although not a decisive factor, is not entirely irrelevant.

Conclusions

30.	Ultimately, the issue which the High Court had to resolve was reasonably straight-forward. It is beyond argument that the testatrix had made adequate, and indeed generous provision, for the plaintiff during her lifetime. His father had done everything in his power to give him the best start in life possible, including financing his returning to university when he was in his thirties and providing him with a house. In addition to that, he was given by the testatrix £275,000 which, properly managed, should have afforded him a degree of financial security for the rest of his life. Towards the end of her own life, she might have concluded that, rather than give the entire of her remaining wealth to the five charities of her choice, she should make at least some provision for him in the hope that this time he would use it to good effect. The alternative was to do what she did and make no further provision for him.

31.	As has already been pointed out, the test to be applied is not which of these alternative courses the court itself would have adopted if confronted with the situation. It is whether the decision by the testatrix to opt for the second course of leaving unaltered the bequest to the charities, of itself and without more constituted a breach of her moral duty to the plaintiff. I am satisfied that it did not. The court, in applications of this nature, cannot disregard the fact that parents must be presumed to know their children better than anyone else. In many cases that obvious fact would be of little weight where it is established that a child has been treated in a manner which points clearly to a failure of moral duty on the part of the testator. It is of considerable significance, however, in a case such as the present, where, even on the most favourable view of the plaintiff's case, it cannot be suggested that he was treated with anything other than generosity and support by both his parents up to the time that the shares in BMB Ltd were transferred to him. Against that background, the decision of the testatrix not to make further provision for him in her will may well have been prompted, not merely by a concern that her money should go where she could be sure that it could do most good, but also by a belief that, since the provision of significant financial assistance to the plaintiff had not in the past produced the best results, it might not have been in his own interest to provide him with further funds, even through the mechanism of a trust. It is, however, sufficient to say that this was clearly a view which a responsible and concerned parent could take and that it follows inevitably that the learned High Court judge was correct in concluding that the plaintiff had failed to establish that the testatrix had failed in her moral duty to him.

32.	In the judgment which he is about to deliver, Barron J considers the obligation, if any, on the deceased, in a case such as the present, to have regard to the plaintiff's responsibilities to his children. A person in her position might be regarded as being under a moral duty to make some provision for the children of the plaintiff. That, however, is not the issue with which the High Court or this Court is concerned: we are solely concerned with the legal obligations of the deceased. In the case of her children, the Oireachtas has transposed the moral obligation which she, in common with all parents, owed to her children into a legal duty enforceable in the terms laid down in s.117. The social policy underlying that provision - and which was, of course, exclusively a matter for the Oireachtas - was, it is reasonable to assume, primarily directed to protecting those children, who were still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents who were unmindful of their duties in that area. However, since the legislature, no doubt for good reasons, declined to impose any age ceilings which would preclude middle aged or even elderly offspring from obtaining relief, the courts must give effect to the provision, irrespective of the age which the child has attained. But to extend in effect the extremely ample protection which the Oireachtas has thus afforded to children, even in the middle aged and elderly category, to grandchildren seems to me to bring within the scheme of the Act a category of claimants the protection of whom was not envisaged by the legislature. I am accordingly satisfied that the apparent needs of the plaintiff's children are not a factor which would justify the court in the present case in setting aside the findings of the learned High Court judge.

33.	There is one other matter to which I drew attention at the hearing, and to which I would like to return. In the present case, the interests of the five charities benefited by the will could have been materially affected by the outcome of the present proceedings. It is surprising that at no stage was the Attorney General given notice, as the protector of charities, of the existence of the proceedings. Charities enjoy a special position in our law because they are established for the public benefit and the Attorney General has also a special role as their guardian. If he had been given notice of these proceedings, he might well have decided that, having regard to the attitude of the executrices, it would have been adding unnecessarily to the costs for him to be joined as a party. It is, however, in my view desirable (and it may be essential) in every case, whether it arises by way of a construction summons or an application under s.117, where the interests of charities may be materially affected, that the Attorney General be given notice of the proceedings.

34.	I would dismiss the appeal.

THE SUPREME COURT
Keane J.
Lynch J
Barron J

In the Matter of the Estate of L.B. and in the Matter of the Succession Act 1965 and in the Matter of an application by E.B.

E.B.
Plaintiff
And
S.S. and G. McC
Defendants

JUDGMENT of Mr. Justice Barron, delivered on the 10th day of February 1998.

35.	This is an appeal by the plaintiff against the decision of the High Court dismissing his application for relief under the provisions of s.117 of the Succession Act 1965.

36.	At the date of the hearing of his application the plaintiff was aged 40, and married with three children aged twelve, ten and eight years respectively. Although he did not marry until 1988, he had cohabited with his wife since before the birth of their first child. He was the youngest of four children having three older sisters. His father was a successful businessman who when he died in 1985 left his widow an estate of some £1.3 million.

37.	The plaintiff dropped out of university in his first year. He had various jobs thereafter including running a small haulage business financed by his father. When that failed, he returned to university from which he obtained a pass arts degree, his subjects being history and German. Up to the birth of her first child, his wife had worked, but following the birth she became a semi-invalid and is now unable to work.

38.	Following his graduation, the plaintiff appears not to have worked. He became an alcoholic and drug addict and at the date of his mother's death on 9 December 1992 he was unreformed, though by August 1993 he had reformed and has remained free from both alcohol and drugs since. During the period of his addiction he lost his driving licence.

39.	He was a feckless character and known to be such by his mother. In 1987, she had distributed the major part of what she inherited from her husband equally between her four children. After taxes the plaintiff received £275,000. The plaintiff lives in a house owned in equal shares by himself and one of his sisters. This house was provided as a gift from his father. Apart from spending about £25,000 on the house, the entire of the sum he received from his mother was wasted in one way or another.

40.	At the date of the hearing in the High Court the plaintiff was separated from his wife and the sole income available to the family was unemployment assistance.

41.	By her will his mother left the entire of her remaining estate amounting to approximately £300,000 to five named charities. Each is aware of these proceedings and is content to abide by whatever order the court makes. However, it is to be regretted that the Attorney General as protector of charities does not appear to have been notified of the existence of the proceedings.

42.	This application was unusual in that the plaintiff made no claim on his own behalf but sought under the mechanism of s.117 to obtain provision for his children. This would be in addition to the sum of £5,000 left to each of them by his mother's will. None of his sisters who are reasonably well off has made any claim.

43.	Before the passing of the Act, there was no restriction upon a person making a will as to who might be made a beneficiary thereunder. A person might cut out his or her entire family and none would have any recourse to the estate. This was rightly regarded as wrong. The Succession Act 1965 changed the law in favour of spouses and children. Exceptions, though not applicable in the instant case, were made in relation to those deemed by the Act to be unworthy to succeed.

44.	The spouse of the deceased was given a particular share in the estate, called the legal right, in every case. No such mandatory provision was made for children. They were dealt with upon a different basis. The section recognised that the relationship of parent and child came within the moral basis upon which the relevant part of the Act was based. It recognised that the parent should not be obliged to make provision for his or her children in all cases. So children were not given rights similar to the legal right given to the spouse. Instead, they could apply to the court whenever they were of the view that the parent had not observed the moral obligation arising from their relationship and their respective circumstances.

45.	The Act expressed this moral obligation as a duty to make proper provision for the child in accordance with the means of the parent. The duty is entirely a moral one though enforceable in law. Before the court can act there must how ever be clear circumstances which establish that it is proper to grant relief. A positive failure in moral duty must be established: see the judgment of Finlay CJ in In re L.A. C. deceased, C. C. v. W. C. [1990] 2 IR 149; [1989] ILRM 815. The court has no power to redraft a will and even where it is satisfied that the statutory moral duty has been breached it has no such power. Its sole power in such circumstances is to make such provision for the applicant child so that the will which will then be deemed to have included such provision is no longer in breach of the duty. The date at which the relevant factors must be considered is the date of death of the deceased.

46.	In considering whether to accede to an application, the court is not concerned with the parent child relationship alone. It is concerned with what is proper provision in accordance with the parent's means. Even though the child may not come within the statutory category of those unworthy to succeed, yet the right being based upon moral considerations, whether the child deserves to have provision or further provision made cannot be overlooked.

47.	Dealing with the circumstances in which the court should interfere, I said in In the goods of J.H. deceased [1984] IR 599 at p. 608:

The power of the court arises only to remedy a failure on the part of the testator to fulfil the moral duty owed towards the child. In general, this will arise where the child has a particular need which the means of the testator can satisfy in whole or in part. If no such need exists, even where no provision has been made by the testator whether by his will or otherwise, the court has no power to intervene.

48.	In the instant case, the plaintiff was very much in need at the date of his mother's death. He was an unreformed addict, he had a wife who was a semi-invalid and unable to work, and he had three young children aged respectively, nine, seven and five years of age. However, he had been well provided for by both his parents. His father had provided him with a good education and helped towards establishing himself in life well after the normal period. His mother had transferred to him a large sum of money in 1987. He did not deserve more. This he has acknowledged by seeking funds only to better the position of his children.

49.	Part of a person's needs must involve his or her responsibilities whether legal or moral. In In the goods of J.H. deceased I also said at p. 608:

In the ultimate analysis, each case must stand upon its own facts. To take two examples: proper provision for a child in one walk of life may not be proper provision for a child in a different walk of life; or proper provision for a child without a handicap or with normal responsibilities may not be proper provision for a child with a handicap or with exceptional responsibilities.

50.	Although the present issue did not arise in that case, I clearly assumed then and take the view now that proper provision involves assistance to enable the child to meet its responsibilities. These include those towards his wife and his children.

51.	The deceased never took these into account though she was fully aware of the circumstances of her son. In 1988 when she made her will leaving her estate to charity, her expressed view of her son was that he did nothing but enjoy himself. There is no evidence as to how much of her gift he had then spent. However, when she affirmed her will in March 1992, he had nothing left which she knew. She even revoked her legacy to him of her car, presumably on the basis that he had lost his licence. There were no material changes in the plaintiff's circumstances between that date and the date of her death.

52.	In my view, the deceased was wrong not to consider his then responsibilities. Her desire to treat each of her children equally can be appreciated. But while equality is equity, perpetuating inequality may not be. To treat children with widely divergent financial circumstances equally may be as morally wrong as to treat equally those whose circumstances are roughly equal would be morally right. That however is not the issue. A parent does not have to treat his or her children equally nor produce equality.

53.	Going to the root of this application is the meaning to be given to the words ‘proper provision'. The plaintiff obtained advancements from his father within the meaning of s.63 of the Act as well as a generous provision from his mother in 1987. But the level of provision cannot of itself determine what is proper. ‘Proper' connotes in the context in which it is used doing what is right. If so, then the fact that generous provision has already been made must only be one of the matters to be taken into account in determining what is proper.

54.	The situation must be looked at as of the date of death. At that date, the deceased had four children and a number of grandchildren not only the children of the plaintiff. The only member of her family who purported to have any claim on her bounty was the plaintiff. What was the right thing for her to have done? She should have considered the individual circumstances of each of her children. In so far as she did consider the circumstances of the plaintiff, she dismissed them as imposing any further obligation upon her. If she had considered them more deeply, she would have realised that by reason of his addiction and his inability to handle money, he was unable to provide for his wife and children in accordance with the standards to which he himself had been used or indeed to any reasonable standard. This was a situation brought about entirely by himself but for which his dependants were in no way responsible.

55.	In those circumstances, would it be proper to make further provision for the plaintiff so that he could fulfil his obligations to his dependants? In answering this question, it is the moral duty to the plaintiff and not any moral duty to the dependants which must be considered. Having regard to his obligations and the very considerable difference in his economic circumstances from those of his mother and the competing moral claims of the charities, it would have been right and proper for some further provision to have been made for the plaintiff. There are three factors involved and in my view each is satisfied. First, the plaintiff has a considerable need to meet his obligations. Secondly, the deceased had the means to alleviate that need, certainly in part. Thirdly, having regard to all the moral claims upon her bounty, it would have been right and proper for the deceased to have used some of those means to alleviate at least part of that need.

56.	In the present case, I would grant relief to the plaintiff upon the basis that the ultimate beneficiaries should be his children, since it was for them that the application was in reality brought. This should be by way of a supervised trust whereby the funds may only be used for the advancement of his children or exceptionally for their maintenance provided that the entire sum so applied will be used solely for their benefit.

57.	In so doing, there is a danger that this is giving a strained construction to the words of the section. The right is given to the child, whereas the benefit is to be taken by the grandchildren. Having regard to the overall purpose of this part of the Act to prevent a testator from wrongfully disinheriting his nearest family, such a construction is meeting that purpose. It is the responsibility and therefore the need of the child and not that of the grandchildren which the relief is intended to meet. In other parts of the Act children of a deceased parent step into the shoes of that parent, whereas s.117 is silent on this. This case highlights that difference and suggests that perhaps further consideration should be given to the section by the legislature.

58.	I would allow this appeal upon the basis which I have indicated.