THE HIGH COURT

									Record No. 1994/785 Sp

IN THE ESTATE OF JAMES McDONALD, DECEASED
AND IN THE MATTER OF THE SUCCESSION ACT, 1965, SECTION 117

BETWEEN

PETER McDONALD
									PLAINTIFF
AND
MARY NORRIS (SENIOR)
									DEFENDANT

Judgment of Mr. Justice McCracken delivered the 18th day of December, 1998.

	The Plaintiff is the eldest son of James McDonald (hereinafter called "the Testator") who died on 15th November, 1993.  The Testator was a widower at the date of his death and was survived by two children, namely, the Plaintiff and Thomas McDonald.  
	By his Will dated 25th May, 1993, the Testator appointed the Defendant to be sole Executrix thereof and after directing her to pay all his just debts, funeral and testamentary expenses, provided:-
	"I GIVE, DEVISE AND BEQUEATH unto my Executrix hereof in trust for her daughter, Mary Norris, Junior, all of my property of every kind and description absolutely and forever when she shall attain the age of 18 years subject to the payment of £5,000 to my son, Peter McDonald, in discharge of any moral obligations which it might be considered I have."

	The Plaintiff has brought these proceedings pursuant to Section 117 of the Succession Act, 1965 which provides as follows:-

	"(1)	Where, on application by or on behalf of a child of a testator, the Court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his Will or otherwise, the Court may order that such provision shall be made for the child out of the estate as the Court thinks just.

	(2)	The Court shall consider the application from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and any other circumstances which the Court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children."

	The history of the relationship between the Plaintiff and the Testator is a very sad one, and unfortunately it is necessary to relate the background in some detail for the purpose of determining this application.  The Testator had originally been a substantial farmer in Mullinavat in County Kilkenny and in particular had been the owner of a farm of 156 acres in the townland of Ballynomey East, another of 124 acres at Ballyquin and what had been the home farm with the family dwellinghouse and 114 acres at Ballinclea.  In addition, he had two smaller holdings of land amounting to some 64 acres.  He had engaged in mixed farming, and had always had an interest in horses.  In 1963 the Testator was badly injured in an accident, and thereafter was physically unable to work the farm.  At this stage the Plaintiff was 14 years of age and was attending the local technical college, although he acknowledged in evidence that he was not good at the books.  He left school shortly after his father's injury and helped his mother to run the farm.  She died in 1968 and the Plaintiff and the Testator remained on in the family home at Ballinclea.  At this stage I am satisfied that the day to day running of the farm was substantially undertaken by the Plaintiff, although there was a local labourer employed for two or three days a week.  The Testator did the dealing with the cattle at the mart and looked after the horses.
	The Testator had become very friendly with the Norris family, who were also local farmers and who were related to him.  There appeared to have been a number of dealings with horses which he undertook in conjunction with the Norris's.  He began dealing in horses, and also buying horses on behalf of other people.  During the 1970's he would at times stay with the Norris's, although I am satisfied that at this stage it was only on an occasional basis.  
	Thomas McDonald, the Plaintiff's younger brother, also left school at about 15 years of age and for a short time worked on the farm, but he was not content with a farming life, and in 1967 got a job in Clover Meats for one year.  In 1968, at about 17 years of age, he got employment with Waterford Glass, and became a skilled glass cutter, but he continued to live in the family home with the Plaintiff and the Testator until he married in 1978.  His evidence, which I find more reliable than that of the Plaintiff, is that during this period, while the running of the farm was left to the Plaintiff, the Testator did provide for them in that he ran an account in the local shop, from which they could get their day to day needs.  In addition, it would appear that the Plaintiff had 45 or 50 acres of tillage land which he farmed for his own benefit, although the Testator may have taken some of the produce for feed for his horses.  In relation to the period up to 1980 I find that the Plaintiff was primarily responsible for working the farm, other than the horses that were kept on it by the Testator, and did not get paid anything in the nature of a regular wage.  On the other hand, I do not accept that he was effectively left to fend for himself, as he had his food provided for him from the local shop and he had the benefit of the tillage land.  
	The real problems appear to have begun about the year 1980.  The Testator had been spending more and more time with the Norris's, and by about 1979 he seems to have been residing with them permanently.  In 1980 the Plaintiff got engaged to be married to Breda Irish.  The Testator appears to have had a dislike for the Irish family, and was opposed to the marriage.  This was the beginning of a serious rift between the Testator and the Plaintiff.
	In January 1981 the Plaintiff married Breda Irish.  The Testator did not go to the wedding and did not make any form of settlement on the Plaintiff, but the Plaintiff and his wife continued to live on the lands.  At this stage the Testator had some 150 cattle on the lands, as well as some horses.  In July 1982 Mrs. Breda McDonald, the Plaintiff's wife, got a herd number, and the Testator seems to have assented to this as the land owner.  About the same time the Testator removed all his own cattle from the land and sold them, despite the protests of the Plaintiff.  The Plaintiff put his own cattle on the lands and has now built up a herd of some 75 cattle.  From this time on the Plaintiff effectively occupied the lands for his own benefit, and he also opened up a quarry on the lands of Ballyquin which he worked for his own benefit.  
	I have no doubt that in or around the time of the Plaintiff's marriage, and in the year or eighteen months thereafter, both the Plaintiff and his brother, Thomas, put considerable pressure on the Testator to sign the lands over to them.  At this stage he was living with the Norris's and not working the lands.  The Testator had been the master of the local harriers, and kennelled the dogs on his lands.  As part of the pressure being put on him, the Plaintiff and his brother threatened not to feed the dogs and for a period blocked the way into the kennels.  Matters deteriorated between the Testator and the Plaintiff to the extent that in August 1982 the Testator and his son, Thomas, who by this time seemed to have made things up with his father, attempted to take some of the hay from the lands for the Testator's horses, with the assistance of Mr. Ned Norris.  The Plaintiff tried to prevent them from doing this, and a fight ensued in which Mr. Norris struck the Plaintiff with a pitchfork, and in the course of which it was also made clear by the Plaintiff that he had a gun in his lorry.  Following this, a complaint was made to the gardai and the Plaintiff's gun was confiscated by them.  This incident appears to have been the last straw for the Testator, and the Testator consulted his Solicitor, who then wrote to the Plaintiff and demanded possession of the lands and threatened proceedings.  On 1st October, 1982 the Testator issued an Equity Civil Bill against the Plaintiff seeking an injunction compelling him to vacate the dwellinghouse and lands and restraining him from entry on, occupying or using them.  On 20th September, 1983 a defence was entered, together with a counterclaim for monies due to the Plaintiff for work done by him on the lands.  By Order dated 27th September, 1983 His Honour Judge Sheridan granted the injunctions sought, and awarded the Plaintiff £11,000 on his counterclaim, with a stay of execution until the Plaintiff vacated the lands, and in any event a stay of execution for one year.  The Plaintiff remained on the lands, and worked them for his own benefit.  At this stage a member of the local clergy intervened in an attempt to resolve the differences, and negotiated an agreement that the Plaintiff could remain on the lands until April 1985 on payment of £1,000 and could further work the quarry during that period on payment of a further £1,000.  These monies were in fact paid by the Plaintiff to his father.  However, the Plaintiff has conceded in evidence that he never had any intention of leaving the lands when the term negotiated in that agreement expired, and in fact he did not do so.  At this stage there is no doubt that the Plaintiff was working the lands purely for his own benefit, and the Testator was getting no benefit whatever from them.  
	Matters again came to a head in 1986, as the Plaintiff had not vacated the lands, and a motion was brought to the Circuit Court to attach or commit the Plaintiff for his failure to comply with the Order of the Court to vacate the lands.  The Plaintiff refused to leave the lands and on 10th June, 1986 an Order for attachment was made by His Honour Judge Sheridan, which Order was executed on 12th August, 1986.  The Plaintiff was removed to Mountjoy Prison, but consistently refused to purge his contempt.  In the meantime, the Plaintiff's wife and son continued to occupy the lands and to work them for their own benefit.
	The Plaintiff continued to refuse to comply with the Order, and remained in Mountjoy Prison for some eleven months.  He was ultimately released in July 1987, having given some form of undertaking to His Honour Judge Sheridan, the nature of which is not absolutely clear.  In the meantime, although the Plaintiff's wife worked the home farm during the time the Plaintiff was in prison, his father took back possession of the lands of Ballyquin, which he transferred to his son, Thomas, in October 1986, and also the lands of Corrig which he sold about the same time to a Mr. Thomas.  From this time on, not only did the relations between the Testator and the Plaintiff disintegrate totally, but the whole affair led to intense bad feeling locally, with neighbours taking sides.  Graffiti appeared with phrases such as "Tom Mac Betrayed his Brother" and "Norris the Grabber", and this graffiti was signed "IRA".  I am quite satisfied that at this time an organised and vicious campaign was conducted locally against the Testator, the Norris family, the Thomas family who had purchased the lands, and who were in fact English and to a lesser extent Tom McDonald.  Apart from graffiti appearing, there were threatening telephone calls, the Testator's horses were let loose, local shops were approached not to serve them and abuse was shouted at them, tractors owned by the Thomas family were burnt and an excavator was burnt out.  This continued after the Plaintiff came out of prison, and in 1988 two local men were given a three month suspended sentence and bound to the peace in relation to these activities.  More importantly, on 19th May, 1988 the Plaintiff appeared before the local district court on seven summons alleging breaches of the peace, which appeared to have consisted of verbal abuse and threatening gestures, and was bound over to keep the peace for two years on his own bond.  The Plaintiff and his wife deny organising these incidents, but I am quite satisfied that, not only were they aware of them, but they certainly did nothing to stop them.  It should be said that the campaign against the Thomas family was successful in that they were forced to leave the lands which they had purchased from the Testator.
	I have no doubt that the Plaintiff's behaviour towards his father, at least from 1984 when he refused to leave the lands, was quite appalling.  He effectively took over his father's lands for his own use, and while the Testator managed to retrieve two of the farms while the Plaintiff was in prison, the Plaintiff and his family continued to reside on and work the home farm and the family home, to this day.  They clearly have no right whatsoever to do so.  The Plaintiff also permitted and encouraged a campaign of intimidation against his father, who at this stage was in poor health on the Plaintiff's own evidence.  It should be noted that the worst of this intimation appears to have taken place when the Testator was over 70 years of age.
	The case is sought to be made by the Plaintiff that some of this land has been in the family for some 300 years, and that the Plaintiff left school at an early age to assist on the farm, whereby the Testator was under a moral obligation to provide for the Plaintiff, and in particular to allow him to remain on the lands.  It is also suggested that the sale of part of the lands to Mr. Thomas was in fact done for the benefit of the Norris family, and that the proceeds may have gone to assist them.  This may or may not be so, and I have no conclusive evidence either way.  However, it must be remembered that at the time the land was sold, the Testator had been living with the Norris family for at least six years, and had been effectively excluded from his own lands by the Plaintiff.  
	It is quite clear from the terms of the Testator's Will that he was aware that he might have a moral obligation towards the Plaintiff, as he left him a legacy of £5,000 "in discharge of any moral obligations which it might be considered I have".  It is against this background that I have now to consider whether the Testator failed in his moral duty to make proper provision for the Plaintiff in accordance with his means. It is a tragic background, and gives rise to considerations of whether and to what extent the behaviour of a child towards his father may affect the father's moral duty under the section.
	The basic approach which should be taken in considering Section 117 of the Succession Act, 1965 has been layed down by the Supreme Court in several cases, including the most recent reported case of E.B. -v- S.S., (1998) 2 I.L.R.M. 141.  In that case, as in several other cases, the Court cited with approval two passages from earlier authorities.  The first of these is from the judgment of Kenny J. in In Re. G.M.: F.M. -v- T.M., (1972) 106 I.L.T.R. 82, where he said at page 87:-

	"It seems to me that the existence of a moral duty to make proper provision by Will for a child must be judged by the facts existing at the date of death and must depend upon:-

	(a)	the amount left to the surviving spouse or the value of the legal right if the survivor elects to take this,
	(b)	the number of the testator's children, their ages and their positions in life at the date of the testator's death,
	(c)	the means of the testator, 
	(d)	the age of the child whose case is being considered and his or her financial position and prospects in life, 
	(e)	whether the testator has already in his lifetime made proper provision for the child.

	The existence of the duty must be decided by objective considerations.  The Court must decide whether the duty exists and the view of the testator that he did not owe any is not decisive."

	This was somewhat qualified in the judgment of Finlay C.J. in C.C. -v- W.C., (1990) 2 I.R. 143, where he said at page 148:- 

	"I am satisfied the phrase contained in Section 117(1), 'failed in his moral duty to make proper provision for the child in accordance with his means' places a relatively high onus of proof on an applicant for relief under the section.  It is not apparently sufficient from these terms in the section to establish that the provision made for a child was not as great as it might have been, or that compared with generous bequests to other children or beneficiaries in the Will, it appears ungenerous.  The Court should not, I consider, make an order under the section merely because it would on the facts proved have formed different testamentary dispositions.

	A positive failure in moral duty must be established."

	A considerable number of cases have been cited to me, in most of which the principles set out above have been applied.  Unfortunately, none of them really deal with the problems raised in the present case, namely, what effect the behaviour of the Plaintiff towards the Testator should have in determining the Testator's moral duty.  In J.H. -v- Allied Irish Bank Limited, (1978) I.L.R.M. 203, McWilliam J. did deal with the point to some degree.  He said at page 207:-

	"The first issue which I have to decide is whether the testator did or did not have a moral duty to make provision for his children in accordance with his means.  In considering this I have no duty to decide any question of responsibility for the estrangement between the testator and his wife.  Nor do I have any duty to decide any question of responsibility for the subsequent lack of communication between the testator and the plaintiff.  In my opinion, there can be only one answer on this issue.  The testator did have such a moral duty, however neglected, thwarted or aggrieved he may have felt."

	I think that the wording of Section 117 would support the view that there is an assumption in the Act that a moral duty exists in general for a testator to make provision for his children.  However, Sub-section (2) makes it clear that in considering whether there has been a failure in such moral duty, the Court may take into account any circumstances which it considers of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.  Perhaps the case that comes closest to the present is the recent Supreme Court decision of E.B. -v- S.S. which I have referred to above.  In that case, the plaintiff had developed a major problem with drink and drugs but had during his lifetime received a gift of shares from his mother worth approximately £275,000.  By the time the plaintiff's mother came to make her Will four years later, the plaintiff had dissipated the entire of this money.  She left the larger part of her estate, after legacies to her grandchildren, to five named charities, and made no provision for the plaintiff.  In refusing the plaintiff's application under Section 117, Keane J. in giving the majority decision in the Supreme Court said at page 151 of the report, after considering the background of the case:- 

	"Against that background, the decision of the testatrix not to make further provision for him in her Will may well have been prompted, not merely by a concern that her money should go where she could be sure that it could do most good, but also by a belief that, since the provision of significant financial assistance to the plaintiff had not in the past produced the best results, it might not have been in his own interest to provide him with further funds, even through the mechanism of a trust.  It is, however, sufficient to say that this was clearly a view which a responsible and concerned parent could take and that it follows inevitably that the learned High Court Judge was correct in concluding that the plaintiff had failed to establish that the testatrix had failed in her moral duty to him."

	Further down the page he dealt with the policy of the legislature as follows:-

	"In the case of her children, the Oireachtas has transposed the moral obligation which she, in common with all parents, owed to her children into a legal duty enforceable in the terms laid down in Section 117.  The social policy underlying that provision - and which was, of course, exclusively a matter for the Oireachtas - was, it is reasonable to assume, primarily directed to protecting those children, who were still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents who are unmindful of their duties in that area.  However, since the legislature, no doubt for good reasons, declined to impose any age ceiling which would preclude middle-aged or even elderly off-spring from obtaining relief, the Courts must give effect to the provision, irrespective of the age which the child has attained."

	That case does support the view that there may be cases where a child is in serious need, but nevertheless no moral obligation to provide for that child exists.  Admittedly, that was a case where the testatrix had already made considerable provision for the plaintiff during his lifetime, and therefore presumably could be considered to have fulfilled such moral obligation as did exist.  
	There is one further statutory provision which I should mention.  Section 120(4) of the Succession Act, 1965 provides as follows:-
	"A person who has been found guilty of an offence against the deceased, or against the spouse or any child of the deceased (including a child adopted under the Adoption Acts, 1952 and 1964, and a person to whom the deceased was in loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, shall be precluded from taking any share in the estate as a legal right or for making an application under Section 117."

	It is accepted that the Plaintiff in the present case does not come within this section, but I think the section is of relevance in that it envisages a situation in which a child may have no right whatever to invoke the moral obligation of his or her parent, and that such moral obligation may be affected by the behaviour of the child.  This also seems to me to be in-keeping with the passage I have quoted above from the judgment of Finlay C.J. in C.C. -v- W.C. to the effect that there was a relatively high onus of proof on an applicant for relief under the section.  What I have to decide is whether a prudent and just parent, in the circumstances of the present case and given the behaviour of the Plaintiff, reached a decision which was in accordance with his moral duty to the Plaintiff.  
	In this case the Testator made provision for his son, Thomas, by transferring lands to him during his lifetime.  There is no question but that he did make proper provision for Thomas, and this is not an issue in the case, other than to support the Plaintiff's argument that no proper provision was made for him because the Testator did not make a similar provision for him in his Will.  However, I must look at what benefit the Plaintiff did get during the Testator's lifetime.  Effectively, up to the year 1980 he got a roof over his head, he got food from the local shop and he got a small acreage of land on which he grew cereals.  However, once he married in early 1981, and certainly by mid-1982 when the Testator took his cattle off the land, effectively the Plaintiff had the use of a farm of some 400 acres for which he paid nothing.  He developed his own herd of cattle on the lands, he worked a quarry on the lands and he tilled some of the lands.  The Testator certainly grazed some horses on the land, and may have got some feed for the horses, but that is as far as it went.  I think it is extremely relevant that the Plaintiff got this benefit, not by a voluntary act of the Testator but because he took it against the will of the Testator.  Even during the year that, thanks to the intervention of the local clergy, he was allowed to remain on the lands, the rent paid, even if it was only for the home farm, amounted to well under £10 an acre, and the sum of £1,000 for the unlimited use of a quarry for a year would also seem to be a gross undervalue.  The fact is that, on the expiration of this agreement, the Plaintiff continued to occupy the entire farm and the quarry until late 1986 without making any further payment and in flagrant breach of a Court Order.  He continued to occupy the home farm from 1986 until the date of the Testator's death, and indeed up to date, without making any payment for it.  It is not for me to put a figure on the value of all of this, but it was a very real and substantial benefit taken by the Plaintiff during the lifetime of the Testator.
	I am of the view that in 1993, namely at the time of the death of the Testator, he was entitled to consider that he had in fact conferred a considerable benefit on the Plaintiff during his lifetime, notwithstanding the appalling behaviour of the Plaintiff.  I am also of the view that the moral duty which undoubtedly existed, was affected by the Plaintiff's behaviour, and I think this is supported by the provisions of Section 120(4), which envisages that a plaintiff's behaviour may be such that he is absolutely precluded from making a claim.  I think that the scheme of the Act implies that among the circumstances which a Court may take into account in assessing the fulfilment of a moral duty, is behaviour of the Plaintiff towards his parent which, while not absolutely precluding him under Section 120, nevertheless is a circumstance which should be taken into account together with the benefit which the Plaintiff has in fact got during his lifetime.  It has been emphasised over and over again in the authorities that a parent does not have to treat all his children equally, and one of the reasons why he does not have to do so is that there may be circumstances such as those present in this case, which are envisaged by Section 117 as affecting the fulfilment of the moral duty.  In this case the Testator in fact left a legacy of £5,000 to the Plaintiff, and in the light of the wording of the Will, clearly did so in full knowledge of the provisions of Section 117, and indeed this has been confirmed by his Solicitor.  In the present case I am satisfied that in all the circumstances the Testator's moral duty was fulfilled by giving a legacy of £5,000 to the Plaintiff and I am of the view that the Plaintiff has not discharged the onus of proof which is on him to show the failure of such moral duty.  I would dismiss the Plaintiff's claim.