The Gazette 1983

GAZETTE

SEP T EM BER 1983

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

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

Security Shredding Ltd. Station Road, Portmarnock, Dublin. Telephone: 460966/460961. Telex: 24364. Are you having problems disposing of Confidential Files, Documents etc.? If so we are the people to contact. We collect the Documents from your premises and put them through our Confidential Shredding Department. On completion we then issue a Certificate of Destruction.

For further details why not give Peter Ganley or Len O'Hagen a call.

227