The High Court altered the will of a deceased mother after finding that she had failed in her moral duty to make proper provision for her daughter. The order redirected most of two landholdings to the daughter, while preserving specified parcels for two of her brothers and requiring payments to them.
The judgment, delivered by Mr Justice Herbert on 21 December 2006, followed a claim under section 117 of the Succession Act 1965. The defendants conceded during the plaintiff’s evidence that the will had not made proper provision for her. The estate’s agreed net value was €2,422,289, with debts and funeral expenses of €22,320.65.
The mother’s 2003 will left the shop and attached home, stock and other items to one daughter; lands in K Upper and MK to one son, with a meadow excluded; and lands in K lower and MN to another son. The plaintiff received the meadow, personal items, shares and any credit union funds specified in the will. The court put the value of that provision at about €36,500.
In assessing the family’s circumstances, the judge considered the plaintiff’s limited education and work skills, her two dependent children and lack of a secure income. He also considered the other children’s circumstances, disputed claims about cash and past advances, land valuations, and the estimated costs of administration, litigation, land sales and tax. The judge found that the plaintiff and two brothers had each received €20,100 in cash through an aunt. He did not find that the sister had received cash or that the brothers had received the larger amounts alleged. He was unable to determine whether a separate £63,000 sum attributed to cattle sales was an advance from the mother. He found, on the balance of probabilities, that a £75,000 loan to one son had been repaid.
The court ordered that the will be altered so the plaintiff receives all the mother’s lands in K Upper and K lower, except about 6.28 acres around one brother’s house and about 1.67 acres around his shed or depot. The lands are charged with payments of €100,000 to one brother and €50,000 to the other, due within five years of the order being perfected.
The court also directed that the lands in MK, including the meadow, and MN be used to pay the deceased’s debts and funeral, testamentary and administration expenses, including the costs of the proceedings. A parcel of about 2.4 acres around the other brother’s house was excluded. If those lands are insufficient, the shortfall is to be met from property devised to the sister and plaintiff, ratably according to value. The order varied the statutory order for applying assets. The judgment did not replace the entire will.