The Gazette 1983

GAZETTE

SEP T EM BER 1983

A.J., I.E. and R.D. (Unreported Judgment 11/1/1980) Barrington J. was asked to consider whether a testatrix had failed in her moral duty to the applicant, one of her eleven children, to make proper provision by will or otherwise. Her nett estate amounted to £2,093.00 and was left equally between two children. He applied objective standards in the light of the situation at the time of the testatrix's death. Since the Plaintiff had already been provided for during the testatrix's lifetime the Court was not prepared to hold that she had failed in her moral duty by neglecting to make further provision for him in her will. The application of the objective test did not always produce what one might consider desirable results. Keane J. in the case of In the Matter of the Estate of J.R. (Judgment delivered 13/11/79), followed the dicta of Kelly J. in the cases EM. -v- T.A.M. & Ors. [106] ILTR 82 and In Re N.S.M. [107] ILTR 1, and in applying objective considerations he held that the testator had failed in his moral duty to provide for the plaintiff. The testator owned a small farm which could only support one couple. The Plaintiff, the testator's only son, was 43 years of age, a motor mechanic, married with four children and living in a Local Authority house and in no way dependent upon his father's farm. The Defendant in the application was the Testator's spouse and was Step-mother to the Plaintiff. The Testator in his will had left all his property to his wife subject to a right of residence for his brother. Step-parent's rights It should be noted that the Step-parent of an Applicant under Section 117 is less secure in his succession rights than a natural parent. Under sub-section 3 of Section 117 no order given under that section can affect the legal right or any devise or bequest made to an Applicant's natural parent. However only the legal right share of a Step-parent is immune from an Order under the section and any devise or bequest in excess of that share may be appropriated by the court to satisfy a claim under Section 117. In this case, if the spouse had been the Plaintiffs mother the Plaintiff could not have brought any application under Section 117 no matter how little provision the testator had made during his lifetime for the Plaintiff because under sub- section 3 an Order made under Section 117 may not affect any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy. But as the spouse was the stepmother of the Plaintiff his potential maximum entitlement under Section 117 was two-thirds of the estate. Keane J. ordered that the Plaintiff receive two- fifths of the estate and noted that unfortunately implementing the Order meant selling the farm but stated that it could not be avoided once the conclusion was reached that the testator failed in his moral duty to provide for the Plaintiff. It would seem that Keane J.'s objective test of the testator's moral duty had a rather narrow basis and does not take into account his duties to persons other than the applicant. As Kenny J. states in G.E.M. [1972] 106 ILTR 82 Deceased "the relationship of parent and child does not of itself and without regard to other circumstances create a moral duty to leave anything by will to the child". Keane J.'s approach may be contrasted with the approach of Costello J. in the case of L. -v- L. "a just parent in considering what provision he should make for each of his children during his lifetime and by his will, must take into

PHOTO-COPIERS INTERNATIONAL LIMITED Phone: 304211 Telex: 33164

MEMBER OF THE EUROPEAN COPIER COUNCIL We offer you a complete range of machines to suit your needs, low volume or high volume, and most important fast efficient service at very reasonable prices. Should you have an existing copier and you are not happy with the service you get, or the price you pay for supplies and meter charge, then give usacall you could be surprised with the savings, nationwide service.

Why not give us a call, we rent and lease and also otter good trade outs.

35/36 Pearse Street, Dublin 2, Ireland. Telephone: 715954/893538

FEATURES AND BENEFITS OF SYSTEM INCLUDE: 5 main lines; hold function; 14 extensions; paging function; 10 main lines; intercom call (unction; 30 extensions; main unit; stations; handsfree amplifier; music on hold; door phone; P J connector; extension bell; transfer function

Moving office? Moving factory? You will need a new telephone system? WE CAN SOLVE YOUR PROBLEMS

J

'i'l-'.t •Jls'j

ma LTTTTTm^ti /

d

SEE US AT STAND No. 246A

226