The Gazette 1981

GAZETTE

DECE M BER

1981

and

1891,

creating

and

between A.J. and I .E. It was thus necessary for the testatrix's executors to prove the Will in solemn form. The Plaintiff alleged that he had executed the deed giving rise to the trust arrangement between himself and his brother C.E. under pressure and that the testatrix had failed in her moral duty to make proper provision for him by her will or otherwise. Held (per Barrington J.) that: 1. The Plaintiff was not placed under any form of improper pressure in executing the said deed and that the Testatrix's primary concern had been to do the right thing for her son, the Plaintiff, and that the trans- action had been entered into only because the Plaintiff did not wish or did not feel able to undertake the management of the property himself; 2. The testatrix had not failed in her moral duty towards the Plaintiff by neglecting to make further provision for him in her will. Obiter (per Barrington J.) that in view of the probable value of the Gros- venor Road property in question it ought to be possible, by the revised management or by sale of it and investment of the proceeds, to sub- stantially increase the Plaintiff's in- come. R.E. v. AJ . , I.E., and R.D. - High Court (per Barrington, J.) — 11 January 1980 — unreported. PERIOD OF LIMITATION Section 126 of the Succession Act 1965, which amended and re-enacted Section 45 of the Statute of Limitations 1957, did not come into force until the date of commence- ment of the former Act, that is, 1 January 1967 — Section 45 of the Statute of Limitations 1957 (limitation period 6 years) only relates to a claim by an unpaid bene- ficiary, and has no application to a claim by a personal representative to recover the assets of the deceased from a person holding adversely to the estate. The Statutory provision appropriate to a claim by a personal representative is Section 13 (2) of the Statute of Limitations 1957 (limitation period 12 years). J.D., the registered owner of lands in Co. Waterford died intestate on 1 February 1966 leaving a widow

SUCCESSION Succession Act 1965 — Section 117 — provision for child — settlement of property inter vivos' discharged testarlx's moral duty to make proper provision for her son. This was an application by the Plain- tiff under Section 117 of the Succes- sion Act 1965, that his mother had failed in her moral duty to make proper provision for him by her will or otherwise. The Plaintiff was aged 58. It was given in evidence and was not contested that the Plaintiff, the seventh of eleven children of the testatrix, was highly strung, with very little capacity for business, had a poor relationship with most of his brothers and sisters, did not wish to get himself involved in the management of property, had no knowledge of property and had personal problems, including a drink problem. The testatrix had, during her life, sought to make provision for her children by buying properties for them or by vesting in them properties which had been acquired for the purpose of the (former) family business. As a result, the testatrix had disposed of most of her assets during her lifetime and, on her death, the net value of her estate, for probate purposes, was merely £2093.40. The testatrix's provision for her son, the Plaintiff, had been to set aside in 1968 her leasehold interest in an investment property in Grosvenor Road, Dublin, The terms of the arrangement, apparently agreed be tween the parties (although, in evidence, the Plaintiff alleged such terms were forced upon him), were that the testatrix assigned by deed the property to the Plaintiff's brother, C.E., with whom it appeared the Plaintiff had a genuine bond of affec- tion. C.E. was, in essence, to hold and manage the property in trust for the Plaintiff and to pay the Plaintiff thereout a net weekly sum of £15.00. This C.E. had done over the years and had, in fact, increased the income to the weekly sum of £20.00. The testatrix died on 17 July 1976 and the Plaintiff entered a caveat to her Will made 30 May 1975 where- under she appointed the three Defendants, A.J., a daughter, I.E., a son and R.D., a Solicitor, and left the residue of her property equally

providing the offence commonly known as "loitering with intent" were inconsistent with Articles 38.1, 40.1.4 and 40.3 of the Constitution and, by virtue of Article 50.1 of the Constitution, ceased to have any force or effect in this State upon the coming into operation of the Constitution. 2. That the conviction of the Plain- tiff in the District Court on 13 November 1975 of having in his possession specified housebreak- ing implements with intent to commit some felonious act, to wit, to steal, contrary to Section 4 of the Vagrancy Act, 1824, was invalid as there was no refer- ence to the extension and amend- ment of Section 4 of the 1824 Act by the Acts of 1871 and 1891; and that accordingly, the recorded conviction failed to show jurisdiction on its face and therefore lacked validity. 3. That in lieu of the orders of certi- orari granted in the order of the High Court, the two convictions of the Plaintiff in the District Court on 13 November 1975 (as affirmed, but varied as to sen- tence, in the Circuit Court on 9 December 1975) and the further conviction of the Plaintiff in the District Court on 2 July 1976, should be declared invalid. In a part dissenting judgment O'Higgins C.J. expressed the view that the specified parts of Section 4 of the Vagrancy Act, 1824, as applied to Ireland and amended by the Acts of 1871 and 1891 creating and providing for the offence commonly known as "loitering with intent" should survive and remain in force with only the words "suspected" and "reputed thief' excluded as being inconsistent with the Constitution. He was also of the view that the conviction of the Plaintiff in the District Court on 2 July 1976 be quashed because at the hearing of the charge prior to conviction evidence was received of a previous convic- tion of the Plaintiff. Neville Francis King v. Director of Public Prosecutions and the Attorney General — Supreme Court (per Henchy J. with Griffin, Kenny and Parke J.J. concurring, O'Higgins C.J., dissenting in part) - 31 July 1980 - unreported. for

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