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 not what the court would have done, but whether the testatrix's decision was one a responsible and concerned parent could reasonably make. The appeal was dismissed by the majority. Barron J dissented, holding that the testatrix should have considered the plaintiff's responsibilities to his children and that some further provision was morally required.

Citation
[1998] IESC 68
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; Barron J would have allowed the appeal.
Legal Topics
Moral Duty of Testator, Provision for Children Under Will, Section 117 Succession Act 1965, Testamentary Freedom Vs. Family Provision, Charitable Bequests
Succession Law Family Law Moral Duty of Testator Provision for Children Under Will Section 117 Succession Act 1965 Testamentary Freedom Vs. Family Provision Charitable Bequests

Case Brief

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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 the plaintiff under s.117 of the Succession Act 1965
  2. 2 Whether prior inter vivos provision precludes further provision by will
  3. 3 Whether the needs of the plaintiff'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 not what the court would have done, but whether the testatrix's decision was one a responsible and concerned parent could reasonably make. The appeal was dismissed by the majority. Barron J dissented, holding that the testatrix should have considered the plaintiff's responsibilities to his children and that some further provision was morally required.

Court Disposition

Appeal dismissed by majority; Barron J would have allowed the appeal.

Orders

  • No provision to be made for the plaintiff from the estate; will stands as written.