C. (C.) & Anor v. C. (W.) & Anor

Factual and Procedural Background

The decision concerns an appeal to the Supreme Court from an order of the High Court dated 9 October 1987 made under Section 117 of the Succession Act 1965. The deceased testatrix executed her last will on 5 November 1981 and died on 17 May 1985, leaving an estate valued at approximately £122,000 (net). Four adult children survived her:

• Child A – a 44-year-old married permanent invalid in receipt of a United Kingdom disability pension.
• Child B – a 42-year-old married shop-owner with three sons (one severely deaf); the testatrix had previously transferred the family grocery/newsagent business to this child.
• Child C – a separated daughter with four children, steady employment and a mortgaged home.
• Child D – a married daughter whose marital difficulties were known to the testatrix; she jointly owned property in Spain and subsequently separated from her spouse.

During her lifetime the testatrix made varying cash and other advances to each child, Child D having received the least. In her will she:

• Left significant property (the “[Street] premises”) and a share of residue to Child B.
• Made monetary and share bequests and a share of residue to Child A.
• Left only a quarter of the residue (and a valueless motor car) to Child C.
• Left silverware valued at £200 and a quarter of the residue to Child D.

The High Court held that the testatrix had failed in her moral duty towards Child C and Child D, and accordingly varied the devise of the “[Street] premises” so that Child B, Child C and Child D became joint tenants in the proportions 6⁄9, 1⁄9 and 2⁄9 respectively. The first-named Defendant (Child B) appealed.

Legal Issues Presented

1. Whether, on the facts existing at the date of death, the testatrix failed in her moral duty under Section 117 of the Succession Act 1965 to make proper provision for Child C.
2. Whether, on the same test, she failed to make proper provision for Child D.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

Delivering the unanimous judgment, Judge Finlay first confirmed that a claimant bears a “relatively high” onus to prove a positive failure in moral duty. The Court accepted and elaborated on the criteria laid down in In re G.M., emphasising objective assessment from the viewpoint of a “prudent and just parent.”

Applying these principles, the Court reasoned as follows:

• Child D: Given the testatrix’s knowledge of the likely breakdown of Child D’s marriage, and the fact that Child D had received markedly less inter vivos support than the other siblings, a prudent parent would have improved the child’s position, either by codicil or lifetime gift. The testamentary provision (silverware and a quarter share of residue) was therefore insufficient, constituting a failure in moral duty.
• Child C: Although Child C had marital difficulties, the testatrix had already provided almost £20,000 during her lifetime. At death, Child C owned a home (with a small mortgage), held secure employment and received maintenance for the children. In these circumstances the residual quarter share left by will was deemed adequate; no failure in moral duty was established.

The Court further noted the harmonious family relationships and the testatrix’s lifetime generosity, factors militating against unnecessary interference.

Holding and Implications

APPEAL ALLOWED IN PART. The Supreme Court:

• Set aside the High Court’s finding that the testatrix failed in her moral duty to Child C.
• Affirmed the finding of failure in respect of Child D and upheld the variation granting Child D a 2⁄9 share in the “[Street] premises” devised to Child B.

Implications are confined to the redistribution of the specific property within the estate; the judgment reiterates the high threshold for Section 117 applications but does not establish a new doctrinal rule.