The Gazette 1983

GAZETTE

SEP

BER 1983

account not just his moral obligations to his children and

his wife but all his moral obligations". Obligations which

could not be enforced under the Succession Act would

nonetheless have to be taken into account e.g. a duty

towards aged parents. Likewise if the testator had an

illegitimate child the Court should have regard in Section

117 applications by his legitimate child to the fact that the

Testator has a moral duty to his illegitimate child. The

decision does not in any way improve the legal status of

the illegitimate child in relation to the Law of Succession

but it may be the thin end of the wedge. At the moment it

would seem that the only instance in which it would be

relevant to consider the duty of a Testator to an illegi-

timate child would be where the illegitimate child is a

beneficiary under the Testator's will and an Order under

Section 117 would affect his interests.

The decision in

-v-

is important in view of the

increasing number of cases of second marriages which

may or may not be valid. Costello J. stated that the nature

and extent of the testator's moral duty to the children of

his second marriage could not be affected by a decision of

the Court at a given point in time, that the second

marriage should not be recognised. Even if the Court

could not properly recognise the second marriage it must

accept as a fact that moral duties were created by the

parties to it (he refers to the Judgment of Kenny J.

In Re

[1971] 107 ILTR. However, the facts in

L. -v-L.

did not

make it necessary for Costello J. to decide on the validity

of the second marriage nor on the extent of the rights of

the children of the second marriage. It is inevitable that

other such cases will arise but despite Costello J.'s broad

view it is difficult to see how, under the Succession Act as

it stands, an illegitimate child can acquire rights over the

estate of a testator other than as a beneficiary under his

will.

The test of the existence of a moral duty to make proper

provision by will for a child was laid down by Kenny J. in

the case of

In Re N.S.M. Deceased

and has been applied in

many subsequent cases: "It seems to me that the existence

of a moral duty to make proper provision by will for a

child must be judged by the facts existing at the date of

death and must depend upon (a) the amount left to the

surviving spouse or the value of the legal right, if the

survivor elects to take this; (b) the number of the testator's

children, their ages and position in life at the time of the

testator's death; (c) the means of the testator; (d) the age

of the child whose case is being considered and his/her

financial position and prospects in life; and (e) whether

the testator has already in his lifetime made proper

provisions for the child. The existence of the duty must be

decided by objective considerations." In this case the

provision the testator had made for one of his children in

particular failed because of the large amount of Estate

Duty and legal costs payable out of the estate. In deciding

whether or not the testator had made proper provision for

the child Kenny J. felt that Section 117 must be

interpreted so as to attribute to the testator a remarkable

capacity to anticipate the costs of the litigation following

his death and the extent of Estate Duty payable out of his

estate.

Testator's Moral Duty

The following cases illustrate circumstances which

have been found relevant by the Court in considering the

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