Ruling that publican must pay older brother €315,000 overturned

Man, in his 70s, argued that mother failed in moral duty to make proper provision for him

A publican need not  pay €315,000 to a brother who claimed their mother failed to properly provide for him in her will, the Court of Appeal has ruled.

A publican need not pay €315,000 to a brother who claimed their mother failed to properly provide for him in her will, the Court of Appeal has ruled.

 

A publican need not pay €315,000 to a brother who claimed their mother failed to properly provide for him in her will, the Court of Appeal has ruled.

In a judgment on Thursday, the court overturned a 2012 High Court decision directing the money be paid out of the publican’s share of the estate.

His older brother, aged in his 70s, had sued the publican claiming their mother failed in her moral duty to make proper provision for him.

The Court of Appeal said the mother’s moral obligation to the younger son took precedence over all other moral obligations. The mother died in 2001 some 10 years after the death of their father, who originally owned the pub.

Prior to his death, the father divided up ownership of the pub between himself, his wife and the younger son, who had given up his studies in horticultural college in 1970 at the request of his parents to run the pub.

When the father died, his share of the company which owned the pub passed to the mother who now had a 75 per cent stake while the younger son had 25 per cent.

In the meantime, the older son had left home at 17, received a university education and worked in various capacities around the world before returning to live and work in Europe where he married and had two children.

The mother left her share in the pub to the younger son in her will.

Distribution

In his High Court proceedings, the older son argued their father had made proper provision for the children from largely the same estate left to his wife. It was claimed that this meant the mother was required to so the same in the distribution of her estate and the younger son was only entitled to less than 50 per cent of the estate.

The younger son argued he had worked the pub all his life and, while he had a 25 per cent share of it after his father’s death, it was his mother who actually controlled the business until she retired to a nursing home 14 months before her death.

In 2012, the High Court found proper provision had not been made for the older son and the appropriate provision for him was €315,000. The younger son appealed. He argued, among other things, the net effect of ordering that payment would be that he would receive no money from the estate because the sale of the pub would be unlikely to achieve even €315,000. It also meant control of the family business would be surrendered to a stranger, he said.

Erred

He also said the High Court erred in failing to consider the overriding moral duty his mother had to him given his sole means of livelihood was the pub. The older brother opposed the appeal. Ms Justice Máire Whelan said the testamentary provisions of the mother suggested that, as a parent, she knew her children best.

The valuation of €630,000 on the pub (half of which is €315,000) appeared to be a “gross conflation” of the mother’s estate and of the younger brother’s share in the premises.

The mother’s moral obligation to the younger son “took precedence over all other moral obligations” and that was done by leaving her share in the pub to him, she said.

This was in circumstances where he remained behind to run the pub with his ageing parents and did so for 30 years afterwards, she said. The older son failed to discharge the high onus of proof on him to show the mother had positively failed in her moral duty towards him, she held.