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GAZETTE
SEP
T
EM
BER 1983
made except on an application made within twelve
months from the first taking out of representation
of the deceased's estate."
The first provision to note is the time limit contained in
sub-section (6). The application by or on behalf of the
child of the testator must be made within twelve months
from the first taking out of representation. However, the
personal representative is under no obligation to notify
any child of his right to apply to the Court. In fact there
would be a conflict of interest as pointed out by William J.
Maguire in his commentary on the Succession Act (Page
107 para. 5) "an executor's first duty is to administer the
estate in accordance with the directions contained in his
testator's will, and he would be imprudent (particularly if
he was a professional executor), to do anything by way of
notifying the child or otherwise which would encourage,
or instigate proceedings under Section 117." It seems very
short-sighted not to have provided at least for the notifi-
cation by a personal representative in the case of infant
children with a stipulation that the children be separately
advised, as the personal representative is very often the
parent or step-parent of the children. Carroll J. dealt in
some detail with this aspect of Section 117 applications in
the case of
In the Matter of the Estate of EJ.D. Deceased
(1979 No. 596Sp, Judgment delivered 19/2/1981). In this
case the application under Section 117 was made more
than one year after the Grant of Probate issued. The
wording of sub-section (6) specifically limits the power of
the Court "an Order under this Section
shall not be made
except
on an application made within 12 months . . . .".
This is unusual in that the Court cannot judge an applica-
tion on its merits even where the defence of effluxion of
time has not been raised.
Section 127
The Succession Act contains a provision in Section 127
for the extension of limitation period in the case of
disability. Carroll J. considered whether this section
applied to applications under Section 117 so that in case
of disability (e.g. infancy) the period of limitation fixed by
Section 117 could be extended to three years after the
disability ends. She gave some examples of situations
showing that there are compelling reasons why a time
limit of 12 months should be mitigated. But "equally
there are reasons why the administration of estates should
not be delayed beyond a reasonable time". This was
adverted to by the Supreme Court in
Moynihan
-v-
Greensmith
[1977] IR 55, 72. Applying the Section 127
limitation period to Section 117 would have the effect of
leaving the estate of a deceased testator open to claims on
behalf of his children until three years after they had
attained their majority. Section 127 applies Section 49 of
the Statute of Limitations 1957 (extending periods of
limitation for persons under disability) to actions "in
respect of a claim to the estate of a deceased person or to
any share in such estate, whether under a will, on intestacy
or as a legal right'Cbut Carroll J. points out that an
application under Section 117 is not a claim "under a
will" nor a claim "on intestacy^ Nor can it be regarded as
a claim as "a legal right" because that phrase has a special
meaning as defined in Section 3 of the Succession Act as
"the right of a spouse under Section III to a share in the
estate of a deceased person". Therefore no application
brought under this Section more than 12 months after the
taking out of a Grant of Representation can succeed.
Any child who has been guilty of the murder, attempted
murder or manslaughter of a testator shall not be entitled
to make an application under Section 117 (Section 120
sub-section 1). A person who has been found guilty of an
offence against the deceased or his spouse or any other
children, punishable by imprisonment for a maximum
period of at least two years or by a more severe penalty is
precluded from making an application under Section 117.
An application under Section 117 cannot be brought in
the case of a person dying intestate since the distribution
of his estate is governed by Part VI "Distribution on
Intestacy", Section 67. However a testator's will may be
rendered inoperative, for example by reason of the prior
death of the universal legatee and if there is no surviving
spouse the estate devolves as on intestacy. This situation
arose in a case before Carroll J.,
R.G.
-v-
P.S.G. and
J.R.G.
(Judgment delivered 20/11/1980). It was held that
as the deceased died testate, although his will was
inoperative and his estate fell for distribution as on
intestacy, a Section 117 application could be made.
Testacy did not depend on the effectiveness of, but upon
the execution of, the will and the testator remains testate
until and unless he revokes it in accordance with Section
85.
The Courts approach to these applications was briefly
stated by Costello J. in L. -v- L. [1978] IR 288. He stated
that there are basically two issues which may require to be
determined in Section 117 applications. The first is the
question "Has there been a failure by the testator in his
moral duty to make proper provision for the child in
accordance with his means, whether by his will or
otherwise?" The second issue, which arises when the first
question is answered in the affirmative, is "what
provision should the Court make?" The Courts have held
that an objective test must be applied to ascertain whether
the testator failed in his moral duty. In the case of
R.E.
-v-
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