This judgment is circulated in redacted form to avoid identification of parties

Neutral Citation Number: [2007] IEHC 68

THE HIGH COURT

DUBLIN

Case No: 2005/210SP

E. H.
PLAINTIFF

E. P. O’C., O. H.,

D. H. AND S. H.

DEFENDANTS

 JUDGMENT DELIVERED MR. JUSTICE HERBERT ON THURSDAY, 21ST DECEMBER, 2006

 MR. JUSTICE HERBERT:  
The late Mrs. AH died testate in 2004.  She was predeceased by her husband Mr. DH, who died intestate in 1994.  At paragraph 8 of the affidavit of Mr. OC solicitor, the sole executor by the last will and testament of Mrs. AH, sworn in these proceedings, it is stated that after the death of Mr. DH the late Mrs. AH had assumed sole possession and ownership of all the assets of Mr. DH.

 The Plaintiff and her brother DH gave evidence that all of the children of Mrs. AH and Mr. DH had executed waivers in favour of their mother, though, the Plaintiff asserted, she had done so under duress from her late mother and without having had any legal advice.

 The late Mrs. AH executed her last will and testament on 3rd July, 2003.  By it she gave, devised and bequeathed her shop and residential premises, together with all stock in trade, trade fixtures and fittings and household furniture, and also her motor car to her daughter OH.  She gave, devised and bequeathed her lands in the townland of K Upper, together with her lands in the townland of MK, but excluding a meadow on the right-hand side of the C to D road as one travels towards D to her son SH.  She bequeathed lands in the townland of K lower and in the townland of MN to her son DH.  To the Plaintiff she bequeathed the aforementioned meadow, her engagement ring and watch, her telecom shares and the money, if any, in the credit union in C.  She appointed her said four children to be her residuary legatees and devisees and devised and bequeathed all the rest, residue and remainder of her estate to them in equal shares.  In the events which have occurred there was no residue in the estate.

At the hearing of this case before me it was agreed that the total net value of the estate of the late Mrs. AH was €2,422,289, and that her debts and funeral expenses amount to €22,320.65.  At the conclusion of the Plaintiff's evidence-in-chief it was conceded by the Defendants, through their senior counsel, that the 
 late Mrs. AH had failed in her moral duty to make proper provision for the Plaintiff in accordance with her means, either by the terms of her said last will and testament or otherwise.

 The Plaintiff EH was born in 1976.  She received primary and second level education.  She told the Court that she had done well in the Junior Certificate examination but did not achieve a pass level at the Leaving Certificate examination.  She told the Court, and I have no reason to doubt her evidence in this regard, that this was because she was distraught following the recent death of her father, with whom she had a close and affectionate relationship.

The Plaintiff stated that her ambition had been to become a nurse, but she had been frustrated in this ambition by her lack of success in the Leaving Certificate examination.  She told the Court that she had helped in the family shop from the age of 8 years of age onwards.  The Plaintiff has therefore no academic or professional qualifications and no marketable skills, other than as a salesperson in a general convenience store, but with no accounts, stocktaking or ordering skills or experience. 

The Plaintiff is, and was on the day before the death of her mother AH, a single parent with two minor children, D born in 1997 and M, born in 1999.  Both children have the same father, she told the Court, but he has not acknowledged paternity and makes no financial contribution whatsoever towards her or their maintenance.  Both children happily enjoy excellent physical and mental health.

 In October 1996 the Plaintiff purchased a modest dwelling house in her native town.  She utilised for this purpose savings of £8,000, former currency,
accumulated working in the family shop.  Her late mother, Mrs. AH, gave her £34,000, former currency, and she obtained a mortgage of £30,000, former currency, from a financial institution.  The Plaintiff told the Court that at this time her brother DH and her sister OH were assisting her mother in managing the shop and lands, so that the Plaintiff was obliged to obtain employment in a number of local businesses successively.  

At this time also she established a small business, which she carried on from her own home.

 In the year 2000 her brother DH established his own,

 now very successful, retail business in another town in

 Ireland, a very considerable distance from the family

 base.  After he left, the Plaintiff had resumed working

 in the shop with her sister OH and also continued with

 her business , working late into the night.  The

 Plaintiff told the Court that up to Christmas 2000

 relations between her and her sister OH were very

 strained, and she had no contact at all with her

 brothers DH and SH, who offered her no help or support.

 The Plaintiff told the Court, and I accept her evidence

 on this, that in May 2003 her late mother AH gave her

€6,000 to discontinue her business and instead to look after her.  In 2003 also her late mother AH had given her £3,800 sterling to enable the Plaintiff to obtain treatment outside this State for an unpleasant and serious eye problem, which treatment fortunately appears to have been very successful.

 The Plaintiff told the Court that in 1997, after the

 birth of her first son D, she had suffered a nervous

 breakdown, of which her late mother AH was fully aware.

 Dr. MC, a general medical practitioner, who had been

 the Plaintiff's physician for upwards of 17 years, and

 Professor C, a professor of psychiatry and a consultant

 attached to a leading teaching hospital, gave evidence

 that the Plaintiff had in fact suffered a severe

 reactive type of post natal adjustment disorder.  The

 Plaintiff told the Court, and I have no reason to

 decline to accept her evidence, that her late mother AH

 had accepted her first child D, but would have no

 contact at all with her second child M, and that this

 had caused her intense hurt and sorrow.  Professor C

 told the Court -- and though strongly challenged in

 cross-examination did not alter her opinion, and no

 contrary evidence was led by the Defendants -- that the

 Plaintiff's problems continued from 1997 up to 2005.

 Dr. MC told the Court that on 6th March, 1997 she had

 formed the opinion that the Plaintiff was suffering

 from a severe reactive type of post natal adaption

 disorder.  In her expert opinion, this was due to the

 birth of the child, to lack of support from the child's

 father and from her own family, serious financial

 worries and to a sense of abandonment and isolation.

 Dr. MC was satisfied that the late Mrs. AH must have

 been fully aware of the Plaintiff's plight.  She told

 the Court that she had referred the Plaintiff to Dr. S,

 a psychiatrist, who had seen the Plaintiff on 11th

 March, 1997.

 In cross-examination it was put to Professor C that

 Dr. S had recorded in 1997, in his disclosed clinical

 notes, that the Plaintiff:

  "...had a difficult relationship with
  her mother and was not speaking to her
  siblings..."

 Professor C agreed that in 1997 the Plaintiff had

 received treatment for 18 months, and thereafter had

 received no further treatment until May 2005, when she

 had received professional counselling for stress,

 attributable to the death of her late mother and to

 this unfortunate litigation.  Professor C agreed that

 the Plaintiff had suffered no acute psychiatric illness

 after 1999.  However, Professor C insisted that the

 Plaintiff continued to have problems.  She described

 the Plaintiff as a very vulnerable person, naive,

 seriously lacking in self-confidence, with no social

 contacts and constantly overwhelmed by constant

 financial worries, who could be both willful and
 difficult, while at the same time easily moulded and

 misled and who demonstrates an unhealthy degree of

 interest in religion and self-help material.

 Professor C told the Court that she was horrified to

 learn that on the advice of a person described to her

 by the Plaintiff as a social worker, the Plaintiff had

 borrowed £15,000 sterling and had travelled to the

 Americas for a form of alternative therapy.  Professor C

 stated that in her expert opinion this clearly

 demonstrated the level of this Plaintiff's desperation.

 While she accepted that she was not an educationalist,

 Professor C told the Court that, in her opinion as a

 psychiatrist, the Plaintiff did not appear to have any

 particular learning difficulties and, in her expert

 opinion, had the capacity to pass a Leaving Certificate

 examination.

 I accept the evidence of the Plaintiff's sister OH, and

 her brothers DH and SH, that the late Mrs. AH had

 obtained extra tuition for the Plaintiff during her

 primary and second level schooling.  I do not, however,

 accept their opinion that the Plaintiff has what they

 described as "a learning difficulty".

The Plaintiff's sister OH was born in 1974.  She is now engaged to be married, but on the day before the death of her late mother AH she was single.  She had a similar level of education to the Plaintiff.  All her life she had assisted her mother in managing the family shop.  She told the Court - and her evidence on this was not shaken - that she had no academic qualifications whatsoever and no skills other than in managing this shop.  She told the Court, and I have no reason to doubt her evidence, that she was able to manage cash, do stocktaking and purchasing, and is proficient in ordinary bookkeeping.  She told the Court
that the late Mrs. AH had engaged a local person to do the business accounts for the shop, but that she herself knew nothing of accounting or of taxation.  Since she took over the running of the shop, on the day after her mother's funeral, she employed an accountant - identified to the Court - to deal with these matters, and this accountant had commenced work two months after her late mother's death.

 OH told the Court that a full stocktaking and checking

 was done by her in February 2005.  She told the Court,

 and I accept her evidence, that though her late mother

 was terminally ill she had remained in total control of

 the shop business until the final week of her life,

 when she became a hospital inpatient.  Only then had

 her late mother given her a key to the safe and

 relinquished control of the business to her.  She told

 the Court that when she opened the safe it contained

 documents only.

 In cross-examination, OH accepted that in the period

 after her mother was taken to hospital and in the

 immediate period after the death of her mother she

 operated a cash float of approximately €5,000 and had

 business takings of approximately €5,000.  No issue

 arises in relation to these sums because, as senior

 counsel for the Defendant's correctly pointed out, the

 value of the estate was agreed and would include these

 sums.

 OH told the Court, and her evidence was not challenged

 or discredited, that she lived with her mother in the

 residential part of the building, which included the

 shop.  She had free accommodation and food, and her

 mother allowed her the use of her motor car.  She was

 paid on average between €80 and €120, never a precise

 sum, in cash at weekends.  Out of this wage she

 purchased her own clothes and met the other expenses of

 day-to-day living.  OH told the Court that she enjoys

 good health and, thankfully, has no medical problems or

 infirmities.

 While I accept the evidence of OH, that the late

 Mrs. AH was a courageous and strong willed person and

 very secretive in her business dealings.  I am unable

 to accept her recollection that the Plaintiff did not

 physically care for their mother, at least to some

 extent, from May 2003 to the week prior to her

 admission to hospital.  I am satisfied, on the

 evidence, that the Plaintiff during this period did

 whatever her mother asked or permitted her to do by way

 of caring for her.

 OH told the Court, and again her evidence was not

 contradicted or discredited, that the business of the

 shop is good and that she had an average net profit of

 €2,000 per moth.  She told the Court that she has

 savings of €49,000 in a particular named financial

 institution, and further savings of €40,000 in a named

 bank.  She had also purchased a motor car on 22nd May,

 2006 for a payment of €20,300.  In cross-examination OH

 stated that the late Mrs. AH believed that the

 Plaintiff would continue to help in the shop after her

 death, but unfortunately she and her sister simply

 could not work together.

 OH told the Court that the residential accommodation

 behind and above the shop is now, and has always been,

 her home and she intends to continue to reside there

 after her pending marriage, rather than on her intended

 husband's land.

 Mr. DH was born in 1972.  He received

 primary education only and has no academic or trade

 qualifications.  I accept his evidence that from an

 early age he worked with his parents in the shop and on

 the land.  I am satisfied that despite his very limited

 formal education Mr. DH is an astute, enterprising,

 extremely hard working and very talented businessman.

 I accept his evidence that he started buying cattle at

a young age, and that when his father died in 1994 of the 120 cattle then on the land 30 belonged to him.  His father and mother had permitted him to graze these cattle on the land without charge.

 He told the Court that he sold these cattle in 1995 for

 approximately £25,000, former currency, and invested

 this money in post office bonds.  After 1995 the lands

 were let to several local farmers for a total rental of

 £11,000, former currency, per annum and he was

 thereafter solely engaged in assisting his mother and

 his sister OH in running the shop until the year 2000.

 Mr. DH is unmarried but has a child, now aged 10 years,

 by a former partner, from whom he is now separated.  He

 pays maintenance to this former partner in respect of

 the child, who lives with her.  He told the Court that

 he enjoys excellent health and has no medical or

 physical infirmities.  On 22nd May 2000, Mr. DH

 purchased a retail business as a going concern in D.

 He told the Court that - and there was no evidence to

 the contrary - that the purchase cost him £493,300,

 former currency, inclusive of stamp duty and legal

 fees.  To fund this purchase he secured a bank loan of

 £350,000, former currency, on foot of a guarantee of up

 to £270,000, former currency, given by his late mother

 and secured by way of a deed of charge over her

 property.  He admitted that in addition his late mother

 had given him £20,000, former currency, with which to

 stock this business.

 The Plaintiff claimed that the sum given to her brother

 DH by their late mother AH was £80,000, former

 currency, and not £20,000, former currency, as he

 stated.  This Mr. DH vehemently denied.  However, Mr.

 DH told the Court that his late mother also took out

 two loans from a credit union in a total sum of

 £75,000, former currency, and had lent him this money.

 Mr. DH told the Court that he had repaid this loan to

 his late mother in various sums during the year 2000.

 He pointed to a number of entries in a payments account

 for the period May 2000 to December 2000

 designated "cash", "CIGS", "AH/CIGS" and "credit

 union". He said that he believed that his late mother

 had used this money to repay the credit union.  Of the

 balance of the purchase money for the business he paid

 £63,000, former currency, from savings and had

 negotiated a "deal" with the vendors in respect of the

 remainder.  He told the Court that this £63,000, former

 currency, was made up of savings derived from the sale

 of cattle since he was eight years of age.

 In cross-examination Mr. DH accepted that in his

 affidavit sworn on 15th May 2006 he had stated at

 paragraph 7 thereof that he did not receive any wages

 from his late mother, but when younger he had been

 given pocket money by her when he was going out at

 night and that the £63,000, former currency,

 represented accumulated savings from the proceeds of

 dealing in cattle.  It was put to him that in her

 instructions for a previous will given to Mr. OC,

 solicitor, in that solicitor's office on 28th April

 1997, and recorded in writing on that occasion by Mr.

 OC, his late mother had stated that "D got c. £63,000

 already from the sale of cattle".  The witness denied

 that this was so and insisted that all of the £63,000,

 former currency, came from the sale of his own cattle,

 which were on the land, and not from the sale of any of

 his parent's cattle.  No tag numbers or purchase or

 sales records were proved in evidence by this witness.

 I shall return to this issue later in the judgment.

Mr. SH was born in 1971.  He married EM in 2005 and they 
have three minor children.  Mr. SH and his wife and children all enjoy good health and do not suffer from any impairments infirmities.  Mr. SH received primary education only, and has no academic qualifications and no trade qualifications.  After leaving National School he helped for a time in his parent's shop and on their land.  He then worked in a number of retail and wholesale grocery businesses until he was aged 23 years.  In 1994 he purchased a van and commenced selling vegetables from door to door.  This business prospered and in the year 2000 he purchased a larger van and started a wholesale tea and grocery business.

 His late mother Mrs. AH gave him permission to build a

 shed on the site of existing agricultural buildings on

 her lands at K lower.  Mr. SH told the Court that he

 employed a firm of steel erectors to do the structural

 steel work, and that he and his wife's brother, who was

 a builder by occupation, completed the remainder of the

 work themselves.  The total construction cost was

 €42,000, in respect of which he received no contribution 

from his late mother.

 His late mother, by the terms of her last will and

 testament, unfortunately left part of the land on which

 this shed is erected -- an area identified by a firm of

 consulting engineers, architects and building surveyors

 as comprising 0.22 statute acres -- to his brother DH.

 Mr. SH is presently seeking retention permission and

 permission for a change of use to light industrial use

 for this particular shed.

 Originally Mr. SH and his life lived in rented

 accommodation, but shortly before the death of his late

 mother they moved to a house in the same town.  After

 the death of his late mother, Mrs. AH, he commenced to

 build a new house, using direct labour, on part of the

 land on K Upper, containing approximately 69.25 statute

 acres, left to him by the terms of her last will and

 testament.  Mr. SH told the Court that to date he has

 spent €78,000 in building this new house and that it

 will require a further expenditure of approximately

 €30,000 to complete the work.  While the work is

 progressing he and his family reside in a mobile home

 next to the site.  He believes that when completed this

 new house, with sufficient land, will have an open

 market value of between €400,000 and €600,000.  Mr. SH

 told the Court that the average pre-tax income from his

 business is approximately €2,600 per month, that he is

 registered for VAT and that a number of Revenue audits

 have found everything in order.  He stated that he has

 received to date €8,000 by letting the land given to

 him by the last will and testament of his late mother.

 In addition to the gift to him in his late mother's

 will, he told the Court that he received a sum of

 €14,500 on her death as the surviving account holder of

 a joint deposit account with her.  Mr. SH told the

 Court that he was indebted to the builder of his new

 house in the sum of €50,000 and owed €27,300 to a

 credit union.

 Mr. CN, a chartered surveyor, valuer and auctioneer in

 practice in the relevant area, gave evidence, which was

 also the evidence of the other surveyors and valuers

 retained in this action, that is, Mr. G and Ms. AM.

 The Court is greatly obliged to these experts for the

 professionalism of the various surveys and reports

 produced to this Court, their personal attendances at

 the hearing of this case and the enormous saving in time 

and costs achieved by them in agreeing the following 

matters.

 Mr. CN told the Court that the maximum present open

 market value of the shop, the attached residential

 accommodation and the large yard at the rear of the

 premises is €900,000.  With vacant possession he

 considered that there was potential for a single rental

 apartment above the shop.  The large yard at the rear

 of the shop he considered had some development

 potential, but this was very dependant upon access

 being obtained from a new public road scheduled to be

 constructed at the rear of the premises.  He gave

 evidence that the lands of MN, contained in folios

 10258F and 10525F, amounting to 15.75 statute acres or

 thereabouts, had an open market value, inclusive of

 any, if any, development potential, of €325,000 on 8th

 October, 2004, the day before the death of the late

 Mrs. AH, and €390,000 at the end of summer 2006.

 He considered that it might be possible under the terms

 of the Draft Development Plan to obtain a grant of

 planning permission for a single dwelling house on

 these lands adjoining the dwelling house now being

 erected by Mr. DH.  Mr. CN considered that the house

 being erected by Mr. DH required a surrounding site of

 2.4 statute acres if its open market value was not to

 be diminished.  He considered that a parcel of land of

 2.4 statute acres surrounding this house could readily

 be severed from the remaining lands of MN without

 affecting the open market value of the remaining 13.35

 statute acres of land.  He valued the 2.4 statute acres

 of land at €125,000 on 8th October 2004, and €150,000

 at the end of summer 2006.  In his expert opinion he

 told the Court the open market value of the house now

 being erected by Mr. DH, together with a surrounding

 area of 2.4 statute acres, including the house site,

 was €600,000 at the end of summer 2006.  Mr. CN valued

 the remaining 13.35 statute acres of land at €200,000

 on 8th October, 2004 and at €240,000 at the end of

 summer 2006.

 Mr. CN valued the lands of MK, containing 12 acres, two

 roods and 30 square perches, or thereabouts, at

 €130,000 on 8th October, 2004 and at €156,000 at the

 end of summer 2006.  He considered that the meadow

 given to the Plaintiff by the will of her late mother

 Mrs. AH was unlikely to have any future development

 potential, having regard to its position, bounding a

 national primary route, and with no other practicable

 access, and having regard to the provisions of the

 Draft Development Plan.  This meadow, as agricultural

 land, was valued at €20,000 on 8th October 2004 and

 €24,000 at the end of summer 2006.  Mr. CN valued the

 lands of K Upper and K lower, which adjoined each other

 and contained in total 84.46 statute acres, at

 €1,250,000 on 8th October 2004, and at €1,387,800 at

 the end of summer 2006.

 In his expert opinion, there was development potential

 for one, or for perhaps two, house sites on these

 lands, in addition to the dwelling house and store

 being erected by Mr. SH.  However, there was no

 possibility, he said, of obtaining planning permission

 for five or six house sites on these lands, as had been

 suggested.  In his expert opinion, the land could be

 sold as a single unit or in one or more lots.  He was

 satisfied that the market for house sites in this area

 had remained steady for the previous five years and he

 did not anticipate any change in this in the

 foreseeable future.  He considered that the natural

 service area of land, as dictated by the topography of

 the location, to be sold with the dwelling house now

 being erected by Mr. SH, including the site of the

 house itself, was 6.28 statute acres if the house was

 to achieve its full open market potential.  He

 considered that the shed, include the site of the

 building, required an additional operating area of 1.67

 statute acres.  Mr. CN valued this total land holding

 of 7.95 statute acres at €318,000 on 8th October 2004,

 and €382,200 at the end of summer 2006.

 Mr. CN told the Court that there was little or no

 demand for retail property in the particular town, but

 that the demand for residential property remains

 strong.  He considered that a three bedroom

 semi-detached dwelling house could at present, the end

 of summer 2006, command a rental of approximately €150

 per week.  While an apartment of one bedroom and shared

 facilities would most likely achieve a rental return of

 €50 per week.

 In his opinion, the value of the lands passing by the

 will of the late Mrs. AH had increased in value by 20%

 since the date of her death, and in his expert opinion

 it would be prudent to avoid selling more land than was

 absolutely essential in the circumstances.

 After some discussion between the solicitors for the

 parties and the surveyors and valuers, the Court was

 advised that it should anticipate that the costs of

 administration, including the costs of this litigation,

 together with sales cost and fees relating to sales of

 land and capital gains tax could amount to €550,000, or

 thereabouts.  Mr. CN stated that the value of the stock

 in trade, trade fittings, furniture and motor car

 bequeathed by her late mother to OH was approximately

 €70,000.  It had been put to OH in cross-examination

 that she had declined to permit Ms. AM to carry out a

 detailed valuation of the stock in trade and trade

 fittings.

 A great deal of the disputation in this case centred

 upon the issue of what advancements, if any, were made

 by the late Mrs. AH to her four children other than by

 the terms of her last will and testament.  While this

 litigation is inter partes, it nonetheless concerns

 family matters and the protagonists and non-expert

 witnesses are all members of the same extended family.

 In my judgment, it is very important for the Court, in

 determining the issues arising, consistent with its

 paramount duty of acting justly, fairly and

 impartially, to avoid to the greatest extent possible

 perpetuating or deepening any feelings of suspicion or

 hostility which this litigation has engendered amongst

 the family members.

 Mrs. CT gave evidence that she was very close to her

 late sister, Mrs. AH, and visited her very often,

 particularly during the year 2000, when they both knew

 that Mrs. AH was suffering from a terminal illness.  On

 one such visit, about two weeks before her death, when

 it was obvious that Mrs. AH was dying, her late sister

 had asked her to do a favour for her and she had

 agreed.  Mrs. AH had then given her a plastic bag with

 currency notes in it and had asked her to give €20,000

 each to the Plaintiff and to DH and SH.  She took this

 bag of money to the home of her daughter, Mrs. JW, and

 together they counted the money on her kitchen table.

 It amounted to €55,507, and not €60,000.

 Her daughter, who was the owner of a retail business,

 put the money in her safe.  Next evening Mrs. CT said

 she told the late Mrs. AH of the shortfall.  A week

 later the late Mrs. AH gave her another small plastic

 bag, containing currency notes, and had said "here's

 the difference".  Mrs. CT returned to her daughter's

 premises and they both recounted the money and found

 that it now amounted to €60,300.  Mrs. CT told the

 Court that she and her daughter, Mrs. JW, placed

 €20,100 in each of three plastic bags and Mrs. JW put

 them back into her safe, where they remained until

 after the death of the late Mrs. AH.

 Mrs. CT gave evidence that she had given one such bag

 with €20,100 to the Plaintiff, at her home, two weeks

 after the death of the late Mrs. AH.  On that occasion

 she was accompanied by her daughter, Mrs. JW.  About

 the same time she had telephoned Mr. SH and had

 arranged to meet him at a petrol station at C, on the

 road between C and D, where she had given him a bag

 containing €20,100.  On this occasion also she was

 accompanied by Mrs. JW.

 She told the Court that she had given the final bag,

 containing €20,100, to Mr. DH outside the Plaintiff's

 house after the months mind mass for her late sister

 Mrs. AH.  Her daughter, Mrs. JW, was with her on that

 occasion also.  Mrs. CT was positive that she had not

 mentioned this matter to anyone other than to her

 daughter Mrs. JW.  Mrs. CT said that she had not

 inquired of Mrs. AH as to why she had not given a

 similar or any sum of money to her to give to OH.

 Mrs. JW gave evidence and confirmed her mother's

 evidence in every respect.  She recalled that the money

 was in 50, 20, and 10 euro notes.  Mrs. JW recalled

 that the Plaintiff had asked Mrs. CT if anyone else was

 getting money.  Her mother, Mrs. CT, had told the

 Plaintiff that she had money to give to Mr. DH and

 Mr. SH, but did not mention the amount.  Mrs. JW told

 the Court that she had not discussed the matter with

 anyone other than her mother.

 Both Mrs. CT and Mrs. JW were adamant that they had not

 discussed the matter with either Mr. SOC or Mr. JOC.

 Both were absolutely certain that the total sum

 involved was €60,300, and not €155,000, as the

 Plaintiff was now contending.  Mrs. CT denied that she

 had given €50,000 each to Mr. DH and Mr. SH.  She

 denied that she had told the Plaintiff that Mr. DH and

 Mr. SH had each got €50,000 and that OH had got

 €35,000.  Mrs. JW stated that she was present at all

 times when her mother, Mrs. CT, was speaking to the

 Plaintiff in her home, and was positive that her mother

 had not said to the Plaintiff that she had given

 €50,000 each to Mr. DH and Mr. SH and €35,000 to OH.

 Neither of these ladies deviated or was shaken in the

 slightest in giving evidence, and their evidence was

 clear, cogent and coherent.  I was particularly

 concerned as to what weight I should give their

 evidence, as they had both been prepared to participate

 in a fraud on the Revenue, without any apparent moral

 scruples or any concern for the law.  However, having

 observed them most critically while giving their

 evidence, and having very carefully scrutinised and

 analysed their evidence, I am driven to the conclusion

 that they are both telling the truth.  I am satisfied

 that the Plaintiff is incorrect in her recollection

 that Mrs. CT had told her, in the Plaintiff's own home

 on the occasion when she had given her a bag containing

 €20,100, that she, Mrs. CT, had given €50,000 each to

 Mr. DH and Mr. SH, and €35,000 to OH.

 OH told the Court that she was entirely unaware of this

 whole matter until she had received a letter from the

 executor dated 12th January, 2005.  She said that she

 had immediately contacted her aunt, Mrs. CT, who had

 then told her that she had given €20,100 each to DH, SH

 and the Plaintiff, at the request of the late Mrs. AH.

 OH told me that she did not get €20,100 or 35,000 from

 either her late mother or from her aunt Mrs. CT.  She

 said that she was both shocked and a little aggrieved

 on learning about this matter, particularly as the

 executor, Mr. OC, solicitor, had asked her over and

 over again as to whether she had got money in cash from

 Mrs. CT or directly from her late mother.

 OH accepted in cross-examination that she had asked

 very Reverend Sister C to visit the Plaintiff after she

 had received a letter from the solicitor for the

 Plaintiff initiating this claim, with the purpose of

 persuading the Plaintiff to abandon her claim.  While

 one must condemn this conduct on the part of OH as both

 altogether improper and bordering upon a contempt of

 this Court, and even though I was less than impressed

 by this witness in giving her evidence I am nonetheless

 satisfied on the balance of probabilities that she did

 not receive either €20,100 or €35,000 from her late

 mother through the agency of her aunt Mrs. CT.

 Mr. SH told the Court that the first he knew that the

 Plaintiff was dissatisfied with the provision made for

 her by her late mother was when he received her

 solicitor's letter dated 12th January, 2005.  He

 confirmed that he had received cash in the sum of

 €20,100 from his aunt, Mrs. CT, at the time and in the

 manner she had described.  Mr. SH denied that he had
 spoken to SOC about this matter.  He accepted that he

 may have met with and spoken to Mr. SOC after the death

 of the late Mrs. AH when he was delivering goods in the

 town where Mr. SOC resides, but he denied that he had

 told him that Ms. CT had distributed €155,000 in cash,

 of which the Plaintiff had received €20,000, OH had

 received €35,000 and he and his brother DH had each

 received €50,000.  He also denied that he had brought

 Mr. SOC to visit the lands of K Upper and K lower,

 which had been left to him and his brother DH by their

 late mother Mrs. AH.

 While Mr. SH was a somewhat unimpressive witness,

 tending to be at the same time blunt and argumentative

 in his replies to questions put to him by counsel, I am

 nonetheless satisfied, having carefully observed his

 demeanour in giving evidence and having weighed his

 answers in the context of the remainder of the

 evidence, that he did not receive €50,000 from Mrs. CT,

 that he did not bring Mr. SOC to visit the lands at K

 Upper and K Lower, and did not inform him that Mrs. CT

 had distributed €155,000 in the manner above mentioned.

 Mrs. EH, wife of Mr. SH, told the Court that she

 clearly recalled SH coming home late one evening and

 telling her that his mother had left €20,100 with his

 aunt, Mrs. CT, for him.  He showed her the money in a

 black or very dark blue plastic shopping bag, but she

 had not counted it.  They had put this money into the

 business account in the name of SH Wholesale.  She was

 unaware that Mr. DH and the Plaintiff had also got

 money from Mrs. CT.  They had some contact with Mr. DH

 at the time and he had not said anything, and neither

 had she.  She had not said anything either to OH.  She

 was not prepared to accept that her husband

 had "bragged to Mr. SOC that he had got €50,000 in cash

 from his late mother through Mrs. CT".

 She told the Court that she had her husband discussed

 everything and she said that he was not the sort of man

 who bragged or who disclosed his business affairs.

 Having seen and heard Mr. SH in giving evidence, I am

 satisfied that this latter is a very correct assessment

 of him.  I accept the evidence of Mrs. EH and I do not

 accept the evidence of the Plaintiff to the contrary,

 that she and the Plaintiff had got on very well and

 that she had quite often looked after the Plaintiff's

 children until her husband SH had received the letter

 of 12th January, 2005 from the Plaintiff's solicitor

 making the present claim.

 Mrs. EH accepted that she should not have gone to the

 Plaintiff's home after this letter was received and

 climbed in through a window when the Plaintiff would

 not open the door to her insistent ringing of the front

 doorbell.  She accepted that she had caused the

 Plaintiff to be absolutely terrified and intimidated,

 and to run out of her own home and to seek the

 protection of the local Garda Síochána.

 I accept the evidence of Mrs. EH and Mr. SH, that he

 was entirely unaware of what she had done until a

 letter of complaint dated 19th January, 2005 was

 received from the Plaintiff's solicitor.  I am unable

 to accept the evidence of Mrs. EH, that she had only

 wished to speak to the Plaintiff in the hope of

 persuading her not to go ahead with the intended

 action.  However, despite this quite reprehensible and

 totally unlawful behaviour on the part of Mrs. EH, I am

 satisfied, on the balance of probabilities, that she

 and her husband are correct in their recollection that

 they did not tell anyone, and in particular Mr. SOC,

 that Mr. SH had received any money from Mrs. CT.

 Mrs. EH accepted that she had met Mr. SOC a few times

 in the shop and at the funeral of the late Mrs. AH.  I

 accept the evidence of Mrs. EH, that she had not told

 the Plaintiff at Christmas 2004 that SH had "got 50,000

 or another €20,000".  Insofar as this is the

 recollection of the Plaintiff, I am satisfied that she

 is mistaken in her recollection.

 Mr. SOC, a first cousin of the Plaintiff, gave evidence

 that after the death of the late Mrs. AH he met Mr. SH

 in the town where he lives, which is a considerable

 distance from the town where the late Mrs. AH resided

 and carried on her shop business.  He told the Court

 that Mr. SH had told him, in his van, that Mrs. CT had

 distributed €155,000 in cash and that the Plaintiff had

 got 20,000, but OH had got €35,000, and that he and his

 brother DH had each got €50,000.  He said that Mr. SH

 had driven him, in his van, to see the lands which he

 and his brother DH had been given in the will of the

 late Mrs. AH.  In cross-examination Mr. SOC stated that

 he knew SH "well enough", but accepted that he did not

 see him "that often".

 When asked why Mr. SH, on a casual meeting, would tell

 him all these things he replied that he did not know

 why, but that he had done so.  He said that he had

 attended a consultation with the Plaintiff's legal

 advisors some time during 2005.  He accepted that he

 had only sworn his affidavit in these proceedings on

 the 25th May, 2006, the very day on which he was giving

 evidence before the Court.

 Having carefully observed and listened to this witness

 giving evidence I formed a very unfavourable impression

 of his evidence.  He adhered resolutely to his account

 of what he said Mr. SH had said and done, but offered

 no other evidence which would enable this recollection

 to be checked in any way.  Other than putting it to the

 witness that Mr. SH was emphatic that he had not said

 or done these things, counsel for the Defendants had

 nothing by means of which he could test this evidence.

 While making all due allowance for the fact that Mr.

 SOC might well be taciturn by nature or uncomfortable

 in his role as a witness before the High Court, I

 remained altogether unconvinced by this witness.

 Having later seen and heard Mr. SH giving evidence,

 there was nothing whatever offered by Mr. SOC which

 would explain what I believe, on the evidence, would

 have to be a wholly atypical and altogether surprising

 sharing of very confidential and potentially

 compromising information by Mr. SH with this distant

 relative and comparative stranger, information which I

 am satisfied on the evidence he had otherwise only

 shared with his wife, and not even with his siblings.

 I am, therefore, not prepared to place any reliance on

 the evidence of Mr. SOC.

 Mr. JOC, a brother of Mr. SOC, and who lives in a

 nearby town to Mr. SOC, gave evidence.  I found Mr. JOC

 to be very careful and forthright in giving his

 evidence and he did not shirk from answering any

 questions put to him by counsel.  He told the Court

 that he and his mother had visited the late Mrs. AH

 shortly before her death.  He had stayed with the

 Plaintiff and found her to be entirely rational,

 well-balanced and sane in every way.  He said he was

 horrified to learn from her that she had gone abroad

 for alternative therapy, to a particular individual

 named to the court, on the advice of a social worker.

 He considered this to be entirely wrong and unethical,

 and he had pressed the Plaintiff to reveal the name of

 this social worker so that he could bring it to the

 attention of the appropriate authorities.  The

 Plaintiff, however, had refused to give him the name of

 the person involved.

 Mr. JOC told the Court that even though the late Mrs.

 AH was terminally ill, she was still very much in

 charge of the shop and remained serving behind the

 counter.  Mr. JOC accepted that he had spoken to the

 Plaintiff on the telephone after the death of her late

 mother.  He very warmly disputed, and was clearly very

 much offended by the question put to him by counsel for

 the Plaintiff, that he had said to the Plaintiff in

 that telephone conversation that whereas she had only

 received €20,000, OH had got €35,000 and SH and DH had

 each got €50,000.  He said that he had heard about

 three black bags with €20,100 which were handed over

 after the death of the late Mrs. AH.  He had no doubt

 at all that what he had been told - but he could not

 recall by whom - was that each of these bags contained

 €20,100.  I formed the impression that Mr. JOC may have

 been diplomatic in his uncertainty as to the identity

 of his informant.  He described Mrs. CT as a lady of

 the highest probity and discretion, and he had no doubt

 she had most carefully and conscientiously checked the

 amounts involved.  He said that he did not think it

 strange that the late Mrs. AH had not given any cash to

 OH because, as he put it, "a good shop is a gravy train

 to money".  He said he had no explanation to offer why

 his brother SOC had told the Court that Mr. SH "was

 boasting about €50,000",  but he simply did not believe

 it.

 Mr. JOC told the Court that during the week prior to

 his giving evidence to this Court he had been contacted

 by another family member U McN,  who was a solicitor,

 and she asked him did he hear what figures were being

 bandied about; that the High Court had been told the

 figure was €150,000.  He told her that the figure he

 had heard was €60,300.  He said that he would be in D

 the next day to purchase a Volkswagon Golf diesel motor

 car for his daughter and would call to the office of

 U McN and swear an affidavit to that effect.  He later

 telephoned U McN and suggested that perhaps they should

 both travel to C and "get heads together".  U McN

 advised him that it was better that they should mind

 their own business and let the Court deal with the

 matter.

 For all these reasons, I am fully satisfied, on the

 balance of probabilities, on the evidence given to the

 Court that the Plaintiff, Mr. DH and Mr. SH were each

 given €20,100 in cash, and no more, by their late

 mother Mrs. AH through the agency of their aunt Mrs.

 CT.  I do not find it established on the evidence that

 OH received €35,000, or any cash from Mrs. CT, or that

 Mr. DH and Mr. SH had each received €50,000 in cash

 from Mrs. CT.

 On the evidence, I must accept that the late Mrs. AH

 obviously believed that DH had obtained the £63,000,

 former currency, at least in part, from the sale of

 cattle which she regarded as her property.  On the

 state of the evidence I am unable to decide whether she

 was correct in this belief.  I accept the evidence of

 the Plaintiff, that while she was in the United States

 of America for six months in 1995 on a holiday visa,

 the late Mrs. AH was constantly complaining to her on

 the telephone that DH, in addition to selling cattle of

 his own, had sold some of his father's cattle as well.

 Mr. DH has given evidence that the €63,000, former

 currency, was derived entirely from the sale of his own

 cattle.  But he adduced no evidence of any sort to

 support this claim.  There was evidence that after 1995

 all the lands were let to third parties and prior to

 that date DH had sold his cattle and had purchased post

 office bonds for approximately €25,000, former

 currency.  There was no evidence that the late Mrs. AH

 demanded the return of this money or instructed her

 solicitor to seek its return.  It is clear from the

 instructions which she gave to her solicitor on 28th

 April 1997, that the late Mrs. AH was prepared to treat

 this sum of £63,000, former currency, as an advance to

 DH.  In the circumstances, I am unable to conclude that

 this sum of £63,000, former currency, was in fact such

 an advance to Mr. DH by his late mother, Mrs. AH.

 The Plaintiff told the Court that she believed that the

 late Mrs. AH had given DH £80,000, former currency, to

 stock his retail business in the year 2000.  Mr. DH

 told the Court that his late mother had advanced him

 the sum of £20,000, former currency, for that purpose.

 Neither side in this case produced any evidence by way

 of corroboration.  This advance is not mentioned by the

 late Mrs. AH in any of the three instructions for a

 will given to Mr. OC, solicitor, on 25th April 1994,

 25th September 2001 and 3rd July 2003, particularly in

 the instructions of 28th April 1994, where the advance

 of £30,000, former currency, to the Plaintiff, to help

 her purchase a house, and the £63,000, former currency,

 to DH are specifically mentioned.  The Plaintiff did

 not give any detailed basis for her belief that the sum

 given to Mr. DH was £80,000, former currency.

 In my judgment, on the evidence, the Plaintiff is

 mistaken in her belief that the late Mrs. AH made an

 advance to DH to purchase stock in the year 2000 in the

 sum of £80,000, former currency.  I find that the error

 probably occurred in the circumstances of the loan of

 £75,000, former currency, which Mr. DH admitted to the

 Court in cross-examination, though it did not appear in

 his affidavit of disclosure, had been made to him by

 his late mother in the year 2000 to help in the

 purchase of his retail business.

 Mr. DH gave evidence that he had repaid this loan

 between May 2000 and December 2000, and that he

 believed that his late mother had in turn, out of his

 repayments, repaid the two loans which she had taken

 out from the credit union to raise the sum of £75,000,

 former currency.  There is no mention of an advance of

 £75,000, former currency, to DH in his mother's

 instructions for a will dated 25th September 2001 or

 3rd July 2003.  There was no debt of £75,000, former

 currency, with or without interest, due to any credit

 union on the death of the late Mrs. AH.  While I am

 quite unable to determine whether or not the various

 sums indicated by Mr. DH in the payments account of his

 retail business in the period May to December 2000 were

 in fact repayments of his mother's loan to him, though

 these are listed as "cash", "CIGS", "AH/CIGS"

 and "credit union".  In all the circumstances to which

 I have alluded, I am satisfied on the balance of

 probabilities that Mr. DH did in fact repay the loan of

 £75,000, former currency, to his late mother.

 It was agreed between the chartered surveyors and

 valuers that the present -- that is end of summer 2006

 -- value of the Plaintiff's residence is €195,000.

 The principles of law to be applied by this Court in

 giving effect to the provisions of Section 117 of the

 Succession Act, 1965 are most helpfully gathered

 together and succinctly set out by Kearns J. ,then of

 the High Court, at pages 262 to 264 of his judgment in

 XC -v- RT [2003] 2 ILRM, 250, High Court.  This Court

 is also aware of the decision of O'Sullivan J. in

 CW -V- LW [2005], 4 ILRM, 439, High Court.  Subsection

 2 of Section 117 of the Act of 1965 provides as

 follows:

  "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."

 As pointed out by Kearns J. at page 263 of his judgment

 in XC -v- RT, above cited, the test to be applied is

 not which of the various courses open to the testator,

 the Court itself would have adopted, if confronted with

 the same situation, but rather whether the decision of

 the testator to opt for the course she did of itself

 and without more constitutes a breach of moral duty to

 the Plaintiff.

 In the instant case the Defendants are in agreement

 that the late Mrs. AH failed to make proper provision

 for the Plaintiff in accordance with her means.  I

 entirely agree, having regard to the evidence to which

 I have referred in this judgment.  Apart from her

 children the late Mrs. AH had no other potential moral

 obligation to any other persons.  The relationship of

 parent and child does not of itself, without more,

 create a moral duty to leave anything by will to a

 child.  But it is manifestly apparent that in this case

 there has been a positive failure on the part of the

 late Mrs. AH to make proper provision for the

 Plaintiff.

 The Court must therefore consider the entirety of the

 testatrix affairs and decide this case in the overall

 context, having regard to the moral claims, if any, of

 the other children and mindful of the fact that though

 the Court has wide powers to make proper provision for

 this Plaintiff it does not have power to make a new

 will for the testatrix.

 The Plaintiff has a house, but has no sufficient or

 reasonably secure income, or capacity to provide such

 an income because of her limited education and lack of

 any academic or vocational skills.  She is now 30 years

 of age, with two dependent minor children, now aged 9

 years and 7 years.  She has no present means of further

 educating herself or educating her children.  She has

 no capital, other than what was left to her in the will

 of her late mother, and the equity of redemption in her

 dwelling house, which she is in no position to realise.

 The total present value of the provision made for her

 in the last will and testament of her late mother AH is

 only approximately €36,500.

 I am satisfied that the late Mrs. AH believed, but

 without any proper basis for this belief, that the

 meadow had a value of €150,000, or thereabouts.  In my

 judgment, on the slightest inquiry from a local

 auctioneer or valuer, she would have been advised that

 the meadow almost certainly did not have any

 development potential and was worth only approximately

 €20,000 as agricultural land.  The Court must also be

 mindful, as a prudent and just parent would be, of the

 costs of administration, including the costs of this

 action, the amount of the deceased's debts and funeral

 expenses, the cost of land sales and the sum likely to

 have to be paid for capital gains tax, the total of

 which sums has been estimated in evidence to court at

 approximately €570,000.

 The Court will therefore order and direct that the last

 will and testament of Mrs. AH, deceased, bearing date

 3rd July, 2003, be altered in the following respects:

 (A)  Give, devise and bequeath to the Plaintiff all the

 lands in the townland of K Upper and all the lands in

 the townland of K lower, other than the piece or

 parcel of land comprising 6.28 statute acres, or

 thereabouts, surrounding and including the site of the

 dwelling house now being erected by Mr. SH, and also

 the piece or parcel of land comprising 1.67 statute

 acres, or thereabouts, surrounding and including the

 site of the shed or depot erected by the said Mr. SH as

 both are shown on the map to be annexed to the Order of

 this Court, both of which parcels are given, devised

 and bequeathed to Mr. SH.  The said lands of K Upper

 and K lower to be charged with the payment by the

 Plaintiff to Mr. DH of the sum of €100,000 and to

 Mr. SH of the sum of €50,000, within a period of 5

 years from the date of perfection of this Order.

 (B)  Direct that all the lands in the townland of MK,

 including the meadow, and also all the lands in the

 townland of MN, being the lands comprised in folios

 10258F and 10525F, other than the piece or parcel of

 land comprising 2.4 statute acres, or thereabouts,

 surrounding and including the site of the dwelling

 house now being erected by Mr. DH, as shown on the map

 to be annexed to the Order of this Court, which piece

 or parcel of land is given, devised and bequeathed to

 Mr. DH, to be appropriated, devised and bequeathed for

 the payment of all the debts, funeral, testamentary and

 administration expenses, including the costs of these

 proceedings, which the Court directs to be paid out of

 the assets of the deceased.  In the event of the same

 being insufficient for that purpose, such shortfall

 shall be made good out of the property specifically

 devised and bequeathed to OH and to the Plaintiff,

 having regard to the terms of this judgment, ratably

 according to value, and the order of application of

 assets specified in section 46.3 and in Part 2 of the

 schedule of the Succession Act, 1965 shall be and is

 hereby varied accordingly.  That is the judgment of the
 Court.

			

			Approved:  Herbert J.