GAZETTE
SEP
T
EM
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
L.
-v-
L.
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
M.
[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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