Testator’s Obligations to His/Her Children – Section 117 of the Succession Act, 1965

Peter McDonald -v- Mary Norris, Supreme Court, 25th November 1999. The Supreme Court decided that the date of death of the parent is the relevant time for consideration of the assessment as to whether or not the parent has fulfilled their moral obligation for the purposes of Section 117. Mr. Justice Barron stated that the moral obligation exists from the relationship of parent and child and is continuous from the date of birth of the child until the date of death of the parent unless in the meantime it has been satisfied or extinguished. The Supreme Court applied a three-fold test.

1. What would have satisfied the moral obligation in the particular circumstances of the family.

2. Should the behavior of the son/daughter be taken into account either to extinguish or to diminish the obligation of the parent.

In the instant case it was accepted that the behavior of the applicant (son) had been deplorable. However as the son’s only means of livelihood was farming, his current age being in excess of 40 years and it having been taken into account that the means to purchase farm land did not exist in the applicant the Court found that the son should have been left a minimum of 50% of the farm which was extensive in that it was 250acres.

Barron, J stated, “in judging a child’s behavior towards a parent, it is important to determine whether that conduct would have been the same had a stranger been involved. It should not be overlooked that parents and children have the same genes and that an uncompromising stubbornness in the one is likely to be mirrored in the other. This situation would not have developed had the applicant been farming in a stranger’s lands.”

3. This question focuses upon what benefits, if any, the applicant had received from the Testator during the Testator’s lifetime in order to satisfy the moral obligation, benefits should be advancements of money, which would enable the child to establish himself.

In the instant case that the applicant (son) did not have to rent the lands or the quarry did form part of advancement, but these were limited by their temporary nature.

The Norris family to whom the farm had been bequeathed – the Court found that the Testator did not have any moral obligation to provide for them to the detriment of the son. The Court ruled that the entirety of the lands must pass to the applicant.

In conclusion the law in relation to Section 117 even where a child has actively behaved in an appalling manner towards his parents. While the Court accepted that the moral obligation of the parent would be diminished when account is taken of such behavior, the extent to which it is so diminished remains negligible where the child can point to some act of the parent, which prompted such behavior.

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