K Ors -v- D Ors
Neutral citation: (2011) IEHC 22.
High Court
Judgment was delivered on January 21st, 2011, by Mr Justice George Birmingham.
Judgment
The court found that a man had failed in his duty to make proper provision in his will for his daughter, who suffered from a disability and who was unable to care for herself.
Background
Proceedings were brought under section 117 of the Succession Act 1965 by the two sons and daughter, a ward of court suing by her mother and next friend, of a man who died in 1999. The proceedings had been held up by various proceedings and developments during the years.
The defendants were the representatives of the estate and the testator’s partner at the time of his death, who was a beneficiary of the will. He and his wife had separated and had concluded a judicial separation in 1996. The wife made no claim against the estate.
The testator had suffered two strokes in 1997 and his partner said she had taken time off work to look after him, eventually leaving work to care for him full-time. Before his death she had been made joint owner of a substantial bungalow and garden of about an acre, together now worth about €400,000, which she inherited on his death.
The testator also owned eight to 10 acres of agricultural land beside the bungalow, along with a yard containing three commercial units. Under his will, each of his two sons was left a site from the agricultural land, provided they obtained planning permission within 24 months of his death. The permission was opposed by the man’s partner, and they failed to obtain the permission, so this entitlement lapsed and all the land, along with agricultural machinery and other items, was left to the partner.
The testator left the commercial yard to be divided between the three children, now aged respectively 35, 34 and 32, and his partner.
During the proceedings, the plaintiffs agreed not to pursue the partner for debts arising out of the acquisition of the bungalow. However, a proposed settlement of the proceedings was not agreed by her and the case was heard.
Before giving judgment, Mr Justice Birmingham outlined the principles derived from the jurisprudence on section 117 of the Succession Act. These include: that the social policy underlying it is primarily directed at protecting those children at an age where they might reasonably expect support from their parents; establishing whether any moral duty owed to children is fulfilled, and a need to establish a clear and positive failure in order to interfere in a will; the relationship of parent and child does not in itself create a moral duty and there is no obligation to leave something to each child; the provision of an expensive education or other gifts or settlements may discharge the moral duty; special circumstances may arise if a child was induced to expect an inheritance by virtue, for example, of working on a farm; special needs, like a disability, would also have to be taken into account; the court must presume that parents know their children better than anyone else.
Decision
Mr Justice Birmingham stated that the present value of the estate, before legal costs were taken into count, was €543,450, having been diminished by the lengthy litigation. The two sons were in good health, but in precarious financial circumstances.
The provision of a site to each of them was proper provision, but there was a failure on the part of the testator in imposing conditions on this. The requirement of obtaining planning permission meant they were dependent on decisions outside their control, and the partner was in a powerful position to block such permission, which she did.
Although they did not agree on other matters, the sons and the partner agreed that the testator had failed in his moral duty to provide for the daughter, who suffered severely from epilepsy and was unable to care for herself. She was cared for by her mother and would need more intensive care in the future.
He directed that all the assets left in the estate be converted into cash and divided. The daughter should receive half and the balance should be equally divided between the two sons and the partner.
“In departing from the terms of the will as I have been forced to do, I have been driven by the need to see provision made for [the daughter] and influenced by the fact that provision was made for [the partner] prior to the deceased’s death, which does mean that [she] now occupies a fine home with only a very modest mortgage indeed,” he said.
He added that he was also influenced by the attitude the plaintiffs had taken to the debt, which conferred a significant benefit on the partner. It had clearly been their fathers intention to make greater provision for her than for them and he wished to respect that decision.
The full judgment is on courts.ie
Lawyers: Wilkinson Price Naas for the plaintiff and Niall P O’Neill for the defendant.