The Court of Appeal has overturned a High Court order requiring a man to pay his brother €315,000 from their late mother’s estate, finding that the mother had not failed in her moral duty to make proper provision for her son under section 117 of the Succession Act 1965.
The appeal concerned their mother’s will, which left her 75% shareholding in a family company operating a public house to one son, J.B. Her other son, W.B., received a pecuniary bequest and a share of the residue. The mother died in April 2001. The brothers’ father had earlier transferred a 25% shareholding in the company to J.B., who had worked in the family business from 1970 onwards.
W.B. applied for provision from the estate under section 117. In 2011, the High Court found that the mother had failed in her moral duty to make proper provision for him. It later ordered J.B., as a beneficiary, to fund a €315,000 payment from his share of the estate. The High Court cited, among other matters, delays in obtaining probate and the valuation of the company.
J.B. appealed, arguing that the High Court had not properly assessed the mother’s means or his own circumstances. He said the family business was his livelihood and that extracting value from the company’s shares could jeopardise it. W.B. argued that the High Court’s finding and award should stand.
The Court of Appeal said a section 117 claim involves two stages: first, deciding whether the parent positively failed in a moral duty to make proper provision, and only then determining what provision should be made. The court said the relevant circumstances are assessed at the date of death, and an adult child faces a high burden of proof. The statutory test does not require equal treatment of children.
The court found that W.B. was an employed, independent adult when his mother died, and that the evidence did not establish a positive failure in her moral duty. It concluded that J.B.’s decades of work in the family business, including giving up his studies to help run it, created special circumstances and a significant moral obligation owed to him. The court also found that the mother’s main asset was a shareholding in a private company, not the public house property itself, and that the shares were not readily realisable without risking J.B.’s livelihood.
The Court of Appeal held that the High Court had wrongly weighed the relevant circumstances and had given weight to delays in estate administration when deciding whether the mother had breached her duty. It allowed the appeal and set aside the High Court order. Because it found no breach of duty, it did not proceed to the second stage of deciding what provision should be made.