B. (E.) v. S. (S.) & Anor [1998] IESC 68; [1998] 4 IR 527; [1998] 2 ILRM 141 (10 February 1998)

B. (E.) v. S. (S.) & Anor [1998] IESC 68; [1998] 4 IR 527; [1998] 2 ILRM 141 (10 February 1998)

The majority held that the testatrix had made adequate and generous provision for the plaintiff during her lifetime, and her decision not to make further provision in her will, in favour of charities, did not constitute a failure of her moral duty under s.117. The test is objective and requires a positive failure in duty, which was not established. The dissenting judgment would have allowed the appeal, holding that the testatrix should have considered the plaintiff's responsibilities to his children and made further provision via a trust for their benefit.

Citation
[1998] 2 ILRM 141
Parties
Plaintiff: E. B.; Defendant: S. S.; Defendant: G. McC.
Jurisdiction
Ireland
Judgment Date
10 February 1998
Procedural Posture
Appeal / Supreme Court Judgment on Appeal From High Court Dismissal of S.117 Succession Act 1965 Application
Outcome
Appeal dismissed by majority; High Court decision affirmed. Dissenting judgment would have allowed the appeal and ordered provision via a trust for the plaintiff's children.
Legal Topics
Moral Duty of Testator, Provision for Children Under Will, Section 117 Succession Act 1965, Testamentary Freedom, Charitable Bequests, Disinheritance, Trusts for Dependants
Succession Law Family Law Moral Duty of Testator Provision for Children Under Will Section 117 Succession Act 1965 Testamentary Freedom Charitable Bequests Disinheritance +1 more

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Parties

E. B.

Plaintiff

S. S.

Defendant

G. McC.

Defendant

Procedural Posture

Appeal / Supreme Court Judgment on Appeal From High Court Dismissal of S.117 Succession Act 1965 Application

Legal Issues

  1. 1 Whether the testatrix failed in her moral duty to make proper provision for her son under s.117 of the Succession Act 1965
  2. 2 Whether prior inter vivos provision precludes further testamentary provision
  3. 3 Whether the needs of the applicant's children are relevant under s.117

Ratio Decidendi

The majority held that the testatrix had made adequate and generous provision for the plaintiff during her lifetime, and her decision not to make further provision in her will, in favour of charities, did not constitute a failure of her moral duty under s.117. The test is objective and requires a positive failure in duty, which was not established. The dissenting judgment would have allowed the appeal, holding that the testatrix should have considered the plaintiff's responsibilities to his children and made further provision via a trust for their benefit.

Court Disposition

Appeal dismissed by majority; High Court decision affirmed. Dissenting judgment would have allowed the appeal and ordered provision via a trust for the plaintiff's children.