The Gazette 1981

GAZETTE

MBER1981

The Plaintiff was the eldest son of

the deceased, who was a farmer with

a dairy farm of 150 acres. The

Defendants were the two brothers of

the Plaintiff, these three being the

only children.

The Plaintiff at all times resided

with his father and mother on the

family farm, leaving school at 14,

and working the land with the

deceased. After his marriage in 1965,

he was persuaded to stay with his

wife in the family home and not move

to another farm, being encouraged by

his parents to believe that the family

farm would one day be his. This was

repeated to him by the deceased less

than a week before he died.

The Plaintiff worked hard on the

farm every day of the year, and his

wife also played her full part in the

running of the farm. After 1969, only

casual labour was employed. The

Plaintiff did not receive wages, but

household expenses were met from

farm income and the deceased

sometimes gave him money for

himself, as well as for special

purposes when he asked for it.

After his father's death in 1976,

the Plaintiff and his wife stayed on in

the family home to the exclusion of

the Defendants, who had left home

many years before and made their

own lives, with partial assistance

from their parents.

The deceased's Will, made in

1960, appointed his wife sole

executrix and universal legatee and

devisee. His wife having predeceased

him by eight years, the Will, although

validly made, was totally inoperative,

and his entire estate devolved as on

intestacy. In 1978, the Defendants

proved the Will, and obtained a

Grant of Letters of Administration

with the Will annexed.

In this action, the Plaintiff made a

claim under Section 117 of the

Succession Act 1965, arguing that

the one-third share of his father's

estate, which he would receive as one

of the three next-of-kin would, in his

special circumstances, represent less

than proper provision for him by his

father 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, in

accordance with the requirement laid

down by Section 109(1) of the Act

and that therefore Section 117 could

not apply.

Held

(per Carroll, J.) that the state of

testacy depends on the effectiveness

of the execution of the Will and not

on the effectiveness of the operation

of the Will so that if a person has

made a Will in accordance with the

statutory provisions, testacy is

established. A testator who has

disposed of his entire estate dies

wholly testate and in every other case

dies partly testate. The only way a

testator, having made a valid will,

can cease to be a 'testator' is by

revoking the Will in accordance with

S.85 of the Act by one of the means

mentioned in that Section other than

by making a new Will.

Therefore the deceased died a

testator and accordingly Section 117

could be invoked. On the merits, the

testator had failed in his moral duty

to make proper provision for the

Plaintiff in accordance with his

means, since in the circumstances

one-third of the deceased's estate

would

not

constitute

proper

provision. Adequacy is not the test to

be employed — there must be proper

provision in accordance with the

testator's means, which meant in this

case, providing a means of livelihood

from farming reasonably comparable

with that which the Plaintiff enjoyed

prior to his father's death and a

larger share than one-third of the

father's estate was awarded to the

Plaintiff.

R.G. v. P.S.G. and J.R.G.

— High

Court — (per Carroll, J.) — 20

November 1980 — unreported.

SALE OF LAND

Sale of land — contract "subject to

loan approval" — implied term that

conditions of loan approval will be

reasonable. Forfeiture of Deposit.

By a contract for sale dated the 17

December 1979 the Plaintiffs agreed

to buy premises at North Circular

Road, Dublin for £35,000 from the

Defendant. Clause 4 of the Special

Conditions of the Contract read:—

"The obligations of both parties

under this contract are subject to

the purchasers being approved for

a loan by the Irish Permanent

Building Society on the security of

the premises in the amount of

£25,000 on or before the 2

January next. Should the said loan

approval be not forthcoming on or

before that date then this contract

shall be at an end, and all amounts

furnished by the purchasers will be

refunded without any interest or

compensation. This clause is to be

specifically for the benefit of the

vendor who alone shall have the

right of waiver".

The Plaintiff had applied to the

I.P.B.S. on 25 October 1979 for a

loan. The I.P.B.S. had the building

surveyed by their architect and he

furnished a written report. On 28

December 1979 the IPBS issued a

written loan approval subject to

special conditions including the

following:—

"5.That the property be converted

into a single dwelling for owner

occupation only before cheque

issue.

6. The following repairs be carried

out to the Society's valuers

satisfaction before the advance is

made — rewire; replace defective

windows, doors, skirtings and

floors; repair defective internal

plaster work to ceilings and walls

as necessary; provide proper fitted

kitchen; replumb as necessary;

replace defective external timbers;

make good to roof or porch,

brickwork to front entrance,

gutters and waste pipes.

7. Your particular attention is drawn

to General Condition A on the

back of the approval letter."

This general condition provided as

follows:—

"(a) The applicant must personally

within 7 days indicate in writing

his willingness to take up this

advance and the deeds giving a

good marketable title to the

property must be sent to the

Societys solicitors within a further

10 days and the mortgage loan

completed within 40 days from the

date of this approval. Failure to

comply with any of the foregoing,

or the rejection of the property for

comprehensive insurance at the

standard rate without any special

conditions by the company

nominated by the Society cancels

this approval."

The Plaintiffs did not fulfil or carry

out these special conditions of the loan

approval at Nos. 5 and 6 because they

contended that such conditions were

unusual, abnormal and therefore

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