Mother left china, delph and cutlery to her daughters; €3.8m in assets to her sons

A mother bequeathed in her will her china, delph and cutlery to her three daughters along with €5,000 each - and the remaining €3.8m of assets in her estate amongst her three sons.

Now, one of the sons - the eldest, who is a 53-year-old married father of two - has successfully challenged the will in the High Court after he had received only a tiny fraction of the €3.8m estate.

In the will, the eldest son, who now works as a hackney driver after being forced out of the family farm business in 2007, received only a three and a half acre strip of land valued at €42,000 in 2013 when his mother died. Today it has value of €100,000.

In contrast, the man’s brother and executor of the estate and personal representative of the mother received gifts from the estate to the value of €3m in 2013 - with the 199 acres of land bequeathed to him valued at €3.55m today.

Now, as a result of a High Court judgement delivered after a bitterly-fought, six-day hearing between the two sides held behind closed doors in court, Mr Justice Denis McDonald has directed the eldest son to receive around 90 acres of lands to the value of around €1.27m - lands described in the case as extending from the village “to where the stone wall goes through the shed”.

These were lands promised by the mother to her eldest son in 1997 before their falling out and before she revoked her original will.

At the end of a 30,000 word judgement in ‘Kv K’, Mr Justice McDonald found that the mother in the family “did fail in her moral duty to make proper provision for the plaintiff in her last will”.

The judge said that the eldest son has satisfied the high onus that rests on him to demonstrate that there was a failure of moral duty on his mother’s part.

Mr Justice McDonald said that the mother had an extensive estate and that her son “had obvious needs”.

'Appears not to have considered provision for daughters'

The judge said that the mother “does not appear to have considered that she should make any significant provision for her daughters in her will”.

He said that it is notable that none of the daughters has made a claim under Section 117 of the Succession Act and “furthermore, neither of the daughters who gave evidence before me suggested that they were living in straitened circumstances".

In his judgement, Mr Justice McDonald said that “the animus between the parties was palpable during the hearing”.

He said that it became clear that none of the members of the family are on speaking terms with the plaintiff, the eldest son, save for his sister ‘M’, stating that even in the witness box, it was clear from ‘M’s demeanour, to some extent at least, she shared the animus against the eldest son.

The judge said that “there are very deep divisions within the family” and several times he urged the parties to settle as any finding imposed by the court is likely to give rise to ongoing bitterness and a deep sense of grievance on one side or the other.

The judge said that the disparity between what the eldest son received and what his brother received from the estate “is extreme”.

The judge said that the eldest son “had been left in a very difficult position following his expulsion from the family business in 2007”.

The judge said that the circumstances around the expulsion “were particularly harsh”.

Worked on farm since age 15

The oldest brother had worked on the farm since aged 15 and Mr Justice McDonald stated that because of the son’s lack of experience of work other than the family farm “a just and prudent parent would, in my opinion, have made more significant provision for him”.

The judge found that the gift to him under the Will “was disproportionately small” when compared with the gifts to the defendant and a third son, ‘J’ who received gifts to the value of €748,547.

The judge said the eldest son’s annual income from his hackney driver business at the death of his mother in 2013 was €16,000 after tax and he had savings of €3,000.

The father in the family had died in 1996 with all assets transferring to his wife.

In a will made in 1997, the mother left a substantial part of the farm to the plaintiff, her oldest son.

However, in 2003, she made a new will revoking the 1997 will. Under that 2003 will, the area of land which she proposed to give to the eldest son was very substantially reduced.

The judge also found that the plaintiff’s contribution to the farm in the period up to his father’s death was significantly more extensive than that of his brothers.

In his judgement, Mr Justice McDonald said that he believes that the mother’s ‘dramatic change of heart” in revoking the 1997 will seems likely to have been the mother’s unhappiness at the involvement at the eldest son’s in-laws in a property dispute against her which took place in the courts in 2001/02.

He said: “I have reached the conclusion that the court case did cause significant resentment on the part of the deceased and the other members of the family.”

The judge said that a just and prudent parent should not harbour resentment or antipathy in such circumstances as to how an estate should be dealt with after death and it doesn't justify the modest provision for the eldest son.

Mr Justice McDonald said that the 2001/02 court dispute between the eldest son’s in-laws and the mother was the underlying reason why the mother ultimately in 2007 took the “very harsh decision to terminate the plaintiff’s involvement in the family farming and sand and gravel/concrete business”.

The eldest son had worked on the family farm for three decades and he stated that his mother came to his home in 2007 and told him that things were not working out between himself and his brother (the defendant) to such an extent that he was “going to have to find something else to do with his life”.

The eldest son was paid up until Christmas 2007 and then dismissed.

The eldest son said that he often didn’t receive a wage for his work as his father often told him “You’re doing it for yourself, sure I can’t take it with me”.

'Palpable animus'

The three sons all left school at the age of 15 while Mr Justice McDonald said that the parents were keen for the daughters to complete their Leaving Cert.

Mr Justice McDonald said that the atmosphere in the case was not improved by the manner in which the defendant chose to deal with the plaintiff’s case and that it was deeply disappointing that the defendant refused to engage in mediation prior to the case coming to court.

He pointed out that the plantiff’s counsel was very critical that on the evening of the fifth day of the trial, the defendant made an offer at 4.07pm to settle the proceedings but was to remain open only until the end of the business that day.

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