The Gazette 1983

GAZETTE

SEP

BER 1983

A.J., I.E. and R.D.

(Unreported Judgment 11/1/1980)

Barrington J. was asked to consider whether a testatrix

had failed in her moral duty to the applicant, one of her

eleven children, to make proper provision by will or

otherwise. Her nett estate amounted to £2,093.00 and was

left equally between two children. He applied objective

standards in the light of the situation at the time of the

testatrix's death. Since the Plaintiff had already been

provided for during the testatrix's lifetime the Court was

not prepared to hold that she had failed in her moral duty

by neglecting to make further provision for him in her

will.

The application of the objective test did not always

produce what one might consider desirable results. Keane

J. in the case of

In the Matter of the Estate of J.R.

(Judgment delivered 13/11/79), followed the dicta of

Kelly J. in the cases

EM. -v- T.A.M. & Ors.

[106] ILTR 82

and

In Re N.S.M.

[107] ILTR 1, and in applying objective

considerations he held that the testator had failed in his

moral duty to provide for the plaintiff. The testator

owned a small farm which could only support one couple.

The Plaintiff, the testator's only son, was 43 years of age, a

motor mechanic, married with four children and living in

a Local Authority house and in no way dependent upon

his father's farm. The Defendant in the application was

the Testator's spouse and was Step-mother to the

Plaintiff. The Testator in his will had left all his property

to his wife subject to a right of residence for his brother.

Step-parent's rights

It should be noted that the Step-parent of an Applicant

under Section 117 is less secure in his succession rights

than a natural parent. Under sub-section 3 of Section 117

no order given under that section can affect the legal right

or any devise or bequest made to an Applicant's natural

parent. However only the legal right share of a Step-parent

is immune from an Order under the section and any devise

or bequest in excess of that share may be appropriated by

the court to satisfy a claim under Section 117. In this case,

if the spouse had been the Plaintiffs mother the Plaintiff

could not have brought any application under Section 117

no matter how little provision the testator had made

during his lifetime for the Plaintiff because under sub-

section 3 an Order made under Section 117 may not affect

any devise or bequest to the spouse or any share to which

the spouse is entitled on intestacy. But as the spouse was

the stepmother of the Plaintiff his potential maximum

entitlement under Section 117 was two-thirds of the

estate. Keane J. ordered that the Plaintiff receive two-

fifths of the estate and noted that unfortunately

implementing the Order meant selling the farm but stated

that it could not be avoided once the conclusion was

reached that the testator failed in his moral duty to

provide for the Plaintiff.

It would seem that Keane J.'s objective test of the

testator's moral duty had a rather narrow basis and does

not take into account his duties to persons other than the

applicant. As Kenny J. states in

G.E.M.

[1972] 106 ILTR

Deceased

"the relationship of parent and child does

not of itself and without regard to other circumstances

create a moral duty to leave anything by will to the child".

Keane J.'s approach may be contrasted with the approach

of Costello J. in the case of

-v-

"a just parent in

considering what provision he should make for each of his

children during his lifetime and by his will, must take into

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