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GAZETTE
APRIL 1981
The
Intestate
Testator?
by Charles R. M. Meredith,
Solicitor
A commentary on the Judgment of Miss Justice Carroll in
the Case of
R.G.
v.
P.S.G. andJ.R.G.,
delivered on 20th
November 1980.
N
EW law is always of interest; when that new law is
brought about by the judicial interpretation of a
statutory provision of relatively long standing, in
circumstances that must have occurred many times in the
past without serious question, the interest is greatly
enhanced.
In the case of
R.G. v. P.S.G. andJ.R.G.,
it fell to Miss
Justice Carroll to examine the intriguing question of
whether a person can execute a valid will, die without
having taken any action which could revoke that will and
yet die intestate. The case is the more interesting by
reason of the fact that Counsel for the three parties were
apparently unable to find any case law to argue before the
learned Judge, who was left to come to her conclusions
upon the basis of her oyn interpretation of the relevant
statutory provisions in the circumstances of the case.
Those circumstances were as follows. The Plaintiff was
the eldest son of a deceased testator, who died in 1976.
The defendants were the two younger brothers of the
Plaintiff. The three of them also happened to be the sole
next of kin of the deceased and, in the events which had
happened, the only persons entitled to share in his estate.
The deceased, by his will dated 16th September 1960
appointed his wife to be sole executrix and universal
legatee and devisee. His wife predeceased him by eight
years and he did not make any other will. The deceased's
will was therefore wholly inoperative and, as far as the
disposal of his estate was concerned, that estate would de-
volve as on intestacy.
The case arose through the particular and individual
circumstances of the deceased's three sons. The Plaintiff
had at all times resided with the deceased and the de-
ceased's wife (Plaintiffs mother) on the family farm.
When the Plaintiff married in 1965, his wife had moved
into the family home. The deceased and the Plaintiff had,
in effect, farmed the family farm together. The farming
activities had comprised a dairy herd, store cattle, a bull,
sheep, and some tillage principally to provide food for the
cattle but with some of the crop being sold to cover the
cost of seed.
Household expenses came from the creamery cheque
and from mart cheques, whenever stock was sold. The
Plaintiff received no wages from his father and if he or his
wife required any money they asked for it. On occasion,
the deceased told Plaintiff to take some money for him-
self out of the mart cheque, when lodging it in the Bank.
Being a dairy farm, the requirements of dairying and
looking after young stock necessitated the Plaintiff
working on the farm seven days a week for 365 days of
the year. The Plaintiffs wife also played her full part in
the running of the farm and, after 1969, only casual
labour was employed.
Over the years, the Plaintiff gradually acquired stock on
his own account, which he maintained on the family farm
and the Court accepted his evidence that at the date of his
father's death, about 75% of the stock on the farm
belonged to the Plaintiff.
It was at all times represented to the Plaintiff by his
father, the latest occasion being less than a week before
his father died, that the Plaintiff would inherit the family
farm and it was the Plaintiffs belief in this that gave rise
to the proceedings.
After his father's death, the Plaintiff and his wife
stayed on in the family home and farm, to the exclusion of
the two defendants. Both defendants had left home many
years before and, in their respective ways, had made their
own lives, with partial assistance from their parents.
In 1978, the defendants proved the Will and obtained a
grant of Letters of Administration with Will annexed.
The action now described was brought by the Plaintiff
under the terms of Section 117 of the Succession Act
1965, the Plaintiff arguing that the one-third share of his
father's estate which he would receive as one of three next
of kin would, in his special circumstances, represent less
than proper provision by his father for him in accordance
with his means and that the Court should award him a
greater share of his father's estate. The defendants argued
that the deceased could not be said to have died wholly or
partly testate and that accordingly Section 117 could not
apply.
Subsections (1) and (2) of Section 117 of the
Succession Act 1965 read 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 will be as fair as possible to the child to whom
the application relates and to the other children.
These Subsections must be read in the general context of
Section 109(1) of the Act, which provides:—
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