THE HIGH COURT
No. 2003/36 SP
IN THE MATTER OF THE ESTATE OF D AND IN THE MATTER OF SECTION 117 OF THE SUCCESSION ACT 1965
BETWEEN
DS
PLAINTIFF
AND
KM
FIRST DEFENDANT
AND
BY ORDER D
SECOND DEFENDANT
JUDGMENT of Miss Justice Carroll delivered on the 19th day of December  2003.
	This is an application under section 117 of the Succession Act 1965 (as amended) by DS (now aged 37), daughter of the deceased testator, claiming a direction that he failed to make adequate provision for her in accordance with his means and moral duty and for an order that the court should make such provision out of the estate.  The other beneficiary under the will is her brother D (now aged 29).
	The testator made his will on 22nd April, 1999.  He died on 2nd September, 2001.  Probate of his will was granted on 16th October, 2002 to KM the sole executor named in the will.
	By his will the testator made the following bequests:
“I give devise and bequeath my 40 acre farm at C- and my house at T – to my son D absolutely.
I give devise and bequeath my land at M – to my son D absolutely but my daughter D may take a site from this property for the purpose of building a house thereon.  It is my wish that my daughter would not sell this site.  
My bank account at the National Irish Bank, C -, I leave to my son D and my bank account at the First Active Building Society, C - , is to be divided equally between my son D and my daughter D.  
All the residue and the remainder of my estate I give devise and bequeath the same to be divided equally between my son D and my daughter D.”

	The farm of lands at C – is comprised in two folios.  One folio contains two plots consisting of 9 a. O r. 32 p. and 6 a. 3 r. 12 p. together with two undivided fourth shares of 23 a. 2 r. 23 p. (plot X).  These lands are valued in the Revenue Affidavit at €90,151.48 (now valued at €96,250).  The other folio contains 1 plot of 6.776 acres and an undivided fourth share in 23 a. 2 r. 23 p. (the same plot X).  These lands are valued in the Revenue Affidavit at €37,139.84 (now €60,000).  
	The house at T – comprises registered land amounting to .582 acres and adjoining unregistered land amounting to .049 acres.  The house and lands are valued at €196,809.40 in the Revenue Affidavit (now €240,000). 
	The lands at M -  are registered lands comprising .420 ha. (approximately
1 a.) and are subject to a negative covenant contained in a transfer to the testator dated 21st January, 1992 not to use the property for any purpose other than a single private dwelling house with usual out-offices.  These lands are valued in the Revenue Affidavit at €63,486.90 (now valued at €65,000 with the covenant and €150,000 if there is no covenant).  
	The bank accounts at the National Irish Bank amounted to €53,050.90 at the date of death.  The bank accounts at the First National Building Society amounted to €28,687.17.  There was also an account in Derry.  Household contents were valued at €6,530 and livestock (sheep) valued at €3,800.
	I am told there will be no residue to divide as it went on funeral expenses.  The gross estate was valued at €479,559.19 and the net estate at €477,125.59.  
	The relevant facts are as follows:
	The testator and his wife went to live in Scotland on their marriage.  They had two children DS and D, the plaintiff and the second defendant respectively.   In 1985 they returned to Ireland to the family farm with their son D who was then aged approximately 11 years old.  The testator took up sheep farming.  Their daughter, DS who was then approximately 19 years old, remained in Scotland.  
	DS has always supported herself and has worked as a child-minder since 1985.  Her average weekly income is now approximately £155.00 Stg. per week.  She supplements her income by working part time in a bar.  She bought a house in Scotland in October 1994 for £38,500 Stg. subject to a mortgage of £9,999.  She received £20,000 from her father to help in the purchase.  In addition to mortgage repayments of £47.91 per month, she pays in addition £65.90 per month for a Mortgage Protection Policy.  It is due to mature in April 2006 and should yield £7,000.  A net balance of approximately £3,000 will be required to repay the mortgage.  Her savings amount to approximately £5,714 and her debts to £2,723.  
	She married in June 1999 but the marriage broke up in December, 2001 after the testator’s death.  On the occasion of her marriage, her father gave her £3,000 for the wedding.  She never received any other monies from him. 
	She suffers from diabetes for the last 21 years and has to give herself two insulin injections each day.  Her health has disimproved since her father’s death.  She has been stricken by several comas and is on anti-depressants but must continue working to support herself.  She was accused in two of the replying affidavits of drinking too much but in direct evidence she said she is a social drinker and does not abuse alcohol.  She was not cross-examined and I have no reason to doubt her.  
	After her mother’s unexpected death in 1991 she went home to live with the testator and her brother.  She said her father was delighted.  She had a job and she had the use of the family car.  After about two years she went back to Scotland because she missed her friends.  But she said there was no resentment at her leaving and the door was always left open for her to come back.  She was visited by both her father and brother in Scotland. 
	According to the medical reports exhibited in his affidavit, the second defendant DT suffers from a schizo affective disorder which appears to have manifested itself when he was 14 years old.  A year later he came to the attention of the Mental Health Services.  He was prone to angry aggressive outbursts and was admitted as a voluntarily patient in hospital, twice in 1989 and again in 1992 after the death of his mother.  He suffered from delusions leading to a diagnosis of obsessional personality disorder.  He also suffers from episodes of involuntarily movement that cause him distress but following investigation, they were not felt to reflect any underlying organic brain disease.  He was admitted to hospital for a fourth time in 1995 and again in December 1995.  In October, 2000 he was admitted to hospital as a temporary patient where the side effects of his medication were addressed.  He also spent some time in a local mental health hostel at times when he and his father were arguing more than usual.  
	He was examined by a consultant psychiatrist in July 2002 who gave a very encouraging report.  He was not suffering from significant cognitive impairment, his attention and concentration were normal, there was no impairment in his registration or recall or his memory and his intelligence appeared to be in the normal range.  He has reasonable insight into his problems and accepts that he needs to take medication and receive help from the local mental health services.  In the opinion of the psychiatrist his illness is characterised by relapsing and remitting symptoms and is a severe form.  He requires long term treatment and support and assistance.  His prognosis is relatively good, provided he continues with his medication and attends outpatient clinics regularly.  Any relapse will require treatment in hospital but once recovered, he is likely to return to his previous level of independent function.  D’s GP, who has known him since he moved back from Scotland, says that since he went on modern medication he has been in remarkably good form from a psychiatric point of view.  Since his father’s death he has been running the sheep farming business with some success.  He works very hard.  He attends surgery regularly and is compliant with his medication.  He has been particularly well since his father’s death which the GP put down to having a calmer home atmosphere.  His father had difficulty coping with his mood swings.  
	D in his affidavit describes his life.  He does his own household chores and cooking.  He goes to the farm daily where he has about 50 ewes.  It is about 5 miles distant from his home.  He gets either the bus or a taxi, as he does not drive.  He stays in in the evening and is interested in music and has pen pals.  He is on long term disability benefit of €125 per week.  He says the farming does not generate a great deal of income.  He uses the unregistered land beside the house during the lambing season.  He and his father also used the lands at M –, which are within cycling distance, for keeping sheep nearer at hand.  
The relevant provisions of section 117 of the Succession Act, 1965 (as amended) provides:
(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 applicant 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 would be as fair as possible to the child to whom the application relates and to the other children.  

The first issue is whether the testator failed in his moral duty to make proper provision for DS in accordance with his means.   
During the testator’s life DS did get a little more than half the purchase price of her house and £3,000 for her wedding.  Apart from that she did not get any other sums of money.  She has supported herself since she was 19 but not in any lucrative employment.  
She also suffers from the progressive disease of diabetes.  The deterioration after the testator’s death cannot be taken into account as it is the circumstances existing at the testator’s death which are relevant.
When drawing up his will the testator must have known these details but he had to balance them against the needs of his son who suffers from a serious mental disorder.  In his will he attempted to discharge his moral duty to his son by insuring that the house and adjoining plot and the farm would belong to him and he also left him a large sum of money (approximately €52,000 plus €15,000).  He must also have known that his son would have his long term disability allowance.  He also left the lands at M – containing approximately one acre subject to the right of DS to have a site.  
He attempted to discharge his moral duty to his daughter by leaving her a smaller sum of money (approximately €15,000 and a site out of the lands at M – subject to his wish that she would not sell it.  It is not contested that this did not create a binding trust and is inoperative.  
But the bequest of the site was in fact meaningless.  Looking at the map relevant to the folio, the land is divided by a river or watercourse and is subject to fishing rights (if any) reserved to the Land Commission by its fiat.  The size of the “site” is not defined.  The entire area of one acre is subject to a covenant not to use the property for any purpose other than a single private dwelling house.  It makes no sense to divide the lands between DS and D.  Since DS gets the right to build a house, the balance of the land cannot be used by D. for any purpose.
	In my opinion the testator failed in the moral duty which he himself perceived    
himself to be under, by failing to leave the bequest of a viable site for his daughter.  
	Taking into account the position of D who undoubtedly has the greater need I am of opinion that the failure of the testator can be remedied by leaving the entire building site compromising approximately one acre of the lands at M – to DS.  It then becomes an asset which she can sell if she wants. While it is only a small alteration to the will I consider that it achieves what the testator had in mind in making provision for his daughter.  
	I do not believe that D’s ability to continue his sheep farming will be affected in any way by this provision.  I would not alter the division of the testator’s money between DS and D.