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GAZETTE
SEP
T
EM
BER 1983
testator's moral duty. In
McGarry
-v-
Byrne
Costello J.
thought that heavy family responsibilities of two of the
testatrix's children placed a moral obligation on her to
help them discharge these responsibilities. In respect of a
third child the Court took into account contributions
made to the upkeep of the testatrix and the family home
and to the fact that if the home was to be sold under the
terms of her will he would have nowhere to reside.
Circumstances such as the illness of one of a testator's
children or an exceptional talent which should be
developed are relevant. In the case of
H.L.
-v-
Governor
and Company of the Bank of Ireland
(Judgment delivered
27/7/78) Costello J. found the testator had failed in his
duty towards the surviving four children of his marriage.
They had received no proper education and each had been
forced to leave home in their mid-teens unfit for any trade
or profession and unprovided for. He had refused to have
his eldest son treated for paranoid schizophrenia or to
have a daughter treated for a fall from a horse when she
was fifteen with the result that at the time of the
proceedings she was confined to a wheelchair. It wás
noted that each of the children had attempted to be
reconciled with their father. The testator had a gross
estate of £476,000. Having found that there was failure in
the moral duty the Court had to approach the issue of
making provision for the children from the point of view
of a just and prudent parent giving special consideration
to the two children needing medical treatment in order to
make a just provision for them. In the case of the child
needing psychiatric care it was thought that a just and
prudent parent would establish a Discretionary Trust
with the schizophrenic son as the main beneficiary but
having the other children also as beneficiaries enabling
trustees to apply any income, surplus to the requirements
of the main beneficiary, to the needs of the others. The
remaining children were paid capital sums out of the
estate, in addition to their legacies under the will.
The case law under Section 117 is indicative of a more
or less liberal approach by the Courts to its interpretation.
The Section has not been construed narrowly to confine
its application to dependant children or children who
have received inadequate provision in accordance with
the Testator's means. Gradually a pattern is emerging
from the cases and it may be noticed that few of the
applications to the court have failed to secure better
provision for the applicant out of the estate. In most cases
every effort was made by the court to avoid disturbing the
provisions of the Will of the Testator in satisfying an
applicant's claim by having recourse to the residuary
estate where possible. It has been borne in mind by the
Court that when the Act was debated by the members of
the Oireachtas there were strong arguments made that the
section should be confined either to infant children of the
Testator or to dependant children of a Testator. These
limitations were not accepted by the majority of the
Members and even when a subsequent attempt was made
in the Senate to limit the scope of the section with the
introduction of a Succession Bill in 1970 it was rejected.
This is a newly developing area of Succession Law with
the earliest major cases no more than a dozen years old. In
John B. Jermyn, Solicitor, presenting Ms. Anne Bacon with the winning prize in the John B. Jermyn Essay Competition
1983.
228