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Succession (wills), O'Donnell adopted Bank v Goodfellow to Ireland,…

- - - - reform
      - if court of opinion parent failed in moral duty to make proper provision for child
      - can't make a claim if everything left to surving spouse who is parent of child, presumed that parent will continue to provide for child
      - cases
        
        FM v TAM testator made no provision for adopted son who was married with own job and children, testator wife had paid for education and personal expenses- held - no obligation to leave anything but failure to make any provision meant adopted son successful
        
        RE IAC failed in moral duty, places heavy onus on applicant, can't alter because court would have done differently - relationship between child and testator relavent (if close be reluctant), moral duty can change (marriage breakdown and iff aware)
        
        RE ABC deceased generally aimed at kids who still reasonable to expect help from parents - must be positive failure - paying for education may help - look at testators circumstances (all moral obligations to everyone)and if any special circumstances (any inducement by parent, long illness, special needs)
      - moral duty
        
        C v F father failed in duty to non-marital daughter, provision for parent of that child can help but not always
        
        HL v Bank of Ireland** private institutional car**e sufficient to mentally disabled child
        
        MPD what is proper provision - advancement not just food and shelter
        
        take into account provisions made throughout life
        
        McDonald v Norris frequent arguments between son and father, Gardai had to intervene (Arson, abusive calls) - SC reversed HC decision failure of moral duty by father even though sons behaviour was awful
      - first establish failure in moral duty and than what is proper provision - onus of proof on applicant -
  - - - 114 if left in will and said in addition to legal right can get both if doesn't say have to choose between them
      - Urquhart wife left legacy to husband if survived her by more than 1 month, both died from car crash husband survived a day, husband didn't elect to take legal right so had to take legacy instead, didn't last the month so it lasped and is a failed gift
      - O'Dwyer v Keegan died testate left wife nothing had presumed would outlive wife - wife died next day - entitled to 1/3rd but had to elect to take it and hadn't done so - no gift in the will so not required to elect to take it - legal right vests automatically on death of spouse
  - - - if dwelling worth less than what spouse is owed no problem
      - if dwelling worth more there are a number of ways in s56 to make up the difference
        
        may not apply if court doesn't think will maintain property value or used as hotel or boarding room at time of death
        
        H v H onus on applicant to show value in future won't be affected
- - - - can sign at different times
      - presumption that valid created
        
        Clery v Barry doesn't exist if witness dead, incapacitated or unreliable
- - - - childrens act 1987 - includes all children within marriage and outside marriage
      - needs a predeceased child and than look at the will
  - - - exception
        
        given before married (don't marry till after will created)
        
        given to witness as trustee
      - rational
        
        combat undue influence
- - - - s99 1965 act - if more than one interpretation go with what allows it to operate
    - - s89 1965 - states that will read as if written immediately before death
    - - look at it from testators perspective
      - judge place himself in testators perspective
      - can use circumstances to understand meaning which appear on face of the will - 4 corners of will
      - Thorn v Dickens referred to wife in will as mother evidence used to interpret it
    - - any words used given ordinary meaning
      - legal words given legal meaning
  - - - Re Julian will left gift to wrong institute no personal connection with on Rogers Quay, had a personal connection with similar sounding one, solicitor mistake - went to institute named in the will (despite solicitor saying wrong)
      - Rowe v Law s90 could not be invoked where the terms in the will clear and unambiguous, don't want to allow extrinsic evidence just to show intention - open to fraud, mistake, unfairness, uncertainty - extrinsic evidence needs to assist with construction of the will
      - O'Connell v Bank of Ireland - kept Rowe v Law - don't want extrsinic evidence to vary wording when clear and unambiguous
- - - - act of destruction with intention to revoke
      - burning or tearing displays an intention to revoke
      - crumpling and throwing in bin not act of revocation
      - Cheese v Lovejoy destroying must be combined with intention
      - accidental burning not a revocation
    - - in subsequent will, if don't may still be valid unless inconsistent with previous one
    - - previous will revoked by marriage or civil partnership, if in contemplation of union won't be revoked
- - - - revoked any time
      - if no death revokes
      - will has no impact
    - - Sen v Headley departing with title deeds sufficient
    - - Wilks died of pneumomia instead of cancer still valid
      - Mills committed suicide, not allowed (suicide criminal act)