The Gazette 1983

SEP T EM BER 1983

GAZETTE

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

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

John B. Jermyn, Solicitor, presenting Ms. Anne Bacon with the winning prize in the John B. Jermyn Essay Competition 1983. 228