Approval of Settlement of Trust Proceedings Concerning Provision for Child

James Cross BL, Decisis

April 30, 2021

O v. M [2021] IEHC 253 – High Court (General) –  O'Moore J, 18 March 2021)

High Court: (a) accedes to application to revoke and substitute trust in will; and (b) approves settlement of proceedings concerning the making of proper provision for a child in a will, on the grounds the settlement would avoid financial cost and emotional upset, and save court time.

Probate – application to vary the trust created in will - bequests – s 117 – deceased failed in her moral duty to her daughter  –  failed to make proper provision – bequests  –  gift to her of the income from the deceased’s residuary estate is next to worthless as it attracts a large tax liability – tax advisor  – any unfortunate tax consequences for O will arise only if a life estate in the residuary funds is created in her favour – terms of settlement – Court refused to approve settlement – settlement would have done away with trust which would have benefitted potential children – proceedings issued  –  revocation and substitution of the trust created by the will – jurisdiction of the court – value of the clause – whether or not to approve settlement  –  settlement will avoid the financial cost and emotional upset – save court time.

Quotation from judgment (courtesy of the Courts Service of Ireland):

‘I am conscious of the fact that O’Regan J. was prepared to approve the settlement if proper provision was made for the contingent beneficiaries; this reservation no longer applies, given my decision that the proposed arrangement is more advantageous for that class than the existing trust. I have nonetheless assessed afresh the proposed settlement. The parties to the compromise are all mature adults, advised by excellent lawyers. The interests of the residuary beneficiaries are not affected. The compromise is one which I assume reflects the informed views of the Executors and Trustees and of each of the [FAMILY] on the rights and wrongs of the claim. The settlement will avoid the financial cost and emotional upset that accompany almost every dispute of this sort. It will also free up a considerable amount of court time; the trial of this action will itself take about a week at hearing.’

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

Key Cases Cited:

Goulding and Anor v James and Anor [1997] 2 All ER 239
A et al v T.D. et al [2010] IEHC 53