Non marital son, excluded from will, awarded third of mother’s estate

The plaintiff’s mother died in 2015 and in her will left her farmhouse and other assets, worth € 750,000  solely to her nieces and nephews. Her will made no reference to or provision for the plaintiff, her only child, born outside marriage in 1955 and who subsequently was given away by her to a couple under an informal adoption. The plaintiff sued under S(117) of the Succession Act as no provision had been made by his mother for him under her will.

Although the plaintiff was well cared for by his adoptive parents, they could not afford to pay for his courses at technical college and he left third level without any qualification and very much resented that loss of opportunity. Despite this, the plaintiff did well in later life using his drawing skills to secure good employment and had substantial savings on his retirement in 2011.

He was 23 years old when he first met his mother by arrangement at a provincial hotel. She offered to sell him a site he could not afford and he felt bitter about this as he thought she could have gifted it to him. Their relationship was difficult afterwards and when at a later date, he brought his young son to meet her, she showed no interest in the little boy.

The High Court ruled that the mother had indeed failed in her moral duty to provide for him under her will in that, relying on established case law:

  1. The deceased left no siblings, other children or dependent relatives, apart from her son the plaintiff and therefore owed no moral duty to anyone else other than the plaintiff at the time of her death.
  2. The plaintiff was not barred from seeking relief because he was an older man. There was no age ceiling on any applicant seeking relief under S (117).
  3. Neither was he precluded from suing because he and his wife now had property and other assets. He was on reduced income following his retirement and also had a son he wished to help in his studies and further career.
  4. There was uncontested evidence that the deceased had little enough meaningful contact with the plaintiff during her life and had not provided for him in any way either during her life or under her will.
  5. The plaintiff had suffered from mental health issues, including depression, which evidence suggested had arisen due to the isolation he felt at school and elsewhere owing to the circumstances of his birth and lowly social status of his adoptive parents. The court stated that his medical history was also relevant to any assessment of the moral duty owed by his mother at the date of her death.

The court concluded that, given the deceased was about to leave considerable assets in her will only to a series of nieces and nephews, none of them ever financially dependent on her, the deceased ought to have provided for her son ,the plaintiff, in her will. The court held that the plaintiff had discharged the high onus, that is undoubtedly on him, to demonstrate a failure of moral duty on the part of the deceased.

The court awarded him a lump sum of €225,000 to be charged on the farmlands pending sale.

This case is S(G) v B(M) In estate of TN deceased 21/1/2022SP [ 2022] IEHC.


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