5 - Rights of Surving Child PDF

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Rights of Surviving ChildrenThe manner in which children are provided for within the 1965 Act is different to spouses. Rather than granting a child a fraction of their deceased’s parents’ estate, S allows a child of any age to apply to court to vary their parent’s estate as the parent has not made p...

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Rights of Surviving Children The manner in which children are provided for within the 1965 Act is different to spouses. Rather than granting a child a fraction of their deceased’s parents’ estate, S.117 allows a child of any age to apply to court to vary their parent’s estate as the parent has not made proper provision for the child. Allows children to make an application on to the Court for redress if they feel their deceased parent has not made proper provision for them in accordance with his or her means, where they feel the deceased parent has failed in their moral duty to make proper provision for the applicant S117(1) the testator has failed in his moral duty to make proper provision for the child in accordance with his means, by 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.

S117(2) the court shall consider the application from the point of view of a ‘just and prudent 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.

S117(3) an order cannot affect LRS of surviving spouse or if the surviving spouse is a parent of the child it cannot affect any legacy/intestate share of the surviving spouse The presumption is that the surviving spouse will continue to support the and provide for the child.

S117(3)(a) cannot affect LRS of a civil partner unless it would be unjust not to make an order S117(6) application must be brought within 6 months of representation being taken out MPD v MD [1981] ILRM 179 In fact, because section 117 uses the word “child” rather than “infant” it is clear that it provides for applications not only by children under 18 but also by adult children. Persoanl reps are under no duty to notify children of their rights

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Rojack v Taylor [2005] 1 IR 416 - At present, personal representatives are not obliged to notify the children of the deceased of their right to make an application under section 117. This was confirmed by the High Court (Quirke J). The Court noted that “the duty of a solicitor who has been retained to advise the personal representative of a deceased person is to advise and assist the personal representative in the due and proper administration of the estate in accordance with the directions contained within the testator’s will. The requirement that the applicant for provision under section 117 must be a “child of the testator” limits section 117 to situations where the deceased had made a valid will. Section 117, therefore, will not apply to intestacy situations where no will has been made. The court’s reasoning “The bringing of such an application would to some extent frustrate the directions contained in a will, and would prejudice beneficiaries thereunder to whom the executor would be accountable.”

Reform??? Ultimately rejected by LRC in 2017 Report Adopted (s110 1965 Act) or non-marital child

How do the courts exercise their discretion under S117? In deciding on such an application, the Court will consider whether the testator “has failed in his moral duty to make proper provision”. “Proper provision” includes provision whether “by his will or otherwise”, therefore provision made by the parent during life will be taken into consideration in assessing whether or not the testamentary provision is satisfactory. In applying this test, the court will take the standpoint of a just and prudent parent, who is generally presumed to owe a moral duty to his or her children. The Court’s decision must be as fair as possible to the child to whom the application relates and the other children and it consists of two stages: 1. The first is that the court must decide whether the testator has failed in his moral duty to make proper provision for a child.

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2. Only if he has failed to do so does the court decide what provision it will order to be made.

FM v TAM (1972) 106 ILTR 82 Provides a discussion on what the circumstances of the family that the court has regard to may be. In this case a testator died and the adopted son was married with children and was established in his own profession. The testator had never provided for his son financially as the wife had always covered his expenses, education etc.

The court noted that moral duty in 117 did not oblige the testator to leave his son anything in the will. The court however ruled that the testator had made no proper provision for his son and his son’s application was successful under 117.

Not restricted to dependent or minor children. The applicable test is from an objective point of view and it is irrelevant whether or not the testator believed he had made adequate provision for the child. Corollary of this is also true where the testator is not blameworthy, he may have done his best to discharge his duty. Parents are presumed to know their children better than anyone else. Each section 117 application depends on its own circumstances and the parents are more likely to be in a position than a court to assess correctly what their obligations are to their children. This means that the testator is compared to the hypothetical “prudent and just parent” when deciding whether proper provision was made. Kenny J also asserted that the date of death is the relevant time to consider whether there was a failure - The moral duty extends to modifying the provisions of the will to ensure that they remain satisfactory.

Per Mee – at first glance it may appear as though this ruling would preclude any attempt to consider events after the date of death. However, the Irish Courts have displayed a certain degree of ingenuity in finding ways around this problem.

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Kenny J’s five criteria – 1. Amount left to surviving spouse or value of LRS if the survivor elects to take this 2. Number of children, ages and positions in life at the time of the testator’s death (see also KC v FC) 3. Means of testator 4. Age of applicant, financial position and prospects 5. Where the testator had made provisions for the child during applicant’s lifetime These guidelines have been applied and extended in all subsequent cases involving s 117. The most significant clarification of these guidelines came in Re IAC, deceased. The Means of the Testator Section 117 recognises an obligation on the parent to make “proper provision” rather than merely requiring “adequate provision”. The courts have interpreted this as meaning “what is right” or appropriate in all the circumstances, rather than merely looking at what the claimant requires for their maintenance.

The Court held that the testator had failed in his moral duty to make proper provision for his son and that the duty on the testator was not to make adequate provision but to make “proper provision in accordance with the testator’s means.” Once the wife’s legal right share was deducted there was £89,000 in the estate. The plaintiff was awarded one-half of whatever would be left from this figure once inheritance tax and costs were deducted.

Re IAC deceased [1990] 2 IR 143 Finlay C.J. emphasised that a relatively high onus lay on an applicant under s 117. According to Finlay C.J., for an application on to succeed, “a positive failure in moral duty must be established”. It is not sufficient to establish that that provision was not as great as it might have been or that compared to the other bequests it appears ungenerous or that they were in some way disappointed with it. They must show that positive failure on the part of the parent

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May be more difficult for an adult child (see also Re ABC deceased [2003] 2IR 250- social policy) Finlay CJ supported Kenny J’s criteria and also expanded on the principles in relation 117 applications.

1. The phrase failed in his moral duty in accordance with his means – places a relatively high onus of proof of the applicant. Not enough to show that it was less generous than some other gifts to other children or other beneficiaries or not as great as it might have been. 2. A court should not alter the terms of the will merley because on the facts as proved the court would most likely have made different provisions. 3. Where the relationship between the testator and the applicant was of good nature the court should refrain from interfering. 4. Different considerations apply where there is a marked hostility between the testator and a particular child. 5. The extent of moral duty can change between the executing of the will and the testator’s death as for example where an applicant child’s marriage breaks down LRC recommendation - However, for a child who is over the age of 18 (or over 23, if in full time education), it is appropriate to presume that a parent has already properly provided for them. Can be rebutted if… a) Particular financial need (health, decision making capacity) b) Item of sentimental value c) If child gave up opportunity of work to care for the parent d) Provision during the testator’s lifetime

Re IAC. The award in favour of the other adult child was upheld. This decision suggests that adult children will need to establish some particular circumstance in order to succeed, although the Commission understands that many cases are settled by providing some share of the estate to adult children.

Provisions during testator’s lifetime Re LB; EB v SS [1998] 2 ILRM 141 5

Provision from other sources. The plaintiff was aged 40 at the time of the hearing in the High Court. He had initially dropped out of college but later returned to complete his degree with the financial assistance of his father. He developed a major substance abuse problem and had spent time in various treatment facilities. At the time of the hearing the plaintiff was married with 3 children living on social welfare in a house provided for him by his father. Father died and wife attained assests worth over a million euro. Expressed a desire to proivde for all of her children equally during her lifetime. Plaintiff realised a net profit of €275,000 from this all of which he later squandered. In 1988 the mother wrote a new will, in which she made a few small legacies to children and grandchildren and divided the residue to chari es because had made ample provision for her children during her life me. She then made some minor changes in 1992. Despite being aware of the fact the plain had none of his share monies le , she did not make legacies to him in the revised will. The plain was then unemployed and living on bene ts of £135 per week, with no assets apart from half the house. He made a s 117 application claiming his mother had failed to make proper provision for him, as a result of having not taken into account his needs in terms of his responsibili es to his wife and children. The majority of the Court held that the testator had not failed in her moral duty to make proper provision for him Provision from other sources Re NSM (1973) 107 ILTR 1 Per Mee – Kenny J attributed a “remarkable capacity” to the testator to anticipate the future. Testator had given large plot of land to his son however, as a result of estate duty and expensive litigation which followed the death of the testator, the value of the residuary clause had shrunk to nothing.

Whether the deceased has fulfilled his or her moral duty can depend on events after his or her death because the courts attribute the deceased with extraordinary prescience even beyond reasonable foreseeability. Possible to rationalise it on the basis that it is just and prudent re section 117(2). Thus a reasonable parent would foresee tax consequences and potential future litigation. 6

Re ABC deceased [2003] 2 IR 250 It is clear from ABC that any moral duty is one which arose at the time of the parent’s death.

Special needs/talent of a child or circumstances S(D) v M(K) & Anor [2003] IEHC 120

McC(M) v M [2001] IEHC

Re ABC deceased [2003] 2 IR 250

In the Estate of JH de B deceased [1991] 2 IR 105 Other Moral Obligations L v L [1978] IR 288 - clearly outlines the distinction between moral and legal duties. At the time, it was not possible for children born to parents who were not married to each other to make a claim under section 117 or where, as in that case, there was uncertainty over the validity of a second marriage. The High Court (Costello J) held that the issue of whether the children of the second marriage were owed a moral duty was not dependent on whether they were entitled to make a claim under section 117. However, the court ultimately held that their position did not need to be considered as they were not capable of being affected by an order under section 117 in favour of the children of the testator’s first marriage.

C(A) v F (J) (2007) IEHC 399 – Clarke J held that the moral duty owed by a testator to the mother of his non-maritial six-year old daughter had to be taken into account to determine what order should be made in favour of that daughter where a failure of the testator’s moral duty to his daughter had been found to have occurred.

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Clarke J – The class of those to whom a moral duty may be owed can go beyond the class of those who might be entittled to make a legal claim on the estate if the deceaswd did not make provision, or proper provision for them.

Relationship with the testator Re IAC deceased [1990] 2 IR - Thus, in In re estate of IAC decd the Supreme Court took account of the testator’s attitude which was “indicative of a concerned assistance” for her children. The Court adopted and approved the principles set out in In re GM; FM v TAM. The Supreme Court upheld the award made to one of the plaintiffs in the High Court on the basis that, in comparison with her siblings she had not received proper provision from the testator and that the testator should have anticipated the expense arising from the probable breakdown of her marriage. Re McG v B, unrep HC 1978 – worked in family business, long hours. Low wages

Re FF; HL v Bank of Ireland, unrep, HC 1978 – wealthy testator treated each of his four children very badly during his lifetime. None of them had received a proper education and were all abused. Had all been driven out their house in their teens, although had made efforts to reconcile. The court made 117 application awarding the child confined to the wheelchair the most. Disablty will inform the courts decision. Even awarded large sum to the son – which they reaonsed were because of the lack care – father had a moral duty to rehabiltate him.

Falvey v Falvey unrep HC 1983 – family row someone cut of of will. Father ran succeddul shop, where his son wprked sincwe he was at school. When testator fell ill that son ran the shop.there was a row and the testator cut the son out of the wiil. Court made 117 application order – and the row and lack of family harmony did not lessen the moral duty.

JH & CH v Allied Irish Bank [1987] 203

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Failed in his moral duty where he only made scant provison for his children as he felt neglected by them after he became estranged from his wife. Court felt that the testator had a moral duty despite the neglected thwarted or argieved he felt. Should have not take it out on the children.

McDonald v Norris [2000] 1 ILRM 382 The plaintiff had left school at 14 after the father had an accident, receving very little pay for many years. The relationship detrioarated dramatically after the son got married. Incident where the son assaulted the father with a pitchfork. Court took this into account. Normally appalling behabiour will have an imoact on moral duty. The plain appealed and the Supreme Court allowed his appeal. In his judgment, Barron J. held that s 117 recognised a duty that arose from the relationship between the par es and continued from the date of birth of the child un l the death of the parent unless in the mean me it was sa s ed or extinguished Barron J. held that the appropriate test was to ask what would have sa s ed the moral obliga on of the parent to the child in the par cular circumstances of this family. Barron J. held that one would ordinarily expect that the plain would have been le over half of the lands. Barron J. noted that the plain ’s behaviour towards his father had been “very bad”, but added that it had been prompted by a desire to protect his birthright. Barron J. also stated that the court could not ignore the testator’s unreasonable attitude towards the family of the plaintiff’s wife and his desire that they should get no part of the lands. Barron J. concluded that the plain ’s behaviour towards the testator did not extinguish the testator’s moral obligation. The plain ’s behaviour had been ini ally prompted by the testator’s reac on to the plain ’s marriage and that reac on had been a breach of the moral obligation, which the testator owed to the plaintiff who had maintained the farm, which the testator was incapable of doing. Regardless of his feelings for the defendant’s family who had befriended him, the testator did not have any moral obligation to provide for them to the detriment of the plaintiff who was his own son. However, The court held that the son was entitled to the remainder of the farm, on the basis that his father had deprived his son of an education, and a chance of an independent career

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Re W: W v D unrep HC, 1975 8 children in 1962 the tetstator left a will leaving the land to four of his sons. He died in 1973. The value of the land had increased dramatically. To such an extent it made that the other were disinherited. In these circumstances Parke J – failed to make proper provisons. There was a “gross distortion” Held they should get equal shares, with eldest son getting a little bit more because of his ill health. Change in circumsatnces. held that, although there was no “blameworthy breach of duty” by the testator and that he sincerely wished to make proper provision for his children, nonetheless, the Court held that the testator had fallen short of that standard. Re IAC deceased [1990] 2 IR After execution of the will. The daughters marriage had broken down, it was held she should have been aware that her daughter would need extra provision to cope with the change in circumstance.

Where circumstances change after the date of death Courts have got around this by looking at reaosoanbly foreseeable events at the date of death

Re NSM (1973) 107 ILTR 1 In the event here, had left residue of his estate to his son – should have been able to see that the residue would worth very little following expensive litigation following his death. He was divorced and remarried as there was two wife claims.

W(C) v W(L) [2005] 4 IR 439 No moral duty failure here. Were prepared to treat the t as having knowledge of wife’s will which had made generous provisons and ensured she was properly provided for.

S121 – crafty testator who gives away everything before they die- this is the testator who is more subtle in his disinheritance. Any disposition made by the testator outside his will and within three years of the t’s death , if made with the intention of disinheriting the spouse or child will be treated as if it was part of the will. Remember it is not invalid. Have to prove the intention aspect.

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