The Gazette 1981

GAZETTE

D E CE MBER1981

Held (per Carroll, J.) that the state of testacy depends on the effectiveness of the execution of the Will and not on the effectiveness of the operation of the Will so that if a person has made a Will in accordance with the statutory provisions, testacy is established. A testator who has disposed of his entire estate dies wholly testate and in every other case dies partly testate. The only way a testator, having made a valid will, can cease to be a 'testator' is by revoking the Will in accordance with S.85 of the Act by one of the means mentioned in that Section other than by making a new Will. Therefore the deceased died a testator and accordingly Section 117 could be invoked. On the merits, the testator had failed in his moral duty to make proper provision for the Plaintiff in accordance with his means, since in the circumstances one-third of the deceased's estate would not constitute proper provision. Adequacy is not the test to be employed — there must be proper provision in accordance with the testator's means, which meant in this case, providing a means of livelihood from farming reasonably comparable with that which the Plaintiff enjoyed prior to his father's death and a larger share than one-third of the father's estate was awarded to the Plaintiff. R.G. v. P.S.G. and J.R.G. — High Court — (per Carroll, J.) — 20 November 1980 — unreported. Sale of land — contract "subject to loan approval" — implied term that conditions of loan approval will be reasonable. Forfeiture of Deposit. By a contract for sale dated the 17 December 1979 the Plaintiffs agreed to buy premises at North Circular Road, Dublin for £35,000 from the Defendant. Clause 4 of the Special Conditions of the Contract read:— "The obligations of both parties under this contract are subject to the purchasers being approved for a loan by the Irish Permanent Building Society on the security of the premises in the amount of SALE OF LAND

The Plaintiff was the eldest son of the deceased, who was a farmer with a dairy farm of 150 acres. The Defendants were the two brothers of the Plaintiff, these three being the only children. The Plaintiff at all times resided with his father and mother on the family farm, leaving school at 14, and working the land with the deceased. After his marriage in 1965, he was persuaded to stay with his wife in the family home and not move to another farm, being encouraged by his parents to believe that the family farm would one day be his. This was repeated to him by the deceased less than a week before he died. The Plaintiff worked hard on the farm every day of the year, and his wife also played her full part in the running of the farm. After 1969, only casual labour was employed. The Plaintiff did not receive wages, but household expenses were met from farm income and the deceased sometimes gave him money for himself, as well as for special purposes when he asked for it. After his father's death in 1976, the Plaintiff and his wife stayed on in the family home to the exclusion of the Defendants, who had left home many years before and made their own lives, with partial assistance from their parents. The deceased's Will, made in 1960, appointed his wife sole executrix and universal legatee and devisee. His wife having predeceased him by eight years, the Will, although validly made, was totally inoperative, and his entire estate devolved as on intestacy. In 1978, the Defendants proved the Will, and obtained a Grant of Letters of Administration with the Will annexed. In this action, the Plaintiff made a claim under Section 117 of the Succession Act 1965, arguing that the one-third share of his father's estate, which he would receive as one of the three next-of-kin would, in his special circumstances, represent less than proper provision for him by his father in accordance with his means and that the Court should award him a greater share of his father's estate. The Defendants argued that the deceased could not be said to have died wholly or partly testate, in accordance with the requirement laid down by Section 109(1) of the Act and that therefore Section 117 could not apply.

£25,000 on or before the 2 January next. Should the said loan approval be not forthcoming on or before that date then this contract shall be at an end, and all amounts furnished by the purchasers will be refunded without any interest or compensation. This clause is to be specifically for the benefit of the vendor who alone shall have the right of waiver". The Plaintiff had applied to the I.P.B.S. on 25 October 1979 for a loan. The I.P.B.S. had the building surveyed by their architect and he furnished a written report. On 28 December 1979 the IPBS issued a written loan approval subject to special conditions including the following:— "5.That the property be converted into a single dwelling for owner occupation only before cheque issue. 6. The following repairs be carried out to the Society's valuers satisfaction before the advance is made — rewire; replace defective windows, doors, skirtings and floors; repair defective internal plaster work to ceilings and walls as necessary; provide proper fitted kitchen; replumb as necessary; replace defective external timbers; make good to roof or porch, brickwork to front entrance, gutters and waste pipes. 7. Your particular attention is drawn to General Condition A on the back of the approval letter." This general condition provided as follows:— "(a) The applicant must personally within 7 days indicate in writing his willingness to take up this advance and the deeds giving a good marketable title to the property must be sent to the Societys solicitors within a further 10 days and the mortgage loan completed within 40 days from the date of this approval. Failure to comply with any of the foregoing, or the rejection of the property for comprehensive insurance at the standard rate without any special conditions by the company nominated by the Society cancels this approval." The Plaintiffs did not fulfil or carry out these special conditions of the loan approval at Nos. 5 and 6 because they contended that such conditions were unusual, abnormal and therefore

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