Contentious Grants
Succession Act
PART III
Executors and Administrators
Summons to executor to prove or renounce.
[1537 (c. 18)]
16.—The High Court shall have power to summon any person named as executor in a will to prove or renounce probate.
Cesser of right of executor to prove.
[1857 (c. 79) s. 84; 1859 (c. 31) s. 12]
17.—Where a person appointed executor by a will—
(a) survives the testator but dies without having taken out probate, or
(b) is cited to take out probate and does not appear to the citation, or
(c) renounces probate,
his rights in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his estate shall devolve and be committed in like manner as if that person had not been appointed executor.
Withdrawal of renunciation.
[New]
18.—(1) Where an executor who has renounced probate has been permitted, whether before or after the commencement of this Act, to withdraw the renunciation and prove the will, the probate shall take effect and be deemed always to have taken effect without prejudice to the previous acts and dealings of and notices to any other personal representative who has previously taken out representation, and a memorandum of the subsequent probate shall be endorsed on the original grant.
(2) This section applies whether the testator died before or after the commencement of this Act.
Death of sole or last surviving executor.
[New]
19.—(1) Where the sole or last surviving executor of a testator dies after the commencement of this Act, the executor of such executor shall not be the executor of that testator.
(2) This section applies whether the testator died before or after the commencement of this Act.
Right of proving executors to exercise powers.
[Cf. 1959 (No. 8) s. 18 (2)]
20.—(1) Where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, all the powers which are by this Act or otherwise by law conferred on the personal representative may be exercised by the proving executor or executors or the survivor or survivors of them and shall be as effectual as if all the persons named as executors had concurred therein.
(2) This section applies whether the testator died before or after the commencement of this Act.
Executor not to act while administration is in force.
[1857 (c. 79) s. 80]
21.—Where administration has been granted in respect of the estate, or any part of the estate, of a deceased person, no person shall have power to bring any action or otherwise act as executor of the deceased person in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked or has expired.
Protection of persons acting on probate or administration.
[1857 (c. 79) ss. 82, 83]
22.—(1) Every person making or permitting to be made any payment or disposition in good faith under a representation shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of the representation.
(2) Where a representation is revoked, all payments and dispositions made in good faith to a personal representative under the representation before the revocation thereof are a valid discharge to the person making the same; and the personal representative who acted under the revoked representation may retain and reimburse himself in respect of any payments or dispositions made by him which the person to whom representation is afterwards granted might have properly made.
Liability of person fraudulently obtaining or retaining estate of deceased.
[1634 (sess. 3. c. 10)]
23.—(1) If any person, to the defrauding of creditors or without full valuable consideration, obtains, receives or holds any part of the estate of a deceased person or effects the release of any debt or liability due to the estate of the deceased, he shall be charged as executor in his own wrong to the extent of the estate received or coming to his hands, or the debt or liability released, after deducting—
(a) any debt for valuable consideration and without fraud due to him from the deceased person at the time of his death; and
(b) any payment made by him which might properly be made by a personal representative.
(2) In this section, “full valuable consideration” means such valuable consideration as amounts or approximates to the value of that for which it is given.
Liability of estate of personal representative.
[1695 (c. 6) s. 11]
24.—Where a person as personal representative of a deceased person (including an executor in his own wrong) wastes or converts to his own use any part of the estate of the deceased, and dies, his personal representative shall to the extent of the available assets of the defaulter be liable and chargeable in respect of such waste or conversion in the same manner as the defaulter would have been if living.
Validity of conveyance not affected by revocation of representation.
[New]
25.—(1) All conveyances of any estate or interest in the estate of a deceased person made to a purchaser either before or after the commencement of this Act by a person to whom representation has been granted are valid, notwithstanding any subsequent revocation or variation, either before or after the commencement of this Act, of the grant.
(2) This section takes effect without prejudice to any order of the court made before the commencement of this Act, and applies whether the deceased died before or after such commencement.
PART IV
Grants of Representation
Grants of probate.
[1857 (c. 79) s. 6]
26.—(1) The High Court shall have power to grant probate to one or more of the executors of a deceased person, and a grant may be limited in any way the Court thinks fit.
(2) The High Court shall have power to revoke, cancel or recall any grant of probate.
Grants of administration.
[1357 (st. 1. c. 11); 1537 (c. 18); 1959 (No. 8) s. 12]
27.—(1) The High Court shall have power to grant administration (with or without will annexed) of the estate of a deceased person, and a grant may be limited in any way the Court thinks fit.
(2) The High Court shall have power to revoke, cancel or recall any grant of administration.
(3) Subject to subsection (4), the person or persons to whom administration is to be granted shall be determined in accordance with rules of the High Court.
(4) Where by reason of any special circumstances it appears to the High Court (or, in a case within the jurisdiction of the Circuit Court, that Court) to be necessary or expedient to do so, the Court may order that administration be granted to such person as it thinks fit.
(5) On administration being granted, no person shall be or become entitled without a grant to administer any estate to which that administration relates.
(6) Every person to whom administration is granted shall, subject to any limitations contained in the grant, have the same rights and liabilities and be accountable in like manner as if he were the executor of the deceased.
[1857 (c. 79) ss. 75, 76, 77]
(7) Where any legal proceedings are pending touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any grant, the High Court may grant administration of the estate of the deceased to an administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the estate of the deceased, and every person to whom such administration is granted shall be subject to the immediate control of the Court and act under its direction.
(8) The Court may, out of the estate of the deceased person, assign to an administrator appointed under subsection (7) such reasonable remuneration as the Court thinks fit.
(9) This section applies whether the deceased died before or after the commencement of this Act.
F15[
Entitlement to grant of probate or administration.
27A.—For the purpose of the application of section 26 or 27 in respect of the estate of a deceased person, the deceased shall be presumed, unless the contrary is shown, not to have been survived by any person related to him whose parents have not married each other or by any person whose relationship with the deceased is deduced through a person whose parents have not married each other.]
Annotations:
Amendments:
F15
Inserted (14.06.1988) by Status of Children Act 1987 (26/1987), s. 30, commenced as per s. 1(2)(b).
F16
Inserted by Children and Family Relationships Act 2015 (9/2015), s. 66 (a) and (c), not commenced as of date of revision.
F17
Substituted by Children and Family Relationships Act 2015 (9/2015), s. 66(b), not commenced as of date of revision.
Modifications (not altering text):
C13
Prospective affecting provision: section renumbered as subs. (1) and amended, and subss. (2) and (3) inserted by Children and Family Relationships Act 2015 (9/2015), s. 66, not commenced as of date of revision.
27A.—F16[(1)]F17[Subject to subsection (2), for the purpose of the application] of section 26 or 27 in respect of the estate of a deceased person, the deceased shall be presumed, unless the contrary is shown, not to have been survived by any person related to him F17[whose parents have not married each other or whose parents are not civil partners of each other] or by any person whose relationship with the deceased is deduced through a person F17[whose parents have not married each other or whose parents are not civil partners of each other].
F16[(2) Subsection (1) shall not apply in relation to a person whose parents have not married each other or whose parents are not civil partners of each other where—
(a) the person has been adopted by a cohabiting couple—
(i) under an adoption order, or
(ii) outside the State, where that adoption is recognised by virtue of the law for the time being in force in the State,
or
(b) they are the parents, under section 5 of the Act of 2015, of the person.
(3) In this section—
“‘Act of 2010’ means the Adoption Act 2010;
‘adoption order’ has the same meaning as it has in section 3(1) of the Act of 2010;
‘cohabiting couple’ has the same meaning as it has in section 3(1) (amended by section 102 of the Act of 2015) of the Act of 2010.]
Editorial Notes:
E6
The shoulder note displayed above (Entitlement to a grant of probate or administration.) is the shoulder note belonging to the amending provision. The amending provision does not include a shoulder note for s. 27A.
Representation of real and personal estate separately or together.
[1959 (No. 8) s. 15]
28.—(1) Representation may be granted either separately in respect of real estate and in respect of personal estate, or in respect of real estate together with personal estate, and may be granted in respect of real estate although there is no personal estate, or in respect of personal estate although there is no real estate.
(2) Where the estate of the deceased person is known to be insolvent, the grant shall not be severed except as regards a trust estate.
Power to grant representation where no estate.
[1959 (No. 8) s. 16]
29.—The High Court shall have jurisdiction to make a grant of representation in respect of a deceased person, notwithstanding that the deceased left no estate in the State, and to make a de bonis non or other form of grant in respect of unadministered estate, notwithstanding that there is no unadministered estate of the deceased in the State.
Power to grant representation to a trust corporation.
[New. Cf. 1928 (No. 9)]
30.—(1) The High Court may—
(a) where a trust corporation is named in a will as executor, whether alone or jointly with another person, grant probate to the corporation either solely or jointly with another person, as the case may require, and
(b) grant administration to a trust corporation, either solely or jointly with another person,
and the corporation may act accordingly as executor or administrator, as the case may be.
(2) Representation shall not be granted to any person on behalf of a trust corporation.
(3) Any officer authorised for the purpose by a trust corporation or the directors or governing body thereof may, on behalf of the corporation, swear affidavits, give security and do any other act or thing which the Court may require with a view to the grant to the corporation of representation, and the acts of an officer so authorised shall be binding on the corporation.
(4) In this Act, “trust corporation” means—
(a) a corporation appointed by the High Court in any particular case to be a trustee;
(b) a corporation empowered by its constitution to undertake trust business, and having a place of business in the State or Northern Ireland, and being—
(i) a company established by Act or charter, or
(ii) an Associated Bank under the Central Bank Act, 1942, or
(iii) a company (whether registered with or without limited liability) within the definition contained in the Companies Act, 1963, or within the meaning of the corresponding law of Northern Ireland, having a capital (in stock or shares) for the time being issued of not less than £250,000, of which not less than £100,000 has been paid up in cash, or
(iv) a company (registered without limited liability) within the definition contained in the said Companies Act or within the meaning of the said law of Northern Ireland, one of the members of which is a corporation within any of the previous provisions of this paragraph; or
F18[(v) a building society authorised under the Building Societies Act, 1989; or]
(c) a corporation which satisfies the President of the High Court that it undertakes the administration of any charitable, ecclesiastical or public trust without remuneration, or that by its constitution it is required to apply the whole of its net income for charitable, ecclesiastical or public purposes and is prohibited from distributing, directly or indirectly, any part thereof by way of profits, and is authorised by the President of the High Court to act in relation to such trusts as a trust corporation.
(5) Where a body corporate, as defined by section 4 of the Bodies Corporate (Executors and Administrators) Act, 1928, is named as executor in a will executed before the commencement of this Act, probate may be granted to that body corporate under this section, notwithstanding that it is not a trust corporation as defined in subsection (4).
Annotations:
Amendments:
F18
Inserted (01.09.1989) by Building Societies Act 1989 (17/1989), s. 29(6), S.I. No. 182 of 1989.
Grant of special administration where personal representative is abroad.
[1857 (c. 79) s. 79; 1859 (c. 31) s. 14]
31.—(1) If at the expiration of twelve months from the death of a person any personal representative of the deceased person to whom a grant has been made is residing out of the jurisdiction of the High Court, the High Court may, on the application of any creditor or person interested in the estate of the deceased person, grant to him in such form as the High Court thinks fit special administration of the estate of the deceased person.
(2) The Court may, for the purpose of any legal proceedings to which the administrator under the special administration is a party, order the transfer into court of any money or securities belonging to the estate of the deceased person, and all persons shall obey any such order.
(3) If the personal representative capable of acting as such returns to and resides within the jurisdiction of the High Court while any legal proceedings to which a special administrator is a party are pending, that personal representative shall be made a party to the legal proceedings, and the costs of and incidental to the special administration and the legal proceedings shall be paid by such person and out of such fund as the court in which the proceedings are pending may direct.
Administration during minority of executor.
[1818 (c. 81); 1857 (c. 79) s. 79; 1859 (c. 31) s. 14]
32.—(1) Where an infant is sole executor of a will, administration with the will annexed shall be granted to his guardian, or to such other person as the High Court thinks fit, until the infant attains the age of twenty-one years and applies for and obtains a grant of probate or letters of administration with the will annexed, and on his attaining that age, and not before, probate of the will may be granted to him.
(2) Where a testator by his will appoints an infant to be an executor, the appointment shall not operate to transfer any interest in the property of the deceased to the infant or to constitute him a personal representative for any purpose unless and until probate is granted to him under this section.
Continuance of legal proceedings after revocation of temporary administration.
[1857 (c. 9) s. 81]
33.—If, while any legal proceedings are pending in any court by or against an administrator to whom a temporary administration has been granted, that administration is revoked, that court may order that the proceedings be continued by or against the new personal representative in like manner as if the proceedings had been originally commenced by or against him, but subject to such conditions and variations, if any, as that court directs.
Administration bonds.
[1959 (No. 8) s. 14]
34.—(1) Every person to whom a grant of administration is made shall give a bond (in this section referred to as an administration bond) to the President of the High Court to inure for the benefit of the President of the High Court for the time being and, if the High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar so requires, with one or more surety or sureties conditioned for duly collecting, getting in, and administering the estate of the deceased.
(2) (a) An administration bond shall be in a penalty of double the amount at which the estate of the deceased is sworn, unless the High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar shall in any case direct it to be reduced, in which case the Court, the Probate Officer or the district probate registrar may do so.
(b) The High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar may also direct that more administration bonds than one shall be given, so as to limit the liability of any surety to such amount as the Court, the Probate Officer or the district probate registrar (as the case may be) shall think reasonable.
(3) An administration bond shall be in such form as the President of the High Court may prescribe by rules, and shall include a provision for payment of all death duties payable in respect of the estate of the deceased for which the personal representative is accountable and a further provision for the payment of all income tax and sur-tax payable out of the estate of the deceased.
(4) Where it appears to the satisfaction of the High Court that the condition of an administration bond has been broken, the High Court may, on application in that behalf, order that the bond be assigned to such person as may be specified in the order, and the person to whom the bond is assigned in pursuance of the order shall be entitled to sue thereon in his own name as if it had been originally given to him instead of to the President of the High Court and to recover thereon as trustee for all persons interested the full amount recoverable in respect of the breach of the condition thereof.
(5) Nothing in this section shall require the Chief State Solicitor or the Solicitor for the Attorney General, when applying for or obtaining administration for the use or benefit of the State, to give an administration bond.
[New]
(6) Sureties to administration bonds shall not be required when the grant is made to a trust corporation.
[New]
(7) An administration bond issued by a guarantee society or insurance company approved by the President of the High Court shall be acceptable for the purposes of this section whether the application for the grant is made in person or by a solicitor.
Annotations:
Modifications (not altering text):
C14
Interpretation of inheritance tax clarified (21.02.2003) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 113, commenced on enactment. This provision replaced Capital Acquisitions Tax Act 1976, s. 68.
Tax, in relation to certain legislation.
113.—(1) Inheritance tax shall not be a duty or a death duty for the purposes of section 9 of the Succession Act, 1965, but it shall be a death duty for the purposes of—
(a) section 34 (3) of that Act;
(b) the definition of pecuniary legacy in section 3 (1) of that Act; and
(c) paragraph 8 of Part II of the First Schedule to that Act.
Editorial Notes:
E7
Previous affecting provision: Capital Acquisitions Tax Act 1976 (8/1976), s. 68(1)(b), repealed (21.02.2003) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 118(1).
Applications for grants and revocations.
[1857 (c. 79) ss. 50, 63]
35.—(1) An application for the grant or revocation of representation may be made to the Probate Office or the district probate registry for the district where the deceased, at the time of his death, had a fixed place of abode.
[R.S.C., O. 79, r. 3; O. 80, r. 3]
(2) The application may be made either in person or through a solicitor.
(3) Where, in any contentious matter arising out of an application to the Probate Office, the High Court is satisfied that the Circuit Court has jurisdiction in the matter, the High Court may remit the matter to the judge of the circuit where the deceased, at the time of his death, had a fixed place of abode and the said judge shall proceed in the matter as if the application had been made to the Circuit Court in the first instance.
Grants in district probate registries.
[1857 (c. 79) ss. 50, 52, 54]
36.—(1) A grant may be made in common form by a district probate registrar in the name of the High Court and under the seal of the registry where the deceased, at the time of his death, had a fixed place of abode within the district where the application for the grant is made.
(2) No grant shall be made by a district probate registrar in any case in which there is contention until the contention is disposed of, or in any case in which it appears to him that a grant ought not to be made without the direction of the Court.
(3) In any case where it appears doubtful to a district probate registrar whether a grant should or should not be made, or where any question arises in relation to a grant, or an application for a grant, the district probate registrar shall send a statement of the matter to the Probate Office for the directions of a judge of the High Court for the time being exercising probate jurisdiction, and the judge may direct the district probate registrar to proceed with the matter in accordance with such instructions as the judge thinks necessary, or may forbid any further proceedings by the district probate registrar in relation to the matter, leaving the party applying for the grant to apply to the High Court through the Probate Office or, if the case is within the jurisdiction of the Circuit Court, to that court.
[1857 (c. 79) ss. 53, 55, 56; 1859 (c. 31) ss. 21, 22]
(4) A district probate registrar shall send to the Probate Office a notice in the prescribed form of every application made in the registry for a grant as soon as may be after the application has been made, and no grant shall be made by him until he has received from that Office a certificate that no other application appears to have been made in respect of the estate of the deceased.
(5) The certificate shall be forwarded as soon as may be to the district probate registrar.
(6) All notices so transmitted to the Probate Office shall be filed and kept in that Office.
(7) Where any such notice is received from any district probate registry, the Probate Officer shall examine all notices of applications for grants received from the several other district probate registries and all applications for grants made at the Probate Office, so far as may be necessary for the purpose of ascertaining whether more than one application for a grant in respect of the estate of the same deceased person has been made, and shall communicate with the district probate registrar as occasion may require in relation thereto.
(8) A district probate registrar shall, twice in every month, transmit to the Probate Office a list in the prescribed form of the grants made by him and not included in a previous return, and also copies of the wills to which the grants relate, certified by him to be correct.
(9) A district probate registrar shall file and preserve all original wills of which probate or administration with the will annexed has been granted by him, subject to such regulations with respect to the preservation and inspection of the wills as may from time to time be made by the President of the High Court.
(10) The President of the High Court may from time to time give directions for the disposal, whether by destruction or otherwise, of such of the notices kept in the Probate Office in pursuance of this section, as have, in his opinion, ceased, owing to lapse of time, to be of any public value.
Second and subsequent grants.
[1859 (c. 31) s. 16]
37.—Second and subsequent grants shall be made in the Probate Office or district probate registry, as the case may be, from which the original grant issued.
Caveats.
[1857 (c. 79) s. 57]
38.—(1) A caveat against a grant may be entered in the Probate Office or in any district probate registry.
(2) On a caveat being entered in a district probate registry, the district probate registrar shall immediately send a copy thereof to the Probate Office to be entered among the caveats in that Office.
Calendars of grants.
[1959 (No. 8) s. 17]
39.—(1) The President of the High Court shall from time to time cause to be prepared in the Probate Office calendars of grants made in the Probate Office and in the several district probate registries for such periods as the President of the High Court may direct.
(2) Every such calendar shall contain a note of every probate or administration with the will annexed and of every other administration granted within the period specified in the calendar, setting forth—
(a) the date of the grant,
(b) the place (being the Probate Office or a district probate registry) in which the grant was made,
(c) the name and address and the date of death of the testator or intestate,
(d) the names and descriptions of the executors or administrators, and
(e) the value of the estate, if any.
(3) A copy of every calendar so prepared shall be sent by post or otherwise to every district probate registry, and every copy so sent shall be kept in the district probate registry to which it is sent.
(4) Calendars and copies may be inspected in accordance with the directions of the President of the High Court.
Copies of wills, etc., to be delivered to Revenue Commissioners.
[1857 (c. 79) s. 100]
40.—Subject to any arrangements which may from time to time be made between the President of the High Court and the Revenue Commissioners, the Probate Office and every district probate registry shall, within such period after a grant as the President may direct, deliver to the Commissioners or their proper officer the following documents—
(a) in the case of a probate or of administration with a will annexed, the Inland Revenue affidavit and a copy of the will (if required);
(b) in the case of administration without a will annexed, the Inland Revenue affidavit;
(c) in every case of administration, a copy or extract of the administration;
(d) in every case, such certificate or note of the grant as the Commissioners may require.
Issue of grants of representation in case of Circuit Court decrees.
[1857 (c. 79) s. 59]
41.—On a decree being made by the Circuit Court for the grant or revocation of representation the Probate Officer or the district probate registrar shall, on the application of a person entitled thereto, grant representation in compliance with the decree or, as the case may require, recall or vary, according to the effect of the decree, any representation already granted.
Deposit and inspection of wills and other documents.
[1857 (c. 79) s. 71]
42.—(1) The following documents—
(a) all original wills of which representation is granted in the Probate Office,
(b) copies of all wills the originals of which are to be preserved in district probate registries, and
(c) such other documents as the President of the High Court may direct,
shall be deposited and preserved in the Probate Office under the control of the President of the High Court and may be inspected in accordance with his directions.
(2) Subsection (1) shall have effect subject to the provisions of the Public Records (Ireland) Act, 1867, which provides for the ultimate removal of records to the Public Record Office for safe keeping.
Official copies of wills and grants.
[1857 (c. 79) s. 74]
43.—(1) An official copy of the whole or any part of a will, or of a grant of representation, may be obtained from the Probate Office or district probate registry where the will has been proved or the representation granted.
(2) An official copy of a grant of representation shall be sufficient evidence of the grant. This subsection applies whether the grant was made before or after the commencement of this Act.
Trial by jury of questions of fact.
[1857 (c. 79) s. 41]
44.—(1) The court may cause any question of fact arising in any proceedings under this Act to be tried by a jury, and such question shall be so tried in any case where all the parties to the proceedings concur in an application to the court for a jury.
(2) Where any party makes an application for a jury without the concurrence of the other party and the court refuses the application, the refusal of the court shall be subject to appeal.
Annotations:
Modifications (not altering text):
C15
Application of section restricted (1.03.1972) by Courts Act 1971 (36/1971), s. 6, in force as per s. 25(4).
Abolition of juries in civil cases in Circuit Court.
6.—Notwithstanding section 94 of the Act of 1924 or section 44 of the Succession Act, 1965, a civil action in the Circuit Court or a question of fact or an issue arising in the action or a question of fact arising in any proceedings in the Circuit Court under the Succession Act, 1965, shall not be tried by a jury.
Cases
Finnegan v Richards
[2007] I.E.H.C. 134
JUDGMENT of Mr. Justice William M. McKechnie delivered on 20th day of April, 2007.
The Parties
The plaintiff by trade is an electrician and he resides at Ivy Hill, Emyvale in the County of Monaghan. The defendants, Graham Richards and Paraic Madigan who are solicitors in the firm of Messrs Matheson Ormsby and Prentice of 30 Herbert St, Dublin 2, are sued as attorneys of one Barbara Allen and as the persons who, on her behalf, obtained Letters of Administration with will annexed to the estate of the late Emma Teresa Clancy who died on 13th May, 2004.
2. Reliefs Claimed
In the substantive action Mr. Finnegan claims, that in the circumstances pleaded, he became entitled to the beneficial ownership of the dwelling house and premises known as “Retreat Heights”, Glaslough, Co. Monaghan which was owned by the deceased at the time of her death. The defendants, after the delivery of the statement of claim issued a notice of motion dated 17th November, 2006 in which they seek from this court an order striking out the proceedings on the grounds that the same disclose no cause of action, are bound to fail, and otherwise constitute an abuse of process. They rely upon the courts inherent jurisdiction for this relief as well as calling in aid O. 19 r. 28 of the Rules of the Superior Courts. They make the application on two distinct grounds, the first being that at the date of the institution of the proceedings, no grant of administration had yet issued and accordingly the defendants lacked both the competence and capacity to be sued in a representative capacity. The second is the more conventional argument that the facts as pleaded fail to disclose any sustainable cause of action. This judgment deals solely with the matters raised by aforesaid notice of motion.
3. Background
On 22nd day of November, 1965, Emma Teresa Clancy made her last Will and Testament whereunder she appointed her husband, Padraic Clancy, as the sole beneficiary of her estate and also appointed him as the sole executor thereof. There was no issue of this marriage and her husband pre-deceased her. Accordingly, after her death on 13th May, 2004, one Barbara Allen, as her lawful niece became the person next entitled to obtain the right to administer her estate. This said lady duly appointed Graham Richards and Paraic Madigan to act as her attorneys in respect of all matters concerning the estate of the deceased person. Hence the naming of these individuals in the title of this action.
By letter, undated, but received on 22nd September, 2005, Messrs Daniel Gormley and Company, Solicitors, wrote on behalf of the plaintiff to Messrs Matheson Ormsby and Prentice, where the defendants are practicing solicitors. They alleged on behalf of Mr. Finnegan that by reason of “inter vivos” promises, made by the late Emma Clancy during the course of her life, the dwelling house and premises known as “Retreat Heights”, became, after her death, his property and accordingly did not form part of the estate of the deceased person. Having called for an acknowledgment of this situation the letter concluded by stating “if such confirmation is not forthcoming from your office we have instructions to issue proceedings against the estate without further notice and would be obliged if you would indicate whether you have instructions to accept same”.
On 2nd December, 2005, the plaintiff’s solicitors wrote once again complaining about what they described as a “further trespass” by servants or agents of the defendants to “Retreat Heights”. On 6th December, Matheson Ormsby and Prentice replied to that allegation, the details of which have no material bearing on the current application. In the said letter however they also stated “… notwithstanding that, you appear to be attempting to maintain that the matter has suddenly become urgent and requires injunctive relief, this is something which we simply do not accept. We confirm that we have authority to accept service of proceedings on behalf of our client. We also confirm that we will vigorously defend any proceedings that issue in this regard …”. (emphasis added)
Sometime in April or early May 2006, Daniel Gormley & Co. checked with the Probate Office and ascertained that Letters of Administration had still not by that date, been taken out to the estate of the late Emma Teresa Clancy. They also found out that the grant would not issue “prior to the 13th May, 2006”. The significance of this date and the potential problem of not having proceedings issued before then, were dealt with in their letter of the 5th May in the following matter:-
“The late Emma Teresa Clancy died on 13th May, 2004 and it is essential that we issue legal proceedings on behalf of our client within the period of two years from the date of her death.
Failing confirmation by return that you will accept service of proceedings on behalf of Graham Richards and Paraic Madigan as attorneys of your client Barbara Allen and also confirm by open letter that no point will be taken by your client on the statute of limitations having run before the grant of administration issues to your clients (sic)we are instructed to apply at the earliest possible date to the court to appoint an administrator ad litem without any further notice to you”.
On 8th May Messrs Matheson Ormsby and Prentice replied by confirming
“that we do have authority to accept service of proceedings on behalf of Graham Richards and Paraic Madigan. In relation to the issuing of the grant, we confirm that our client has responded to the queries raised with the Probate Office and that we are confident that the grant will issue in the near future”.
On the 9th May, the Plenary Summons was issued and on the 15th an unconditional appearance was entered to it.
On 26th June, Letters of Administration issued from the Probate Office and by letter of the same date Messrs. Matheson Ormsby and Prentice called for the delivery of the Statement of Claim. On 13th July, a copy of the will of the deceased was furnished to the plaintiff’s solicitors and again delivery of the Statement of Claim was requested. Further reminders in this regard were issued on 27th July, 2006 and on 20th September, 2006, of that year. Eventually on 27th September, the Statement of Claim was delivered. It was only some six weeks after this date that the relevant notice of motion was served.
8. The Statement of Claim
The following is pleaded in the Statement of Claim:-
(a) That since 1987 the plaintiff rendered various services to and expended various moneys for and on behalf of Emma Teresa Clancy as well as entertaining her for dinner every Christmas. Most of the expenses actually incurred were recouped to him by the deceased. In 1987 and 1988 she gave the plaintiff £100 each Christmas.
(b) At some unspecified date in 1989, Mr. Finnegan alleges that the plaintiff asked if he was wondering why she had not given him a Christmas gift that year as she had previously done. He answered that he was not and he then claims that the deceased said “The reason is I am going to give you this house, but that is between the two of us”, or words to that effect. As and from that date it is alleged that Mrs. Clancy frequently referred to the house “Retreat Heights” as “our house”, meaning of course to include Mr. Finnegan in the ownership thereof.
(c) A further conversation took place in April, 2004 when in the presence of Mrs. Finnegan it is alleged on behalf of the plaintiff that the deceased said “The house is yours. I am leaving it to you. It does not matter what anyone says. I don’t want you to sell it. I want you to give it to one of your boys”. Either then, or sometime shortly thereafter, the said Mrs. Clancy gave possession of the house to the plaintiff, including the title deeds and keys, and thereafter for the short period of her remaining life, she treated him with herself as the owner of the house.
(d) It is also pleaded that the plaintiff relied on the aforesaid promises and that thereafter he rendered services to the deceased without reward and expended moneys in respect of which he neither sought or obtained reimbursement. Finally he also claimed that he acted “to his detriment on foot of these reliances”.
9. Issues on this Application:
Against this background, and as set forth in para. 1 of this judgment, the defendants seek to have the plaintiff’s cause of action dismissed on two separate grounds. Firstly they claim that as of the 9th May, 2006, when the Plenary Summons issued, they lacked the capacity to be named as representative defendants in these proceedings as the letters of administration with the will annexed had not issued by that date. Accordingly the proceedings were a nullity and could not be maintained. Secondly they allege that the facts as pleased in the Statement of Claim do not constitute a cause of action and accordingly the proceedings are bound to fail. This allegation is put in a number of alternative ways including a suggestion that such pleaded facts, are frivolous and vexatious, are an abuse of process and therefore either under the inherent jurisdiction of the court or else under O. 19 r. 28 of the Rules of the Superior Courts, the proceedings should be dismissed.
10. Issue No. 1
There is no doubt but that the plaintiff, in his pursuit of this action, was faced with the time bar as provided for in s. 9 of the Civil Liability Act, 1961. Under s. 9(2) no proceedings are maintainable against the estate of a deceased person unless either
“(a) (the) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or
(b) (the) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, which ever period first expires”.
As no proceedings were in being at date of death, the two year reference is the relevant time period in this case. Accordingly in order to comply with this provision the plaintiff had to have his proceedings instituted within two years from the 13th May, 2004. Hence the relevance of and the urgency displayed in the letter of 5th May, 2006, from Daniel Gormley and Co. to Messrs. Matheson Ormsby and Prentice.
The other related matter of concern, also dealt with in that letter, was the fact that no grant of administration had issued or was likely to issue prior to the 13th May, 2006. The relevance of this is that administrators may not have been appointed by that date, on whom the proceedings could be served. Section 13 of the Succession Act, 1965 was not designed to overcome this difficulty but its provisions did ensure that the estate of an intestate person or a person dying without a surviving executor, always vested in some person even in the interval between death and the issuing of a grant. This section, like its predecessors which go as far back as s. 15 of the Court of Probate (Ireland) Act 1859, nominates the President of the High Court for that purpose.
As I have said such a provision is necessary so as to ensure that at all times the estate of a person, to whom the section applies, vests in some individual and is not left without protection or homeless. The reason why such a state of affairs may occur is that an administrator derives his title solely from the grant of administration, quite unlike an executor upon whom the real and personal estate of a deceased person vests immediately upon the death of the testator. See Woolley v. Clarke (1822) 5 B and Aid. 744 and Chetty v. Chetty (1916) 1 AC 603. A grant of probate is necessary only to confirm the authority of the executor or otherwise to offer formal proof of his status. See In Re Crowhurst Park (1974) 1 WLR 583. The position of an administrator however, is as matter of general law quite different and until such time as a grant of administration is obtained, that person has no rights or entitlement to and otherwise has no control over the estate. This proposition is however subject to the doctrine of “relation back” which I will refer to in a moment. That situation can quite evidently pose considerable difficulties for an intending plaintiff, who when faced with the time period specified in s. 9 of the 1961 Act, might find out that no grant of administration has or will be extracted in time, so that no administrator, as such, exists. This in turn begs the question of who to name as a defendant in the proceedings.
In such circumstances a plaintiff can of course seek the appointment of an administrator ad litem for the purposes of issuing his proceedings. The availability of this course of action was confirmed by Costello J. in Flack v. The President of the High Court, High Court, Unreported, 29th November, 1983 where the learned judge said:-
“Under the old law a person faced with the difficulties with which the plaintiffs in these proceedings were confronted was not without remedy: he could apply for and obtain the appointment of an administrator ad litem and join him as a defendant in this suit. The court has a similar power under s. 27 of the Succession Act, 1965 to make a grant limited to the defence of these proceedings”.
That approach, in the circumstances which existed, was not however pursued by the plaintiff in these proceedings. That case is also of general interest for outlining what the actual role of the President is under s. 13, of the Act.
Asserting these general principles of law and relying upon Ingall v. Moran (1944) KB 160 and the decision of Laffoy J. in Gaffney v. Faughnan, [2006] ILRM 481, the defendants submit that since the Plenary Summons were issued some six weeks prior to the grant of administration, then the proceedings are not maintainable in view of the fact that the estate had not vested in them at the relevant time. In response to this submission counsel on behalf of the plaintiff alleges that the decision in Gaffney v. Faughnan [2006] ILRM 481 was made in pen incuriam in that the decision of the Privy Council in Austin and Others v. Hart [1983] 2 WLR 866, was not open to the court, and accordingly the resulting decision cannot be relied upon as confirming what Ingall v. Moran would tend to suggest. He also referred to Allied Irish Coal Supplies Ltd v. Powell Duffyryn International Fuels Ltd [1998] 2 IR 519 but I do not quite see the relevance of this case.
In Ingall v. Moran (1944) KB 160, the plaintiff sued as the administrator of his son’s estate, seeking compensation for his wrongful death under the Law Reform (Miscellaneous Provisions) Act, 1934. There were two issues before the Court of Appeal, the first of which is the one of interest to us. It was alleged on behalf of the defendant in that case, that since the proceedings were a representative action they were never properly constituted in that Letters of Administration were not granted until 13th November, 1942, whereas in fact the writ issued on 17th September, of that year. Scott L.J., giving one of the judgments, pointed out that Mr. Ingall could only sue in a representative capacity but at the time of the writ he had no title to his son’s surviving chose in action. As the writ was not maintainable at date of origin it was “incapable of conversion by amendment into a valid action” (see p. 3 of the judgment). By this he meant that although the plaintiff had in fact obtained Letters of Administration by the date of the defendants application to strike out, that fact could not retrospectively render valid that which was a nullity ab initio. He therefore dismissed the action. This conclusion was endorsed in separate judgments by Goddard LJ and Luxmoore LJ.
During the course of his judgment Luxmoore LJ also touched upon the doctrine of “relation back” which in effect is an exception to the general proposition that an administrator cannot sue until Letters of Administration have issued. At p. 167 of the judgment the learned judge said the following
“It is, I think, well established that an executor can institute an action before probate of his testator’s will is granted, and that, so long as probate is granted before the hearing of the action, the action is well constituted, although it may in some cases be stayed until the plaintiff has obtained his grant. The reason is plain. The executor derives his legal title to sue from his testators will. The grant of probate before the hearing is necessary only because it is the only method recognised by the rules of court by which the executor can prove the fact that he is the executor … an administrator is of course in a different position, for his title to sue depends solely on the grant of administration. It is true that, when a grant of administration is made the intestate’s estate, including all choses in action, vests in the person to whom the grant is made, and that the title thereto then relates back to the date of the intestate’s death but there is no doubt that both at common law and in equity, in order to maintain an action the plaintiff must have a cause of action vested in him at the date of the issue of the writ”.
It appears therefore that whilst the doctrine of relation back applies, it does not legalise the maintenance of an action by an administrator if that action was commenced prior to the issue of Letters of Administration.
Before mentioning Austin and Others v. Hart [1983] 2 WLR 866, I should deal with Gaffney v. Faughnan, [2006] 1 ILR 482. In that case the deceased died intestate on 15th April, 2002, with Letters of Administration being granted to the defendant on the 16th November, 2004. On the 15th April, 2004, a Plenary Summons issued but the defendant refused to accept service until after the Grant had been taken out. In that Summons the plaintiff did not make it clear that he was suing the defendant in a representative capacity. After an appearance was entered and the Statement of Claim delivered, the defendant issued a motion seeking what was virtually identical relief to that which is sought in this application. Laffoy J. dealt with the general law and cited with approval Ingall v. Moran (1944) 1 KB 160. The learned judge also referred to Creed v. Creed [1913] 1 I.R. 48 where, on an application by the plaintiff to amend the summons and statement of claim to show that he was suing in a representative capacity, the court struck out the action on the basis that when issued the plaintiff had no title to sue. A consideration of that judgment does not contain any analysis of the reasons for the courts decision. In any event Laffoy J., at p. 485 then continued
“The court has not been referred to any authority in which, as here, it was the defendant who was a party in a representative capacity. However, in my view, the same principle must apply. When a summons is issued the person named as defendant must be competent at that time to answer the alleged wrongdoing and meet the remedy sought. If he is not the action is not maintainable. If he subsequently obtains a grant of administration this will not cure the fundamental defect and render the action maintainable”.
Accordingly it can be seen that the principles outlined in Ingall and the courts conclusion in Creed v. Creed, were applied by analogy and apparently for the first time, to a situation where the representative was not maintaining an action but was in fact named as a defendant in proceedings instituted by a third party.
The case of Austin and Others v. Hart [1983] 2 WLR 866 is heavily relied upon by the plaintiff in order to suggest that if the judgment of Lord Templeman had been brought to the attention of Laffoy J. she would have decided otherwise in Gaffney v. Faughnan and in any event for the reasons set out in that decision he strongly urged this court not to follow Ingall v. Moran. The facts of Austin v. Hart are not materially relevant and do not require repetition. The judgment of Lord Templeman is however of considerable importance for his general remarks on the rule outlined in Ingall: At p. 871 he said
“In the cited cases the plaintiff did not have any right to sue in the capacity claimed. In the present case the appellants were entitled to sue in the capacities in which they claimed, provided, as happened, no executor or administrator intervened to bring an action within six months of the death of the deceased. In Ingall v. Moran (1944) K.B. 160, 169 … Luxmoore LJ could not help “feeling some regret”. In Hilton v. Sutton Stream Laundry [1946] K.B. 65, 73 … Lord Greene MR was not “averse to discovering any proper distinction which would enable this unfortunate slip to be corrected”. In Finnegan v. Cementation Company Limited [1953] Q.B. 688, 699, Singleton LJ lamented “that these technicalities are a blot on the administration of the law, and everyone except the successful party dislikes them”. Accepting without approving, the decisions of the Court of Appeal which have been cited, their Lordship sees no reason to encourage any extension of their ambit.”
I respectfully agree with these observations which offer no support to a flourishing of this rule. In fact the very opposite is the case, with the Privy Council in Austin and Others v. Hart feeling distinctly uneasy about this principle.
In a further attempt (that is as well as s. 13 of the Succession Act, 1965) to overcome the potential harmful consequences for the estate of a deceased person, which result from a deferral of an administrator’s title until the date of grant, the courts have developed a rule known as the doctrine of “Relation Back”. This doctrine means that for limited purposes, a grant of administration will relate back to the date of death of the deceased person. See Thorpe v. Smallwood [1843] 5 M. and GR 760. The primary purpose of this rule is to protect the estate in the intervening period between death and the obtaining of a grant. B. Parke identified in Foster v. Bates [1843] 12 M. and W 266, at 233, what the justification for the rule was, namely that he the administrator, “may have recovery against the wrong doer who has ceased or converted the goods of an intestate after his death, in an action of trespass or trover”. Furthermore such an administrator may also sue for breaches of covenant occurring in the intervening period. See Long v. Burgess [1950] 1 KB 115. This rule however is not all embracing and does not on its face include the circumstances presenting in Ingall v. Moran [1944] 1 K.B. 160. Therefore as previously stated, actions commenced prior to the obtaining of a grant will not benefit from this rule even though the plaintiff subsequently obtains Letters of Administration. To date the doctrine has been thus so limited.
It seems to me that any rule of law, such as that espoused in Ingall v. Moran, which has such a rejectionist label attached to it by the English Court of Appeal and the Privy Council, should only be followed and applied where either this court is bound to so do or alternatively where the underlying reasons of justification so demand. Although I would always consider decisions of the Court of Appeal and of the Privy Council to be both persuasive and authorative, I am of course not bound by either. In addition whilst evidently I cannot speak for what Laffoy J. would have done, if Austin v. Hart had been opened to her, nevertheless could I offer the view that as a matter of probability she would have been impressed with the opinion of Lord Templeman and would have at least paused before extending the rule, by applying it, apparently without precedent, to a situation where the representative person was not seeking to maintain an action, but rather was being named as a defendant in such an action. In these unusual circumstances I cannot be sure that Gaffney v. Faughnan represents the conclusive views of Laffoy J. on the point. Therefore I feel free to consider the matter myself.
There is no doubt but that, subject to the second issue raised on this application, the plaintiff has a prima facie case against the estate of the deceased person. Equally so there is no doubt but that as of the 9th May, 2006 he was entitled to seek to enforce that claim by instituting proceedings. Moreover he did not require the existence of a grant to confer the status of a plaintiff, as such, on him. What therefore did he do wrong? It would appear, following Ingall v. Moran, that the Writ was premature and therefore irregular. Even if it was, why I ask, should that necessarily result in it being a nullity, where the defendants have assured the plaintiffs of their confidence in obtaining Letters of Administration imminently, and thus putting beyond question their capacity to be sued. In addition why should such a drastic result follow when the defendants raised no objection to the plaintiff suing and when prior to the grant, they entered an unconditional appearance. Again I ask why such a result in the absence of any prejudice, let alone substantial prejudice, and when the defendants involvement could only be for the benefit of the estate. How is the estate demnified by the institution of proceedings on the 9th May, 2006, when in fact no point could have been taken on and after the 26th June, 2006? What damage has been caused to it? In my view none. In fact the opposite is the position. The collection and preservation of the estate for those entitled is of the first importance and if a law suit exists which potentially jeopardises this process, it must be of equal importance that the estate is properly represented. In fact the only risk of instituting proceedings prior to the grant rests with a plaintiff in that he can never execute any award unless the named defendant had by that date obtained Letters of Administration. Moreover if such a defendant, for whatever reason, ultimately fails or refuses to extract a grant, then subject to any individual circumstances, the plaintiff may be liable for the costs of the proceedings. Likewise if a person, unconnected with the estate is wrongfully named, he can immediately so indicate and the court would surely make the required consequential order, including costs, virtually for the asking. Consequently I cannot identify any particular reason, consistent with the existence of this rule, which persuades me that in the circumstances of this case it is a good rule.
It seems to me that Singleton LJ, in Finnegan v. Cementation Company Limited was perfectly correct in suggesting that this technicality was “a blot in the administration of the law” and that equally so Lord Templeman was correct in saying that there should be no extension of the rules’ application. As of today’s date therefore, I would have little time for re-echoing the rigidity of technicalities within the law as was commonly the position at the time of Ingall v. Moran. Instead I would much prefer an approach based on justice where there are no compelling reasons to uphold and continue a rule capable of inflicting the opposite, namely injustice. For my part therefore if it became necessary for the purposes of this decision I would not extend the application of the rule to the facts of this case. In addition, even if I am wrong in this regard, I see no reason why circumstances like the present would not comfortably fall within the reasons which underline the doctrine of “relation back”. On either basis I would refuse the defendants application on this point.
Even if I should be incorrect in these conclusions there is another reason why I would refuse the defendants application. As appears earlier in this judgment Daniel Gormley and Co. Solicitors were fully alive to the twin difficulties arising by virtue of s. 9 of the Civil Liability Act, 1961 and the potential application of what I might call the rule in Ingall v. Moran. This is abundantly evident from their letter of the 5th May, 2006. That is why they sought confirmation, as they had previously done, that Matheson Ormsby and Prentice would accept service of the plaintiffs proceedings on behalf of the defendants and that no point would be taken on the two year period having run before the grant issued. In fact they went further and warned that in default of a response they would apply to have an administrator ad litem appointed. On 8th May Messrs Matheson Ormsby and Prentice replied with the contents of their letter being set out at para. 7 above. Therein they confirmed authority to accept service of the proceedings on behalf of the defendants and informed the plaintiffs solicitors of their confidence in obtaining a grant of administration in the near future. Whilst it is true to say that this letter did not specifically deal with the point about the statute of limitations and the date of the grant, nevertheless that letter, together with the subsequent unconditional appearance, (entered before obtaining the grant) the forwarding of the Letters of Administration to the plaintiff and the repeated calls for a Statement of Claim, all lead me firmly to the conclusion that the defendants, who had express notice of the point, had decided against raising it at any time prior to the delivery of the Statement of Claim. When or why in fact they decided to change their minds is unclear. Moreover and of crucial significance is the fact that in the absence of the letter of 8th May, Donal Gormley and Co. had sufficient time to apply for and obtain a grant of administration ad litem and thus could have put the present argument out of the defendants reach. In my opinion although very much aware of the pending difficulty, as it then was, they did not adopt such a course, because of their reliance, reasonably arrived at, on what they considered to be assurances from the defendants that they were safe in not so doing.
In my view therefore the letter of the 8th May, by reason of its contents and silence constituted a material representation by the defendants as duly authorised agents, which was intended to and in fact did influence the plaintiff to his detriment in refraining from applying for the appointment of an Administrator ad litem. See Halsbury 4th Ed Reissue Vol 16(2) 1052.
In such circumstances it would be entirely unconscionable to permit the defendants to now rely upon this point.
A not dissimilar situation was referred to by Henchy J. in Doran v. Thompson [1978] I.R. 223 where however on the facts of that case no such representation was found to have been made. At p. 225 of the judgment the learned judge said “Where in a claim for damages such as this a defendant has engaged in words or conduct from which it was reasonable to infer, and from which it was in fact inferred, that liability would be admitted, and on foot of that representation the plaintiff has refrained from instituting proceedings within the period prescribed by the statute, the defendant will be held estopped from escaping liability by pleading the statute. The reason is that it would be dishonest or unconscionable for the defendant, having misled the plaintiff into a feeling of security on the issue of liability and thereby, into a justifiable belief that the statute would not be used to defeat his claim, to escape liability by pleading the statute. The representation necessary to support this kind of estoppel need not be clear and unambiguous in the sense of being susceptible of only one interpretation. It is sufficient if, despite possible ambiguity or lack of certainty, on its true construction it bears the meaning that was drawn from it. Nor is it necessary to give evidence of an express intention to deceive the plaintiff. An intention to that effect will be read into the representation if the defendant has so conducted himself that, in the opinion of the court, he ought not be heard to say that an admission of liability was not intended”.
The principles outlined in that passage apply with equal force and directness to this case. Accordingly being satisfied that there is no question of the ultra vires doctrine applying, I would conclude that the defendants are estopped from raising what I have described as Issue No. 1 in this application.
The second and very much subsidiary point raised by the defendants was that the proceedings were bound to fail in that the pleaded facts disclosed no cause of action. They relied upon Barry v. Buckley [1981] I.R. 306 and Jodifern Limited v. Fitzgerald [2000] 3 IR 321 as disclosing the existence of the courts jurisdiction in this regard. Furthermore they have referred to the case of M.F. and E.F. v. J.D.F. [2005] 4 I.R. 155 as indicating what ingredients a plaintiff has to prove in order to establish a beneficial interest in property arising by way of proprietary or promissory estoppel.
There is no doubt but that the court has such a jurisdiction, with one of the earliest cases of real prominence in this regard being Barry v. Buckley [1981] I.R. 306. Since then there has been a multitude of cases in which this court and the Supreme Court have dealt with the ambit of the courts inherent jurisdiction when faced with an application to strike out an action in limine. Such jurisdiction “should be exercised sparingly and only in clear cases”. So said McCarthy J. in Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425. In that case the learned judge also felt that a statement of claim should not be struck out if it admitted of an amendment which would save the action. At p. 428 of the report McCarthy J. said “Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings: often times it may appear that the facts are clear and established but the trial itself will disclose a different picture”: See also para. 12.002 of Delaney and McGrath, Civil Procedure in the Superior Courts, where the authors cite some but by no means all, of the cases which have dealt with this topic in the past 25 years.
The case of Jodifern Limited v. Fitzgerald, which was referred to by the defendants is also useful, and in particular the judgment of Murray J. where at p. 334 of the report the learned judge said “The object of such an order is not to protect a defendant from hardship in proceedings to which he or she may have a good defence but to prevent the injustice to a defendant which would result from an abuse of the process of the court by a plaintiff. Clearly, therefore, the hearing of an application by a defendant to the High Court to exercise its inherent jurisdiction to stay or dismiss an action cannot be of a form of summary disposal of the case either on issues of fact or substantial questions of law in substitute for the normal plenary proceedings. For this reason, a primary precondition to the exercise of this jurisdiction is that all of the essential facts upon which the plaintiffs claim is based must be unequivocally identified. It is only on the basis of such undisputed facts that the court may proceed. Moreover, and this is the aspect which I wish to emphasise, where all the essential facts have been so identified, it must also be manifest that on the basis of those facts, the plaintiffs case have no foundation in law …”.
In applying these principles to the facts of this case I could not conceivably agree that the same is a fit or appropriate one to be dismissed at this juncture. In his affidavit grounding this application the second named defendant claims that there is no evidence of an expectation on behalf of the plaintiff of receiving this house or that the deceased encouraged such a belief on his part. Moreover it is suggested that the existence of a promise by the deceased is not evident and that the work done by the plaintiff on her behalf was of a voluntary nature and commenced before any conversation is alleged to have taken place. In addition the promise, such as it was, was not conditional upon the provision of services or the expenditure of money by the plaintiff on behalf of the deceased. For these and the other reasons contained within paras. 21 to 23 of the affidavit, it is claimed, as previously stated, that the proceedings are misguided and constitute an abuse of the court.
In my view this suggested conclusion is without substance and incorrect in law. As appears from the Statement of Claim the plaintiff alleges that the services which he carried out and the moneys which he expended, prior to any alleged representation, were largely made good to him by the deceased. After the first suggested representation was made in 1989 the plaintiff continued his commitment to the deceased but thereafter neither sought nor obtained recoupment. Moreover it is expressly pleaded that the reason why no gift was given to the plaintiff at Christmas 1989 was related to the deceased’s intention of leaving him her house and therefore inferentially one can also assume that that was the reason why the plaintiff continued providing services and expending moneys for a considerable time thereafter. His claim is also consistent with the fact that the deceased allowed him to so do without offering any consideration therefor. In my view whilst the Statement of Claim could be more thorough the same nevertheless adequately contains all essential ingredients, and accordingly, in my opinion discloses a prima facie cause of action.
In any event as McCarthy J. had warned in Sun Fat Chan v. Osseous the pleadings in the instant case are in their infancy in that no particulars have either been sought or delivered, no defence has been filed and no discovery has been obtained. In these circumstances it would be in my view an entirely unwarranted interference with the plaintiffs constitutional right of access to the courts to dismiss his action on the basis suggested by the defendants.
On this second issue therefore I would also dismiss the application.
Approved: McKechnie J.
Bank of Scotland v Gray
[2012] IEHC 545
JUDGMENT of Ms. Finlay Geoghegan delivered on the 14th day of December, 2012
1. This judgment is given on an issue which the parties agreed, in the course of the hearing of the plaintiff’s application for summary judgment, should be determined by the Court as a preliminary issue. It was agreed this was permissible pursuant to O. 37, r. 7 of the Rules of the Superior Courts.
2. The issue to be determined is whether or not the proceedings, which issued on 18th November, 2011, are properly constituted and maintainable against the defendants.
3. The objection made to the validity of the proceedings is that the defendants are sued as administrators of the estate of Mr. John O’Meara, deceased, while the grant of administration to them only issued on 24th November, 2011, i.e.: after the commencement of the proceedings.
The Facts
4. During the life of Mr. John O’Meara, the plaintiff had advanced monies and otherwise provided banking facilities to him. It is alleged that these facilities stated that upon his death, principal and interest became immediately repayable.
5. Mr. O’Meara died on 27th November, 2009. He left a will appointing executors, Ms. Gaye Hillary and Mr. Tom McParland. They renounced their appointments on 2nd December, 2009.
6. On 5th January, 2010, the plaintiff purported to exercise a right of lien and set off in respect of two deposit accounts in the joint names of Mr. O’Meara and his wife, Mrs. Claire O’Meara. The monies were applied to reduce the sums due by the estate of the late Mr. O’Meara (the “Estate”). In June 2010, Mrs. O’Meara issued proceedings seeking declarations, inter alia, that the monies in the relevant accounts were her property. Those proceedings were determined by Laffoy J. on 28th October, 2011 [2011 IEHC 402] with a finding in favour of Mrs. O’Meara in respect of one of the accounts.
7. The deceased, at the date of his death, had significant investments in development property, both in Ireland and abroad, and extensive borrowings from a wide range of banks and credit institutions, including the plaintiff. There were multiple potential claims against the Estate. The question as to whether or not the Estate is insolvent has not been determined. Nothing turns on this for the purpose of the preliminary issue but it appears to have contributed to the delay in taking out a grant of administration.
8. Throughout 2010, there was correspondence between the plaintiff and solicitors acting for proposed administrators of the Estate. The original proposal was not pursued. In January 2011, a second firm of solicitors wrote to the plaintiff enclosing draft motion papers intending to apply for the appointment of other persons as administrators. That motion was not pursued.
9. Ultimately, in March, 2011, Actons solicitors, the solicitors now on record for the defendants in these proceedings, wrote to the solicitors for the plaintiff proposing that the defendants be appointed as administrators of the Estate. The second named defendant is a solicitor and member of that firm.
10. On 11th April, 2011, a motion was issued returnable for 16th May, 2011, seeking, inter alia, an order pursuant to s. 27(4) of the Succession Act 1965, granting the defendants letters of administration with will annexed to the Estate. That application was adjourned from time to time. ACC, to which it was alleged the Estate also had liabilities, objected, initially, to the appointment of the defendants. It contended the Estate should be administered in bankruptcy. The application to have the defendants appointed as administrators with will annexed was ultimately adjourned to 11th July, 2011.
11. In the meantime, on 6th July, 2011, the plaintiff issued a motion seeking to have a Mr. Eamonn Freaney appointed as administrator ad litem in relation to an intended claim against the Estate by Bank of Scotland, which is the claim sought to be pursued in these proceedings.
12. On 11th July, 2011, the High Court (Ryan J.) made an order pursuant to s. 27(4) of the Succession Act 1965. The order records that the Court was of opinion in the special circumstances of this case, “it is expedient to appoint some person to be the Administrator of the estate of the said deceased other than the person who under the Succession Act 1965, would be entitled to such Grant”. The order then made was
“That Randal Gray and Mark Doyle, the Applicants herein, be at liberty to apply for a Grant of Letters of Administration with will annexed in the estate of [John O’Meara, deceased]”. The order also records that counsel for ACC Bank and the plaintiff herein were heard as notice parties. ACC Bank did not pursue its objection to the appointment of the defendants and the plaintiff did not object to the order made.
13. Subsequent to the order made by the High Court on 11th July, 2011, there were exchanges of correspondence between Actons, solicitors for the defendants, and Eversheds, solicitors for the plaintiff. There was undoubtedly confusion therein as to the status of the defendants in relation to the Estate. It is necessary to refer to certain of this.
14. On 14th July, 2011, Actons wrote to Eversheds enclosing a copy of the order of 11th July, 2011, but stating in the body of the letter that they were enclosing “a copy of the Order of the High Court dated 11th July, 2011, confirming that our clients were appointed as administrators of the estate of John O’Meara”. The heading to that letter also refers to the defendants as “the Administrators of the estate of John O’Meara deceased”.
15. On 12th September, 2011, Eversheds wrote a letter to the defendants as “administrators of the estate of Mr. John O’Meara” C/o Actons solicitors, making formal demand for the repayment of €14,997,912.20, together with interest in respect of specified facilities to the late Mr. O’Meara. The opening paragraph of the letter stated, “We act for Bank of Scotland plc. You have both been appointed as Joint Administrators of the estate of the late John O’Meara, by order of the High Court of Monday 11 July 2011”.
16. Actons responded to that letter. It did not expressly contradict the contention that the defendants had been appointed as joint administrators by the order of the High Court of 11th July, 2011. However, in the heading to the letter, “Our Clients” are described as “Mark Edmund Doyle and Randal Gray as Proposed Administrators of the Estate of John O’Meara deceased”. In the body of the letter, Actons referred to the letter of 12th September, 2011, and stated, “Please note that our clients are still accumulating information in relation to your letter and they shall be in contact with you shortly. We would be obliged if you could provide us with as much information as possible as to what security you believe is held over what specific assets. We look forward to hearing from you”.
17. There is no evidence of any further communication between the parties or their solicitors from 26th September, 2011, until 18th November, 2011.
18. On 18th November, 2011, the summary summons herein issued. On the same day, Eversheds wrote to Actons, referring, in the title to their respective clients simply by name, and stating:
“We refer to the above and we would be much obliged if you could confirm that you have authority to accept service of proceedings on behalf of your clients.
We confirm that the Summary Summons has now issued (please find enclosed* copy filed Summary Summons for your attention) and you might note that we have received instructions from our client to serve same immediately.
If we do not hear back from you with confirmation that you have the authority to accept service of proceedings by 5.00pm on Monday 21 November 2011, we will proceed to serve your clients directly.”
19. Actons responded to that letter on 18th November, 2011. In their title, they referred to their clients as ‘Proposed Administrators of the Estate of John O’Meara, Deceased’. In the letter they stated:
“1. We refer to the above matter and to your fax of today’s date.
2. We write to confirm that this office has authority to accept service of proceedings on behalf of Mr. Doyle and Mr. Gray.”
20. On 22nd November, 2011, the proceedings were served on Actons with the usual request for endorsed acceptance of service and a memorandum of appearance.
21. On 24th November, 2011, letters of administration with will annexed were granted to the defendants as stated therein “the persons appointed by the Court pursuant to section 27(4) of the Succession Act 1965, to be the Administrators with said will annexed of the estate of the said deceased”. The grant prior to the signature of the assistant Probate Office states “By Order of Court dated 11 day of July 2011”.
22. On 26th November, 2011, the two-year limitation period in s. 9 of the Civil Liability Act 1961, for commencement of claims against the Estate expired. It is not in dispute that the plaintiff had, at all material times, been conscious of the two-year limitation period and sought to have administrators appointed so as to issue and serve the proceedings prior to the expiry of same.
23. On 30th November, 2011, Actons responded to Eversheds, referring to the proceedings served on 22nd November, 2011, and indicating that they had “no difficulty in entering an Appearance in this matter”. They sought certain documentation for the purpose of avoiding costs. That letter continues to refer to the defendants as “Proposed Administrators of the estate of John O’Meara deceased”, notwithstanding that the grant had issued.
24. On 18th January, 2012, the plaintiff issued a motion seeking entry to the Commercial List, directions and summary judgment against the defendants.
25. On 26th January, 2012, an appearance was entered to the summary summons by Actons on behalf of the defendants.
26. On 27th January, 2012, an order was made admitting the proceedings to the Commercial List and the remainder of the motion adjourned to 27th February, 2012, for further directions. On 27th February, 2012, further directions were given, including an exchange of affidavits. Pursuant to those directions, the second named defendant delivered an affidavit sworn on 21st March, 2012, in which he raised, for the first time, the issue as to whether or not the proceedings are properly constituted by reason of the fact that the defendants were not the administrators of the Estate, on 18th November, 2011, the date of issue of the summary summons.
27. At the hearing of the application for summary judgment on 26th June, 2012, one of the issues raised as a potential defence was the contention that the proceedings were not properly constituted. The parties were in agreement that all facts relevant to the issue were before the Court on affidavit, and that both parties had prepared comprehensive legal submissions on the issue. In the interests of minimising cost and expediting the resolution of the issue, it was agreed, in the course of the hearing, that the Court would determine, as a preliminary issue, the question of whether or not the proceedings were properly constituted and capable of being maintained by the plaintiff, including the contention made on behalf of the plaintiff that the defendants were now estopped from making any objection to the validity of the proceedings.
28. At the end of the hearing, I reserved judgment. The parties indicated that there were some ongoing discussions. Prior to my delivering judgment at the end of July 2012, the parties came into Court to inform me that there were continuing discussions and that they did not wish the Court to prepare a judgment, which they might not require. The matter was put in for mention in October 2012, at the request of the parties. It was adjourned by consent from time to time throughout October and November 2012, and ultimately, the parties informed the Court that they had been unable to reach agreement and that they required the judgment on the preliminary issue.
The Law
29. Two recent judgments of the High Court, Laffoy J. in Gaffney v. Faughnan [2005] IEHC 367, [2006] 1 I.L.R.M. 481, and McKechnie J. in Finnegan v. Richards [2007] IEHC 134, [2007] 3 I.R. 671, address the issue as to whether or not proceedings commenced
against persons, as administrators of the estate of a deceased prior to the grant to them of letters of administration, is or is not a fundamental defect in the proceedings, such that they cannot be maintained against the administrators, notwithstanding the subsequent grant. The judgments were based on differing facts. Nevertheless, it is an inescapable conclusion that McKechnie J., for reasons stated in his judgment, decided he was not bound to and should not follow the decision of Laffoy J. on the fundamental point of principle.
30. In Gaffney v. Faughnan, the deceased, who was the plaintiff’s uncle, had died on 15th April, 2002, intestate. The defendant was the deceased’s personal representative under a grant of administration dated 16th November, 2004. On 15th April, 2004, before the grant of administration issued, the plaintiff instituted the proceedings against the defendant by plenary summons. The plenary summons itself did not disclose on its face that the defendant was being sued in a representative capacity. The defendant accepted service of the summons on 25th January, 2005, after the grant of administration had issued to him, and entered an unqualified appearance on 1st February, 2005. The statement of claim pleaded that the defendant was the administrator of the deceased’s estate. The plaintiff’s claim was that he had rendered services to the deceased during the deceased’s lifetime on foot of an express or implied promise that the deceased would bequeath his farm to the plaintiff. It was alleged that, by dying intestate, the deceased was in breach of this agreement and that the defendant, as administrator of the estate of the deceased, had failed to perform the promise. Specific performance of the promise and other relief was sought.
31. The defendant issued a motion seeking an order that the proceedings be struck out and/or a declaration that the proceedings were void and of no effect, on the basis that he was sued solely in his capacity as administrator of the estate and at the time the proceedings were issued on 15th April, 2004, he did not have that capacity.
32. Laffoy J., in her careful analysis of the applicable principles, commences with the fundamental principle, not in dispute between the parties hereto, that, “the authority of an administrator of the estate of a deceased person derives from the grant of letters of administration and that, until he obtains the grant, the estate of the deceased person does not vest in him”.
33. Laffoy J. makes reference to s. 13 of the Succession Act 1965, which provides that where a person dies intestate, his estate vests in the President of the High Court until administration is granted. The judge also makes reference the decision of Costello J., in Flack and Anor. v. The President of the High Court & Ors., (Unreported, High Court, Costello J., 29th November, 1983), in which he explained that the proper approach, where it is desired to institute proceedings prior to the grant of Letters of Administration, is to seek an order pursuant to s. 27(4) of the Succession Act 1965 for the appointment of an administrator, limited to the defence of the proceedings.
34. Laffoy J. then considered two authorities: Creed v. Creed [1913] 1 I.R. 48, and Ingall v. Moran [1944] K.B. 160. In each, on slightly differing facts, the court struck out a claim which had been instituted by a person as administrator prior to the taking out of a grant. As Laffoy J. points out, the judgment in Creed v. Creed merely records the decision and contains no analysis of its basis. However, the Court of Appeal in Ingall v. Moran did analyse the position in some detail. Fundamental to their reasoning is the conclusion that at common law and in equity, in order to maintain an action, a plaintiff must have a cause of action vested in him at the date of the issue of the writ. At the date of the issue of the writ in question, the administrator had not yet taken out a grant and so did not have a title to sue, as such title depends solely on the grant of administration. The Court also considered the doctrine of “relation back” and concluded that it did not have any application to the commencement of proceedings by a person as administrator prior to the grant issuing. The conclusion of Goddard L.J. at p. 172, as cited by Laffoy J. at p. 485, in relation to the cases concerning the doctrine of relation back is:
“All they show is that, once letters have been obtained, the title relates back so that the administrator may sue in respect of matters which have arisen between the date of the death and the date of the grant, just as he may sue in respect of a cause of action that had accrued to the intestate before his death, provided the cause of action survives.”
Laffoy J., at p. 485, then stated:
“The court has not been referred to any authority in which, as here, it was the defendant who was a party in a representative capacity. However, in my view, the same principle must apply. When a summons is issued, the person named as defendant must be competent at that time to answer the alleged wrongdoing and meet the remedy sought. If he is not, the action is not maintainable. If he subsequently obtains a grant of administration, that will not cure the fundamental defect and render the action maintainable.
In this case, the person named as defendant had no status as a representative of the deceased or of his estate when the plenary summons was issued. The action initiated by the issue of the plenary summons could not have been maintained and is still not maintainable. In the circumstances, it must be struck out.”
35. In the subsequent case of Finnegan v. Richards [2007] IEHC 134, [2007] 3 I.R. 671, the plaintiff issued proceedings claiming entitlement to a house in the estate of the deceased by reason of promises made during her lifetime. The defendants were sued as administrators of the estate of the deceased.
36. The deceased died on 13th May, 2004. In April or early May 2006, the solicitors acting for the plaintiff ascertained from the Probate Office that letters of administration had not yet been taken out to the estate of the deceased and that a grant would not issue “prior to 13th May, 2006”. That, of course, was the expiry of the two-year limitation period pursuant to s. 9 of the Civil Liability Act 1961. There was an exchange of correspondence on 5th and 8th May, 2006, between the plaintiff’s solicitors and defendants’ solicitors, in which the point was made that it was essential that legal proceedings issue within two years. The plaintiff’s solicitors stated to the solicitors for the defendants, Matheson Ormsby & Prentice, unless confirmation was received by return that Matheson Ormsby & Prentice would accept service of proceedings on behalf of the defendants and also confirm that no point would be taken on the Statute of Limitations, they were instructed by the plaintiff to apply at the earliest possible date to appoint an administrator ad litem without further notice. In response, Matheson Ormsby & Prentice confirmed that they had authority to accept service of the proceedings. They did not expressly give the confirmation on the Statute of Limitations, but stated, in relation to the issuing of the grant, “we confirm that our client has responded to the queries raised in the Probate Office and that we are confident that the grant will issue in the near future”.
37. The plenary summons was issued on 9th May, 2006, and an unconditional appearance entered by the defendants on 15th May, 2006. On 26th June, 2006, the letters of administration with will annexed issued from the Probate Office and Matheson Ormbsy & Prentice then called for the delivery of the statement of claim. That was delivered on 27th September, 2006, and six weeks later, a notice of motion seeking to strike out the proceedings was issued.
38. Gaffney v. Faughnan [2005] IEHC 367, [2006] 1 ILRM 481 and the authorities referred to of Creed v. Creed [1913] 1 I.R. 48, and Ingall v. Moran [1944] K.B. 160, were opened to McKechnie J. In addition, the plaintiff therein relied heavily upon the decision of the Privy Council in Austin v. Hart [1983] 2 AC 640, and in particular, the judgment of Lord Templeman. McKechnie J. was of opinion that this judgment was of considerable importance, and in particular, the remarks made in relation to Ingall v. Moran at pp. 647-648 where Lord Templeman said:
“”In the cited cases the plaintiff did not have any right to sue in the capacity claimed. In the present case the plaintiffs were entitled to sue in the capacities in which they claimed provided, as happened, no executor or administrator intervened to bring an action within six months of the death of the deceased. In Ingall v. Moran [1944] K.B. 160, 169 Luxmoore L.J. could not help ‘feeling some regret’. In Hilton v. Sutton Stream Laundry [1946] K.B. 65, 73 Lord Greene M.R. was not ‘averse to discovering any proper distinction which would enable this unfortunate slip to be corrected’. In Finnegan v. Cementation Co. Ltd. [1953] 1 Q.B. 688, 699 Singleton L.J. lamented ‘that these technicalities are a blot on the administration of the law, and everyone except the successful party dislikes them’. Accepting without approving, the decisions of the Court of Appeal which have been cited, their Lordships see no reason to encourage any extension of their ambit.”
39. McKechnie J., having cited the above, then stated at p. 682, para. 19:
“I respectfully agree with these observations which offer no support to a flourishing of this rule. In fact the very opposite is the case, with the Privy Council in Austin v. Hart [1983] 2 A.C. 640 feeling distinctly uneasy about this principle.”
40. He then formed the view that by reason of the above comments and the fact that Austin v. Hart had not been opened to Laffoy J., that he was free to consider the matter himself.
41. McKechnie J. then analysed the situation, starting from the finding that the plaintiff had a prima facie case against the estate of the deceased person, and that, as of 9th May, 2006, he was entitled to enforce that claim by instituting proceedings. He differentiated the position of the plaintiff in Finnegan v. Richards from that in Ingal v. Moran. His reasoning as to why the proceedings before him should not be regarded as a nullity rests, in part, on the facts of that case, including that “the defendants have assured the plaintiff of their confidence in obtaining letters of administration imminently, and thus, putting beyond question their capacity to be sued” (at p. 683, para. 22). He also asked the rhetorical question as to “why should such a drastic result follow when the defendants raise no objection to the plaintiff suing and when, prior to the grant, they entered an unconditional appearance” (at p. 683, para. 22). He concluded that he should not extend the rule in Ingall v. Moran [1944] K.B. 160, to the facts of that case. He also, in the alternative, was of the view that the doctrine of “relation back” would apply to the circumstances of the case and validate the proceedings on the taking out of the grant.
42. On the fundamental question as to whether, in all circumstances, proceedings making a claim against an estate issued naming as defendants persons as administrators, to whom no grant has yet issued, must be considered by the Court a nullity, I am in the position that two High Court judges have recently taken different views. It appears, therefore, that I must also consider the question as a matter of principle, on the facts of this case, having regard to the views expressed in their judgments, and the judgments cited therein.
43. There is one important distinction between the present case and the facts in both Gaffney v. Faughnan and Finnegan v. Richards. It is the order of the High Court of 11th July, 2011, made pursuant to s. 27(4) of the Succession Act 1965.
44. Section 27(4) of the Act of 1965, provides:
“Where, by reason of any special circumstances, it appears to the High Court . . . to be necessary or expedient to do so, the Court may order that administration be granted to such person as it thinks fit.”
45. As appears, the jurisdiction of the High Court is to order that “administration be granted to such person . . .” As appears from para. 12 of this judgment, the High Court, on 11th July, 2011, is recorded, in the order as drawn, as being “of opinion that in the special circumstances of this case, it is expedient to appoint some persons to be the administrators of the estate of the said deceased other than the person who, under the Succession Act 1965, would be entitled to the said grant”, and then it ordered that the defendants, as applicants “be at liberty to apply for a Grant of Letters of Administration with will annexed in the estate of the deceased”. It is not entirely clear why an order made pursuant to s. 27(4) is in this form. The order made in relation to the Estate is I understand in the normal form. It may be because of the procedural requirements of O. 79 of the Rules of the Superior Courts. However in substance the decision made on the 11th July, 2011, was that Administration of the Estate be granted to the defendants.
46. Following the order of 11th July, 2011, the defendants were required to take the procedural steps specified in O. 79 of the Rules of the Superior Courts before the grant of administration issued to them. As with all administrators, they were required to lodge an administrator’s oath and an administration bond. Order 79, r. 22 of the Rules of the Superior Courts provides, in relation to such persons:
“Whenever the Court, under the Succession Act, 1965, section 27, appoints as administrator someone other than a person who would otherwise be entitled to the grant, the fact that an order under the section has been made shall be stated in the oath of the administrator, in the grant of administration and in the administration bond.”
47. What, then, was the status of the defendants in relation to the Estate after the making of an order pursuant to s. 27(4) of the Succession Act 1965, and prior to the issue of the grant of administration? They were the persons appointed by the Court to be the Administrators of the estate of the deceased with will annexed. They still had to comply with certain formalities in accordance with the Rules of Court before the grant of Administration issued. However, when the grant issued, on its face it records that it is being issued to them as “the persons appointed by the Court pursuant to section 27(4) of the Succession Act 1965 to be the
Administrators with said will annexed of the estate of the said deceased”. Also the grant states it is issued “by order of Court dated 11th July, 2011”. In my judgment, it cannot be said that the defendants had “no status” in relation to the estate of the deceased subsequent to the 11th July, 2011, and prior to the issue of the grant, as was held by Laffoy J. in relation to the defendants on the different facts in Gaffney v. Faughnan.
48. The parties did not make detailed submissions on the precise status of the defendants subsequent to the 11th July, 2011. The plaintiff accepted the general principle already referred to that “the authority of an administrator of the estate of deceased person derives from the grant of Letters of Administration and until he obtains the grant, the estate of the deceased person does not vest in him”. However, counsel for the plaintiff did rely strongly on the order made by the High Court of 11th July, 2011, and the doctrine of
relation back, in that connection.
49. Unless compelled by binding authority or legal principle to hold that the proceedings issued on 18th November, 2011, are a nullity and not maintainable, it would, in my judgment on the facts herein, create a significant injustice if I were now to so hold. As observed by Laffoy J. in Gaffney v. Faughnan, it does not appear that prior to her decision, there was any authority in relation to the status of proceedings, subsequent to the issue of a grant of administration, which were commenced prior to the issue of the grant making a claim against the estate of a deceased, where the defendants were sued as administrators in a purported representative capacity and are the persons to whom the grant of administration subsequently issued. She was not asked to consider a claim against representative defendants in whose favour an order under s. 27(4) had been made. There continues to be no authority which considers the position of proceedings making a claim against an estate commenced against representative defendants in whose favour an order pursuant to s. 27(4) of the Succession Act 1965, had already been made but to whom the grant had not yet issued and to whom a grant subsequently issued.
50. In Gaffney v. Faughnan the new principle determined by Laffoy J. and not followed in relation to administrators in Finnegan v. Richards was
“When a summons is issued, the person named as defendant must be competent at that time to answer the alleged wrongdoing and meet the remedy sought. If he is not, the action is not maintainable. If he subsequently obtains a grant of administration, that will not cure the fundamental defect and render the action maintainable. ”
51. As already pointed out, Laffoy J. was not considering a situation where an order had been made by the High Court under section 27(4). In my judgment, the existence of that order requires a different conclusion. In the scheme of s.27(4) and O.79 of the Rules of Court, it appears to me that where, as on the facts of this case, the persons named as defendants in a representative capacity as administrators of the estate are, on the date of issue of the summons, persons already appointed pursuant to s. 27(4) of the Act of 1965, to be administrators of the estate, they must in my judgment be considered as having a status in relation to the estate, albeit not yet as administrators to whom a grant has issued. They and those dealing with the estate are entitled to consider, as they did herein, that once the procedural requirements in O.79 are completed, a grant would issue to them. The correspondence, referred to above, indicates that the defendants, in the intervening period considered themselves entitled to seek information in relation to the plaintiff’s claim against the Estate and to authorise their solicitors to accept service of these proceedings against them as representatives of the Estate. They were in the period between 11th July, 2011, and 26th November, 2011, at minimum, contingently competent to represent the Estate. The contingency was the issue of the grant to which they were already entitled by Order of the Court of 11th July 2011, subject to compliance with the procedural formalities. At the latest, once the grant issued, they were fully competent to defend the proceedings on behalf of the Estate. In my judgment, the defendants’ contingent competency to represent the Estate on 18th November, 2011, was sufficient to enable valid proceedings be issued against them in a representative capacity making a claim against the Estate. Alternatively, applying the general principles of the doctrine of relation back to the statutory scheme created by s. 27(4) of the Succession Act 1965, and the procedures in the Rules of Court, the defendants’ title as administrators to defend proceedings making a claim against the Estate relates back, to the order made by the High Court on 11th July 2011. It follows, in my judgment that the proceedings issued against the defendants making a claim against the Estate in the intervening period should not be considered a nullity and are valid and maintainable.
52. In reaching this conclusion on the facts of this application, I should point out that there may be a risk to a plaintiff instituting proceedings against persons in whose favour an order has been made under s. 27(4) of the Succession Act 1965, before the issue of the grant. This judgment does not address the situation which would occur if, for some reason, the person in whose favour the s. 27(4) order had been made did not subsequently comply with the procedural requirements and a grant did not issue.
Conclusion
53. My conclusion on the preliminary issue is that the proceedings issued by the plaintiff herein on 18th November, 2011, are properly constituted and are now maintainable against the defendants as administrators of the Estate of Mr. John O’Meara (deceased).
In the Estate of O’Callaghan
[2016] IEHC 668
JUDGMENT of Ms. Justice Baker delivered on the 21st day of November, 2016.
1. This is an application by James Byrne, a creditor of Kevin McKeever, the executor named in the will of Siobhán O’Callaghan, deceased, who died on 25th November, 2013. The application is framed as an application pursuant to s. 27(4) of the Succession Act 1965 (“the Act of 1965”), that Mr. Mc Keever be “removed” as executor of the estate, and that liberty be given to an independent person, Jim Trueick, solicitor, to apply for and extract letters of administration in the estate of the deceased limited for such purpose as the court may determine.
2. In the alternative, an order is sought pursuant to s. 27(4) of the Act of 1965 for a grant ad colligenda bona limited for the purpose of collecting in and preserving, but not distributing the estate of the deceased.
3. The application came before me in the non-contentious Probate List and both the applicant and Mr. McKeever were represented by senior counsel.
4. Counsel accept that as applications in the non-contentious Probate List are determined on affidavit, I do not have any jurisdiction to resolve contentious matters on the affidavit evidence. The matter is primarily one of legal argument, and there is no real difference between the parties as to the essential facts giving rise to the application.
5. Briefly, the deceased died on 25th November, 2013 and at the date of her death she was in a long-term intimate relationship with Mr. McKeever whom she appointed executor of her will made on the 24th August, 2006. After making a number of pecuniary bequests, the testatrix devised and bequeathed the balance of her estate to Mr. McKeever. The Inland Revenue affidavit, sworn on 5th August, 2015, shows the estate as having a net value of €525,217.
The position of the applicant judgment creditor
6. The applicant, James Byrne, recovered judgment against Mr. McKeever on 24th October, 2014, in the sum of €663,824, together with interest pursuant to the Courts Act, 1981 on that sum from 16th August, 2006. As of 26th May, 2016, the applicant claims that the amount due on foot of that judgment, to include interest, amounts to €1,183,223.30.
7. The judgment creditor says that his investigations suggest that the assets Mr. McKeever stands to inherit in the estate of the deceased is the main source from which the judgment may be satisfied. He avers to what he describes as the “utterly untrustworthy” past behaviour of Mr. McKeever, and his fear that Mr. McKeever will seek to put the assets to which he is entitled in the estate beyond the reach of the creditor unless an independent person is appointed to administer the estate.
8. The background circumstances are that Mr. McKeever operated a property acquisition and trading business in Ireland through which he sold property in Dubai to Irish investors. The full purchase price was paid by those investors before the properties were built. Mr. Byrne says that on or around 16th August, 2006, he entered into a contract with Mr. McKeever to purchase a number of properties in Dubai, and that in accordance with the contractual arrangement, he paid the full purchase price of €632,914.90 between August, 2006 and September, 2007 to Mr. McKeever.
9. In the events, Mr. McKeever failed to convey the properties as they had already had been sold and conveyed to other persons. It was in that context that the applicant obtained judgment for the contract price and interest as noted above.
10. Subsequently, orders were made for discovery in aid of execution, and that Mr. McKeever be examined before the Master of the High Court. In the course of cross-examination, Mr. McKeever admitted to owning between five and seven unfinished apartments in Dubai and a shareholding in a number of companies in the British Virgin Isles and Belize, one of which owns property in Co. Galway.
11. After the death of his partner, the deceased, Mr. McKeever “disappeared” or as is said in the grounding affidavit “staged his own abduction”. He later pleaded guilty to charges of knowingly making false reports and statements to the gardaí contrary to s. 12(b) of the Criminal Law Act 1976, and of wasting garda time contrary to s. 12(a) of the same Act.
12. A receiver by way of equitable execution was appointed in July, 2015 by Hedigan J. over so much of the assets payable to Mr. McKeever from the estate of Siobhán O’Callaghan, deceased, as would satisfy the judgment and costs of the applicant.
The application in the Probate List
13. Mr. McKeever has instructed Tom Brabazon, solicitor, to act for him for the purpose of the administration of the estate of the deceased. Mr. Brabazon has sworn two replying affidavits of 26th October, 2016, and 4th November, 2016. Mr. McKeever has only now, immediately before this judgment is delivered, sworn an affidavit confirming the contents of the affidavits of Mr. Brabazon.
14. Mr. Brabazon exhibited what he describes as an “agreement giving rise to a lien for fees” entered into between himself and Mr. McKeever, and in respect of which he claims priority. That agreement made on 8th June, 2015 relates to the costs and fees on a solicitor and own client basis, and outlay including counsel’s fees, in the defence of the criminal charges mentioned above. It is not my role in these proceedings to determine the question of priority, or whether Mr. Brabazon, as a matter of law, has the benefit of a lien for those fees and costs. Mr. Brabazon however asserts on affidavit, (paragraph 16 of the affidavit sworn on 26th October, 2016) that the fees are a “debt which the estate owes me”. He accepts that he and the executor must be bound by any decision of the court in proceedings between the judgment creditor, Mr. Byrne and himself with regard to priority, in any issue between the creditors. His affidavit is predicated on a view that the debt is one due by the estate to him and not by Mr. McKeever personally.
15. Mr. Brabazon also says that the effect of “removing” the executor would impose an extra burden of expense on the estate.
16. Correspondence exhibited between Mr. Brabazon and the receiver by way of equitable execution appointed by the High Court has been contentious, and Mr. Brabazon argues that the application is as an attempt to “hijack our agreed fees”.
17. In his second replying affidavit sworn on the 4th November, 2016 Mr. Brabazon says that his client remains able and willing to extract a grant of probate and that the delay in extracting the grant arises because of the lodgement of two caveats, one by a sibling of the deceased, vacated some months ago, and the other lodged by the applicant, now agreed to be vacated.
18. The final affidavit in the chain of affidavits was sworn by David Walsh on 3rd November, 2016. He exhibits email correspondence between Mr. McKeever and Mr. Brabazon concerning the reason for the delay in Mr. McKeever executing a share transfer form to allow the applicant to make application to restore a Belize registered company in which Mr. McKeever has a beneficial interest. These emails, and two short medical reports, are the only direct evidence before me of the current personal circumstances of Mr. McKeever and it is convenient to set out the content of the email from Mr. McKeever to his solicitor Mr. Brabazon.
19. In the email of 1st November, 2016, Mr. McKeever says he is confined to bed and is “not taking any calls or answering emails at this time”, and that his doctor has advised him to “stay away from anything that causes the least amount of stress for a period”, fixed by reference to a hoped for reduction in his blood pressure. He says his life “is far more important than anything else at this time” and that he will resume contact with Mr. Brabazon once his blood pressure reduces to the advised levels.
20. A report from Mr. McKeever’s GP dated 25th October, 2016 confirms the severe hypertension, and that he is “unfit for legal activity/court appearance for next two weeks”. A further medical report furnished in photocopy form annexed to the replying legal submissions and dated 16th November, 2016 says he has “severe hypertension” and was that day referred to a hospital emergency department. He is said to be “unable to attend court for at least two weeks” for that reason.
21. Mr. Brabazon’s position stated on affidavit is that he has “instructions to administer the estate in accordance with law”, but he identifies no specific instructions with regard to whether the real property in the estate is proposed to be sold. The agreement for fees contains an acknowledgment by Mr McKeever that he will instruct the “liquidation” of the estate in early course.
Legal principles
22. The court has jurisdiction under s. 26(2) of the Act of 1965 to revoke, cancel or recall any grant of probate. Such an order by its nature is made after a grant has issued. This jurisdiction was engaged in a number of cases opened to me. The most recent is the judgment of the Court of Appeal in re Dunne deceased: Dunne & Ors v. Dunne [2016] IECA 269 where Peart J. giving the judgment of that Court set aside an order of the High Court revoking a grant and giving liberty to a third party to extract a grant. The Court of Appeal followed the decision of the Supreme Court in Dunne v. Heffernan [1997] 3 I.R. 431 in taking as a guiding first principle the proposition that the court would be slow to revoke a grant of probate.
23. There are a number of reasons identified in the case law for the general reluctance on the part of the court to revoke a grant of probate. In Dunne v. Heffernan the Supreme Court pointed out that “serious misconduct and/or serious special circumstances on the part of the executor would be required in order to justify such a drastic step”. The Court noted that the executor had in proving the will accepted the duty of administering the testator’s estate, and that to overrule the wishes of the testator would require weighty reasons. In that case the court refused to make an order revoking the grant because it was not satisfied that any reason had been shown for the plaintiff’s distrust in the ability of the proving executor to administer the estate properly.
24. The Court of Appeal in its judgment in re Dunne deceased: Dunne & Ors. v. Dunne held that there were no special circumstances and rejected the argument that the defendant, who had already extracted a grant of probate in the estate of his late father, was in a situation of irreconcilable conflict of interest with the estate. The court noted that there was an identified dispute between the proving executor and his siblings in regard to whether he and his late mother had barred the title of his siblings under the Statute of Limitations as a result of which he became entitled to the entire of those lands as surviving joint tenants with his late mother.
25. Peart J. rejected the argument that the personal representative was in a conflict of interest with the estate. There was a dispute between the siblings, and the personal representative was advancing a proposition the practical result of which was that his nine siblings would not take their distributive share in the estate of their late father. Peart J. said that the issue between the parties was a legal issue capable of being determined by a court, the determination of which would bind the estate and the potential beneficiaries. He held that the conflict of interest or the potential conflict of interest was not “one which has the capacity to hinder or prevent the proper and fair determination of the issue that had arisen”. He went on to describe it as an “operative conflict”, capable of resolution in a suitable application to the court in proceedings between the parties or under O.3 r. 2 of the Rules of the Superior Courts by special summons, or, presumably, in the Circuit Court.
26. Peart J. gave number of reasons for his decisions:
(a) The litigation could involve a considerable drain on the resources of the estate to the detriment of the beneficiaries, and to replace the person or representative was a step that should be taken only when it was necessary to do so.
(b) The issue of the Statute of Limitations was one between the personal representative, the defendant in the proceedings, and his siblings. It was not as such an issue between the defendant and the estate.
27. The situation which prevailed in Flood v. Flood [1999] 2 IR 234 was different, and Macken J. did make an order revoking the grant of probate to the executor named in the will of the deceased because she found that executor was, or was likely to be, in a direct conflict with the estate and had a claim against the estate which could have had the effect that the value of the estate would be reduced. She made the order, but did not wholly displace the executor in his role, and indicated that when the relevant litigation between the executor and the estate, now to be represented by an independent person appointed under s. 27 (4) of the Act of 1965, had concluded that the executor could resume the role and continue and finish the administration of the estate.
28. Certain matters are to be observed with regard to this case law. Each of the three cases mentioned were applications to revoke a grant under s. 26(2) of the Act of 1965. This is not such and it is one brought under s. 27(4), and is properly characterised as an application to pass over the right of the executor to extract a grant. As a general principle in respect of both classes of application a court must respect the wishes of a testator that his or her estate be administered by the person chosen to take on that task. However the combined effect of ss. 27(1) and (4) of the Act of 1965 is that the High Court may grant administration with or without will annexed of the estate of a deceased limited in any way that it thinks fit. The court has a power to pass over the executor named in a will and permit another person to extract a grant, but the authority of the person thus permitted may be limited in several ways. The High Court frequently gives liberty to extract an ad litem grant for the purposes of substantiating proceedings. Equally the court may permit a grant to issue limited in other ways, and I will return to deal in more detail below with these. The fact that the court may limit the power of an administrator who extracts a grant with will annexed in circumstances where an executor is passed over suggests that the Act envisages circumstances where all rights of the executor will not thereby be extinguished.
29. Specifically s. 27(4) of the Act of 1965 provides that the High Court may order that administration be granted “by reason of any special circumstances” or when it is “necessary or expedient to do so”.
30. I reject therefore the argument of counsel for the executor that the decision of the Court of Appeal in re Dunne deceased: Dunne & Ors. v. Dunne is authority for the proposition that the sole basis on which the Court may permit a grant to issue to a person other than the executor named in a will under s.27 is where the executor is shown to be in a conflict with the estate, or where the executor is found not to be in a position to administer the estate because of his conduct as executor.
31. For the same reason, counsel for the executor is not correct that the only circumstances in which the Court may pass over a named executor and permit administration to be granted to another person is where it is “necessary” to do so. The Act clearly gives power to the Court to do so when it would be “expedient”, that is in circumstances other than where necessity is shown.
32. The case law relied on by both parties, and briefly outlined above, suggests some of the factors that the Court may take into account in making an order under s. 27(4), but there is a significant difference legally and practically between the removal of an executor who has already extracted a grant, and the revocation of a grant by which that executor is deprived of all powers derived under the will and the grant, on the one hand, and where the Court grants administration limited for a purpose or purposes to another person. In the latter case the rights of the executor may be maintained and do not require to be abrogated. Another difference of a practical nature is that the costs of extracting a grant and costs incurred in the administration of the estate will generally not be unnecessarily wasted.
33. The Court of Appeal in re Dunne deceased: Dunne & Ors. v. Dunne was influenced by the fact that the likely litigation between the family members would be more costly as a result of the interposition of another party, i.e. an independent person appointed as personal representative under s. 27 (4) after the grant to the proving executor was revoked, and where the Court of Appeal considered that a third party personal representative in the litigation would not add anything to the dispute, and would not have any direct evidence or argument to make, which would be in addition to, or even different from that which would emerge in the course of the action between the family members.
34. I reject the argument of counsel for the executor that the reason why the Court of Appeal rejected the application was that the administrator had confirmed that he would be bound by any order of the Court. A person extracting a grant of probate or administration intestate swears an affidavit that he will administer the estate in accordance with law. The Court of Appeal recognised that a legal obligation and burden exists on a personal representative, whether executor or administrator of an intestate estate, and the personal representative is obliged by his oath to lawfully perform the solemn task undertaken. It is incorrect to characterise the executor in the estate of Cecil Dunne deceased as having expressed a “willingness” to be bound by any order of the court, and it was the general obligations arising from the oath that persuaded the Court of Appeal that the proving executor would perform the task vested in him.
Application of the principles
35. There are a number of unusual elements in the present application. The applicant is not a creditor of the estate, but a judgment creditor of the executor and principal beneficiary in the estate. It is not asserted that the executor is in a position of conflict with the estate, but rather that the executor is unlikely to administer the estate in a way that will protect sufficiently the interests of the judgment creditor in enforcing his debt against that beneficiary.
36. I reject the suggestion by the applicant that Mr. McKeever has no beneficial interest in the estate. He is entitled to the residue of the estate after the payment of a small number of pecuniary bequests. He undoubtedly has a beneficial interest, albeit the will has not yet been admitted to probate, and theoretically at least there remains the possibility of a challenge. Mr. McKeever’s interest in the estate might be fixed with the rights arising following the appointment of a receiver by way of equitable execution over such of his interests in the estate as may be necessary to satisfy the debt of the applicant, but his entitlement in the estate has not been displaced. Equally and for the same reason, the applicant has no interest in the estate and it stretches argument to suggest that he has.
37. It seems that Mr. McKeever is the beneficial owner of a company which is wholly entitled to the interest in real property in the west of Ireland. The legal submissions furnished by the executor on 17th November, 2016 suggest that this property is sufficient to meet the debt of Mr. Byrne. In recent days Mr. McKeever has executed a document to transfer his shareholding in the company which owns this property. The submissions describe the property as “quite substantial” and quite extraordinarily exhibit a Google Maps street view of the property and embed an article from an Irish newspaper where the property was described as “one of Celtic Tiger’s biggest mansions”. Counsel describe themselves as “confident” that the eventual sale of this property will more than cover the applicant’s judgment debt, making redundant the applicant’s reasons for this application.
38. It goes without saying that legal submissions are not evidence. Legal submissions ought not to make arguments based on facts which are not proven before the Court. It is not appropriate that I be asked to extrapolate from an embedded newspaper article and a street view from Google Maps the potential value of the property held by Mr. McKeever’s company. This is a wholly inappropriate use of legal submissions.
39. Mr. McKeever has not set up a contest between himself and the estate, but his solicitor Mr. Brabazon has, in my view, in his affidavit set up a claim against the estate, a claim that he has lien over the estate papers for fees due to him by the beneficiary, Mr. McKeever. Of itself the fact that the executor named in the will of the deceased has chosen to appoint a solicitor who has set up on affidavit a claim against the estate such that he may not act in the prosecution of that claim may not amount to sufficient ground to prevent the executor extracting a grant.
40. In written legal submissions signed by senior and junior counsel on behalf of the executor it is asserted that “use of the word lien is colloquial”. I do not accept this attempt by counsel to reformulate the proposition advanced by Mr. Brabazon in two affidavits. Mr. Brabazon has asserted on affidavit a lien over the estate papers, and has asserted that he is a creditor of the estate. He says so expressly in paragraphs 12 and 16 of his affidavit sworn on 26th October, 2016. It is implicit in paragraphs 17 to 22, inclusive of that affidavit. The averments must be seen as a claim of right by a solicitor and I could not accept that Mr. Brabazon intended to use the word “lien” in a colloquial sense. The word has a legal meaning, the meaning of which a solicitor in practice will well know.
41. In paragraph 14 of his later affidavit sworn on 4th November, 2016, Mr. Brabazon accepts that “questions of priority” in respect of the estate can be dealt with at a later time. Nowhere in that affidavit does he withdraw his assertion that he holds a lien, or that the estate owes him a debt.
42. Furthermore I am concerned that Mr. Brabazon has mischaracterised his role as solicitor appointed by the executor to take out a grant. At paragraph 2 of his first affidavit he suggests that the application before me is in effect an application to appoint another person “effectively in my place” to administer the estate. Mr. Brabazon has been engaged by the executor to take the procedural steps to extract a grant. He is not yet the solicitor for the estate, no grant has issued, and it is the proving executor who will administer the estate and give instructions to his solicitor, who will act on those instructions.
43. An immediate problem is apparent in the administration of the estate, as a determination on the question of the validity of the claim of a lien, and whether legal costs are in fact owed by the estate to Mr. Brabazon, must be determined before the net value of the estate is ascertainable.
44. Another unusual element in this case is that the executor Mr. McKeever has not dealt in any way with the merits of the application, and he has left this to his solicitor. Two affidavits have been sworn by his solicitor and from the second of these affidavits, sworn on the 4th November, 2016, it is clear that Mr. Brabazon has no specific instructions. I consider that I must read the email from Mr. McKeever, and the two medical reports as indicating that he is at present unable for health reasons to further instruct Mr. Brabazon or any other solicitor to administer the estate if a grant should issue to him. I find it impossible to glean with any degree of confidence when, and if, Mr. McKeever will be in a position to instruct his solicitor and indeed any other person or body that would be needed to administer the estate, such as an estate agent or accountant.
45. Mr. Brabazon, at paragraph 17 of his second affidavit says that his instructions are and remain clear to administer the estate and “to do so as efficiently as possible and in accordance with law”. The instructions so characterised are vague and unspecific, and Mr. McKeever’s personal and health circumstances would suggest that he is unable or unwilling to engage with any matter which requires him to make a decision or to engage in any matter which is stressful.
46. Were the grant to issue to Mr. McKeever now, I am not satisfied that Mr. McKeever is in a position to instruct his solicitor to sell or otherwise deal with the real property in the estate, to make the distributions of the pecuniary bequests, or to otherwise deal with the debts of the estate.
47. Two problems are therefore apparent: Mr McKeever is unwell, and his solicitor has raised an unresolved dispute with the estate. The circumstances suggest that the appropriate course of action is for me to permit the extraction of a grant ad colligenda bona, and ad litem.
48. The nature of the grant ad colligenda bona was explained by Hanna J. in the Goods of Walter Dyas (deceased) [1937] 1 I.R. 479, in circumstances that bear some resemblance to the ones in the present proceedings. The applicants were creditors of the deceased, beneficiary in a will of his late father who died resident in the Irish Free State. The debtor was entitled to a life estate in capital lodged in the Irish High Court and invested in Consolidated Stock. Hanna J. held that the applicants were entitled to a grant of letters of administration ad colligenda bona limited to apply to have the monies paid out of court and subject to a direction that they be paid into the appropriate court of the Orange Free State where the debtor was domiciled at his death. Hanna J. expressly made the order to put the applicants in a position where:
“[W]hatever their rights, they will be protected, and their debt and the liability of the estate investigated … by the competent Court in South Africa.”
He went on to explain why he would not permit the issue of a full grant to the creditor because to do so would require further inquiry, one which was not within his jurisdiction.
49. I consider that in the light of the uncertainty and difficulties in the present case that it is appropriate that I should make an order permitting Jim Trueick solicitor, the person nominated by the applicant, to apply for and extract letters of administration in the estate of the deceased pursuant to s. 27 (4) of the Act of 1965, but limited as follows:
50. The grant be limited to the taking of all steps necessary to extract the grant and deal by sale or otherwise with the assets in the estate with a view to realising those assets. At that point it should be possible to ascertain the value of the gift that falls to Mr. McKeever under the will. Because Mr. McKeever has given no instructions as to his wishes with regard to the administration of the estate, it is not possible for me to say whether he lives in one of the apartments in the ownership of the deceased at her death. His wishes in regards accommodation needs should be respected by the personal representative as far as possible.
51. It seems that the grant can issue with will annexed, as no question with regard to the validity of the will arises at this juncture.
52. As the grant ad colligenda bona does not import authority to substantiate proceedings, Mr. Trueick is also given liberty to apply for and extract a grant ad litem, for the purposes of substantiating proceedings, either to be brought on behalf of the estate against Mr. Brabazon for declaratory relief, or to defend such proceedings as may be brought by Mr. Brabazon in regard to his costs. He is also to be authorised to accept any notices or take any other action or receive any other documents that are necessary for the determination of that issue.
53. The order is not an order that Mr. McKeever be passed over for all time, and it may be that the final conclusion of the administration of this estate requires that a grant be issued to him. For the present, the personal representative appointed pursuant to my order will have power to realise the estate, and the effect of his actions will be that it will be possible to then quantify the value of the residuary estate of which Mr. McKeever is sole beneficiary.
54. I expressly do not make this order on the basis that Mr. McKeever has shown that he has any conflict with the estate, nor that he has unduly delayed in extracting the grant, but because he has shown through his solicitor that he is not in a position to now take the steps to administer the estate should a grant be issued to him, and also because the claim of Mr. Brabazon is not one that may be maintained by or against Mr. McKeever were he to be permitted to extract a grant, as I consider that the claim of Mr. Brabazon against the estate is one that will have to be determined before any further distribution of the estate is made.
55. I therefore propose to make an order as follows:
(a) An order under s. 27(4) of the Act of 1965 that Jim Trueick be appointed administrator ad colligenda bona with will annexed in the estate of Siobhán O’Callaghan, deceased.
(b) An order under s. 27(4) of the Act of 1965 that Jim Trueick be granted liberty to apply for and extract letters of administration ad litem in the estate of the deceased, limited for the purposes of substantiating proceedings which may be commenced either by that personal representative or by Mr. Brabazon in respect of the claim of Mr. Brabazon that he has a lien over the estate papers of the deceased, or that the estate is indebted to him in the manner contended.
(c) No distribution may be made by the personal representative until further order of this Court or of the Chancery Court or Circuit Court as the case may be.
Estate of White
[2015] IESC 84
Denham CJ
O’Donnell J
Charleton J
Record number 2011/1752P
Appeal number 284/2011
In the Estate of Kathleen White, Deceased
Between
Judgment of Mr Justice Charleton delivered on Monday the 16th day of November 2015
1. The late Kathleen White died testate on the 16th October, 2007. In her will of the 21st October, 2005, she named two of her children as the executors of her estate. These are Edward White, who is the defendant/appellant, and Damien White, who is the plaintiff/respondent. Damien White died on 15th January 2014. Hence the title hereof. The other beneficiaries were her other children.
2. The most substantial asset in the estate of the late Kathleen White was a dwellinghouse, Derrynane, Ravenswell Road, Bray in the County of Wicklow. The precise circumstances surrounding the disposal of this asset are not a matter that can be considered on this appeal. Nonetheless, it informs the background as to how issues concerning the estate of the late Kathleen White came before the probate list in the High Court, from which this is an appeal. It appears that a company called Pizzaro Developments Ltd contracted to purchase that property for a sum that appears to be €1,000,000. A deposit in accordance with the contract may have been received by the solicitor acting for the vendor. The sale, however, did not proceed. It seems that the method of completing the contract would have been through an option agreement, but this was never proceeded with. Separately from that, this main asset in the estate was later sold. A notice to treat by way of compulsory purchase of the premises was served by Bray Town Council on the 15th March, 2011. The issue of compensation was eventually settled on the 26th August, 2013, and a sum of €510,000 together with costs was arrived at.
3. It may naturally be regarded as disappointing that a sum of around 50% of the value offered for the property by Pizzaro Developments Ltd was achieved through later compulsory purchase. In the meanwhile, however, the severe economic circumstances apparent since late 2008 had caused a serious diminution in property values. From the oral argument presented before this Court, it seems that Edward White believes that the original purchaser actually completed the agreement and that €1,000,000 has been received by a solicitor acting on behalf of the estate of the deceased and that this has been hidden away. A number of facts might usefully be considered here. Firstly, it may be possible to register an option agreement in the Registry of Deeds but any such registration is not evidence of the completion of a contract for the sale of land. Many people contract to purchase land but do not proceed to a sale. Secondly, businesses do not give away large amounts of money and content themselves with receiving nothing in return. Thirdly, a local authority such as Bray Town Council is bound by statute to receive value in respect of their transactions. Bray Town Council could not have bought the property of the late Kathleen White with the legal title vested in Pizzaro Developments Ltd from the estate of the deceased.
4. It is thus clear that a valid purchase took place by Bray Town Council of the property that was the main asset in the estate of the late Kathleen White. It is also clear that there was no other party involved in that transaction, such as Pizzaro Developments Ltd. Edward White, nonetheless, regards the entire of the transaction concerning the sale of the property as showing evidence of fraud and, in addition, the commission of a serious crime. In that regard, on this appeal he has sworn a long affidavit making allegations against a number of lawyers engaged in the transaction. It is appropriate to record, at this juncture, that there is not even the slightest hint of any evidence that anything untoward, much less criminal, took place. However, this background, and the strong views expressed by Edward White, goes some way to explaining how matters which might otherwise have been considered straightforward questions of procedure have become so contentious
5. Two issues arise on this appeal. First in time is the removal of one of the executors by Ó Néill J, the probate judge in the High Court, namely Edward White, through order on the 29th June, 2011. That resulted in his substitution as the executor involved in the administration of the estate by his brother, Damien White. The High Court order recites that Damien White was “at liberty to extract a Grant of Probate in the estate of” the late Kathleen White. This directly leads to the second issue on the appeal because Damien White, while he willingly undertook the administration of the estate and seems to have completed much, if not all, of the realisation of the assets, died on the 25th May, 2014. Hence, the solicitor appointed by the executor of the estate of Damien White, Rosemary Gantly, asks to be substituted in the title of the proceedings for Damien White. The relevant notice of motion seeks the following:
An Order substituting Rosemary Gantly (as Administratrix with the Will annexed, in the estate of Kathleen White deceased), as Plaintiff in the title hereof in place of Damien White.
6. This application is opposed by Edward White. He has issued his own notice of motion in these proceedings and has grounded that on a substantial and detailed affidavit. Both the notice of motion and the affidavit of Edward White have been read out loud in open court on this appeal. In that notice of motion, the order of Ó Néill J is described as “fraudulent” and an order is sought from the Court to refer the papers to the Director of Public Prosecutions. The relief claimed by Edward White which is most germane to this appeal seeks:
An Order in the interests of justice to have the last wishes of Kathleen White as seen in her last will and testament and her legal rights under the European Convention on Human Rights to have her son Mr Edward White reinstated as her one and now only executor reinstated as executor on the grounds that Kathleen White’s other son, the second named executor Mr Damien White is now deceased and because of the fact that the order of O’Neill J was fraudulently obtained by the plaintiff/respondent’s solicitor and counsel on the 29th day of June 2011 as the record and files of the matter show.
7. The hearing of that motion, from which this judgment derives on appeal, operates in substance as an appeal against the order removing Edward White from the administration as executor of the estate of the late Kathleen White.
8. The appointment or removal of an executor of an estate and the powers and duties of executors are provided for under the Succession Act 1965. Section 26 thereof reads:
(1) The High Court shall have power to grant probate to one or more of the executors of a deceased person, and a grant may be limited in any way the Court thinks fit.
(2) The High Court shall have power to revoke, cancel or recall any grant of probate.
9. These powers are largely self-explanatory. Indeed, in Brady, Succession Law in Ireland, 2rd Ed. (Dublin, 1995) at para. 9.80, that distinguished author only thought it necessary to give the following commentary:
Jurisdiction to grant probate to one or more of the executors named in the will of a deceased person lies with the High Court, which may limit such grant in any way the court thinks fit. The court also has the power to revoke, cancel or recall any grant of probate.
10. When a person dies, as a matter of law the executors of the estate must act so as to distribute the assets in accordance with the will of the deceased as soon as is reasonably possible. Of course, some estates may be more complex than others, perhaps setting up trusts or requiring the gathering in of property from more than one jurisdiction. What constitutes a reasonable time for gathering in an estate and distributing it to those entitled under a will therefore depends upon the relevant circumstances. Under s. 62(1) of the Act of 1965 proceedings may not be brought against a personal representative for failure to distribute the estate within one year of the death of the deceased, though the court may give leave to proceed over a different time frame. Brady, at para. 10.30, comments:
The Succession Act thereby incorporates the long established rule that personal representatives have one year from the death of the deceased in which to administer the estate and beneficiaries under a will may not initiate action against the executors until the end of the so-called “executor’s year”. There is nothing to prevent the personal representatives distributing the estate within the executor’s year if they so choose and indeed failure to do so may leave them open to the charge that they have failed to administer the estate with due diligence. This is particularly the case with regard to payment of the deceased’s debts, since failure to do so will invariably mean that interest on the debt grows, and it may grow to a point where it threatens the interests of the beneficiaries.
11. The bounden duty of an executor is to commence the process of the identification, gathering in, accounting for taxation purposes and proper distribution of the estate. This must be done in a timely fashion. The duties of executors are solemn and require the pursuit of such reasonable avenues of enquiry as may uncover property to the benefit of the estate. No matter whether the executor was the late Damien White, or is Edward White, or the solicitor of the estate of Edward White acting as executor, in relation to the estate of the late Kathleen White, these weighty duties must be fulfilled and dispatched with expedition.
12. While it may cause upset to be removed as an executor, time is one of the primary factors to be looked at by the High Court where an application is made to remove an executor under s. 62 of the Act of 1965. The law leans against delay in the distribution of estates; the reason is that the unfortunate results so clearly identified by Brady are to be avoided. In the discharge of its probate jurisdiction, the High Court is bound by the Act of 1965 and will also be cognisant that efficiency in the administration of estates is to be encouraged.
13. On the matter coming before Ó Neill J, the executor’s year had well passed. In fact, Kathleen White had been dead for over three years. Edward White had a problem with the completion of the return to the Revenue Commissioners that is essential to the discharge of the duties of an executor. This, in turn, related to the failed sale of the premises and the much lesser price eventually obtained on compulsory purchase by the local town authority in Bray. Of itself, the passing of that year in circumstances where the estate did not exhibit the complexities associated with wills that might set up an elaborate trust or otherwise cause undue complications, both enabled the application to be made under the Act of 1965 and provided the High Court with the appropriate authority whereby, without necessarily making any further judgement on the matter, another executor should be substituted. This could only happen through the removal of the executor who had taken up the administration of the estate.
14. It is argued on this appeal by Edward White that this was incorrect. To put it at its lowest, however, it has not been demonstrated that there has been an erroneous interpretation of the affidavit evidence in the High Court. The appeal cannot therefore succeed on this point. Further, the High Court was well within the law in removing an executor once the executor’s year had passed.
15. As to the other point, the grant of probate in the estate of Kathleen White is dated from the High Court probate registry as the 29th June, 2011. It is in proper form. This records the death of the deceased at Saint Colmcille’s Hospital on about the 16th October, 2007, annexes her will. It continues:
LETTERS OF ADMINISTRATION of the said estate which devolves on and vests in the personal representative of the said deceased and which was so left unadministered with said Will annexed were granted at the Probate Office to ROSEMARY GANTLY of 5 [address] Solicitor the Attorney lawfully appointed of IMELDA BRACK now residing at [address] daughter of the deceased and as such one of the Residuary Legatees and Devisees named in the said Will – limited for the use and benefit of the said IMELDA BRACK and until she shall apply for and obtain Administration with the said Will Annexed of the unadministered estate the said ROSEMARY GANTLY having been first sworn faithfully to administer same.
16. The order later made in the High Court probate registry references the 14th October 2014. It refers to the death of Damien Martin White of an address in Bray and that he died on 25th May 2014, annexes that will, and records that George White, who predeceased him and Imelda Brack of an English address were named as executors. The order is in proper form and states that it should be known that on that date:
LETTERS OF ADMINISTRATION with the said Will annexed of the estate which devolves on and vests in the personal representative of the said deceased were granted by the Court to ROSEMARY GANTLY of [address] Solicitor the Attorney lawfully appointed of the said IMELDA BRACK presently of [address] Limited for her use and benefit until she shall apply for and obtain Probate of the said Will the said ROSEMARY GANTLY having been first sworn faithfully to administer same.
17. It is important also to record that the solicitor, who at all times has acted with the utmost propriety, was “first sworn faithfully to administer” the relevant estate. Progress has been made on the estate in the sense that the order certifies that the Revenue Commissioners have been delivered of an affidavit which showed that the gross value of the estate of the late Kathleen White amounts to €511,080 and that the net value thereof amounts to €439,730.
18. This therefore provides ample justification and basis for the affirmation of the High Court order, or grant of an order by this Court, as sought in the terms above recited substituting Rosemary Gantley as plaintiff in place of Damien White.
19. Finally, it might reasonably be commented that the litigation arising out of the estate of Kathleen White has the capacity to affect the diminution of the estate from the point of view of those who would otherwise benefit. Even prior to the death of Kathleen White, the prospect of the exercise of the option agreement by Pizzaro Developments Ltd for the substantial sum agreed was, of the nature of such agreements and of limited liability companies, uncertain. In her will, dated the 21st October, 2005, she mentions specific percentages in relation to the distribution of the estate should that deal proceed. She, a clearly wise woman and exercising admirable common sense, expressed her last wishes in terms of distribution of the proceeds “[i]n the event of Pizzaro Developments Ltd exercising the option to purchase my property at Derrynane, Ravenswell Road, Bray, County Wicklow” under the option agreement “already executed”. That event did not come to pass.
20. It is not an uncommon experience, especially in the last seven years, for property transactions, which had the apparent capacity to yield substantial revenues, to have melted away in the light of the changed economic circumstances brought about by the collapse in property values. This may be yet another such case. Whether it is or is not, the plain reality is that that deal has disappeared, as indeed the late Kathleen White foresaw that it might.
21. A substantial sum has been received for the purchase of the property, however, from the local authority in Bray which, while perhaps around half of what otherwise might be promised had the property sector of the economy remained as buoyant as it was back when the will was made in 2005, needs to be utilised for the benefit of those who are entitled under her will to inherit, namely her children or those benefiting through their inheritance. Chasing an illusion would do nothing for those entitled under the will of the late Kathleen White.
Cases Under Influence
Elliot & Anor v Stamp & Anor
[2006] IEHC 336 (07 November 2006)
Judgment of Mr. Justice Roderick Murphy delivered on the 7th day of November 2006.
1. Nature of Claim
The plaintiffs are the sister and nephew of Nicholas Roche, deceased (the Deceased). The second named plaintiff, the son of the first named plaintiff, pursuant to a power of attorney granted on 6th April 2004, acts on her behalf. The court acceded to an application amending the pleadings to reflect the position of the second named plaintiff.
Proceedings began by way of summons dated 13th July 2004, wherein the plaintiff claimed an order refusing probate of “the pretended will” purportedly executed on or about 20th February 2003; a declaration that the said will was not validly executed; that the testator was not of sound disposing mind and, in the alternative, a declaration that the will was procured by acts of undue influence brought to bear upon the Deceased by the defendants.
The first named defendant is the principal beneficiary and was appointed sole executor under the purported will. The second named defendant is his mother and the sister of the Deceased.
The Deceased, late of Ballyvalden, Blackwater, Co. Wexford, died a bachelor without issue on or about 3rd May, 2003. His assets include a residential farm, credit union deposits and cash.
Certain particulars were given in the statement of claim regarding alleged dominion and control, and the involvement of the defendants, and in particular the first named defendant in the procuring of a solicitor for the purposes of preparing and executing the will which, the particulars continued, was not the product of the free and voluntary act of the Deceased but rather was the result of requests and/or demands made of the Deceased by the defendants and either of them. It was further stated that the Deceased was in fear of not complying with the said requests.
The undated Defence denied that the will was a pretended will, was void. The act was a free act of the testator who made the will with full capacity, competence and understanding. The Deceased testator independently drew up his will over a two day period between 19th and 20th February with the advice and assistance of a solicitor, and without any interference, duress, or influence, undue or otherwise. The Deceased was of sound disposing mind at the date of the execution of the will which was drawn up in accordance with the provisions of the Succession Act 1965 (the Act). The will contained many and numerous legacies and bequests in accordance with the testator’s detailed instructions to his solicitor.
By Reply delivered 31st May 2005, issue was joined. It was denied that the pretended will was the free act of the testator or that he made the will with full capacity, competence and understanding. It was further denied that he drew up his pretended will independently with the advice and assurance of a solicitor and without any interference, duress or influence. Particulars were given that the first named defendant (inadvertently referred to as the second named defendant in the reply) was actively involved in the procuring of the execution of the said will and repeatedly liaised with the solicitor drafting same, both in relation to its drafting up and its execution. He gave information to the instructing solicitor in relation to the tax advantage of the disposition of the Deceased’s farm.
By way of special reply the plaintiffs put the defendants on strict proof that the Deceased was of sound disposing mind on the date of the execution of the will and that the will was drawn up in accordance with the provisions of the Act. It was denied that the will contained many and/or numerous legacies and bequests in accordance with the testator’s detailed instructions.
Notice for particulars were raised and replied to but do not appear to have furthered the matter significantly.
2. Motion to Strike out Proceedings
By notice of motion dated 30th January 2006, the defendants applied for an order striking out the plaintiffs’ claim for failure to comply with a request for further particulars and on the grounds that the plaintiffs’ claim disclosed no reasonable cause of action etc., there being no evidence to support the plaintiffs’ claim of undue influence on the testator and the plaintiffs’ having failed to provide same in the replies to particulars. The motion was grounded on the affidavit of the first named defendant exhibiting medical reports. The second named plaintiff, referring to his appointment as attorney of the first named plaintiff, denied responding to the particulars and said that the pretended will was prepared by a non-legally qualified person, was procured in haste and that the statement of claim and reply raised the following issues as valid grounds for challenging the will –
Issues of:
the due execution of the will;
lack of capacity; and
undue influence.
There were further affidavits from Dick Parle, a beneficiary under the will and neighbour and friend of the Deceased; of Mrs. Bridie Stamp, the second named defendant and of Tom Murphy, legal executive in the firm of M.J. O’Connor & Company as to his role in taking instructions, drafting and witnessing the will when executed.
By consent order made by Quirke J. on 23rd June 2006, it was ordered that the application be refused and that the costs of the motion be reserved to the hearing of the action.
The court directed that the issues to be determined were as follows:
1. Whether will was executed in accordance with provisions of the Succession Act 1965;
2. Whether testator Nicholas Roche was of sound disposing mind; and
3. Whether will was procured by duress or influence of the defendants or either of them.
3. Evidence on behalf of the Plaintiff
The court has carefully considered the oral evidence of the following nine witnesses:
3.1 Anastasia Elliot: evidence on commission
The plaintiff gave evidence and commission before Mr. Hugh Byrne, B.L. on 26th September 2006, in the Royal Hospital in Donnybrook. Mrs. Elliot, the plaintiff, is aged eighty one, a widow with six boys. The Deceased was the youngest and was her only brother. He stayed on the family farm. She had been, on occasions, in the 1970s at the farm tidying, cooking and paying bills. The testator was not good at school and could not read. She did not see him when he was with her sister Bridie, the second named defendant.
When she was in the Royal Hospital in Donnybrook, she could not go down but she knew he had made a will when he died. He did not like anything about wills and was thinking of getting married.
Her boys used to go down in summer and were always there helping. There were others there, but not as much as her boys. Her brother was very quiet and simple. She doubted he would have understood. He could be bullied, if afraid and was not strong willed. While he was slow on the uptake she imagined that he was all right in his head.
She said the last time she had been down on the farm was in the 1970s when she used to go down once a week but she had not seen him for a long time.
Her brother rang her not long before he died, he was in good form and never complained about his health.
She said that she wanted to start this case.
3.2 Evidence of David Elliot
David Elliot, the attorney of the plaintiff and nephew of the testator, had visited his uncle in September 2002, and noted that he had deteriorated from his visits from two years previously. He had severe arthritis and looked as if he were dying. He was shocked that he would have made a will. He was aware that his uncle had sold a site and used a solicitor but did not know who it was at some time previously. He was of the opinion that he would be vulnerable and believed that the first named defendant had influenced him while he lived with the second named defendant from Christmas 2002, until he went into hospital on 21st February, the day after he made the will. It was not the will his uncle would have made – he would not have known the Folio number of his farm.
In cross-examination he agreed that the first named defendant resided close to his uncle. He did not know the extent to which the defendants had assisted the Deceased. He agreed that his mother, the first named plaintiff had gone to live with the second named defendant for twelve to fourteen months after her husband died and before she got a stroke and then stayed for two weeks with him, before she eventually went into the Royal Hospital in Donnybrook, Dublin.
He agreed that his uncle went to Wexford Hospital on 21st of February 2003, and thereafter to St. John’s Nursing Home. He returned to his own house on 7th April 2003, expecting home help which did not materialise until shortly before he agreed to go to Lawson Nursing Home on 25th April 2003.
He said the Deceased would not have made a will. He could not read nor write though he could sign his name. The witness said that he was suspicious that Mr. Murphy, the legal executive, and Robert Stamp, the first named defendant had gone together to make the will. He said that this was not his uncle’s (the Deceased’s) will.
He did not see his uncle after he had made the will.
He agreed that following the testator’s death on 3rd May 2003, he entered a caveat on 21st August of that year and was granted a Power of Attorney from his mother on 6th April 2004.
3.3 Evidence of Mary Roche
Mary Roche, the sister of Anastasia, and Bridie, and unmarried sister of the Deceased, had told the court that her father had died in 1950 and her mother in 1970. In 1974 her sister Madeline had died. There were four surviving children including the Deceased, herself and the plaintiff and the second named defendant.
She described her brother as not being well off, quiet, dyslexic and not being good on the land. She was told by her sister Bridie (the second named defendant) that he had made a will in February, and she did not think any more about it. She had not discussed it with him. She had visited him, but not very often. When she did, he was not too bad, sitting by the fire, but kept getting worse. She was told that after he had made the will he went to hospital. He had made a great – a tremendous – recovery and went for physiotherapy – he had made a good recovery. He then went to Lawson Nursing Home and died shortly afterwards. It was very sad.
He had been close with all (of his sisters) but closer to the first named plaintiff.
She did not believe that he could make a detailed will as he could not read or write.
In cross-examination she said she did not remember signing anything in 1993 when the farm was put in her brother’s name. She said she had objected so that her brother would be safeguarded and that someone else would not get the deed. She had not signed anything. He owned the farm, but she had cleared the debt on the farm.
She again referred to her brother having been brought to physiotherapy by her nephew, the second named defendant, and having made a good recovery. Robert, the second named defendant, had brought him for physiotherapy and had also brought her to see her sister Anastasia in Dublin.
3.4 Evidence of Niall Elliot
Mr. Elliot, an older son of Anastasia has lived in Toronto since 1990. He met his uncle on 7th October 2002, having been in Ireland two years before that.
He remembers always having been with his uncle holidaying on the Deceased’s farm over the summer before he went abroad and taking part in farm duties. He had an interest in old vintage buses and rent was being paid to his uncle for keeping them in an old caravan park near his uncle’s house.
The Deceased could neither read nor write but was young at heart. He saw him for three weeks in September/October 2002 on the farm and noted that he had deteriorated. When he was home he stayed in Enniskerry. He vaguely remembered the farm being changed to his uncle’s name and remembered his uncle asking him where to put money. He recommended the credit union, but did not know what money his uncle had.
If his uncle had made a will, his farm would have gone to his three sisters. He was very fair. Robert Stamp, the first named defendant, had contacted him regarding the vehicles remaining on the Deceased’s property.
He was not at his uncle’s funeral. He denied that he was well founded as was indicated in the instructions taken by Mr. Murphy, the legal executive.
In cross-examination he referred to his uncle being registered as the owner of the farm on 11th March 1993. His uncle would not have necessarily wanted a young male to succeed him. He denied ringing Robert, the first named defendant, in February 2003, to ask if his uncle had made a will.
He agreed that he was in Canada, that David his brother lived in Dublin, while Robert Stamp lived nearby.
4. Evidence of the Defendants
4.1 Tom Murphy
Mr. Murphy, a legal executive was employed by M.J. O’Connor, solicitors of Waterford and Wexford for thirty seven years and was the senior legal executive there with responsibility for conveyancing and wills. That firm had seven partners, several solicitors and legal executives. A qualified solicitor dealt with administration.
He had ascertained from the records of his office that Nicholas Roche, the Deceased, was a client of the firm from November 1992 and that he had dealings with regard to the granting of a right of way on the farm having previously dealt with wayleaves and the sale of a site. In 1992 he became the registered owner of Folio 6773 by way of a s. 49 application. In September, 2002 Mr. Roche had instructed him with regard to a wayleave over the land and further instructed him that this was not to affect his right to apply for planning permission.
On Monday, 17th February 2003, his office was phoned by Robert Stamp, the first named defendant, and the call was transferred to him, requesting him to attend at Mr. Stamp’s mother’s residence to take instructions from Mr. Roche.
On Wednesday, 19th he attended on Mr. Roche in the afternoon and interviewed him while he was sitting in the parlour. There was no one else present, though the first and second named defendants were in the house, having brought him in to meet Mr. Roche. He attended with him for some one and a half to two hours. Mr. Roche seemed very clear minded and gave him details of family members, of assets and of his wishes. He had already details of Folio 6773. Mr. Roche gave him details of cash he held and was fully aware of his assets. He did not have any paper with him. His instructions “came from his head”.
The instructions were used to draft a will and he had said that it would take a day or two and he would come back. However the next day, 20th February 2002, Mr. Stamp rang him to say that Mr. Roche had got a bed in hospital for which he had been waiting and asked if Mr. Murphy could come that day. Mr. Murphy said in evidence that he preferred to see clients at home. He found Mr. Roche in the parlour on his own. He read the will over to him carefully. He raised the issue of tax on the farm bequest and asked for permission to discuss the matter with Mr. Stamp. Mr. Roche agreed. Afterwards Mr. Murphy asked Mr. Stamp to leave the room and continued with Mr. Roche. No changes were made to the will nor did Mr. Stamp get any other benefit.
Mr. Murphy’s wife, who also gave evidence, had come with him and was brought in from the waiting car to witness Mr. Roche’s signature after her husband had witnessed it.
Under cross-examination, Mr. Murphy agreed that there were some discrepancies between the instructions and the drafting of the will. It was the residue that was made subject to the death and funeral expenses rather than the bequest of the farm to the first named defendant as per the instructions. Mr. Murphy did not explain to the testator that this change had been made. Moreover, a provision for abatement in the event that the estate not having sufficient funds to pay the pecuniary legacies was not included. Mr. Murphy was agreed that the wording of references to the Stamp family differed from those to the Elliot’s.
Mr. Murphy also agreed that the will had been drafted by him. No other solicitor in his firm had dealt with it. He understood there was an urgency as the testator had been scheduled to go to hospital. In his opinion there was no need for any medical examination as the testator was in his own environment and was clear minded.
He also agreed that Mr. Robert Stamp was an accountant and as such had a relationship with the firm M.J. O’Connor.
He agreed that Robert Stamp had been told of the bequest and the implications for tax before the will was executed. Mr. Murphy agreed that Mr. Stamp had played a significant role in notifying Mr. Murphy of Mr. Roche’s desire to make a will.
4.2 The court also heard the evidence of Mrs. Mary Murphy, the other attesting witness, who said that she found Mr. Roche sitting in his chair quite bright and smiling and she saw him signing, a little shakily, and then Mr. Murphy signed and she signed and they had no other dealings with Mr Roche.
4.3 Evidence of Bridie Stamp
Mrs. Stamp, the second named defendant, referred to her brother as a quiet, retiring person with whom she had a good relationship. Over the years he used to stay overnight with her on occasions. He stayed with her from Christmas until February 2003.
She referred to her five children and to Robert, the first named plaintiff, helping her brother. She referred to the plaintiff staying with her for four months, three and a half years ago, before she went to the Royal Hospital. There was a good relationship between them and they had no dispute.
When the Deceased had stayed with her at Christmas 2002, he had developed a pain and Robert brought him to a new doctor. They were told that his arthritis could be fatal. He stayed for about seven weeks until 21st February. The witness herself had an operation on 19th March and afterwards she went to her daughter Elizabeth for three weeks to convalesce.
She remembered Tom Murphy, legal executive, coming to the home. She had previously told her brother that he should fix up his affairs but had no conversation with him before Mr. Murphy came. She did not know of his plans. Anna, her daughter and Robert’s sister, helped her washing clothes and bed linen for her brother. Her brother needed lifting, which was done by Robert.
When he came out of hospital he was in good form. He was quite clever despite lack of schooling. He was intelligent and there was no drawback in relation to his business. No one discussed his affairs, or ever forced him. It was no surprise to her that the legal executive came. She did not know that he would leave the farm to Robert, but had expected it.
In cross-examination, she agreed that her younger son, Nicholas, was a farmer. Robert would help her brother in anything he could. She agreed that Robert was on many occasions alone with her brother. Robert may have helped to dress him. Before the Deceased came to them for Christmas he did his own shopping. Afterwards she looked after him.
4.4 Evidence of neighbours
4.4.1 Mr. Aidan Murphy, bachelor, neighbour and friend used to visit the Deceased every Thursday; saw him a month before he went to hospital and noted that he did not like hospital or doctors and had put it off.
Before that, the Deceased came every Thursday night to his home. After he returned from hospital Mr. Murphy visited him three weeks before he died.
He noted that Robert, the first named defendant, was his favourite nephew: he always spoke of Robert, though Mr. Murphy did not know him. He knew his brother Jim alright. He did not see anything wrong with what the Deceased was doing with his farm and agreed that he was competent. Nobody would bully him. He got opinions from others before he acted.
When he saw him three weeks before he died he said that he had fixed his affairs and gave him €50, Mr. Murphy said that “there were no flies on him” and he replied that “if there were, they were all dead ones”. He missed him terribly.
In cross-examination he said that nobody had asked him to give evidence before he got the solicitor’s letter requesting that he attend on 5th October 2006.
4.4.2 Mr. Richard Parle
Mr. Parle was a friend and neighbour and a widower and had received a bequest in the will. He regarded the Deceased as gentle and honest with great memory. He used to come down to his place on Mondays. He saw him when he came back from St. John’s in February, when he went to the Deceased’s home. The Deceased was not very good and was complaining of pains in his hands. Mentally he was very clear and wanted to know what was going on. He saw him the day before he died and he was very good – much better – sitting in the day room of the nursing home in a chair. He was able to get up. The witness was surprised that he had died the following day. He said that he was not bullied, he did what he wanted to do. He had met Robert Stamp when they were testing cattle with the Deceased’s sister Mary and he also knew the Deceased’s sister Anastasia and his nephew Jim Stamp.
In cross-examination he said he did not know the Elliot family as he had been working in the United Kingdom and he was only back from 1994 onwards.
4.5 Evidence of Robert Stamp
Mr. Stamp, an accountant, the son of Bridie, the second named defendant married with three children, all boys. From 1987 he saw a lot of his uncle in relation to cattle, reading his post and paying his bills. Since 1992 he saw him on every Wednesday and Friday night and the Deceased relied on him. He also helped Mary Roche bringing in the hay. He drove the Deceased and his aunts to see the plaintiff in the Royal Hospital every second Sunday.
On Christmas night 2002, he was not well. His doctor had him on painkillers and he told the witness that he would like to change doctors. Mr. Stamp arranged that he meet Dr. Curtis on 3rd January 2003. He was referred to Wexford Hospital for x-rays.
He stayed with his mother, the second named defendant until Dr. Curtin got him to Wexford Hospital under Dr. Riordan, consultant. He had previously stayed with the witness’s mother for a month in 2001, while the witness looked after his stock, and dogs and cats.
On Sunday evening 16th February 2002, he said he wanted to get a solicitor out. The following day the witness contacted M.J. O’Connor’s. Mr. Murphy came out that evening (17th February).
On Wednesday 19th February, he had asked Mr. Murphy to come as his uncle had got a bed in Wexford Hospital for the following day. He came out at dinner time to dress his uncle and to prepare him for the visit with Mr. Murphy. He was not present when his uncle was with Mr. Murphy. He did not know who was going to get what other than Mr. Murphy had told him that his uncle wished to leave him land and expressed a concern about tax. He did not tell anyone. On Friday 21st February, he took him into hospital at 2.00 pm. He said that he never raised his voice to his uncle nor did not pressurise him. He was in hospital for a short time and then came home for approximately three weeks and was to have had home-help, which did not materialise until three days before he went into care.
During that period he brought him to have physiotherapy in St. John’s.
During that period friends visited him – he did not visit anyone. A friend, Jim Casey, suggested a nursing home. The witness rang six, and his uncle agreed and was happy with moving into Lawson Nursing Home which was the cheapest. On Friday 5th April, he settled in remarkably and was a good patient and happy. The witness visited him every night in Lawson. On Friday 2nd May, he had not seen him so well. He was joking, chatty and relaxed. He died the following day.
He said that Niall Elliot, his cousin had telephoned him from Canada on 5th April 2003, to ask if his uncle had made a will.
He said he was surprised on the day that he had got the farm. His uncle had never indicated one iota to whom he would give the farm. He found out after his death that the Deceased had gated a right of way to Jim Casey.
When he left for hospital, his uncle, the Deceased, had asked him to take the cash which was in jam jars in the house and put it into his car for safe keeping.
On cross-examination he said that it had occurred at his uncle’s request. That is what happened, it was not businesslike. His uncle was a quiet and simple, retiring man. He agreed that such people are susceptible to suggestions, but that his uncle was his own man. He acknowledged that his uncle had agreed with him to go to Dr. Curtis. He had quite a degree of contact with him, he helped to dress him during the six week period in his mother’s house, but acknowledged that his mother had said that her brother was capable of dressing himself.
He agreed that when he chose the nursing home that the witness knew that he was a beneficiary. However he said that the deciding factor for his uncle was that it was cheaper.
He said he did contact Mr. Murphy with regard to the will. He agreed that the Deceased was then dependent. His sister Anna lived nearby. He agreed that his uncle made his will after the diagnosis of the illness being fatal.
He said that his uncle had asked for Mr. Murphy, he did know whether he was a solicitor or not.
He said that when it was he knew that the Deceased was going into hospital that his mother asked him to ring Mr. Murphy. He said that he was there before and after Mr. Murphy’s visit and was surprised that (the first visit) lasted a couple of hours. He did not supply any information to his uncle.
His aunts had been very good to his uncle, paying his debts, helping with the harvest and looking after him, even though they were much older than he was.
He agreed that his aunt Anastasia Elliot, the plaintiff, was entitled to enquire into the circumstances of the will and to deal with it with suspicion. There was no correlation between his uncle’s intelligence and his illiteracy.
He had initiated the motion to strike out for want of replies to particulars. As far as he was concerned the will was a valid one, drafted by a firm of solicitors. He agreed that one could have influence over another without raising one’s voice. However he did not pressurise his uncle. He did not develop a very close relationship such as to cause a dependency.
5. Decision of the Court
He agreed that he played a significant role in the will coming into being and that he knew of the benefit before the will was executed.
The court finds that Mr. Stamp gave honest answers, on occasions against his own interest; and did spend considerable time looking after his uncle personally and with regard to his affairs. In the circumstances it seems to the court that the role played with regard to the contacting of the solicitors and in particular the legal executive, Mr. Murphy, was at the behest of the testator. Whatever the views of the testator’s sister with regard to him not countenancing the making of a will, it is clear that due to the circumstances of his illness and, indeed, dependency on his sister, the second named defendant, and on the diagnosis of Dr. Curtis and, indeed, the promptings of his sister in that regard, that the Deceased did decide, without undue or any pressure, to ask Mr. Stamp to arrange that Mr. Murphy visit him for the purpose of instructions.
Having regard to the exhibits in Mr. Murphy’s affidavit of the instructions given, it seems to this court that, other than supplying the Folio number of his farm that the information emanated from the testator and that the detailed instructions were well reasoned and demonstrated a clear testamentary capacity particularly in the light of the evidence given by Mr. Murphy and Mrs. Murphy as attesting witnesses.
It seems to me that the discrepancies – particularly that of the debts and funeral expenses being deducted from the bequest of the farm which is not reflected in the will which had the most deductions from the residue, do not invalidate the will. I have particular regard to the decision of Mitchell v. Gard (33 L.J. p. 7, referred to in Jarman on Wills, (1951) 8th Ed. at 31) where the residuary legatee, who prepared the will, intentionally omitted some legacies to which he had been directed to insert, and the omission was not noted by the testatrix: it was held that the will was nevertheless valid. Probably in such a case the residuary legatee would be held to be a trustee for the disappointed legatees.
In this particular case there was no admission of legacies but rather apparent discrepancies between the instructions, noted by Mr. Murphy on 17th February 2003, and the text of the will executed on 20th February.
I have also considered the apparent discrepancy between the abatement in the event of insufficient assets. Clearly this does not arise and, to a certain extent, can be taken together with the first apparent discrepancy. I have been subject to the actual wording of the will.
The relationship between the first named defendant, as accountant, and M.J. O’Connor, solicitors for the Deceased, was fully acknowledged by Mr. Tom Murphy. The Court has not heard any evidence nor has there been any credible suggestion that such relationship constituted undue influence. The choice of the Deceased was to have M.J. O’Connor draft his will. He had dealt with Mr. Tom Murphy previously. Mr. Murphy had extensive experience in the drafting of testamentary dispositions.
In relation to that will I am satisfied that it was read over to the testator; that there had been no changes as a result of the meeting with Mr. Robert Stamp; that the testator was capable of knowing and did know of the contents of the will and approved of the same by virtue of his signature which was attested to by both Mr. and Mrs. Murphy.
It seems to me that the will did correspond with the provisions of the Succession Act 1965.
It does not seem to me that there was any evidence, notwithstanding the dependency of the Deceased upon the defendants that he was under their dominion and control.
There is ample evidence of the involvement of the defendants in the care of their brother and uncle. The second named defendant looked after him especially from Christmas, 2002 to his hospitalisation on February 21st. The first named defendant looked after his cattle, post and bills from 1987 onwards and saw him every Wednesday and Friday. The second named plaintiff agreed that he did not know the extent of such assistance.
Notwithstanding that the Deceased had little schooling, it is clear that, while being a simple person, he was honest and intelligent in the running of his own affairs. I have no doubt from the evidence of those who were closest to him, both family and friends that he was his own man, not susceptible to pressure or dominion. The second named defendant, his sister who knew him well having lived closest and who was with him in his last few months believed him to have had little schooling but quite clever. Mr. Parle, his neighbour and friend believed him to be mentally very clear. Aidan Murphy said he told him at their last meeting that “there were no flies” on him. No one would bully him. He gave detailed instructions in relation to his assets and in relation to beneficiaries. He may not, indeed, have known the extent of cash assets which, rather carelessly, he had left in his home and had asked his nephew to put in his car for safekeeping. There is no suggestion that his nephew, in gathering up and accounting for that money, has been in any way unprofessional. He followed the directions given by his uncle with regard to his safekeeping even if, understandably, he had regarded as being imprudent to have left it in the car.
Accordingly, the court will find that the will was executed in accordance with the provisions of the Succession Act 1965. While the second question, whether the testator was of sound disposing mind, was not pursued by the plaintiffs, nor indeed was there any necessity to call either Dr. Curtis nor Dr. Riordan, the court should confirm that the allegations that the Deceased was not of sound disposing mind on the date of the execution of the same, had no foundation in the evidence heard by the court.
The main thrust of the plaintiffs action related to the third question which, by order of Mr. Justice Quirke, dated 23rd June, 2006, was one of the issues to be tried.
The court has carefully considered all of the evidence. It is clear that the evidence and commission of the plaintiff, at its height, suggested that her brother would not have made a will at all or, would have made a different will, is not evidence of undue or any influence.
The evidence of Miss Roche goes no further. The evidence of Mr. David Elliot and that of his brother Niall Elliot is that the confluence of circumstances whereby the first named defendant, the executor of the will, was sufficient to ground evidence of undue influence. The court must say, in emphatic terms, that there is no evidence of undue influence disclosed; that the onus of proof in relation to undue influence is clearly on the plaintiff and has not been discharged and, indeed, that the confluence of circumstances does not, in any event, give rise to a suspicion let alone proof of undue influence.
In this regard the court has considered the particulars in the statement of claim and in the reply. There is no evidence whatsoever of dominion and control.
The allegation that the Deceased was not hospitalised after Christmas 2002, notwithstanding that he was quite ill, unable to sleep, unable to walk and was in a very bad way and that the defendants, in those circumstances took control of the Deceased who appeared to be terminally ill was unfounded. Indeed the first named defendant did bring the Deceased to Dr. Curtin on 3rd January, 2003 who, in turn obtained a bed for the Deceased on 21st February, 2003. None of the defendants referred to his being unable to sleep, unable to walk and being in a very bad way. The allegation that the Deceased “should be in hospital at a time when he was being detained under the control of the defendants” was not proved; there was no evidence that he should have been in hospital at an earlier time; that he was being detained nor that he was under the control of the defendants.
No evidence was given that the first named defendant was in “a position to wield authority over an individual particularly an elderly vulnerable individual. Neither was there evidence that the will was made at the behest and instigation of the defendants or either of them. Nor was there any evidence as to the necessity for the Deceased to comply with their requests or that he would be cut off from the affection of the defendants. It was not proven that the Deceased was in a vulnerable position and lacked the ability to resist the pressure and/or demands and/or requests of the defendants or both of them to execute the pretended will in the terms thereof”. There was no evidence of the Deceased being in fear of not complying with the alleged requests.
Moreover, the particulars given in the reply of 31st May 2005, that the documents relating to the preparation of the alleged pretended will “demonstrate that the first named defendant was actively involved in the procuring of the execution of the said will and repeatedly liaised with the solicitor drafting same, both in relation to the drawing up of the said will and its execution” were not proven.
The evidence adduced before the court does not substantiate such an allegation. In particular, the alleged liaison was not substantiated.
The court has had regard to the references to the case law in Brady: Succession Law in Ireland, 2nd Ed. (1995) at 2.91 to 2.94 in relation to the existence of a particular relationship between a testator and a beneficiary not giving rise to a presumption of undue influence. The court considers that the other circumstances surrounding the making of the will which could give rise to such a presumption where testators have been elderly or physically infirm did not arise in the present case.
Brady, following Mellows advised that where there is any doubt about the strength of the evidence in relation to undue influence, where moral guilt is necessary, it is better to issue processes only requiring proof that the testator knew and approved of the contents of the will.
The definition of undue influence including importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or for escaping from the stress of mind or social discomfort, these have carried to a degree in which the free play of the testators judgment, discretion or wishes is overcome, will constitute undue influence is such as to render it inadvisable to plead on the basis of suspicion only.
This is so notwithstanding the matter of public policy wherewith wills should be open to scrutiny and to be found free of suspicion as adumbrated by Budd J. in Re: Morrelli; Vella v. Morrelli [1968] I.R. 11. In that case Budd J. at 34 stated:
“In our country the results arising from the testamentary disposition of property are a fundamental importance to most members of the community and it is valid that the circumstances surrounding the execution of testamentary documents should be open to scrutiny and be above suspicion. Accordingly, it would seem right and proper to me that persons, having real and genuine grounds for believing, or even having suspicions, that a purported will is not valid, should be able to have the circumstances surrounding the execution of that will investigated by the court.”
This, of course, relates to the circumstances of the execution of testamentary documents and may, indeed, include allegations of undue influence.
However, a balance has to be made between the will being executed in accordance with the provisions of the Succession Act and the testator being of sound disposing mind, on the one hand, and more tendentious allegations of duress or undue influence based merely on suspicion.
In the estate of Thomas Wilson Potter deceased: Potter v. Potter (Unreported decision of the High Court of Justice of Northern Ireland, delivered 5th February 2003), Gillen J. held at para. 18 that he had found no evidence at all in that case to ground such a suspicion. On the contrary, all of evidence heard relevant to the period in question, pointed in the opposite direction. The burden of proving undue influence was on the person alleging it. He referred to Wingrove v. Wingrove (1885) 1 P.D. 81, where Sir James Hannen stated that to be undue influence in the eyes of the law there must be – to sum it up in a word, coercion:
“It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do that it is undue influence.”
Later, at para. 25 it was held:
“Proof of motive and opportunity for the exercise of undue influence is required but the existence of such coupled with the fact that the person who has such motive and opportunity has benefited by the will to the exclusion of others is not sufficient proof of undue influence. There must be positive proof of coercion overpowering the volition of the testator. I reiterate that there was absolutely no evidence of any such influence in this case. The evidence has satisfied me that the Deceased was perfectly able to conduct his own affairs and was capable of resisting any undue influence if it had been brought to bear upon him. Despite all the efforts of well intentioned people to have him change his mode of living to embrace modern facilities, he resisted this and lived exactly as he wanted to. He was not a man to succumb to blandishment or coercion. Much less influence of course will induce a person of weak mental capacity or in a weak state of health to do any act and in such circumstances the court will more readily find undue influence. I repeat that in this case I have found no evidence of weak mental capacity or a weak state of health at the time this will was made. The deceased had the benefit of independent advice from Mr. McRoberts Solicitor.”
It seems to be that the circumstances in that case have some relevance to the present case.
The court has found that there is no evidence of weak mental capacity or indeed, despite the illness of Mr. Roche, a weak state of health that would have made the testator more susceptible to undue influence. Moreover, the Deceased had the benefit of independent advice from a legal executive of some thirty seven years standing. In the circumstance the court finds that the will was not procured by duress or influence of the defendants or either of them.
Lambert v Lyons
[2010] IEHC 29
JUDGMENT of Mr Justice Roderick Murphy delivered the 26th day of January, 2010.
1. Overview
The deceased, Charles Gordon Lambert (Mr. Lambert) was born on 9th April, 1918, qualified as a chartered accountant and had a distinguished career as managing director and chairman of W. & R. Jacob plc, a patron of the arts and a senator in Seanad Éireann.
He died on the 27th January, 2005 aged 86 years of age, single and without issue.
By his Will dated 21st August, 2003, and codicil made on 21st May, 2004, he appointed the defendants as his executors and trustees. He left certain pecuniary legacies to his nephews and to his brother and further legacies to his nephews including the first named plaintiff and nieces and goddaughter, the second named plaintiff. A pecuniary legacy was also left to both Olive Beaumont and Catherine Marshall, the second and third named defendants. A pecuniary legacy was left to the Gordon Lambert Charitable Trust at the Irish Museum of Modern Art of which Catherine Marshall was and remains as Curator.
One quarter of the residue was left to certain family members and a further quarter to other family members with a cap of €100,000 per beneficiary.
Three eighths was left to Mr. Anthony Lyons, the first named defendant (Mr. Lyons), and one eighth to Catherine Marshall, the third named defendant (Ms. Marshall).
The realisation of the assets, in particular, the value of Mr. Lambert’s residence exceeded the sum of the schedule of assets prepared by him some time before making his last Will and testament.
The effect of the increased valuation was to benefit the residuary legatees whose legacy was not capped, that is to say, the first and third named defendants, Mr. Lyons and Ms. Marshall.
Mr. Lambert had been ill for some years with Parkinson’s disease before he died. On 15th March, 2007, the Will was impounded on the application of the plaintiffs herein.
There is a provision in the Will disinheriting those who challenged the Will.
Mr. Lambert had executed an enduring power of attorney on 17th November, 1997, at a time he was diagnosed with Parkinson’s disease which was some seven years before his death at age 86.
The enduring power of attorney was duly registered on 12th January, 2003, two years before he died. His attorney was Mr. Lyons.
The Last Will and Testament was preceded by 30 previous Wills and codicils, executed between 8th June, 1979 to 21st May, 2004 all of which were drawn up by and on the advice of the testator’s solicitors McCann Fitzgerald. The successive drafts reflected, in part, changes in the Finance Acts and, in particular, in the thresholds for Capital Acquisition Tax.
Mr. Lyons was first included as a beneficiary under the sixth Will of 22nd October, 1985, in the sum of £1,000 which increased gradually to £5,000 in three successive Wills from 1993 to 1994. The sum increased from £12,000 to £25,000 between 1996 and 1997. In 1997, Mr. Lyons was also included as entitled to the income on £100,000 from the residue of the estate.
By the Will of 7th April, 1999, the pecuniary legacy had increased marginally to £26,000 and the sum of £100,000 from the residuary.
By the Will of 14th April, 2002, Mr. Lyons became entitled to a pecuniary legacy of €200,000 plus.
The residue in the Will of 21st August, 2003, with some changes to the membership of the class already referred to, benefited two residuary classes, capped at €100,000 for each member of that class. Three-eighths and one eighth of the remainder of the residue benefited Mr. Lyons and Ms. Marshall respectively.
The balance of the residue in previous Wills from 2000 to 2002 had benefited a named class of residuary legatees.
In the third last Will of 9th August, 2001, 10% of the balance benefited the Parkinson’s Association of Ireland, 5% benefited the Charles Gordon Lambert Trust and the remaining 85% benefited the named class of residuary legatees.
The Wills were drafted by Patricia Rickard-Clarke and after Ms. Rickard-Clarke became a Law Reform Commissioner by Susan O’Connell. Each was drawn up following detailed attendances on Mr. Lambert.
The latter attendances on Mr. Lambert by Patricia Richard-Clarke and Susan O’Connell and Cormac Brennan of McCann Fitzgerald adverted to concerns that the Will might be challenged.
A questionnaire drafted by Mr. Lambert on 2nd April, 2003 and addressed to his family, inter alia, asked whether Mr. Lambert was not allowed to decide his future.
Correspondence between Mr. Lambert and his brother, Hamilton Lambert, known to his family as Ham, and between Mr. Lambert and June Lambert, the second named plaintiff, from April, 2002, indicate concerns regarding Mr. Lambert’s relationship with his family. Hamilton Lambert though older, died after Mr. Lambert and before these proceedings commenced.
A schedule of his assets on 1st August, 2003, included a valuation of his dwelling house in the sum of €680,000. His solicitor, Susan O’Connell, though not a valuer, believed it to be worth €1 million. After death two valuations for probate were obtained for €2 million and €2.75 million. The reserve for auction in April 2006 was €3 million. When it was sold in April 2006 it realised €4.5 million when it was purchased by a developer.
2. Pleadings
2.1 Plenary summons
By plenary summons dated 15th March 2007 the plaintiffs claimed an order striking down the Will of the deceased dated 21st August, 2003 in a codicil thereto dated 21st May, 2004 on the grounds that the same were extracted under duress and undue influence exerted by the first named defendant and admitting the Will of April 2002 to probate as the valid Last Will and Testament of the deceased.
The statement of claim served under cover of letter dated 29th May, 2007 stated that the deceased died a bachelor leaving no issue. The first named plaintiff is a nephew of the deceased and the second named plaintiff is a niece and godchild of the deceased.
The first second and third named defendants are executors under the deceased’s purported Will of 21st August, 2003 and codicil dated 21st May, 2004. At all material times the executors had been responsible jointly and severally for the execution of the purported Will and codicil. The first named defendant was appointed as the attorney of the deceased by enduring power of attorney dated 17th November, 1997.
It is alleged in the statement of claim that the first named defendant had placed such pressure and influence on the deceased as to sap his free will and that the influence and pressure applied amounted to duress and undue influence such that the testator could not really dispose of his assets by way of testamentary disposition and the said purported Will was inconsistent with the deceased’s previous conduct, and attitude towards his relatives.
Ten particulars of duress and undue influence were given as follows:
A. The deceased, who had been suffering from Parkinson’s disease, was reliant on the first named defendant to organise all his daily affairs, including but not exclusively the arranging, procurement and payment of all household food and goods, outgoings, insurance, taxes, utilities, fuel and nursing and cleaning staff.
B. The first named defendant threatened the deceased that he would resign his power of attorney unless the deceased ceased communications with the Lambert family.
C. The plaintiffs and other members of the Lambert family were prevented from speaking to, calling into, or seeing the deceased since 2002, despite the deceased’s having had up to that point a close and affectionate relationship with his relative.
D. The deceased had been informed by the first named defendant that his brother Ham Lambert, (the first named plaintiff’s late father) had been hiding in the deceased’s house.
E. The first named defendant alleged that the other members of the Lambert family had been unkind to him.
F. The first named defendant refused to allow further contact between the deceased and the new vicar of his parish.
G. The first named defendant so overbore the will of the testator that the testator was in fear of him.
H. The first named defendant, although appointed as attorney of the deceased, failed to act on the instructions of the deceased as to his testamentary intentions and purposes.
I. The first named defendant in breach of duty and fiduciary duty as attorney of the deceased abused his position and power so as to apply duress and undue influence to the deceased in the disposition of his Estate.
J. It was further stated as follows: “(t)he plaintiffs will rely on such further particulars as may be adduced in evidence between now and the trial of the action including those which may be within the power of proof of the defendants and not the plaintiffs any which may be implied and could reasonably be inferred from any document provided.”
The statement of claim further stated that the first named defendant had represented on several occasions to the second named plaintiff and others that the deceased, in the weeks and days just before his death, had indicated in clear terms that he wished to alter his Will, replacing the third named defendant with the second named plaintiff but due to the unavailability of a solicitor, the amendments were not and could not be made.
It was further stated that the first named defendant had continuously represented to the second named plaintiff that he was using his best endeavours to make the alterations to the deceased’s Will as per his dying wishes and he reassured the second named plaintiff that he would not sign anything in relation to the Will until all the deceased’s wishes were honoured and based on those representations and in reliance thereof the plaintiffs initially did not exercise their statutory rights to challenge the Will in early course.
The plaintiffs stated, as a part of a class of persons who would be likely to succeed on intestacy and or the next of kin, are concerned that their uncles last Will and codicil and the circumstances should be investigated by the Court for the benefit of the estate and in the interest of public policy that the Will should be seen to have been made without direct, indirect, implied or inferred interference.
2.2 Particulars of Claim
By notice of particulars the second and third named defendants asked the plaintiffs to state why and the manner in which it was alleged that the executors had been “responsible” for the execution of “the purported Will” and codicil and in what manner such alleged responsibility was joint and several.
The plaintiffs replied that that was a logical inference and a matter of law as the second and third named defendants were joined as executors. The statement of claim pleaded wrongdoing on the part of the first named defendant.
The defendants asked the plaintiffs to say precisely how it was alleged that the “purported Will” was inconsistent with the deceased’s previous conduct and attitude towards his relatives. The plaintiffs replied that that was a matter for evidence. The plaintiffs would say that the deceased had been on very good terms with them and with his other relatives and that they were prevented from communications with the deceased after a spell in hospital and it was believed that this was on the instructions of Mr. Lyons.
The next particular in relation to the alleged duress and undue influence asked what, when and to whom was it alleged that the first named defendant “threatened” the deceased, with which members of the Lambert family was it intended that the deceased would cease communications and what the plaintiff’s means of knowledge was in relation to the manner.
Further particulars were raised in relation to each member of the Lambert family who was prevented from communications in the circumstances in relation thereto.
The plaintiffs replied that that was a matter for evidence but then instanced seven matters. Pauline Slater, the deceased’s housekeeper, would give evidence as to Mr. Lyon’s conduct in respect of this and other particulars; the deceased’s brother Ham Lambert and the second named plaintiff who had been the deceased’s goddaughter, confidante and trustee of the Lambert Trust, were those who it was alleged were prevented from speaking to, calling into or seeing the deceased since 2002.
The defendants asked the circumstances of Ham Lambert’s hiding in the house and whether the plaintiffs were informed of this matter, and if so, by whom. The plaintiffs replied that “Ham Lambert was not in the house in respect of this incident. Ms. Slater, the housekeeper will give the evidence.”
It was asked when it was alleged that the first named defendant refused to allow the “new vicar” to contact Mr. Lambert and how that was known by the plaintiffs. The plaintiff said that that was a matter for evidence and interrogatories.
The second and third named defendant asked what manner and in what circumstances was it alleged that the deceased was in fear of the first named defendant and when such alleged fear arose. It was replied that that was a matter for inference from other particulars raised together with the evidence supporting same.
The notice for particulars also asked what it was alleged were the testamentary instructions and purposes of the deceased, the nature of the plaintiff’s awareness of the deceased’s supposed testamentary instructions and purposes and how it was alleged that the first named defendant failed to act on the deceased’s instructions. The reply was that the first named defendant had informed the plaintiffs that the deceased in his dying hours indicated that he wanted his Will changed and the position of his family members reinstated as per previous intentions, and that the solicitor responsible could not be contacted or did not respond, thus preventing the deceased’s dying wishes being implemented.
In relation to that matter particulars were raised as to whom the first named defendant had made representations, what the deceased intended by wishing to alter his Will, replacing the third named defendant with the second named plaintiff, on what occasions did the first named defendant make such alleged representations and what amendments the deceased wished to make. The plaintiffs replied that that was a matter which should be raised with the first named defendant.
Finally, the second and third named defendant asked in relation to the alleged continuous representation and alleged reassurance of the first named defendant when and what was alleged to be the deceased’s “dying wishes”, how these were made known to the plaintiffs and what was conveyed by the alleged assurance that the first named defendant would not sign anything in relation to the Will until all of the deceased’s wishes were honoured. The plaintiff’s reply given was that these were matters which should be raised with the first named defendant.
2.3 Further and better particulars
By notice for further and better particulars dated 2nd October, 2007, the second and third named defendant said it was not acceptable to say in general terms that the particulars of duress and undue influence would be a matter for evidence. Reference was made to O. 19, r. 6 of the Rules of the Superior Courts, 1986, in relation to pleadings of undue influence which required particulars of the names of the persons against whom the charge of undue influence was preferred, the nature of the conduct alleged to constitute the undue influence and the dates upon which the acts alleged to constitute undue influence were exercised.
Those defendants further maintained that it was entirely illegitimate to refuse any information whatsoever on the basis of the reply that the second and third named defendant should make their own inquiries with the first named defendant.
It does not seem that there was a reply to these particulars.
The first named defendant also raised particulars in relation to similar matters on the 16th June, 2008. It would appear that there was no reply to these particulars.
2.4 Amended Defence and Counterclaim of the First Named Defendant
Mr. Lyons denied that he placed any pressure on the deceased in any respect or that he exerted any influence or that any alleged pressure or influence, which was denied, amounted to duress and undue influence on the deceased. The testator disposed of his assets in accordance with his own free will and any and all allegations to the contrary were denied and traversed seriatim.
Paragraph A of the particulars of duress and undue influence was a statement of fact and not a particular of the alleged duress and/undue influence. Such particulars were denied and the plaintiff was put on full proof.
Mr. Lyons denied that he represented on several occasions, or at all, to the second named plaintiff that the deceased, in the weeks or days just before his death, had indicated in clear terms that he wished to alter his Will as alleged, or at all. He denied that he continuously, or at all, represented to the second named plaintiff that he was using his best endeavours to make any alterations to the deceased’s Will as per his dying wishes or otherwise. He denied that he had reassured the second named plaintiff that he would not sign anything in relation to the Will until the deceased’s wishes (as alleged) which was denied, were honoured. He denied that the plaintiffs failed to expedite their statutory rights to challenge the deceased’s Will in early course based on any representations made by him as alleged or at all.
Mr. Lyons said that the plaintiffs claim was spurious and opportunistic and an abuse of process. He categorically denied any allegation of duress and undue influence and any alleged interference with the testator’s wishes. The Will and codicil was the last Will and testament of the deceased, made entirely of his own volition without any interference by Mr. Lyons and, accordingly the plaintiffs were not entitled to the reliefs claimed or any relief.
Mr. Lyons counterclaimed that the deceased made and executed the testamentary document on the 21st August, 2003, and the codicil on the 21st May, 2004, in accordance with the provisions of the Succession Act 1965, and that the said documents constituted the deceased last Will and testament. The deceased died on the 27th January, 2005, without having altered or revoked the said Will or the said codicil and a grant of probate was issued on the 7th March, 2007. This grant was recalled by order of the High Court made on the 15th March, 2007, following an application made by the plaintiffs and a citation issued.
Mr. Lyons counterclaimed that the Will and codicil were drafted by solicitors well known to the deceased who had acted on his behalf and who had been familiar with his affairs for over twenty years. The Will and codicil were respectively witnessed by two solicitors well known to the deceased. On the occasion of the execution of both the Will and of the codicil the deceased was medically examined, prior to execution, and found to have testamentary capacity. All present were satisfied on each occasion that the deceased was of sound mind, memory and understanding and was acting freely and voluntarily.
The plaintiffs had been furnished with extensive documentation including all previous Wills and codicils, full and complete attendances and affidavits, setting out the detailed circumstances in relation to the taking of instructions, drafting and execution of the Will and codicil. They had been furnished with medical reports confirming the deceased’s testamentary capacity.
The first named defendant counterclaimed for an order establishing the Will and codicil and admitting same to proof in solemn form of law and, if necessary, an order setting aside the citation entered.
2.5 Defence of the Second and Third named Defendant
Olive Beaumont and Catherine Marshall denied that either, in their capacities as executors, or at all, they had been responsible (either jointly or severally) for the execution of the last Will and testament and codicil as alleged in the statement of claim. They admitted that the first named defendant had been appointed attorney of the deceased pursuant to an enduring power of attorney dated the 17th November, 1997.
They were strangers as to the allegation that the first named defendant placed any pressure or influence on the deceased. They were unaware of any evidence to support that suggestion and awaited proof of that allegation. They denied that, if proved, any such pressure and influence amounted to duress or undue influence such that the deceased could not freely dispose of his assets by way of testamentary disposition. The Will and codicil was not inconsistent with the deceased’s previous conduct and attitude towards his relatives. Even if this were so, they denied that that constituted an act or conduct resulting from duress or undue influence or that it was inconsistent with the deceased’s freedom of testamentary disposition.
The particulars of alleged duress and undue influence (including the particulars set forth at paras. A to J in the statement of claim) were denied.
The deceased at the time he executed the Will:
(I) Was of sound disposing mind capable of forming the testamentary intentions embodied in the will,
(II) Was of sound memory able to recall several persons who ought to have been considered as his possible beneficiaries,
(III) Was of sound understanding comprehending the various ties of such persons with him by blood or friendship, and their claims on those or other grounds upon his testamentary bounty,
(IV) Was capable of understanding the effects of the Will, and knew and appreciated the full nature of his estate,
(V) Had the benefit of independent legal advice.
The second and third named defendants say that they were strangers to the matters pleaded in relation to the alleged representations made by the first named defendant to the second named plaintiff.
A counterclaim followed in relation to the establishment of the last Will and codicil and asked for an order establishing same to proof in solemn form of law.
2.6 Order of the Master
By order dated the 12th November, 2008, the Master of the High Court ordered that the action be set down for trial before a judge without a jury and that the issues to be tried were:
(a) Whether the first named defendant, his servants or agents exercised duress or undue influence over Mr. Gordon Lambert deceased, (“the deceased”) of such a character as to deprive him of his free will and in connection with the disposition of his Estate in respect of his Will dated the 21st August, 2003, and the codicil to that Will dated the 21st May, 2004.
(b) Whether the testamentary document executed by the deceased on the 21st August, 2003, and the codicil to the Will executed by the deceased on the 21st May, 2004, should be admitted to probate if necessary in solemn form.
(c) If the Will dated the 21st August, 2003, and the codicil to that Will dated the 21st May, 2004, struck down by the Court whether the Will of the 13th April, 2002, and the codicil to that Will dated the 18th May, 2002, should be admitted to probate and if necessary in solemn form.
2.7 Reply
The plaintiffs reply, also of the 12th November, 2008, denied the particulars in the defendants defences, denied that the deceased made his last Will and codicil freely and without influence being exerted upon him and, if, which was denied, the deceased made a full and free disposition of his assets or any part thereof by his last Will and the codicil thereto, the same could only be reasonably be said to have occurred to the extent that such disposition was for the benefit of persons other than the first named defendant.
The plaintiffs repeated their claim and further said that a previous Will, that of 2002, prior to the deceased’s admission to hospital, or other previous testamentary dispositions of an earlier date than the said 2002 will, should be admitted, or in the alternative such alteration of any such document as would, in the opinion of the Court, give effect to the intentions of the deceased free from any duress or undue influence.
3. Legacy to Anthony Lyons
An overview of the 31 testamentary dispositions made by the deceased over 26 years from 8th June, 1979 to 21st May, 2005 has already been referred to. The detail of the benefit to Mr. Lyons in the Will of 21st August, 2003 and the codicil of 21st May, 2004 are contained in Clause 3(a) and (b) and in Clause 7(a) and (b) as follows. There is also a further clause regarding challenges to the provisions of the Will at Clause 8.
(a) I give for his own use, absolutely, the sum of €250,000 (Euro 250,000) to Anthony Lyons, acquaintance of over thirty years, whose steadfast care and attention in my progressive illness has enabled me to live a life of mobility, good humour and close association with my trusted friends. In my direst need, he has never failed me.
(b) For the avoidance of doubt, I confirm that the proceeds of investment account with Northern Rock, which is held in the joint names of myself and Anthony Lyons, is to pass, absolutely, to Anthony Lyons . . . .
Residue
I GIVE, DEVISE AND BEQUEATH ALL THAT the rest, residue and remainder of my estate as follows:
(a) As a first charge on the residue, I GIVE the sum of €50,000 (EURO 50,000) to Tony Lyons and Catherine Marshall to be expended by them on the publication of biography to include the different aspects of my life – in Jacobs, in Seanad Éireann, as Senator of the Junior Chamber, International, as a member of the Arts Council of Northern Ireland, as an art collector, as a member of the Lambert and Mitchell families and the many associations, economic and cultural, included in my career profile and the many awards received by me during my lifetime, including the first ever lifetime award given by the Business to the Arts.
(b) I GIVE the absolute residue of my estate to my Trustees upon trust either to retain or sell it on the following trusts:
• As to one-quarter share (up to a maximum value of €100,000) to be divided equally between my nephew, Bruce Lambert, my niece, Janette, my nephew, Mark, his wife Hedda and my brother Hamilton’s, grandchildren, Ben, Jessica, Mayla, Molly, Daniel and Louis, for their own use absolutely;
(as substituted by the codicil of 21st May, 2004)
• As to one-quarter share (up to a maximum value of €100,000) to be divided equally between my nieces, Valerie Rohan, June Beverly Gordon Lambert, and the grandchildren of my late brother, Thomas, Catriona and David, or the survivors of them absolutely;
• As to three-eighths share to Anthony Lyons absolutely;
• As to one-eighth share to Catherine Marshall absolutely.
Subject to the foregoing, and if and so far as any of the shares are not wholly disposed of for any reason whatever, then any remainder shall pass to Anthony Lyons absolutely. In the event that Anthony Lyons shall predecease me or die before taking a vested interest under my Will, then the share which he otherwise will have taken shall be taken by the Modern Art Trustees as defined above.
The codicil of 21st May, 2004 had added a bequest as new Clause 5(e) of €15,000 as capital sum to
the trustees (the “Modern Art Trustees”) of the Charles Gordon Lambert Charitable Trust (CHY 11567) (the “Charitable Trust”) settled by me by Deed of Trust dated 30th January, 1992 (the “Deed of Trust”). … for the purposes of issuing a catalogue maintaining, exhibiting or adding to the Art Collection as specified in Clause 6 (objects Clause) of the Deed of Trust.
Challenges to Will Provisions
I DIRECT that if any beneficiary of this, my Will, seeks to question, challenge, disagree with or take legal action of any kind whatsoever against my Estate in respect of my Will, that person shall be automatically disinherited and they shall receive no benefit from my Will, and the benefit which they would otherwise receive shall fall into the residue of my Estate.
This clause shall override everything previously stated in my Will.
4. Attendances and Instructions of the Deceased
By written Attendance dated 19th February, 2003, Cormac Brennan noted that he attended with Susan O’Connell (S.O’C.) at a meeting with Mr. Lambert (G.L.) at his home.
The attendance referred to G.L.’s concern as to what would happen to his property and affairs after he departed this life and said that he wanted to make a new Will. S.O’C. explained that under the Enduring Power of Attorney, which had been registered, Tony Lyons had authority to look after his property and affairs for the remainder of his life. After he passed away, his executors (the defendants herein) would look after his affairs in accordance with the terms of his Will.
G.L. is recorded as saying: “we should include the words ‘my great friend and attorney’ before Tony’s name in paragraph (a) of the executor’s clause in order to identify him”.
In relation to Anthony Lyons (Tony), S.O’C. explained that the legacy which was left to him at present was €250,000, as G.L. had amended his Will by a codicil dated 8th May, 2002. G.L. said that he understood this and wished that this legacy should be put at the top of the list. He said that, even in his worse moments, Tony had always had the ability to make him laugh.
G.L. began to speak of the ongoing disagreements which he had with his brother, Hamilton (referred to as “Ham”). He said he had implied to S.O’C. that he hoped never to see Ham again, but now felt that bridges might be mended between himself and his brother if Ham would agree to apologise to Tony. S. O’C. said that she felt that this was a good idea. She said that she had explained to Ham that G.L. did not wish to speak to him for the time being because of the way that Ham had treated Tony, who had been such a good friend to G.L.
The attendance recorded S.O’C.’s concern that Ham and/or his family might object if G.L. amended his Will at this stage, given that an Enduring Power of Attorney had been registered. S.O’C. said that the changes which G.L. wished to make to his Will were small, but that a doctor had certified that G.L. was becoming mentally incapable in order to enable the enduring Power of Attorney to be registered. S.O’C. said that she was certain that G.L. was capable of dealing with his affairs and had the capacity to make a Will, but that if G.L. intended to change his Will, we must have a certificate from Dr. Gleeson to certify that G.L. had testamentary capacity. S.O’C. said that there was no difficulty here, but that she was concerned that if Ham and/or his family were unhappy with the changes that G.L. intended to make to his Will, they might challenge it on the grounds that G.L. lacked testamentary capacity. They might also allege that G.L. was under the influence of Tony, but S.O’C. said she was certain that this was not the case, as G.L. was a man of his own mind.
S.O’C. said that if G.L. felt that bridges could be mended between him and Ham, that she would speak to Ham about this. She added that G.L. should feel under no pressure from Ham.
S.O’C. said that the reason she was concerned about a possible challenge to the Will was that she would prefer that the assets of the Estate were not wasted in defending litigation in respect of G.L.’s capacity to make a new Will. G.L. said that he would speak to Ham about this, and explain that Ham’s family would get nothing from the Will if the money in the Estate was dissipated in defending litigation.
S.O’C. suggested that, as a first step, G.L. might think about contacting Ham and possibly setting up a meeting to speak with him. G.L. said he would first ask Tony whether he was willing to accept an apology if Ham was willing to apologise to him. S.O’C. said that this was a good idea and added that G.L. should not discuss with Ham the contents of his Will but could, if he decided, say that he would exclude Ham and his family from the Will if Ham did not apologise to Tony. S.O’C. said that should G.L. wish to meet Ham, the arrangements for the meeting should be on G.L.’s terms. G.L. said that his doctor had told him that he should have someone to accompany him when he meets Ham, and S.O’C. agreed that this was for the best, and suggested that possibly one of his carers might accompany him and make sure that Ham did not put him under any pressure.
S.O’C. said that the difficulty here was caused by Ham, as he had behaved badly, and had not tried to mend the bridges between himself and G.L. S.O’C. said that she felt that Ham wanted to have a relationship with G.L., but was having difficulty admitting that he was in the wrong. S.O’C. added that Ham had told her that he was very sad about the situation and found it difficult to accept that he would not speak to his brother again for the rest of his life. S.O’C. assured G.L. that he now had control over the relationship between himself and Ham, and that if he wished to speak to Ham, it should be on G.L.’s terms. S.O’C. reminded G.L. that Ham had no control over G.L.’s affairs, as the Enduring Power of Attorney had been registered . . .
S.O’C. suggested to G.L. that she would do nothing in relation to amending G.L.’s Will until G.L. spoke to Tony about Ham, and then, possibly, she or G.L. could speak to Ham to arrange a meeting between G.L. and Ham, if this was G.L.’s wish. S.O’C. said that if G.L. wanted to amend his Will, it was better to make all amendments at the same time, and that it was therefore best to wait until G.L. had decided what he wished to do with the residue of his estate. G.L. agreed, and said that he would be in contact with S.O’C. to let her know how the conversation with Tony had gone.
In a further written Attendance of 15th August, 2003, made within a week of the execution of his final Will, Cormac Brennan noted that he attended, with S.O’C. at Mr. Lambert’s house. Mr. Lambert thanked him for sending out the redrafted Will so quickly and said he was broadly happy with the Will revisions, subject to a number of amendments. He said he wished the maximum amount of the share in Clause 7(b) to each of his nieces and nephews was to be €100,000. He said that he wished one and a half shares to be given to Mr. Lyons and therefore only one-half share to be given to Catherine Marshall. S.O’C. said that “we would redraft the residue clause to reflect his wishes”.
S.O’C. asked why he had decided to limit the first two shares to a maximum value of €100,000 each. G.L. said that he did not wish that any of the beneficiaries of the first two shares would receive more from his residue than the share of the maximum amount of €100,000. G.L. said that he was concerned that he might have to dip in to his assets as time went by and there might not be enough funds to satisfy all bequests that he wished to make. S. O’C. explained how bequests would abate if there are insufficient funds to satisfy all of them, but G.L. said he wished to limit the size of the shares to go to his family in that way.
S.O’C. explained her concerns regarding the reduction in the legacies to Bruce, Janette, Mark, Valerie and June in comparison to what they would have received under the 2002 Will. S.O’C. said that it was possible that the family could challenge his new Will on the grounds that D.L. influenced him unduly and caused him to amend his Will in this manner. S.O’C. said that she knew this was not the case and that the family relationship had deteriorated since the Enduring Power of Attorney was registered, but added that the family might argue that T.L. had closeted G.L. away, and that the legacies to the family were reduced in a Will executed during this time. S.O’C. said that she knew that this accusation would be groundless, but it was possible that the family would pursue it. S.O’C. explained that, if the family managed to have the new Will overturned by the courts on the basis of undue influence, it would be disregarded and the terms of the 2002 Will would prevail. S.O’C. said that it was clear that T.L. did not influence him unduly, but he should consider his situation from an objective point of view, as he is quite dependent on T.L. in his day-to-day affairs.
The attendance notes that G.L. was adamant that he wished to amend his Will in the above manner. The attendance then referred to the availability of Dr. Gleeson and to a letter which G.L. had received from June Lambert. G.L. is recorded as saying that he was extremely angry with what she had written in that letter. S.O’C. suggested that, if G.L. wished to write to June, he should try to keep the letter short and that the main point should be that, as he said during their last meeting, unless the family apologised to T.L. and recognised the work he has done in support of G.L., then G.L. would not be willing to see them. S.O’C. suggested that this letter should not be typed on T.L.’s typewriter, as this could be misconstrued as to support the family’s belief that T.L. is influencing him unduly. G.L. said that he would think about this and revert to his solicitors.
By manuscript spreadsheet of August 2003, Mr. Lambert had outlined what he termed the estimated implications for Capital Gains Tax of his testamentary dispositions. He listed pecuniary and specific legacies, charitable gifts in addition to trusts in the sum of €872,000 and a residue of €400,000 giving a total of €1.272 million.
In a row headed Anthony Lyons he listed a pecuniary legacy of €250,000; a specific legacy of €70,000 and a residue of €150,000 being a total of €470,000.
Among his assets he indicated a value of €600,000, in respect of his dwelling.
A further attendance note by Susan O’Connell on Mr. Lambert dated 18th August, 2003, stated that Mr. Lambert confirmed that he was very happy with the draft Will received that morning. He referred to some amendments regarding his membership of the Junior Chamber International and Arts Council of Northern Ireland. Reference was made to the letter to June Lambert and to Padraig Madigan, the solicitor who had written to McCann Fitzgerald on behalf of Mr. Lambert’s family. He said it would be helpful if Susan O’Connell put a couple of points down to help him consider what comments he should make to June.
The following day the attendance noted that Mr. Lambert had asked Cormac Brennan to remove the reference to Sue Lambert in his Will at clause 7 (b) and substitute Jean Lambert.
On 21st August, 2003 Cormac Brennan attended a meeting with Susan O’Connell at the home of Mr. Lambert. Mr. Lambert read the draft Will and said he was happy with its provisions. Susan O’Connell suggested that he might either simply refer in his letter to June Lambert to the letter written to Padraig Madigan. Ms. O’Connell prepared a list of bullet points which he might like to consider in response to June’s letter.
The attendance noted that Dr. Gleeson arrived. Ms. O’Connell told him that Mr. Lambert wished to change the provisions of his Will but due to the fact that his enduring power of attorney had been registered, there was a presumption of testamentary incapacity. In order to prove that he had testamentary capacity she and Mr. Brennan were seeking reports from Dr. Gleeson and Dr. Bernard Walsh to certify that Mr. Lambert had such capacity.
Dr. Gleeson went through a “mini medical State examination” with Mr. Lambert. At the end of the test Dr. Gleeson said that Mr. Lambert had achieved a score of 100%. Dr. Gleeson asked Mr. Lambert whether he was under any pressure to amend his Will. Mr. Lambert confirmed that no-one was asking him to change his Will or to do anything against his Will. Dr. Gleeson said he was satisfied that Mr. Lambert was 100% mentally competent and asked Ms. O’Connell whether he should ask Mr. Lambert any further questions. Ms. O’Connell said that he should be satisfied that the three limbs of the test for testamentary capacity contained in her letter to him of 6th August, 2003 should be satisfied that:
“He should understand that nature of the act (making a new Will) and its effect;
He should understand the extent (not the value) of the property of which he was disposing;
He should be able to comprehend and appreciate the claims to which he ought to give effect.”
Dr. Gleeson said he was satisfied that Mr. Lambert had testamentary capacity and that it was not possible to suggest that he was not capable of knowing his own mind in relation to his Will. Dr. Gleeson said he was satisfied that none of the drugs which Mr. Lambert took would alter his mind in a way that would detract from his testamentary capacity. Dr. Gleeson added that Mr. Lambert looked better now than he had the previous Christmas.
Ms. O’Connell asked Dr. Gleeson for a medical report and she said she would also seek one from Dr. Walsh. Dr. Gleeson said he would provide this in due course.
Dr. Gleeson left the room and Mr. Lambert signed his Will witnessed by Ms. O’Connell and Mr. Brennan.
Ms. O’Connell said that she would obtain a medical report from Dr. Gleeson and Dr. Walsh and would also draft an affidavit to confirm she was happy that Mr. Lambert had testamentary capacity. Copies of the Will and affidavit would be sent to Mr. Lambert for his records.
Regarding the proposed letter to June Lambert, Ms. O’Connell said she was happy to look at any letter which Mr. Lambert might draft if he wished her to cast an eye over it.
By letter of 11th May 2004 Ms. O’Connell replied to Mr. Lambert’s letter of 19th April and enclosed a codicil amending his last Will for his review. The amendments were a reduction in the amount of the bequest to the Charles Gordon Lambert Charitable Trust and the substitution of Hedda for Jean in the residue clause. Ms. O’Connell said that it would be necessary to liaise with Dr. Gleeson in relation to the execution of a codicil in due course.
The draft codicil declared that clause 7 (b) of his Will should be deleted in its entirety and be replaced as is indicated above. (3. Legacy to Anthony Lyons).
By attendance dated 21st May, 2004 Cormac Brennan and Ms. O’Connell attended at Mr. Lambert’s house for the purpose of executing that codicil. Mr. Lambert said he was happy with the provisions of the codicil which were talked through by Ms. O’Connell. He handed her a schedule of calculations detailing how his assets would be shared out and asked the solicitors to keep a copy for their file.
It was noted that, when Dr. Gleeson arrived, he remarked that Mr. Lambert was looking very well and healthier than he had been the last time they had met. Mr. Lambert explained to Dr. Gleeson that he wanted to change his Will due to the fact that the collection which he had given to IMMA was now valued at €3 million, an increase of €750,000 and he did not want to give any more to the Charitable Trust in his Will considering the value of the art which he had given during his lifetime. Ms. O’Connell confirmed that the main changes in Mr. Lambert’s Will as a result of the codicil would be to reduce the legacy to the Gordon Lambert Charitable Trust.
Ms. O’Connell explained the effect of registration of the enduring power of attorney and the issue of Mr. Lambert’s testamentary capacity. Dr. Gleeson said that as far as he was concerned there was no change in Mr. Lambert’s mental capacity since the last time he had performed the test for mental capacity which Mr. Lambert had passed with flying colours. Dr. Gleeson did not feel it would be necessary to carry out that test again as Mr. Lambert was obviously physically better and was articulating his thoughts as well as ever. Dr. Gleeson said that Mr. Lambert suffered from no illness other than Parkinson’s and there was no reason to carry out the test for testamentary capacity again as he could tell from simply speaking to Mr. Lambert that he had full mental capacity and understood the action that he was taking in amending his Will. He would nonetheless carry out the test if Ms. O’Connell felt it was necessary. Ms. O’Connell said she did not feel it would be necessary as long as Dr. Gleeson was happy with Mr. Lambert’s capacity.
Dr. Gleeson asked Mr. Lambert whether he was changing his Will of his own free will, or whether anyone was pressuring his to make amendments. Mr. Lambert said the idea of changing his Will came solely from himself, and that he was not acting on anyone else’s suggestion or coercion. Mr. Lambert reiterated that everything that happened was his decision. Dr. Gleeson said he did not feel it was necessary to carry out the test for mental capacity again as nothing had changed since the previous meeting other than Mr. Lambert was looking better and gaining weight. Mr. Lambert confirmed that he was feeling in great form.
Mr. Lambert signed the codicil. His signing was witnessed by Ms. O’Connell and Mr. Brennan.
Ms. O’Connell mentioned that the deposit interest rate was so low at the moment, Mr. Lambert might consider investing a small proportion of his liquid assets (say 20 to 30%) in shares, which might provide a better rate of return for his investment. Mr. Lambert said he would consider this but feared losing money, and there were numerous occasions in which people that he knew had invested in the stock market and lost money.
Ms. O’Connell had mentioned, before Dr. Gleeson arrived, that she had heard from Tony (Lyons) that there had been some interest in buying Mr. Lambert’s house. Mr. Lambert confirmed that Gerald O’Toole of Ganly Walters had valued the property at approximately €1.5 million. Mr. Lambert said he agreed that he would not leave the house in which he had lived for such a long time and had not intention of doing so.
A second manuscript spreadsheet dated June 2004 written by Mr. Lambert and given to the solicitors entitled “Estimated Implications for CGT”, while being broadly similar to the earlier spreadsheet of August 2003, indicated a net value for the house at €700,000.
In addition to the attendances Ms. O’Connell swore two affidavits on 17th October 2003 and 2nd June 2004 which summarised the circumstances and instructions given by Mr. Lambert.
These affidavits referred also to the enduring power of attorney.
5. Powers of attorney: enduring and general
Mr. Lambert executed the prescribed form of instrument creating an enduring power of attorney at Part B appointing Anthony Lyons to act as attorney for the purpose of Part II of the Powers of Attorney Act 1996, with general authority to act on his behalf and with authority to take on his behalf decisions on the following matters:-
“Where I should live;
With whom I should live;
Whom I should see and not see;
What training or rehabilitation I should get;
My diet and dress;
Inspect of my personal papers;
Housing, social services and other benefits for me.
1. Patricia Rickard-Clarke, Solicitor of McCann Fitzgerald Solicitors of 2 Harbour Master Place, Custom House Dock, Dublin 1 should be consulted for her views as to what would be in my best interest. I have also completed a letter indicating my general wishes.
2. I appoint Alvary Diane Tomlinson and Olive Beaumont to act as my attorneys if an attorney appointed by this instrument dies or is unable or declines to act or is disqualified from acting as attorney.
3. I am required to give notice of the execution of this power to at least two persons. I shall notify the following persons accordingly:
Jean Lambert (address)
Patricia Rickard-Clarke (address)
4. My attorney shall be reimbursed in respect of out of pocket expenses.
I intend this power to be effective during any subsequent mental incapacity of mind.
I have read or have had read to me the information in paragraphs 1 – 13 of Part A of this document.
Signed by me [ ]
In the presence of
[Witness]”
Part C was signed by Mr. Lyons on 21st November, 1997 as follows:-
“I understand my duties and obligations as attorney, including my duties to apply to the High Court for the registration of this instrument under the Powers of Attorney Act 1996, when the donor is, or is becoming, mentally incapable, my limited power to use the donor’s property to benefit persons other than the donor and my obligation to keep adequate accounts in relation to the management and disposal of the donor’s property for production to the High Court if required.
I have read or have read to me the information in paragraphs 1, 2 and 14 – 21 of Part A of this document.
I am not a minor or otherwise disqualified from acting as attorney.
Anthony Lyons in the presence of John Finge.”
Part D, the statement by the solicitor, which was signed by Patricia Rickard-Clarke stated that, after interviewing the donor, she was satisfied that Charles Gordon Lambert, (the donor) understood the effect of creating enduring power of attorney and that she had no reason to believe that the document was being executed by the donor as a result of fraud or undue pressure. Part E, the statement by a registered medical practitioner, was signed by Dr. Conlon who stated that in his opinion at the time the document was executed by the donor, Charles Gordon Lambert, had the mental capacity, with the assistance of such explanations as may have been given to the donor, to understand the effect of creating the power.
A letter of wishes of 17th November, 1997 from Mr. Lambert stated as follows:-
“To my attorney
It is my wish that if I require nursing care because of my illness that such nursing care be administered in my home. It is not my wish, if I become incapacitated, to reside in a nursing home and it is only if medical treatment in a hospital is required that I should be moved from my home.”
By certificate pursuant to s. 9 of the Powers of Attorney Act 1996, Dr. J. Bernard Walsh, Consultant Physician and registered medical practitioner certified and tested that on 10th October, 2002, St. James’s Hospital, Ward Private 3, he examined Charles Gordon Lambert and in his professional opinion the patient was suffering from Parkinson’s disease, heart failure and intermittent confusion and hallucinations. He said that the patient was becoming incapable by reason of a mental condition of managing and administrating his own property and affairs. The certificate was issued on 23rd October, 2002 and signed by Dr. Walsh.
By certificate of registration of 15th January, 2003, the Registrar of Wards of Court certified that an application for the registration of an instrument creating the enduring power of attorney and appointing Anthony Lyons attorney and executed by Charles Gordon Lambert the donor on 17th November, 1997 was received from Anthony Lyons in the Office of Wards of Court on 31st December, 2002 and was registered on 15th January, 2003.
It was indicated that Patricia Rickard-Clarke, solicitor of McCann Fitzgerald solicitors, should be consulted for her views as to what would be in his best interests. Reference was made to a completed letter indicating Mr. Lambert’s general wishes.
While he was in hospital, and before the registration of the enduring power of attorney, Mr. Lambert executed a general power of attorney in favour of Mr. Lyons.
6. Plaintiffs’ evidence
6.1 Mark Lambert
Mark Lambert, the deceased’s nephew is an actor, director and a son of Hamilton and Jean Lambert, the deceased’s brother and sister-in-law.
He said that his relationship with Mr. Lambert ten years before his death was good. They spent time together at family lunches, particularly at Christmas. Mr. Lambert was extremely generous and fair to all of his family. There was a good relationship and no rows.
Mark Lambert was unsure when Mr. Lambert developed Parkinson’s disease and when his speech became difficult.
He was aware from his late father who had been receiving phone calls in the middle of the night from the deceased that Mr. Lambert had had hallucinations. He was aware that his sister Janette and his father had brought Mr. Lambert to hospital after Mr. Lambert had fallen.
Mark Lambert said that he had received a long phone call from Mr. Lyons the following day. There was no indication of the purpose of Mr. Lyon’s call. He knew that Mr. Lyons had been put in hospital. He could not recollect previous abusive remarks by Mr. Lyons against his father who had been referred to as a gentleman.
He said that Mr. Lyons in that phone call had complained of Hamilton Lambert taking things from Mr. Lambert’s house, putting his hand over Mr. Lyons mouth and later hiding away as Mr. Lambert was taken to the ambulance on 26th September 2002. Mark Lambert said that Mr. Lyons rambled on in an hysterical way.
He described visiting Mr. Lambert once with his father in St. James’s Hospital where they had a perfectly pleasant chat although Mr. Lambert was difficult to understand because of his speech. They had a discussion regarding pills as his father, Hamilton, was a vet. He said that Mr. Lambert had no views about being in hospital. Mr. Lambert treated them politely, no different than other visits.
On a previous visit, when he had gone to clear up the side passage of his uncle’s house he found Mr. Lambert difficult to understand.
He did not see Mr. Lambert again after visiting him in hospital. He said he was prevented from seeing him. He requested Mr. Lyons to see his uncle as he was Mr. Lambert’s favourite nephew. He said there were numerous phone calls but he could not remember how many.
He said he had phoned Mr. Lyons when Mr. Lambert was in hospital in September 2002. There was no mention of him not being able to see his uncle.
After Christmas day he said he went to London on 4th February, 2003 and received a call from a nurse asking him not to visit. He referred to a one and a half hour phone call from Mr. Lyons who said that Mr. Lambert was frightened of his family. He said that Mr. Lyons had slammed down the phone.
On 2nd February, 2003, he had a second phone call from Mr. Lyons which he described as being obsessive regarding the day of his uncle’s hospitalisation. He said that Mr. Lyons was not hostile until he began arguing with him. Up to the time of hospitalisation the Lambert family had enjoyed Mr. Lyon’s company when he drove his uncle to lunch with them. He said he kept in contact with his uncle in 2003 and 2004.
Mark Lambert could not understand the letter from his uncle with bullet points saying why his family could not see him. He replied in a long letter to his uncle on 29th December, 2003, from Stratford-upon-Avon. He was concerned that his letter might not have reached his uncle. The previous Christmas he had sent a card and a present to his uncle and a book token for Mr. Lyons. In a phone call subsequently with Mr. Lyons he said that he had apologised to his uncle for not inviting him for Christmas. He said that Mr. Lyons had replied that he did not know what Mark Lambert was talking about.
He said that Mr. Lyons had replied on 16th February, 2004 saying that his uncle was not in a writing mood; that his uncle thought a lot of him and had asked Mr. Lyons to write to him. For his own part, Mr. Lyons said he appreciated Mark Lambert’s kind remarks and said that it had been a long lonely battle (for him).
The witness also referred to a letter from his uncle in his own handwriting thanking him for his letter and adding:
“I don’t think you are fully aware of the facts …”.
Included in that letter from his uncle was the bullet-pointed letter which he presumed had come from McCann Fitzgerald.
He said he naively thought that he could persuade Mr. Lyons to allow him to see his uncle.
Mr. Lyons had told him that his uncle was terrified of his family because they wanted to put him into a mental institution or home. He described a small family funeral when his uncle died which he described as sad and rather pathetic as a tribute to his uncle. There was no memorial service.
He said that Mr. Lyons was totally in charge of everything to do with his uncle and had accused the family of interfering.
Mr. Mark Lambert said that, after his uncle’s death, Mr. Lyons had said to him that there would be trouble when the Will was read. He said he did not know what Mr. Lyons meant. Mr. Lyons was very polite to them after his uncle died and he and his father went to the house and took a chair which his father had shown interest in. He said his father was also interested in a sepia photograph of his grandparent’s wedding and said that that was one thing he would like. Mr. Lyons said it would be awkward as it was part of the estate but that he should come and discuss it. Mark Lambert did not know what happened to that photograph.
Mark Lambert said that he had an interest in a picture by Robert Ballagh in which he bid for the auction of his uncle’s property but failed to secure it.
Mr. Mark Lambert said that as far as he was concerned, there was not any staff working with his uncle before he had gone into hospital in September of 2002 but thought that he had somebody coming into clean. He said he did not even know that for certain and had been concerned whether his uncle was in need of care before he had gone into hospital.
In cross-examination he said that, as his uncle could not see him or his father for two years, he felt he was in court for some redress in some form or fashion to honour his uncle and his father. He said he absolutely believed that his uncle was given misinformation which influenced him in relation to what actually happened on the day when he went into hospital and subsequently. He accepted that his uncle was upset about what the witness believed to be misinformation. He said that he believed that Mr. Lyons had manipulated his uncle into not seeing the rest of his family gradually over a period. He referred to the very long phone call and threat to sue his father which seemed to be out of character with their family or indeed, that their relationship with Mr. Lyons. He began to suspect that there must be some kind of motive behind Mr. Lyon’s statement that Mr. Lambert never received presents or a card and subsequently stating then relaying that he had.
He said that the hospitalisation was due to concern and love for their uncle. He believed everyone would do the same thing under the circumstances.
He said that according to the information in the solicitor’s letter it appeared that his uncle was very unhappy with the way he had been treated in being brought to hospital and the way his family had treated him when he was in hospital.
He agreed that he was moving to the position of saying that his uncle’s concerns were so irrational that they could only have been fed by Mr. Lyons which would have been upsetting to his uncle.
He agreed that Mr. Lyons was free in his communications with his uncle and indeed, that he himself thought that Mr. Lyons could persuade his uncle to allow him to see him.
He agreed that he had no evidence that Mr. Lyons prevented him from seeing his uncle other than the realisation that his uncle, after a period of time, was angry and frightened, when nobody had actually tried to approach him. He said the evidence was based on suspicion. The only basis was his phone calls. He did not believe that these were his uncle’s wishes to resolutely refuse to see his own family. He knew that a cousin had managed to see him and had pleasant conversations with him.
He agreed that his uncle’s unhappiness was not merely about the circumstances in which he was brought to hospital but about the perceived neglect of his family. However he said that his uncle would have said something to them about it. It was inconceivable that one would not say so to the family.
He would not accept that his father was a dominant figure and had a good relationship with the deceased. His relationship was extremely good and fraternal and he would visit him on his own and as a family. He was not domineering despite his being ten years older than the deceased.
He was aware that two days before Mr. Lambert was hospitalised on 26th September, 2002, his father, in the presence of his mother, had seen Mr. Lambert’s Will.
In cross-examination he was referred to the letter which Ms. O’Connell of McCann Fitzgerald wrote to Mark Lambert’s father on 22nd January, 2003 after she had been contacted by Ham Lambert, his father. Mark Lambert assumed that his uncle had by then improved greatly though he had not seen him.
Reference was made to the attendance of Mr. Brennan at the meeting with his uncle on 19th March, 2003. Mr. Lambert said that while it was indicated that his uncle was making his own decisions and dealing with his own affairs that his belief was that there was conversation and discussion outside the actual signing of the papers. He agreed that he had no evidence of that. When asked whether it was a total surmise and conjecture on his part, he said it was a collection of a lot of things. He could not provide any evidence because he was not there. There was no documentary evidence on documents that Mr. Lyons wrote any of the documents. He said that, other than his own belief and suspicions, there was no evidence that Mr. Lambert was directed or controlled by Mr. Lyons.
The letter of Mr. Madigan dated 29th May, 2003, was put to Mr. Lambert and he was asked whether he was part of the family that Mr. Madigan represented. He said he did not know but that, when he later talked to his cousin, the matter had been blown out of proportion.
He said that his uncle believed what was told to him but agreed that Ms. O’Connell’s instructions were from his uncle who was making the decision.
The attendance referred to his uncle wishing to amend his Will and giving detailed instructions. He said he would not dispute that he discussed the matter with Susan O’Connell and accepted that, from his uncle’s perspective, the record seemed to suggest that his uncle had a concern about whether his assets were going to be sufficient to allow him to do all that he wanted to do.
He agreed that he was not alleging that his uncle had not got testamentary capacity. He was only alleging undue influence by Mr. Lyons. He agreed that there was no paper work as to that effect. But he was suggesting and had been doing so all along that misinformation and untruths would influence someone to change his Will. He agreed that if, he felt frightened of his family, he would probably do the same if he was told things that a family were out to get him in some way. He believed that the influence of Mr. Lyons on his uncle was why he continued to be fearful. He did not think anyone in the family was pressurising him. He said the only conversations that were happening were between him and Mr. Lyons and he certainly was not putting any pressure on his uncle and indeed his family were not.
He was asked whether his suspicion was largely due to the fact that Mr. Lyons received increased benefits under the Will and that the family members received reduced benefits. He replied that it was a surmising of the facts that the Will was insofar as the addition of a cap on the residue and the addition of a clause that anyone who challenged the Will would be disinherited that he found extraordinary. The combination of the fact that his father made an innocent remark about the Will to his uncle and had arranged that Mr. Lambert be put into hospital had painted his family as being after his uncle’s money. No attempt seemed to be able to persuade his uncle against that. The person who was closest to him had the power of attorney.
He agreed that he had no contact with his uncle at that stage.
It was put to him that his uncle was disappointed with the family’s lack of interest in the art collection. He said he was interested and was proud of his uncle’s art collection and was disappointed that his uncle was not aware of it.
Mr. Mark Lambert said he had only visited the deceased once in hospital when he came back from London. He saw relatively little of his own parents.
He said he became aware of his father seeing the deceased’s Will two days before he was hospitalised on 26th September, 2002. He was told by Mr. Lyons who said that his father had ranted and raved having seen the Will. When he spoke to his own father he was told that his father had actually spoken quietly and wondered whether Jean, his wife, should be included in Mr. Lambert’s Will.
It was put to him that Mr. Lyons did not have such a conversation with him as on that day he was in the hospital trying to find a bed for the deceased and that he did not know the provisions of the deceased’s Will. Mr. Mark Lambert said that was why he was so surprised that he had said such a thing.
He was referred to a letter that he had written to the deceased expressing how good it was of the deceased to reply so soon. The letter continued:
“It is certainly true I did not know the facts in the correspondence you have sent makes awful and disappointing reading. I am very saddened by the overall impression that you feel under siege and even threatened… finally, I can also understand the trauma and hurt you went through in going to hospital and the isolation you suffered while you were there …
… We are both concerned about you and we felt responsible for looking after you, that I can honestly vouch for. We also felt concern for Tony [Mr. Lyons] who I know and repeat myself that they constantly praise for his caring and loyalty to you. I say this in relation to the traumatic events of your admission to hospital. They also felt certain what was described to me of the event I am not sure what anyone would have done under the immediate circumstances. The result of their action of calling ambulances was clearly horrid and the fact that you were treated and left on a trolley …Mum’s behaviour was also out of character, as she was for at least a year cross and sometimes more cross with (other members of the family). I know she also said some terrible things to Tony and one phone call which may be hard to forgive. This seems to be the crux. Shakespeare in one of his tragedies had a character say that time is out of joint. Mum knew that she was dying…. This merely explains but doesn’t condone her behaviour any more than Dad sometimes childish behaviour as he got increasingly frail and frustrated at his indisposition. All I can say is that I don’t expect you to forgive Dad and Mum all of a sudden but I would beg you above all else to allow Dad to talk to you. I have seen how upset and confused he is by not being able to see you, and I would hope he would say sorry about some of the things you have said he has said and done….
I want for Tony’s position to be appreciated and respected and whatever apologies be made and misunderstandings to you and him. There must never again be any mention of Wills or inheritance but only love, respect and family pride.”
Mr. Mark Lambert said that he wrote the letter absolutely believing that Mr. Lyons would read the letter which he wrote with full honesty and truth. He was aware that the only way he was ever going to see his uncle was by flattering and praising Mr. Lyons. His sole desire was reconciliation, that was the sole purpose of the letter.
He was asked whether there was a whisper of criticism of Mr. Lyons in the letter and replied referring to the letter from the solicitors which could only have been related by Mr. Lyons. He could not understand the content of that letter.
Mr. Mark Lambert agreed that (in his letter) he referred to himself feeling somewhat remorseful for not having seen more of his uncle in hospital. He said he was not aware of his unhappiness while he was in hospital. He said he apologised for not inviting his uncle for Christmas after he left hospital on 15th December, 2002.
He was asked whether he could see why the deceased might have been put out by the fact that having been instrumental in his being hospitalised, his father did not visit him for a period of four weeks. He said that as far as he knew phone calls had been made directly to the deceased by his father and that other contact was made on a fairly frequent basis to Mr. Lyons through his parents. He did bring his father in a wheelchair into hospital. He agreed that he did not return when he said he would come back to read to the deceased.
It was put to the witness that Mr. Lyons was a very loyal friend to his uncle and did far more for him in terms of the ordinary daily exigencies of his life than any member of his family. He agreed that after he was hospitalised that Mr. Lyons did more. He said he did not know whether Mr. Lyons had done more than any other members of the family before the deceased went into hospital in September, 2000. There was never a question of Mr. Lyons not actually being a friend or being good: he said that was never an issue. He was just saying that his understanding was that what happened after the hospitalisation was that everything turned upside down. He said he was sure that Mr. Lyons had called to see his uncle on a daily basis from the time of the execution of the power of attorney. He was sure that he had helped his uncle immensely.
He had absolutely no recall of an arrangement by Mr. Lyons that he should see his uncle at 2 o’clock and that he had turned up late and his uncle had changed his mind and did not want to see him and that he rang at 3.30 to be told by Mr. Lyons that his uncle had changed his mind and did not want to see him.
He agreed that he was not in communication with Mr. Lyons after the death of the deceased.
It was put to him that one of the features of the case was that there was absolutely no preliminary correspondence and he was asked why proceedings issued. He said that it was his desire for redress when he actually had a conversation with Pauline Slater, the deceased’s housekeeper. If he had a conversation with her but could not give a date. He was asked why he had jumped to the conclusion that what Ms. Slater was telling him was true. He said it was because it was such a long list of suspicions and of abuse of other people that he had received. He was deeply upset that two men went to their death without having communicated with one another. He was led to believe that Mr. Lyons was responsible for preventing the deceased talking with his father.
He said he had no communication from June Lambert before he spoke to Ms. Slater.
In cross-examination by counsel for the second and third named defendants he accepted that the deceased had a strong, independent personality and also made up his own mind on issues.
He agreed that over the years while his physical health deteriorated his mind remained alert and active except at times when he was difficult to understand. He would not cast any aspersions on his uncle’s ability to think and act.
He agreed that it was a concern that he be cared at home. That was a concern of his parents as well. He had never discussed with the deceased the question of nursing or home help. He accepted that his uncle was concerned that his own mother would not go into a nursing home when other members of the family wanted her to do so. He said he was not aware why the enduring power of attorney was executed in 1997 but understood that now. He had no reason to doubt the evidence of the deceased’s solicitors that his uncle had given clear well thought out instructions in relation to each new Will and that the draft Wills were based on his instructions alone. He accepted that Ms. Rickard-Clarke was confident that all changes made to the deceased’s Wills over the years were as a result of his own free will right up to the 2002 Will.
He disagreed that his uncle was a more dominant personality than Mr. Lyons as he found Mr. Lyons bossy but not unpleasant. He thought that Mr. Lyons had a strong influence over his uncle. It was hard to evaluate. He certainly would not say that his uncle dominated Mr. Lyons or that Mr. Lyons dominated his uncle. He thought that as his uncle became increasingly weak and vulnerable he was not necessarily dominant over Mr. Lyons.
He accepted that Ms. Rickard-Clarke had said that his uncle very much appreciated the care and attention provided by Mr. Lyons.
He was referred to the Will of 15th May, 2005 and to the reference to Mr. Lyons steadfast care and attention. He said that his uncle did not effuse him emotionally.
He agreed that he was making no claim in respect of his uncle’s testamentary capacity.
He accepted the wishes of his uncle in relation to his instructions to his attorney but thought that his uncle would have wished that his family were around him and, indeed, some of his closer friends.
He accepted absolutely that Mr. Lyons was not present when either that Will or codicil were executed.
He said he agreed that his uncle was living alone and did not have any night carers and that his family were not in a position to take on that role. He said that was so and that was why they were urging nursing home – which is why, he said, he knew that his mother and father were trying to urge him to take on home nursing. He agreed he had not visited his uncle in hospital for five or six weeks and accepted that he was upset and annoyed at the initial stages. He was not aware of the issue of the power of attorney. He agreed that if there had been mention of putting his uncle into St. John of God Hospital that he would be furious.
He said he was not there so he could not say whether his father had made contact with St. John of God Hospital but would be outraged if that were true. He agreed that the hospitalisation played a very big part in the deterioration of his uncle’s relationship with his family. He said that that would be understandable if he thought he was being put into a hospital forcibly and try to be put into a mental institution. He referred to a phone call from Mr. Lyons threatening to sue the family for forcing his uncle into hospital. That was deeply hurtful because they did it out of an act of goodwill.
He accepted that his uncle found it very stressful when the prospect of the Will was raised with his family. He agreed that it was an unfortunate confluence of the hospitalisation and the issue of the Will.
6.2 Dr. Bruce Lambert
Bruce Lambert, Mark Lambert’s brother, a medical doctor, also gave evidence. He had worked in Dublin hospitals before he left to work in England where he had remained since.
He too shared an interest with his uncle in his art and was hugely interested in his collection but when he moved to England he did not see much of his uncle. When he did come to Dublin he would try to visit his uncle with his father but his visits were very brief. He did go to the openings of his art collection and was proud of his uncle.
He was asked whether one of the factors that influenced his uncle and excluding his family after he became ill was that his uncle feared that he might come under pressure. He replied that he found that incomprehensible. He could not understand where it was coming from. It was certainly not coming from him. He had never spoken to anyone who said they had spoken to his uncle about his Will. He did say that his father had said to him that at the end of 2002 he was with the deceased and that he had been given a piece of paper which was the deceased’s Will and started reading it and realised that it was his Will. According to his son, Mr. Hamilton Lambert, now deceased, had asked Mr. Lambert whether he was sure that he wanted him to see it. Mr. Lambert replied that he did not and Hamilton gave it back to him. There was no provision for Hamilton’s wife, Jean, who had a good relationship with his uncle and he felt that his father was concerned that she had not been acknowledged. His father also told him that he had told Mr. Lyons that Jean was not in the Will but he did not say so to Mr. Lambert.
He was aware of the difficulties that his uncle had with Parkinson’s which he was familiar with from his own practice.
He said he could not understand where the pressure was coming from or why the family were not allowed to visit him. When the letter came from Susan O’Connell, a letter had also come to his father from Tony Lyons which accused his father of all manner of things which he could not understand as his father was a gentleman of the old school. The witness was shocked by the solicitor’s letter of 22nd March, 2003 and he wrote to Tony Lyons saying that he was very sad that this had been written. He was very disappointed with Mr. Lyon’s letter which he thought was an outrageously savage letter.
Dr. Lambert said that he was saddened that his uncle did not wish to see any member of the Lambert family and, in particular, his own brother. He asked Mr. Lyons that if his uncle genuinely felt that his own brother would send him to hospital. He thought that Mr. Lyons would be able to explain to him that this was clearly not a possibility as Mr. Lyons had a power of attorney. There was full nursing care at home and no need to go back to hospital. He mentioned Mr. Lyon’s tireless and unremitted devotion and attention to Mr. Lambert and the appreciation of this by all the family. Dr. Lambert said that that was how he felt at the time. He said he received no response to his letter.
Dr. Lambert said that having looked at the medical notes he realised that at the time that Mr. Lambert had been put into hospital against his will, that he needed acute medical care and that the action taken was entirely appropriate.
In cross-examination by Mr. Callanan, Dr. Lambert said that he should not have said that his uncle had no care but that he had insufficient care.
He was asked whether he supported the proceedings and he said he did once he had seen the statements from Pauline Slater (Mr. Lambert’s housekeeper). He had not read the statement of Pauline Slater but had been told of it by his brother and his cousin (the first and second named plaintiffs). He agreed that his attitude seemed to have changed very dramatically from the time he wrote the letter of February 2003. He agreed that there was no suggestion in that letter that Mr. Lyons had in any way influenced or pressurised his uncle. There was no such suggestion at that time he said but he did not understand why his uncle did not want to see them.
He agreed that he had not responded to McCann Fitzgerald’s letter but had written to Mr. Lyons directly.
He said he had not seen the letters from Ms. O’Connell to his uncle of 29th May, 2003.
He had said that the family were not allowed to visit their uncle any more and were banned from seeing him. That is what he understood from the letter of Susan O’Connell. However he could not say whether it reflected the wishes of his uncle.
In reference to Ms. Slater’s statement, he said he could not find any other explanation as to why the family were not allowed to see their uncle.
He agreed that his uncle was a very talented and highly intelligent man and that the doctor had alluded to his clear mental capacity. That made him wonder more how, if is uncle had a clear mental capacity, he could have such thoughts in relation to his family.
It was put to him that that simply reflected his and his family’s inability to accept the fact. He said he found it very difficult to accept but he had to accept that his uncle did not wish to see them because that was what everybody was telling them.
He agreed that it was within his rights for his uncle, having had a major disagreement with their father not to wish to see him or his brother Mark.
He could not comment on Mr. Lyons being told by Hamilton on 27th September, 2002 to urge the deceased to change his Will.
Dr. Lambert agreed that his uncle was clearly unhappy about going to hospital. He accepted that. He himself did not visit Mr. Lambert when he was in hospital.
He also accepted that his uncle was upset about the lack of family visits when he was in hospital.
He was referred to an attendance on Hamilton Lambert on 10th January, 2003 which included the following:
“Ham mentioned that he had words with Gordon in relation to the provisions of his Will. He said to me that Gordon’s Will only made provision for Jean in the event that Ham pre-deceased Gordon. Ham said he knew that Jean would be very upset and he told Gordon this.”
Dr. Bruce Lambert said that he was not aware, when he wrote the letter of February, 2003 to Mr. Lyons, that there had been words with his uncle about the Will.
It was put to him that the issue in the case was whether Mr. Lyons exerted undue influence over his uncle regarding the making of the Will in August 2003. He said that the feeling of the members of the family was that Mr. Lyons, instead of facilitating a good relationship between them and Mr. Lambert had actually done the opposite. He understood that undue influence could arise from a number of different sources and that, if his uncle was turned against the family, then naturally he would have a different view of them than he had for the preceding 90 years of his life. If the family were excluded from seeing him then that would make it very difficult for the family to reassure him on those matters.
He had a strong suspicion that Mr. Lyons exerted undue influence over his uncle who had, in his father’s words, poisoned Mr. Lambert against his family. He agreed that he was not privy to the contents of the Will apart from the one point which his father had told him. He agreed that detailed instructions had been given by his uncle to his solicitor, Ms. O’Connell, and accepted that the solicitor produced a draft based on that and gave independent legal advice. However he had certain reservations about it. From his point of view where a patient was in the terminal stages of Parkinson’s disease and was very unwell and vulnerable, they could rely very greatly on their immediate carer and that it was not very difficult for that carer to influence them. He had seen that happen on many occasions in his career as a doctor. It would not be beyond the bounds of possibility for that to have happened in this case.
He agreed that he had no solid evidence of any undue influence which supported his belief.
It was put to him that his belief was purely based on surmise and conjecture from the overall situation of Mr. Lyons being his attorney and his belief that Mr. Lyons was in some way responsible for the family not being able to visit his uncle. He agreed that that would be a fair summary.
6.3 Pauline Slater
Ms. Pauline Slater had started part time cleaning work with Mr. Lambert in 1996 initially doing a couple of hours a week. She said that Mr. Lambert started to get very confused in 2002. Mr. Lambert had given her a key. She had seen members of his family coming to the house as well as Ms. Catherine Marshall. She said there was a fairly constant flow of visitors.
As 2002 went on Mr. Lambert became less able to do things. She was told by Mr. Lyons that there had been terrible confusion over his being put into hospital.
She said that she visited Mr. Lambert in hospital quite a lot and would bring home some of his washing. She said this happened weekly or maybe twice a week sometimes.
She had never heard the deceased saying he did not want to see his family coming in.
When Mr. Lyons came home just before Christmas carers started coming in at night time in January.
She found both the deceased and his brother to be exceptional people, kind and gentle. She had never heard him say that he did not want to see his brother.
She said that she had received instructions from Mr. Lyons to tell members of his family not to contact the house. She said that other carers would have had the same message and that she heard Mr. Lyons say so many times to other carers.
She said she heard some exchanges between Mr. Lyons and Mr. Lambert though she would not have been actually in the room with them. Mr. Lyons just kept insisting that none of the Lambert family would be allowed to get in touch with him, she said. On a couple of occasions she did hear, they might be only snippets, she said, but she did hear Mr. Lyons saying he would walk away if the late Mr. Lambert tried to get in touch with his family because his family had been very rude to Mr. Lyons and he wanted an apology from them. She did not remember Mr. Lambert contacting anyone else. She had no idea about Ms. Beaumont and Mr. Lambert contacting one another. She never met her. She said that the only time she ever heard anything about Ms. Beaumont was when Mr. Lyons said that he had found out that the late Mr. Lambert had tried to ring Ms. Beaumont and that Mr. Lambert was absolutely furious, because he had forbidden Mr. Lyons to get in touch because Ms. Beaumont had let the side down by attending Jean Lambert’s funeral. That was the only thing she had heard about Olive Beaumont. She then said “Sorry, I’m not quite sure about this one. I am getting a bit confused. I am sorry. Forgive me. When you say that he ever say (sic) anything else, I’m not quite sure?”
She said that the only thing really that she heard was that they were not allowed to get in touch with anyone and no-one was allowed to have contact, unless they got in touch with Mr. Lyons first. No-one was allowed in unless it was on Mr. Lyon’s approval.
She was asked whether the vicar had to check with Mr. Lyons if he wanted to go and see Mr. Lambert and she replied that everybody had to check before they could get in. There were no exceptions to that rule that she knew of.
She said that she felt that Mr. Lambert was a terribly lonely man in his way. When he came out of hospital, he asked whether Ham had called. She said that he believed that Ham had been unkind to him and that Ham was the one who had tried to get him into St. John of God Hospital. She said that Mr. Lyons had said that a row had started because Ham was annoyed that Mr. Lambert had not left enough money to Jean.
She said she heard Mr. Lyons say that if Mr. Lambert went against his wishes and got in contact with the family that he would walk away. She said Mr. Lambert was absolutely terrified about that. He had a real fear about that, that he would be left on his own. He had been a very self assured man before he went into hospital.
She was asked how many times did she hear Mr. Lyons making such threat. She replied that he talked about it every single day. Days never went by that he did not talk about being under terrible pressure.
She referred to the need for a ramp from the house to the garden and asked her partner, Bill Murphy, to price its construction.
6.4 Susan Taylor
Ms. Taylor was a carer with Mr. Lambert from early 2003 to early 2004 but was not sure of the dates. She worked from 8.00 pm to 8.00 pm the following evening. Ms. Slater came on Monday, Wednesday and Friday.
She said that her instructions from Mr. Lyons was to let him know if Mr. Lambert had any visitors and who phoned him. She would hand over her report book to the next carer. Towards the end there were two carers, herself and Anita Delaney.
Mr. Lyons instructed her not to let his family know in the event of his death. She was not allowed to let visitors in under any circumstances and especially the Lambert family. She was to say that Mr. Lambert was not in but would contact them. If anything happened during the day Mr. Lyons was to be informed.
Ms. Taylor said that Mr. Lyons helped Mr. Lambert with his correspondence but did not see Mr. Lyons typing. She did not know how correspondence was sent.
She left because of an incident of not responding to the carer’s alarm in Mr. Lambert’s room which she maintained was not functioning.
She did not contact any of the Lambert family as she was following orders.
6.5 Dr. Rachel Doyle
Dr. Doyle, a consultant with Loughlinstown (St. Colmcille’s Hospital) and St. Vincent’s Hospital reported on the facts detailed in the plaintiffs’ solicitors instructions to her. There was no reference to the involvement of Mr. Lambert in the making of his last Will or in relation to the two defences of the defendants. She was not informed of matters in dispute. She was not told of the report of Dr. Gleeson and Dr. Walsh. She relied on the medical notes from September to December 2002.
The Court is of the view that her detailed and careful evidence is posited on the state of health of Mr. Lambert in 2002 and did not have the benefit of being aware of subsequent events of his recovery and engagement with his solicitors. She agreed that she did not have the advantage of examining Mr. Lambert.
6.6 Dr. Hugh O’Donnell
Dr. O’Donnell, an experienced general practitioner in Strokestown, had been given similar instructions. As with Dr. Doyle he did not have the benefit of the knowledge of pleadings of events of the circumstances of the instructions.
6.7 Mr. Bill Murphy
Mr. Bill Murphy had been asked by Ms. Slater to price a ramp to enable Mr. Lambert’s wheelchair to gain easier access to the garden.
Mr. Lyons independently had ramps constructed.
6.8 Ms. Valerie Rowan
Valerie Rowan, the eldest grandchild of the Lambert family, is a sister of June Lambert and a cousin of Mark Lambert. She lived in Northern Ireland and, accordingly, did not see Mr. Lambert regularly. She saw him a couple of times after he went into hospital on 28th September, 2002.
She was a bit shocked to hear about the letter from Susan O’Connell in January, 2003. She said that as a result she was not prepared to present herself at the door and being refused entry to her grandmother’s house. The other alternative was to phone Mr. Lyons. After the abuse which Mr. Lyons had given Bruce Lambert she certainly was not going to put herself up for that either. Through a friend, she was put in touch with Padraig Madigan, solicitor, who had a brief informal chat with her. She had a few concerns and thought that that was the best way to proceed. The matter got blown out of proportion and, she said, a sledge hammer was used to break a nut. She thought it “spooked” Mr. Lyons and her uncle. Then June Lambert took over and chatted to Padraig Madigan. She thought that the letter that was sent by McCann Fitzgerald to Padraig Madigan was terribly formal referring to “our client” and “your client”. She had come to realise that there were a lot of untruths (in that letter) and that a lot of damage had been done to a close family.
The last time she saw her uncle was in hospital when she brought him his Christmas present.
In cross-examination by Mr. Callanan she said that she was led to believe that her uncle had expressed his wishes through his solicitors on 22nd January, 2003 and that had not changed.
The family had met for Sunday lunch and discussed the situation and tried to see if there was any way they could establish how he was and try to resolve any ill-conceived differences. She did not think that her uncle Hamilton Lambert was there.
She disagreed that the reason that the allegations made in the letter of January 2003 were not rebutted was that they were substantially true. She said that Mr. Lyons had Mr. Lambert’s ear all day every day.
6.9 June Lambert, second named plaintiff
June Lambert, the second named plaintiff, had been a district officer in the New South Wales government for nine years and was a Justice of the Peace and came back to Ireland in 1983 where she obtained a Masters Degree in systems development, a Masters Degree in Fine Arts and a Masters Degree in business studies.
She said she had a good and loving relationship with Mr. Lambert and saw him very frequently when she was in the country, where she would see him on average once a week. Her uncle trusted her and loved her enough to nominate her to replace him as director of Mitchells. He made her the founding trustee or joint trustee with him of the Gordon Lambert Trust which held his art collection. She had been executor of his Will for many years. She also attended many functions with him socially and co-hosted functions in his own house over the years.
Her uncle had very good friends, among whom was Mr. Lyons in more recent years. He was a good friend of Mr. Lambert. Mr. Lyons was friendly with the family and they were friendly with him. He was present at a large number of family events and occasions. She said she liked him and thought that he liked her. The family embraced Tony Lyons as “one of (their) own”. There was never any issue with Tony Lyons up until recently.
She was not aware of the power of attorney but had no difficulty with it.
She said that Mr. Lambert’s health had declined in 2002. She was not aware of his having hallucinations but had heard from Hamilton that he was hallucinating. She noticed that in Spring of 2002. It was a slow decline. Mr. Lambert was fiercely independent. He did not like lots of extra people around the house. The family were conscious that he wanted to remain in his own house right up until his death. That was a given, was never an issue for the family. She had subsequently contacted Mr. Lyons and mentioned the fact that Mr. Lambert and herself had discussed the possibility of somebody getting him up in the mornings and getting him breakfast. Mr. Lyons said that he wished that Mr. Lambert would tell him those things and that he would organise it.
In June 2002, Mr. Lambert had asked her to resign as trustee of the Gordon Lambert Trust. She had no specific reaction to that. She was happy to see the art collection go to the nation.
Later that day she rang her uncle and asked him if he was he sure that that was the right decision because it meant that the museum had total control of the art collection and that the Lamberts were out.
She referred to Patricia Rickard-Clarke writing to Mr. Lambert saying something to the effect of “please protect June on the Trust”. She said that her uncle had never instituted the resignation. After her resignation she had seen him and he was fine. There was no deterioration in her relationship with him. There was absolutely no dispute.
She said that, on 28th September, 2002, when Mr. Lambert went into hospital she left a message on Mr. Lyons’s phone offering support. The next evening she got the most abusive phone call she had ever received in her life from Mr. Lyons, who had since apologised twice for that phone call. Mr. Lyons had basically said “the house is off limits”, that the locks had been changed and that she was not to organise the funeral and take the limelight, that he had the funeral and memorial in hand. She said that she was used to taking notes as a district officer and wrote that down at the time. She did not have the notes before her but thought that they were in the court. She said that really she did understand that it was a very stressful day and apologised with all her heart and soul to Mr. Lyons for the way he felt at that moment. The call lasted one hour. He had referred to “disgraceful Ham” for (a reference to Hamilton Lambert) for putting Mr. Lambert into hospital. She agreed that all the allegations then against Ham Lambert was really in relation to putting Mr. Lambert into hospital.
In that conversation she had asked Mr. Lyons if she could she support him and he said “you are the last person I want around me”. He also said “you are not to go into the hospital. You are not to visit Gordon. Gordon does not want to see you.” It was just her. She said that she went into casualty the morning after the phone call from Mr. Lyons and Mr. Lambert was on a bed in a cubicle and she said he was “very, very frightened, out of the world, not with it”. That was a 10 o’clock on 29th September. He was not able to communicate with her and did not react.
She said the following day she went in and gave details to the hospital as to the next of kin whom she said was Ham Lambert. She identified herself as a niece. She gave the hospital Ham’s name and number, but did not think that she gave Mr. Lyons number. She agreed that the telephone number and the name Tony on the hospital notes referred to Mr. Lyons. She said she visited her uncle on a number of occasions and, while he was in hospital, on days that she did not visit him, phoned the nurse’s station and asked them to pass on her good wishes to him. On the second day she visited he was “completely out of it” as he had been medicated. On the third day he was in a wheelchair and he was not speaking but seemed friendly enough, a bit distant, a bit spaced out. Subsequently she asked one of the nurses to ask him if he would like to see her and she heard him saying “would you tell her to come back tomorrow”. She did but he was missing, she could not remember, if she had conversations with him. He never expressed any views to her about his hospitalisation. She said the only way he could have been outraged about it was “if he were told things”. She was very conscious of the fact that Mr. Lyons had instructed her not to go in.
(The Court notes the pleadings in relation to the issue at para. 8 (C):
The plaintiffs and other members of the Lambert family were prevented from speaking to, calling into, or seeing the deceased in 2002.)
The evidence of June Lambert referred to visiting her uncle in St. James’s Hospital from September onwards and that she said that she was conscious of the fact that Mr. Lyons had instructed her not to go in.
June Lambert referred to a visit to the outpatients ward with her nephew, David Rowan, where Mr. Lambert was happy to see them and was saying “look, I can speak better”. This was in December, 2002. Ms. Lambert said that Mr. Lambert rang her when she was with her relatives, the Mitchells, in Australia, on 26th December and after that she did not detect any hint of anything untoward in his calls and messages but thought that he was very unwell.
She was asked when was the first time that she learned that she was supposed not to call into Mr. Lambert to see him or to contact him. She said it was when she was in Australia when her sister phoned her in the first week in January, 2003. She was very shocked.
She referred to the letter of 22nd January, 2003, which she said effectively banned the family from seeing Mr. Lambert. She came back from Australia at the end of January and had Sunday lunch at Janette’s house where Valerie was present but Ham was not present and they agreed that Valerie would get in touch, through a solicitor friend with a solicitor, Mr. Padraig Madigan. There was no meeting with Mr. Madigan. It was a phone call where Valerie was on the phone and she was on the other phone.
They did not expect Mr. Madigan to write a letter. They thought he would make a brief and formal phone call to Susan O’Connell. The letter from Mr. Madigan was in April 2003.
At that time she had no communication with Mr. Lyons.
Ms. June Lambert recalled the reference, in Susan O’Connell’s attendance, that his doctors advised that he should not meet people on his own. She said that a lot of Susan O’Connell’s attendance notes, and her letter back to Padraig Madigan, were extremely inaccurate. She said that she was not in touch with Dr. Gleeson but was in touch with the medical admitting staff. The particular attendance note dated 28th March, 2003 and the letter written by Ms. O’Connell to Mr. Madigan, were full of inaccuracies and fictions.
She said that her uncle knew that she was going to Australia and said that it was not true that he only found that out when she sent him a card from there.
She would question why his doctors advised him not to meet people on his own. She was aware that he did in fact meet other people during that period.
She said it was inaccurate to say that the family had given out about Mr. Lyons as they had never spoken badly of him.
He had not complained to any member of the family that he was annoyed with them in the way that they had treated him or that they had not respected his wishes.
She disagreed with the attendance notes referring to her telling Mr. Madigan that she met with Mr. Lambert on his own and always met him on his own for the purpose of taking instructions from him. Ms. Lambert said that it was very clear that Ms. O’Connell also got information from other sources.
Ms. O’Connell had noted that she said to Mr. Madigan that she thought that generally Mr. Lambert was quite good but that he tired easily. Ms. Lambert said that the family did not get that information and referred to the family being banned from asking about him from his carers.
Ms. O’Connell had referred to Mr. Lambert inadvertently showing his Will to his brother Hamilton and that his brother had made a chance remark to Mr. Lyons on the way out. Ms. Lambert said that this did not happen.
The reference in the next paragraph of the letter was to his brother contacting St. John of God Hospital with a view to having Mr. Lambert admitted there. June Lambert queried who made Mr. Lambert aware of that. She said that she had not made any remarks about St. John of God Hospital.
June Lambert said that that was a very important letter. It was so distressing to the family and was so utterly wrong and agreed that the family did not reply to it because they were distressed by it.
In reference to Mr. Lambert advising his solicitor that he found the pressure being exerted upon him by his family being very stressful, Ms. Lambert said that no one exerted any pressure whatsoever on him at the time and that Hamilton had made four phone calls to the Lambert house asking to see his brother.
In relation to Ms. O’Connell’s letter that he himself had made all decisions as to whom he saw and did not see, she said that her uncle had reduced capacity and was relying on what he was being told.
With reference to Mr. Lambert feeling that his family had shown little empathy with him and his medical condition, Ms. June Lambert said that the family had been forbidden from the date of that letter of 22nd January, 2003, to contact his carers or his doctors.
Ms. Lambert said that they were not informed by Mr. Lyons as to Mr. Lambert’s health. She said she left a number of messages on the phone and none of the calls were returned. She said that she received no indication of any change in Mr. Lambert’s health either from Susan O’Connell or Tony Lyons. Ms. Lambert referred to her letter to her uncle, Gordon, dated June, 2003 which ended “Let us not judge or blame each other but instead try to understand each other. With my love, June” followed by a post script saying “No need to reply”.
She said she had not seen the list of questions that Mr. Lambert wanted to put to his family.
She was referred to a letter from Mr. Lambert to her of 4th September, 2003, which was typed. She was deeply upset and hurt by it. She said that Mr. Lyons had done a lot of Mr. Lambert’s typing. She said she was particularly hurt by the words:
“I have no wish to engage in ongoing correspondence.”
She said this was not her uncle. She did not know what her uncle meant by the reference to the lack of understanding of the role of power of attorney. She asked why her uncle was saying that her letter showed no remorse whatsoever and that it disappointed him gravely that her loyalty to him had been perverted to such an extent. She said her loyalty was never perverted.
She said that the reference to there being no excuse for what was done to him in the context of being hospitalised in an emergency and his comment that she seemed to approve of the attempt to commit him never happened and was false and that Mr. Lambert never used questions in his letters which was the style of Mr. Lyons letters.
Ms. Lambert said she had no problem with the next paragraph of her uncle’s letter which said that he was extremely angry and upset about the way the family had acted towards Mr. Lyons but stated that the family had not acted in any adverse way towards Mr. Lambert. She said that she had not made any accusations against Mr. Lyons at that stage and, as far as she knew, no one in her family had ever spoken badly about Mr. Lyons. She said that it was not true that Mr. Lyons had always been available should they have wished to enquire.
She was asked to comment on the following passages:
“So far I have refrained from charging you for the legal expenses you have cost me.
And any further attempts to upset me or interfere in any way with the arrangements I have put in place …”
She said that her uncle was a very, very ill man and was not capable of putting arrangements in place. Mr. Lyons put arrangements in place. No one had tried to interfere or upset him.
There was a further letter from Mr. Lambert in January, 2004, acknowledging her Christmas card and present but bitterly regretting that she still showed no remorse over the circumstances of his hospitalisation and the subsequent relentless pressure on himself and his power of attorney.
She said that she was not in touch with Mr. Lyons or with her uncle since his last letter in September.
Mr. Lambert had said:
“This time last year Ham went behind my back to negotiate with my solicitor a change in my Will.”
The witness said that she was not aware of any such approach but was aware that Ham had made one phone call to Susan O’Connell on the 10th January, 2003, before the banning letter.
She completely refuted that statement but then said that obviously she could not refute it. However, she considered it to be a crazy statement. She agreed that it was in her uncle’s handwriting but said that he had obviously been told that that had happened.
In this letter Mr. Lambert referred to her hostile action in contacting a solicitor and involving more expense through his solicitor’s reply. Consequently he had lost all trust, which in turn upset his health by delaying the progress he had since made. Mr. Lambert said that she had forwarded the banning letter and “a nasty letter from Tony to Ham” to Mr. Madigan.
Mr. Lambert then said that all of those unnecessary and unpleasant (matters), including the duties of the power of attorney “have been diminishing your own inheritance out of assets of my estate”.
Ms. Lambert said that the family members were not remotely interested in their inheritance. She said that that was not her uncle who was writing on 10th January, 2004. She said that the four phone calls from Ham to Mr. Lambert in January, 2003 were not relentless pressure. She said that Lambert was poisoned against his family and there was no doubt whatsoever about that.
Reference was made to her letter of October 2004 to Mr. Lambert on 15th October, 2004. She said that on 12th December, 2004, she got a letter from Mr. Lyons.
She said she met Mr. Lyons on 10th January, 2005, for a six hour meeting. Mr. Lyons, she said, had wanted to see her to explain everything that had gone on over the previous two years. She said she thought that her uncle wanted him to meet her. It was a friendly meeting. He had told her that Mr. Lambert’s health was fine and that the doctor had said he could live another five years. She said that at Christmas that she had dropped a Christmas hamper on his doorstep. But she was not aware that he had gone into hospital in January, 2005 – she did not have any details of his health.
After that meeting of 10th January, Mr. Lyons would phone her and she would phone him. Mr. Lyons made her aware of the seriousness of what was going on. She knew that her uncle was in hospital at that time. Mr. Lyons rang her on 27th January, 2005, to say that Mr. Lambert had died that day. She came down from Omagh where she had been with her sister and the next day sat with Mr. Lyons as he was drafting the funeral notice. She made a few comments. There was to have been a celebration of Mr. Lambert’s life but that did not occur.
She said that Mr. Lyons had said to her on 29th September, that she was not to organise his funeral and not to take the limelight. After his death, Mr. Lyons advised her that there were written instructions that the deceased wished to have a small private funeral, and that he wished to have a memorial to take place in the museum. She said that Mr. Lyons had said a few things to her about Mr. Lambert’s wishes to change his Will in the last weeks before he died. She had met with Mr. Lyons on a number of occasions following the death of her uncle. Mr. Lyons was extremely friendly with her. Mr. Lyons was happy for her to write as he was talking. She asked him a lot of questions and he answered them to the best of his ability. She said she still had those notes.
An evidential problem arose in relation to whether these were included in the affidavit of voluntary discovery of June Lambert and the matter proceeded on the basis of what Ms. Lambert could recall.
At that stage Mr. Gilhooly for the plaintiffs said that she was saying, he thought, that Mr. Lyons told her that others had operated to deprive her of her inheritance and she said that he identified them. She said she did not want to harm other people or organisations in her answer. She believed him.
She said she had no idea what was in the Will. She did not see the Will for sixteen months after Mr. Lambert died and said the family members were prevented from seeing the Will.
She said that Mr. Lyons had written to her solicitors to explain what had happened with Mr. Lambert’s last wishes from 3rd January to his death on 27th January, 2005, where/when Mr. Lambert had repeatedly asked Mr. Lyons to change his Will at a time when he was ill.
Subsequently that letter from Mr. Lyons to Ms. O’Connell dated 19th May, 2005, referred to Mr. Lambert spelling out on the alphabet board:
“They are all using me, I must change the Will.”
Susan O’Connell replied on 1st June, 2005, inter alia, in relation to this matter as follows:
“I note from your letter that Gordon indicated to you shortly before his death that he wished to change his Will. As you know, given that the enduring power of attorney was registered, it was necessary to Gordon to undergo a medical examination to ensure that he had the requisite testamentary capacity on each occasion when he wished to execute a codicil to his Will. I note from the records of your conversation with Cormac during the weeks leading to Gordon’s death that he was generally unable to speak and drifted in and out of consciousness. On that basis, and given the severity of Gordon’s condition during this period, it would not have been possible for Gordon to have satisfied the test for testamentary capacity and instruct us in relation to any amendment to his Will.”
Mr. Lyons referred, in that letter to the difficulty he had in getting a response from her office. She said that Mr. Lyons kept saying to her that he would not go ahead and probate the Will until all of Mr. Lambert’s last wishes were honoured and that that did happen.
In cross-examination by Mr. Callanan Ms. Lambert was asked about the six hour meeting on 10th January, 2005, with Mr. Lyons. She said it was a mystery that Mr. Lyons made contact with her on 12th December, 2004 having been so cruel to her for the previous two years in banning the family from seeing her uncle. She believed that Mr. Lyons had instructed the solicitors to do so. She said that Mr. Lyons did provide her with a considerable amount of information about what had happened in the intervening years. She accepted that he had no role in the Trust.
Ms. Lambert said that though she had submitted her resignation to the Trust, that she was never removed from the Trust. She was still a legal founding trustee of the Gordon Lambert Trust. She never expressed her concerns of not being a trustee to Mr. Lyons prior to the death of her uncle.
It was put to her that Mr. Lyon’s communicating with her was completely inconsistent with the idea of Mr. Lyon’s engaging in a covert campaign of undue influence. She found that a very strange statement. Mr. Lyons suddenly became her best friend when he knew that Mr. Lambert was just about to die. She said she had no idea why Mr. Lyons did that. She did not accept that it was she who principally drove the proceedings. She referred to a number of untruths in the letters that, for example, Padraig Madigan wrote, which could not possibly have come from her uncle. She said that Mr. Lambert did not lie, the Lamberts did not lie.
It was put to her that it was plain that there was a “falling out” between Mr. Lambert and Ham Lambert. She asked if counsel was suggesting that Tony Lyons had nothing to do with it. She did not reply when the question was put again. She said she had no idea what happened between Gordon Lambert and Ham Lambert as she was not there. She said that the family were caused untold distress by the decision of Mr. Lyons to contact Susan O’Connell to say that they were under pressure from the family. There was no pressure from the family to see Mr. Lambert at that stage and she believed it was a disgraceful allegation to make.
Ms. Lambert agreed that she had received valuable shares in Mitchells, the wine merchants, from her uncle during his life time. It was put to her that her uncle Hamilton had contacted Mr. Lyons to say that those shares should have gone to Mark Lambert. She said she did not know what Ham had said to Mr. Lyons but that Mark had got some shares.
It was put to her that Mr. Lyons wanted to have the deed of the Gordon Lambert Trust and get it from her. She said that it was not true that he had not asked for the trust deed until at least a year later as far as she could remember.
When she was told that Mr. Lyons would give evidence that there was no abusive call from him to June Lambert or that he got her message asking was there anything she could do and that he replied to that telling her to “come off it”, that she had been rowing with Mr. Lambert for some time past, Ms. Lambert said that Mr. Lyon’s version of that conversation “was crazy”.
It was suggested to her that she had told the hospital she was the next of kin and that they were to report to her in relation to anything affecting Mr. Lambert’s welfare. She said she had not but had referred to Ham Lambert as Gordon’s next of kin and to herself as a niece.
It was put to her that her evidence that she was told not to go into hospital to visit Mr. Lambert because he did not want to see her was incorrect. She replied that she could not pin down what Mr. Lyons said at the time. She said the second point was that they were not to bother to go in because Mr. Lambert would be out soon.
Mr. Callanan put it to her that there was no plea suggesting that Mr. Lyons sought to impede hospital visits by the family and that she had said that it was correct to say that there was no impediment on her family visiting Mr. Lambert in the hospital. She repeated that Mr. Lyons said that Mr. Lambert did not want to see her. He was being kept isolated from the family.
It was put to her that Mr. Madigan did not convey a concern that Mr. Lyons was somehow isolating Mr. Lambert. She referred to “the banning letter” from Susan O’Connell dated 22nd January, 2003 and to the cruelty which emerged from the statements of Pauline Slater and the nurse (Ms. Taylor).
She was asked to identify a card to Mr. Lyons which stated:
“Thank you, Tony, for the care and friendship you gave you, Gordon … in recent years. This comes with a heavy heart.”
She agreed that there was no complaint, allegations or suggestion against Mr. Lyons in that card which was after her uncle’s death and before the proceedings commenced.
She was asked to refer back to the two letters from Mr. Lambert to her of 4th September, 2003 and 10th June, 2004, which she said “were not Gordon”. She agreed that she suggested that Mr. Lyons was behind those letters. She said that the nurse, whom she identified as Susan Taylor, advised that they saw Tony Lyons dictating to Mr. Lambert and dealing with nasty correspondence to her. She said she had found that out subsequent to Mr. Lambert’s death.
It was put to her that she had suggested that Mr. Lyons wrote Mr. Lambert’s correspondence. She said the nurses, whom she later identified as Ms. Taylor, one of Mr. Lambert’s carers had advised her that “they saw Tony [Lyons] dictating to Gordon [Lambert]. They saw Tony dealing with nasty correspondence to me”.
She said that there was no basis for any nasty letters from her uncle to her. They had Tony Lyon’s stamp all over them. Her uncle never used complex sentences or sentences with question marks at the end nor would he have referred to “personal matters of mine”.
Ms. Lambert was referred to a letter of 9th August, 2002, from Mr. Lambert to her. She said that she was willing to accept any accusations made by him against her. The letter followed from her resignation letter from the Trust. She said it was not unreasonable to be hurt because she was so instrumental in bringing the collection to the nation. It was the first time that her uncle, who was not a well man at this point of time had said, if she did not resign immediately, he would “get nasty”. He uncle’s letter continued to state that:
“… you have given a life time of support innocently and lovingly given is a bit far fetched”
She said that Mr. Lyons had a hand in that response. She agreed that Mr. Lyons did not know anything about nor had any role in the Trust. She was not saying that the entire letter was made up by Mr. Lyons. She thought it was a very sad letter, that it was written at a time when her uncle was very unwell in August, 2002. She said that he had “a retinue of people coming in” but at night time he did not have anyone.
Her uncle, in that letter, had said that, with regard to her statement that she had taken care of his welfare, that her caring had consisted of an occasional phone call or a post card, a catalogue or two, brief visits from time to time, long terms of being unable to contact her and a lot of personal abuse over the phone. She said that that was a Tony Lyon’s phrase when she described the work she had done with regard to her uncle’s collection and her international career. For twenty years she was at her uncle’s beck and call and hosted receptions with him.
She was asked whether there was absolutely no expression or opinion on the part of her uncle that she was prepared to take at face value. She replied that she never had abusive telephone calls with her uncle in her life.
While she had said that she had submitted her resignation to the trust she said she was never removed from the trust and was still the legal founding trustee of the Gordon Lambert Trust. She said she never expressed her concerns to Mr. Lyons of not being a trustee prior to the death of Mr. Lambert. She did not have the deed of trust. She had not information as to what had happened or what had influenced her uncle.
Mr. Callanan referred to the last paragraph of Mr. Lambert’s letter to her saying that to abuse an old person was an abomination and that the abuse that she had launched on him recently, in his advanced state of Parkinson’s disease when he was so weak, fragile, fearsome, was so cruel. She said that was definitely Tony Lyon’s words as she adored her uncle.
She said that she may have referred to the paintings of her uncle which he left to the trust as her inheritance as for many, many years Mr. Lambert had discussed leaving the collection to the family. She could not remember it. She said that her uncle built up his collection over a life time and many times, with David Hendrix, he discussed leaving the collection to the family and perhaps the family lending it to the nation.
She was asked why she thought that Mr. Lambert had appointed Mr. Lyons as his attorney in 1997 over members of his family and she said that that was because Mr. Lyons was his friend and it was her uncle’s choice.
It was put to her that Mr. Lyons would say in relation to his letter of 22nd January, 2003, which was of the same date as the McCann Fitzgerald letter that he was being repeatedly telephoned by Ham Lambert in relation to the Will and was extremely angry about it. She replied that Ham could not care less about the Will. She agreed that he had made four phone calls according to his diaries and would see and phone his brother every week.
Mr. Callanan had referred to the attendance of 22nd March, 2003 and to the questionnaire document sent by Mr. Lambert which referred to her calling in at the beginning of his hospitalisation and stating to the nursing staff that she was next of kin and that she had cared for him for the previous five years. She replied that it was not Mr. Lambert’s questionnaire but Tony Lyons’s questionnaire of April 2003 and that it was utter lies to say that she had said that she had cared for her uncle for the previous five years. She said she did not. She could not. She was not a carer. She was a career person. She worked abroad. She rejected the inference that she was taking over the role of Mr. Lyons.
Ms. Lambert referred to Mr. Lyons meeting her solicitor, Mr. Liddy. She said that Mr. Lyons had given her to believe that he was coming to see her solicitor in an effort to carry out the last dying wishes of Mr. Lambert. She said that Mr. Lyons had no intention of doing that. She said that she had later raised an objection that there was a conflict of interest in Mr. Liddy acting for her in the matter of the trust and for Mr. Lyons in this action.
Mr. Callanan referred to the affidavits impugning the Will on the basis of undue influence of Mr. Lyons and another person. She replied that a lot of allegations had been made against that other person but were dropped. She was “going on hearsay”. She said that it was in order to give Mr. Lyons an opportunity to administer the Will as per the wishes of her uncle that the institution of proceedings had been delayed. She said that her solicitors wanted to challenge from the outset but she did not want to challenge either Mr. Lyons or the other person. It was false to say that it was only when she spoke to Ms. Slater and Ms. Taylor that she was able to persuade her solicitors to proceed with the institution of proceedings. When she was asked to say why the evidence of Ham Lambert had not been taken on commission, she said that it was a difficult situation and that the family did not know what was going on. The more she spoke to Mr. Lyons the more she realised that he kept saying to her that her uncle wanted to put Mr. Lambert into a psychiatric home and take all his estate and all his art collection. She believed that was a terrible allegation. She agreed that the first letter she had ever received from her uncle on 9th August, 2002 had Mr. Lyon’s hand all over it. She suggested that Mr. Lyons had abused and maligned individual members of the Lambert family (in order) to remove them from her uncle.
Ms. Lambert said that, had Mr. Lyons told her on 10th January, 2005, that her family or Ham Lambert had tried to put Mr. Lambert into a psychiatric home, she would have dealt with the matter. She said he did not tell her until after Mr. Lambert had died.
Mr. Woulfe on behalf of the second and third named defendants said that it was clear and accepted that there was absolutely no allegation of impropriety made against Ms. Marshall. That was confirmed by counsel for the plaintiffs.
June Lambert agreed with him that her uncle had had a strong independent personality who always made up his own mind about issues. She had said he was fiercely independent. She said that in late 2002 onwards he was ill and vulnerable and that the doctors would tell how his mind was. She was not there nor present for those two years. She agreed that one of the biggest issues Mr. Lambert had was that he did not want to be put into a home and was constantly reassured that that would not happen. Mr. Mr. Lambert had referred to his mother being looked after by him throughout ten years of disabled old age, including three months of painful death at home. She agreed that that represented his wish and that it was terrible that he died alone away from home. She agreed that her uncle was very diligent about updating his Will on a regular basis. She said he had told her that she was a main beneficiary of his Will since 1992 and that she was a residuary beneficiary with Mr. Lyons for some Wills.
It was put to her that her uncle’s solicitor would say that she did not think that Mr. Lyons would have directed her uncle in any way up to the end of 2002. She said that the dynamics had changed completely once Mr. got ill and vulnerable from April 2002 onwards. She said that her uncle was not in possession of the full facts and was removed from his family. She was not disputing the care and attention that Mr. Lyons gave Gordon. He was his friend. It was just the last two years of his life that was the problem.
Mr. Woulfe referred to the attendance with Ham Lambert who had admitted to Ms. O’Connell that he had words with Mr. Lambert, not with Mr. Lyons. Ham Lambert had said that he knew Jean would be very upset and he had told Mr. Lambert this. Ms. Lambert agreed that Ms. O’Connell had reported that. She questioned what pressure was being put on Mr. Lambert which led him to consult with Dr. Tim Gleeson in January, 2003. Ms. Lambert said Mr. Lyons was creating a situation where so much pressure was being put on a very ill man.
She said that her uncle had discussed his Wills with her and with his brother. Ms. Lambert said that Susan O’Connell had asked Ham Lambert not to contact her and that was one of the reasons that the family asked for an intermediary, Padraig Madigan, to see if he could find out how Mr. Lambert was. Mr. Woulfe said that there was no trace of that in any of the detailed attendances of Ms. O’Connell.
She agreed that her uncle was very upset about the family involving a solicitor in the matter. She said she did not regret it but regretted the approach that was taken by the solicitors.
She was referred to the draft of reply to Mr. Madigan’s letter by Susan O’Connell and to the corrections and amendments made by her uncle including the note that he felt that some of his family had shown little empathy with him and his medical condition.She agreed that he did write that.
She was referred to the draft Wills sent by Ms. O’Connell to Mr. Lambert on 6th August, 2003, with instructions to place a cap of €100,000 on the first two shares of the residue. She said she had no idea whether her uncle gave such instructions as he was gravely ill and at the time he had no understanding of the value of his estate or anything else.
She said that Susan O’Connell’s attendances were absolutely amazing because one would think that her uncle was both well and able to talk. When he spoke to her at Christmas, he could only grunt. His staff would say that it was difficult to communicate with him. She said that Susan O’Connell’s notes had done nothing to reassure her.
She agreed that there was no trace of any involvement by Mr. Lyons but said that was the point that Susan O’Connell had “huge amounts of consultations” with Mr. Lyons. She queried who translated for Mr. Lambert and who was present with Mr. Lyons and Susan O’Connell.
She agreed that she was not there at the time. She had previously seen her uncle in December, 2002. She said that Mr. Lyons was motivated by power, control and money. She said that the nature of the relationship changed when someone became ill and vulnerable.
7. Defendants’ evidence
Reference was made to the defence and to the particulars of duress and undue influence by Mr. Callanan in the opening of the defence case for the first named defendant.
Mr. Woulfe, on behalf of the second and third named defendants, referred to their defence and admissions and counter claim in relation to the Will of 21st August, 2003 and the codicil of 21st May, 2004, which was similar to the counter claim and relief sought by the first named defendant.
7.1 Anthony Lyons
Mr. Anthony Lyons, was born on 12th April, 1934 and was, accordingly, 75 years of age at the date of the hearing. He left school in 1952 and worked for seven years with Roscommon County Council in the accounts department of the health section and before progressing to being county cashier.
As his parents were getting old he looked after them, having resigned his job and came to Dublin to do a degree in English, Irish, and Economics while he worked as a freelance journalist with a column in the Irish Press and later as an announcer with Radio Éireann. He graduated in 1962 and had his first announcing duty on his 28th birthday on 12th April, 1962.
In 1965 he became press relations and information executive with Teilifís Éireann. He first met Mr. Lambert in 1965 when he was managing director of Jacobs. Mr. Lyons was involved in the Television Awards sponsored by Jacobs. Mr. Lambert’s Public Relations Officer (P.R.O.), Frankie Byrne, asked Mr. Lyons to help her with the script for the Jacobs’ Awards that Autumn. His first cousin was Mr. Lambert’s personal assistant at that time.
It transpired that he was living just a road apart from Mr. Lambert in Churchtown. He was invited to Mr. Lambert’s house from time to time where Mr. Lambert entertained a great deal. He said that Mr. Lambert was a P.R. creation. With Frankie Byrne he had created an image of himself as a patron of the arts as well as a businessman. Mr. Lambert, according to Mr. Lyons, was fascinated with Mr. Lyons theories of public relations. He became a brand for Jacobs and was the only businessman to have a personal P.R.O.
He knew Hamilton Lambert who was his vet and his wife Jane, possibly before he knew Mr. Lambert. Mr. Lyons said that he had nothing to do with the Charles Gordon Lambert Charitable Trust which was established in 1992.
He said he did not see Mr. Lambert a lot during that time. He was not in his inner circle. Mr. Lambert phoned him one day and asked him if he would like to be his attorney under the new regulation governing enduring powers of attorney. Mr. Lyons said that his family should do that. Mr. Lambert replied that he could not because his family would put him into a home and he did not want to go into a home. He said that his brother, Ham, had told him that. Mr. Lambert told him that there would be two substitutes, Ms. Beaumont and a Ms. Tomlinson. Mr. Lyons told the Court: “I realised he was distancing himself from his family. I got the feeling that he was quite afraid. I would have said it to take the power of attorney which he now regretted.”
Mr. Lambert wrote him a letter through his solicitors which said that as his Parkinson’s progressed he did not want to be removed from his home and that he was charging him as his attorney to recruit staff and to take care of him in his home. That was very important to him. He liked having visitors and showing them his paintings and his garden.
He said that Mr. Lambert involved him in his business totally, briefed him and asked to be at his house when his solicitors came so that he could let them in. When Mr. Lambert met with Patricia Rickard-Clarke, who was the partner in McCann Fitzgerald involved in his affairs, Mr. Lyons would stay with her husband in the garden.
Around 2002 Mr. Lyons described Mr. Lambert’s health as “fairly O.K.”. He told him that:
“Nobody understands this awful thing called Parkinson’s – waves go through – and the family don’t understand this. Nobody understands. They never make allowance. Waves go through you when you are losing control of your faculties and that is a frightening thing.”
He said he did not have a day to day role until about 2000 when Mr. Lambert had to stop driving his car. Mr. Lyons had taken early retirement in 1986 at age 52 when he had acquired pension rights. His last role in RTE was as editor of Access. He said there was no training for an enduring power of attorney any more than there was for looking after somebody with Parkinson’s. He did whatever he could to help him.
After the power of attorney had been executed in 1997, Mr. Lyons he had a call from Ham Lambert asking him not to pay too much attention to Mr. Lambert. On another occasion Ham Lambert had telephoned him and said that he should have stopped June getting Gordon Lambert’s shares in Mitchell’s and said that his son Mark, the first named plaintiff, should have got them. On another occasion he telephoned him and said “you shouldn’t have got power of attorney at all. Bruce should have got it”. He said that he made it his business to get on with Hamilton Lambert and was very friendly with the latter’s daughter, Janette, who took both Ham and his wife, Jean out to lunch a few times and gave them presents at Christmas. He said that he was very friendly with Mark.
He did not know anything about the Will of 13th April, 2002 or the codicil of 18th May, 2002. He had no role at all in the sequence of Wills. He could not give much detail because he was not involved. He made a point of not being involved because of his local authority training where he had to deal with Wills of patients and the involvement of nurses and doctors in their affairs.
Around 2002, when Mr. Lambert could walk, he would often telephone Mr. Lyons and ask him where he was going that day. Sometimes Mr. Lambert would accompany him to a garden centre and have lunch. He was interested in gardening; had a treadmill and in keep fit. He was determined to conquer his problems with mobility and to fight Parkinson’s as much as he could.
He said that he did not have any involvement with the Lambert Trust. That was deliberate. He did not want to get involved with the art people. He did not like some of the people who administered the arts.
He was not aware that June Lambert was resigning from the Trust but was aware that there were rows going on.
Mr. Lyons said that the letter of Mr. Lambert to June Lambert of 9th August, 2002, had been handwritten by him and he was asked to copy type it for Mr. Lambert which he did. He was not responsible for any of the sentiments expressed in it. He just copied it.
By late September, 2002 he said that Mr. Lambert had been hallucinating a bit and started saying funny things. He would ring Mr. Lyons on occasions late at night saying that there were people outside climbing the walls or there was a white van outside to take him away or that June was trying to get into the garage or sitting outside watching him. He was quite strong, fairly mobile but calling him a lot. Mr. Lyons explained: “He was used to having people work for him all his life and he expected me to do things.”
At this stage there were two part time carers who would come in during the day and prepare his meals for him. Mr. Lambert did not want carers in the house. He was a man who hated change.
At that stage various people called. Catherine Marshall, Brenda Moore McCann, visitors from the art community and neighbours would come. The next-door neighbour, Mr. Barnes visited. His brother, Hamilton called in about once every three weeks, he thought. He did not think that he saw June Lambert at that stage. He described there seeming to be a cold war between Mr. Lambert and Ms. Lambert.
One Saturday night Mr. Lambert handed Mr. Lyons the phone. June was “shouting abuse” at him. Mr. Lyons handed the phone back. He did not know of any other members of the family calling.
He said he had to pay carers who came in at the end of their shifts. Mr. Lambert would phone him and ask him to come over if he had post to be attended to and other errands and payments to be made. He accepted invitations on his behalf by typing them formally. He was also aware of Mr. Lambert using a business called “Hard Copy” which did typing and photocopying. Mr. Lambert did not have much difficulty writing at that stage. It depended on his mood.
Mr. Lyons referred to Wednesday, 25th September, 2002 at 7.00 a.m. when he was going to get newspapers and went by Mr. Lambert’s house and saw the front door open but with the chain on from the inside. When there was no response, he burst the chain and found Mr. Lambert lying on the floor outside the bathroom having been there all night. He got him into bed and rang Hamilton and Jean to tell them.
He talked to him that afternoon and asked him where the keys were but he did not know. As his power of attorney, he knew that he was responsible so he suggested that the locks be changed. When he came back with the locksmith, Hamilton and Jean were there in the study with Mr. Lambert. He had the locks changed and gave one to Hamilton and kept the other one himself. Mr. Lyons said that Mr. Lambert had seen his G.P. the previous day and was to see a specialist four days later on the following Monday.
Mr. Lyons said that a short time later Ham Lambert spoke to him and asked him if he could change the Will that Mr. Lambert would have to change it as he was not leaving enough to Jean. He said that Jean would not even go to his funeral as she would be so annoyed. Mr. Lyons said that the Will was between him and his solicitor and no one else. He had no say in it at all. After that Mr. Lyons paid the locksmith and left.
He felt that the tone of what was said by Mr. Lambert was domineering, ordering him.
Two days later on the Friday, Mr. Lambert had been very restless and telephoned Mr. Lyons. Mr. Lyons had to go down four times and ask him to go to bed. He looked pretty awful. He said he went to bed about midnight.
Earlier that Friday evening Ham Lambert had telephoned him and asked him was he sure he could not change the Will. He replied that it was a matter for Mr. Lambert and his solicitor. Hamilton Lambert said that he had phoned Mr. Lambert’s solicitor, who had not returned his call and “obviously didn’t want to speak to me.” Mr. Lyons did not know what was the then current Will or its provisions.
He said that Mr. Lambert’s local G.P., Dr. Conlon, lived just across the road and that he attended a specialist in St. Vincent’s Hospital, every couple of weeks. Mr. Lyons accompanied him.
The specialist would recommend certain medication which Mr. Lyons would collect from the pharmacy and leave it into Mr. Lambert’s house.
On Saturday, 28th September, 2002, he went for his newspapers, passed the house and had a feeling everything was not in order. He went in and found Mr. Lambert on the floor as on Wednesday, 25th. Mr. Lambert told him that he was there all night and that he could not reach his phone to ring Mr. Lyons and ask him to come to pick him up. Mr. Lyons said he put Mr. Lambert in bed with difficulty because he had not much strength in his legs at that time. He had to pull him down the hall. He found it difficult to lift him. He put him under the electric blanket and turned on the heating in the bedroom and said that he would be back in about two hours.
When he came back, Ham Lambert was there and said that Mr. Lambert would have to be “put away” and that he was “mad”. Mr. Lyons told Hamilton that Mr. Lambert had written to him and said that he was not to be removed from his house. He said he would get people to care for him in his home. Mr. Lyons said that he was totally disregarded. Hamilton went then, phoned and spoke, presumably, to his wife.
Janette Lambert, Mr. Lambert’s daughter, then arrived.
Mr. Lyons said that while Janette and Hamilton were whispering together the land line rang and a woman’s voice said:
“This is John of God here. We can’t take that man in unless two doctors certify he is insane.”
He said he thanked her and put the phone down. He became terribly alarmed and realised that his role as power of attorney was being completely ignored.
The doorbell rang and two men in uniform asked whether there an accident there. Mr. Lyons said there was no accident. Janette Lambert put her hand on my mouth and said “no you don’t live here, you don’t know what‘s happened. He had a very bad fall. He will have to go to hospital.”
Mr. Lyons said he realised he was powerless as the two men went to the bedroom. He went into the living room and, while he was there, he saw Hamilton crouching behind the settee. He heard Mr. Lambert being taken out and heard him asking where Tony (Mr. Lyons) was.
Mr. Lambert had asked him that if anything happened there was a bank box under his chair in the study which he was to take possession of. While Mr. Lyons put the contents into his brief case, he said that Hamilton Lambert took some leatherette boxes containing gold cuff links and tie pins and also a little camera and put them in his pocket. Mr. Lyons told Hamilton Lambert that they were Gordon Lambert’s, that no one should touch him, and that he was responsible for everything in the house.
He said that he rang Ms. Beaumont, who was recuperating after an operation, and told her.
That afternoon Jean Lambert rang Mr. Lyons and said Mr. Lambert was in St. James’s Hospital. She said she could not look after him as she was going on a holiday with her daughter.
He then contacted Ms. Beaumont and asked her to come with him to St. James’s Hospital. Mr. Lambert was lying on a trolley and Ms. Beaumont calmed him completely.
He said that Mr. Lambert was not examined by a doctor until 10.00 pm. By that time he had rallied a little.
Mr. Lyons got home about midnight. There was a message on her answering machine from June Lambert. He rang her and she screamed down the phone. He recalled hearing the conversation when she was abusing her uncle and he told her that she had been fighting with him for ages and that she should stop the hypocrisy and the crying. They did have “a battle”, he admitted.
The following morning when he visited St. James’s Mr. Lambert was still on a trolley in a little bay and was hallucinating that he had been kidnapped by the I.R.A. Mr. Lyons said he stayed with him and tried to calm him down. At about 3.00 pm he was given a bed in a private ward.
When Mr. Lyons returned on the Monday and asked the nursing station, he was told that they could not deal with him as his niece, June Lambert, was in and said she was the next of kin and that the nurses were only to deal with her. He phoned Patricia Rickard-Clarke in McCann Fitzgerald and told her what had happened. She came to the hospital and handed him a sheet of paper which was the enduring power of attorney and told him that he was responsible for everything now and to keep receipts. At that stage he knew nothing about the role of attorney.
He said he did not encounter June Lambert when he was seeing her uncle in hospital. He went in practically every day with his post and asked for his instructions. He kept the house heated and kept the cleaning staff coming in for a while, paid the gardeners and changed the locks again as soon as the power of attorney came checking the interests of security of the house.
On 15th December, 2002, Mr. Lambert was discharged and, Mr. Lyons felt, was becoming institutionalised. He said he did not feel like coming home on 8th and it was agreed he would come home on 15th. He wanted clothes and was beginning to live again and trying to look as best as he could.
He got an alarm and installed it, connecting Mr. Lambert’s room to the carer’s room. A carer was waiting when they returned to his house.
He arranged for a public health nurse to come, got a special bed for Mr. Lambert and a wheelchair. He said that Mr. Lambert never walked again and was effectively wheelchair bound.
A few days later Hamilton Lambert rang after his wife had gone on holidays and asked how Mr. Lambert was and asked whether there was a bug in the hospital. Mr. Lyons said that he had been in every day and Catherine Marshall had been in most days but neither caught any bug.
He said that he did not know anything about Ham Lambert calling to see Mr. Lambert on 17th December when Catherine Marshall was with him, until after their visit.
On 19th Ham Lambert and his wife Jean came with a Christmas present of home made soup and a cyclamen plant. He said the family did not return until after Christmas. He had received no enquiries about Mr. Lambert’s health or welfare from other members of the family over that period. Mr. Lambert spent Christmas with Mr. Lyons in Mr. Lyon’s house.
On 27th December Ham Lambert rang requesting a meeting with Mr. Lambert alone. Mr. Lyons asked Mr. Lambert who replied: “No”.
On 30th December, Hamilton rang Mr. Lambert directly.
Hamilton Lambert’s diary recorded that he had made further calls to Mr. Lambert: two calls on 1st January, two calls on 3rd January, a call on 4th January and two calls on 5th January seeking a private meeting. He thought that that was when Mr. Lambert began to ask the carers to answer the phone for him and the carers would say to call back later.
He said that Mr. Lambert at this time did not say anything to him about his attitude to meeting Ham Lambert alone nor was there any written communication from Ham Lambert. On 8th January Mr. Lyons said that he received a call from Ham Lambert accusing him of stopping him seeing Mr. Lambert. That was the first time he was so accused. Mr. Lyons said he told Hamilton that it was Mr. Lambert’s home and it was up to him to decide who came and went.
He said that Ham Lambert continued to phone him and was so aggressive and so hostile that he had ceased to take the calls and let them go to the answering machine.
He said he rang Susan O’Connell who had then taken over from Patricia Rickard-Clarke in McCann Fitzgerald and told her he was being harassed by Ham Lambert. Ms. O’Connell told Mr. Lyons that Hamilton Lambert had phoned her to ask her to let him see Mr. Lambert.
Mr. Lyons decided that he would write Hamilton Lambert a letter in his capacity as power of attorney and explain the reality of the situation asking him to stop pressuring Mr. Lambert who needed rest and recuperation. This was the letter that he understood was shown to June Lambert and passed on to Padraig Madigan for his advice.
The solicitor’s attendance of 2nd January, 2003, recorded Mr. Lyons phoning McCann Fitzgerald saying that Mr. Lambert wanted to see a solicitor. Mr. Lyons message said “I think he wants to change his Will. His speech isn’t very good. He thinks he wants to change his Will”.
He said that Mr. Lambert had never discussed changing his Will with him. Mr. Lyons believed that the letter he wrote to Hamilton Lambert was a mature letter and a responsible letter from the power of attorney. He was satisfied that he had acted with complete propriety and dealt honestly and fairly with Hamilton Lambert.
In his letter he referred to Ham Lambert as being devious and arrogant, unable or unwilling to accept the reality of Gordon’s illness, that Mr. Lambert never asked his family to care for or look after him and that Mr. Lambert needed rest and recuperation.
He had copied that letter to McCann Fitzgerald.
Ham Lambert did not respond to that letter. However, Mr. Lyons he received a letter from Bruce Lambert on 6th February, 2003.
He was asked about Pauline Slater, who cleaned the house when Mr. Lambert was hospitalised. Mr. Lambert said that there was no need to have a cleaner while he was in hospital and he could not justify paying someone for no work. He had changed the locks and kept the key himself and no one else had a key.
He was asked to comment on Jean Lambert’s evidence that he had told her that she was not to organise the funeral. He denied making any such comment. He did not think Mr. Lambert was dying. He had been examined by a doctor and was very “chipper” at that stage.
He said that it was untrue to say that she was not to go to hospital or to visit Mr. Lambert or that Mr. Lambert did not want to see her. It was a public hospital and he was in a public ward.
Mr. Lyons said that on 4th January, 2003, Mr. Hamilton Lambert had brought a letter to Mr. Lambert who said he did not want to see Ham Lambert. In that letter Hamilton Lambert expressed sorrow about not having visited him more often and referred to Mr. Lambert saying that he would have died if he had not come into hospital. The letter referred to the reasons for the hospitalisation and how Hamilton felt personally about their relationship over the years.
Mr. Lyons was asked whether the family were prevented from speaking to or calling into or seeing Mr. Lambert. Mr. Lyons said he did not prevent them at all but he did advise them about the distance to Mr. Lambert’s ward when he was in St. James’s.
He was referred to Bruce Lambert’s letter which Mr. Lyons said was rehashing Ham’s arguments and indicating that the wards were closed. He said that the wards were never closed.
Mr. Lyons said that he never made any demand of Ham Lambert to procure an apology. He said that Mr. Mr. Lambert’s personal notes to Ham and to June were all ignored. They just kept on pressing to see him. He said he was very annoyed with Bruce’s letter. Mr. Lyons repeated that he had no involvement in Mr. Lambert’s request that an apology should be made. Mr. Lyons was not seeking an apology.
He was conscious of the suggestion being made that the family perceived that he was locking Mr. Lambert away from his family. He said that was ridiculous as he lived in his own home. He did not live in Mr. Lambert’s house. He had his own business to attend to. He was on call the whole time to the carers who could ring him anytime they wanted something.
He said he did not mind at all if a meeting were arranged between Mr. Lambert and his family.
Mr. Lyons said that Mr. Lambert had been unhappy that he had not expressed his outrage to Susan O’Connell about the letters from his family and wanted to make more points and send them to her in relation to a reply to Padraig Madigan. He was asked whether that was not Mr. Lambert’s style as maintained by June Lambert in her evidence. He replied that he was a trained journalist. He took the notes and he typed them up. He had no involvement in writing the notes nor did he suggest its contents to Mr. Lambert. He did not know the basis for the bullet points in the reply to Mr. Madigan.
Ms. June Lambert’s letter stated that, after a week or so, the hospital saw her as having the primary role of organising Mr. Lambert’s care at home to which she unreservedly agreed.
Mr. Lyons said that it had been established that he was the attorney by then. Ms. Lambert did not in fact assume a primary role or any role in organising her uncle’s care at home.
That letter had been delivered by Jonathan Mitchell who wanted to see Mr. Lambert. Mr. Lyons asked Mr. Lambert who agreed and Jonathan Mitchell went in. Mr. Lyons left. He did not control access to Mr. Lambert. If someone wanted to make contact with Mr. Lambert they would phone or they would call. Mr. Lambert would say whether he was not feeling very well or he was tired or that he would see them and they were let in.
He said it was totally incorrect for Ms. Susan Taylor to say that she got instructions from him that he was to be told if Mr. Lambert had any visitors who phoned him and had to report to Mr. Lyons.
Ms. Taylor had said that Mr. Lyons had told her that his family were not to be informed when he died. Mr. Lyons said that neither he nor Mr. Lambert himself ever contemplated his death.
Mr. Lyons said that Ms. Taylor had never contacted him and it was completely untrue of her to say that Mr. Lambert could not receive visitors. He said that the carers were never told that they were not to let the family in.
Mr. Lyons said that he called down most afternoons when he had read Mr. Lambert’s post and Mr. Lambert would have instructions to give. He would go to the carers and ask whether Mr. Lambert was getting his medicines and how he was the previous night. The carers had to be paid in cash. He was on call 24/7 and had to go down several nights to stop nose bleeds, and so forth.
He said that Mr. Lambert was very ill at ease with Ms. Taylor. He told them that Mr. Lambert liked to be called Mr. Lambert. He was not aware of her coming to work for Mr. Lambert as they came through the agency and explained how important it was that Mr. Lambert got his four-hourly medication. On one morning he was told by Mr. Lambert that he was in trouble that night and called Ms. Taylor but she never came down.
Mr. Lyons said he rarely saw Pauline Slater except to pay her on a Friday. He thought he got on very well with Ms. Slater but did not see a great deal of her as she came in three mornings a week for two hours at about 11 o’clock and was let in by another carer who was living there. He attended in the afternoons.
There had been difficulty with alarms and locking the house. He used to lock it because of trouble with the gardaí over Mr. Lambert setting off his alarm.
He denied that he had insisted that none of the Lambert family should be allowed to get in touch with him. Ms. Slater said she heard Mr. Lyons saying he would walk away if Mr. Lambert tried to get in touch with his family because they had been rude to him. Mr. Lyons asked why would he say that as Mr. Lambert already knew the situation.
He said he knew nothing about Jean Lambert’s funeral. He did not express any view on Mr. Lambert having tried to ring Olive Beaumont as he had three mobile phones and one land line. There was no monitoring or checking or interfering with Mr. Lambert’s access to communications of any kind. Mr. Lyons said Mr. Lambert used the phone the whole time.
Mr. Lyons said the vicar did not have to check if he wanted to go to see Mr. Lambert. He said that he was sure that the vicar would not allow that to happen anyway. He said that the vicar would just arrive at the house which he gathered was on Sundays around noon.
7.2 Dr. Tim Gleeson
Mr. Gleeson with thirty years in practice, a clinical tutor in U.C.D. and in addition to his medical qualifications had a diploma in forensic medicine. His thesis was on the mental capacity of the elderly which he completed subsequent to the examination of Mr. Lambert.
Mr. Lambert was a patient of his from December 2002 onwards. He described his symptoms as Parkinson’s disease, aspiration difficulties, disabled in mobility but reasonably articulate, learned, bright with a pleasant existence for the one and a half years after his hospitalisation.
He had common interests with him in terms of arts, books and the fact that Dr. Gleeson had worked in Africa. He had been in hospital because of a urinary tract infection and dehydration. He did not want peg feed then.
There was no psychiatric element in his disease. He said that, had he been sent to St. John of God’s, they would have “shipped him to St. James’s. He referred to Dr. Walsh, consultant in St. James’s, whose opinion was that the medication he was on could have caused occasional hallucinatory effects. He did not see him in St. James’s.
Dr. Gleeson said that he hated hospital and asked him to solemnly promise that he would not hospitalise him against his will.
He said his family had been unhappy with their inheritance. He felt under pressure and did not want “this conversation”.
He and Dr. Walsh said he had the right to restrict visitors. Both agreed he was compos mentis. The variation in his mental ability was ectogenic, that is drug-induced.
In February, 2003 to August 2003, when he made his Will, he had seen him every two months which he described as a social act.
He said that Mr. Lyons would convey messages and get prescriptions.
Mr. Lambert was as well as could be.
He said that in August, 2003 he had written to Ms. O’Connell regarding the mini-mental state examination in which Mr. Lambert was 100% in alertness and orientation. He was under no pressure from anyone to alter his Will. He had full control of his faculties and was fully compos mentis.
In May 2004, on the occasion of the execution of his codicil, he saw him and was of the view that he did not need any repeat of the mini mental state examination.
His report referred to the process of Parkinson’s disease being under good control and that there was no inter current illnesses that might alter his ability to think and make decisions. He felt it necessary to state the reasons why he was changing his Will although Dr. Gleeson had not asked him to do that. He informed Dr. Gleeson that the art collection which he had given to the Trust had increased in value significantly and he was now altering (the provisions in relation thereto).
Dr. Gleeson continued as follows:
“I asked him had this change in his Will been requested by anyone and he answered no. I asked him did this disadvantage any of his relatives and he answered no, in fact he answered that this would be to their benefit.”
He continued:
“As a medical witness to the change of his Will, I found no difficulty in recommending that he was in a full and normal mental health to do so and was no provoked to making this change and took all factors into consideration …”
Dr. Gleeson said that he knew none of the details of his Will before his death.
In cross-examination by Mr. Gilhooly he agreed that it was the most advanced case of Parkinson’s in his practice. He would not expect improvement. His writing was good. Cognitive impairment would not necessarily affect testamentary capacity.
He said that the medical notes in St. James’s in 2002 indicated that he had scored 25 out of 30 which he regarded as pretty good. There was no difficulty with his testamentary capacity.
In relation to the issue of the ramp he said this was not a matter for his G.P.
Mr. Callanan asked Dr. Gleeson why he confirmed that he was not under pressure by anyone to make any alteration in his Will. Dr. Gleeson said he had no reason to doubt it.
When he had seen Mr. Lambert he would usually be with someone else as he had carers. He never asked for a complete private audience with him. He certainly met Mr. Lyons there on a number of occasions.
He said that Mr. Lambert had very specific views of what he had done and what he had not done but was not irrational. Had he or Dr. Walsh said to him that he needed to go to hospital he would probably have accepted it, but they would have had some difficulty in convincing him that he needed to be in hospital because of his already declared dislike of hospitals, which he hated.
Dr. Gleeson said he had no dealings with Hamilton Lambert or his family. He was aware that Mr. Lyons friend and Dr. Gleeson’s colleague, Dr. Brenda Moore McCann knew him and he would ask how she was. He said that his level of engagement with the outside world was limited.
He said he regarded Mr. Lyons as Mr. Lambert’s adviser, carer and accordingly anything to do with his attendance at the house would have been mediated through Mr. Lyons because of Mr. Lambert’s inability to speak properly.
He confirmed in re-examination that he had used the phrase “the pressure issue” in relation to the problems with relatives possibly discussing the Will with him. He had used the word “pressure” rather than “fear”.
7.3 Edward Woods
The evidence of Mr. Edward Woods, the Vicar of Rathfarnham since 1993, was that he called perhaps once a month or six weeks to bring Mr. Lambert the Eucharist. He was always in very good form, although physically he was not the best at times. Mentally he was very alert and very talkative and chatty and in good form. He did not know Mr. Lyons well during the latter part of Mr. Lambert’s life. He only met him once or twice in the house. It was usually Anita who was his carer who let him in. She was attentive to his needs. He agreed that she was devoted to Mr. Lambert.
He said that Mr. Lambert seemed very much in control of his own life and what he wanted apart from his physical disability. He said that, on only one occasion did Mr. Lambert mention his Will. That was in the context of, he thought, Ham’s wife being quite annoyed with Mr. Lambert not having included her in his Will.
He was referred to the pleadings which stated that Mr. Lyons had refused to allow Mr. Lambert further contact with the new vicar of the parish. Mr. Woods said he was not the new vicar as he had been there since 1993 and that Mr. Lyons had never interfered with his access to Mr. Lambert. He was never refused entry. He would ring Mr. Lambert up a day or two in advance and arrange a time that suited both of them and was let in by the carer. He said he did not have to go through Mr. Lyons.
He said he saw no evidence of Mr. Lambert having been neglected or that his care was inadequate or stinted during the latter part of his life.
He said he had visited Mr. Lambert on perhaps a weekly basis when he was in St. James’s. Mr. Lambert was anxious to get home. That was his main aim. He was fully in control of his faculties most of the time. In cross-examination Mr. Woods said that he had asked Mr. Lambert whether, as he became more incapacitated, if he wished to be included on the regular monthly rota for communion and he said he would. That was five or six years before he died. He had become slightly more disabled in the latter years but on the whole his condition would have been fairly static. His speech was also a bit slurred because of his Parkinson’s.
He was asked whether Mr. Lambert talked to him about his family and he said not a lot, that they did not talk about family matters at all, apart from the one reference that came out of the blue which was already referred to. It was not a matter which he would necessarily expect him to mention. He did not pry into any of Mr. Lambert’s personal relationships.
He said that Mr. Lambert never struck him as being paranoid. He never saw any hallucinations.
He said he gave a homily at Mr. Lambert’s funeral. It was put to him that he spoke quite pointedly of the thoughtlessness of others. He said he could not recall what he said as he had done so many funerals. He did not recall saying anything about thoughtlessness. He said no one ever approached him about a memorial service.
There was nothing unusual. The funeral took place two days after he died which was standard. Mr. Woods was not asked to act as a mediator to resolve difficulties.
In re-examination Mr. Woods said that Mr. Lyons and Anita Delaney seemed to take great care of Mr. Lambert.
In cross-examination Mr. Gilhooly put it to Mr. Lyons that Ms. Slater had made a general suggestion that Mr. Lambert had been left in a very unsatisfactory condition or had been neglected towards the end of his life. Mr. Lyons said that he was very well looked after. He said that Ms. Slater objected to the carers being there. Mr. Lambert had called him one day and said that the women were screaming at each other. So a new carer came. She had been a legal secretary who was starting to do caring work and she was challenged by Ms. Slater as to what she was doing there.
He denied that he had vetoed the ramp proposed by Mr. Bill Murphy, Ms. Slater’s partner. He said he produced the receipt for a ramp which was there from the time Mr. Lambert came out of hospital and was wheelchair bound. There were three ramps. Ms. Slater never came to him about a ramp at all.
He was asked who would visit Mr. Lambert during the period 2003 – 2005. He said the people he was aware of were Anne Madden and Louis le Brocquy, Dr. Moore McCann, Catherine Marshall, some banking friends and Ms. Rita Childers. There was also the director of Adams Auctioneers, Mr. Coyle, Robert and Mrs. Ballagh, and Michael Ashe. They just rang Mr. Lambert himself and said they would like to come to see him.
Mr. Lyons said he never saw Mr. Lambert’s Will. He knew the solicitors were coming but he had nothing to do with the Will. The carer let them in.
He said that he had not exercised any influence over Mr. Lambert in relation to the Will. Mr. Lambert had negotiated the Will with Susan O’Connell and he was in touch with her the whole time. He just rang her and said if she would come on such and such a date. He did not know of the provisions of the Will. There were no discussions between him and Mr. Lambert in relation to his proposed testamentary dispositions. He was aware that Dr. Gleeson examined Mr. Lambert on 21st August, 2003.
Mr. Lyons said that he thought Mr. Lambert was perfectly normal, weak but perfectly clear in what he wanted to do. His brain did not go at all.
He was asked about the letter Mr. Lambert wrote to June Lambert on 4th September, 2003, in reply to her letter. He said he was not responsible for the content of that letter. He had nothing to do with it at all. He did not discuss the content of that letter with Mr. Lambert. He could not remember the attendance where he said that Mr. Lambert had drafted the letter and gave it to him.
He was asked about the evidence of Ms. Lambert saying that she had been advised that the carers saw him dictating to Mr. Lambert. He said that that was not correct – it was totally incorrect.
He said that Mr. Lambert opened all his own post and that he rarely typed a letter for him in reply other than the invitations which were formally replied to. It is not clear from the evidence whether this was before the time that Mr. Lyons opened the post.
Mr. Lyons was asked what the general condition of Mr. Lambert was on 13th October, 2004. He said that the carer had called him saying that Mr. Lambert was not well and asking Mr. Lyons to come over at night. When he arrived he called the doctor who diagnosed pneumonia and said he would have to go to hospital straight away.
Mr. Lyons said that he had objected to Mr. Lambert telling anyone about what was in his Will which was a matter for his solicitor.
He said that when he was in hospital Anita Delaney stayed with him and slept in a chair beside his bed. Mr. Lyons would go into visit him most afternoons. He did not encounter anyone else but thought the vicar may have dropped in.
(In January, 2005) Mr. Lyons had told June Lambert that Mr. Lambert had indicated a wish to change his Will, though he could hardly speak. He told Mr. Lambert to wait until he went home and was better. He said he left it like that.
Mr. Lyons said that he was with Mr. Lambert earlier in the morning of 27th January, 2005, and he knew that he had not long to live. Anita Delaney was with him the whole time. Anita Delaney called him that evening when he was at a meeting with Eoin McGonigal, the chairman of the Museum and told him that Mr. Lambert had died.
Mr. Lambert did not want any announcement of his death until after he was buried but word had got out. He was contacted from the Museum the following morning sympathising with him. He realised that it was necessary to move quickly so that Mr. Lambert’s wishes would be honoured. He arranged the funeral for Saturday, the following day.
He was asked whether he engaged, or was capable of engaging, in some form of psychological cruelty towards Mr. Lambert. He objected to that totally and said that he was not that kind of person, that Mr. Lambert had been a friend that he had known for 30 years and he was obliged to look after him under the terms of the enduring power of attorney. He said it was a pretty grim (task) and that his health had been damaged. His hearing was affected by stress. His garden had gone to seed. He was not able to show his dogs or to fulfil judging appointments in England.
He said that the family had known him for years and they knew what he was like. He was always on good terms with them. They knew this was not true and had refused to recognise the fact that they damaged Mr. Lambert’s health a lot and did not apologise.
Mr. Lyons said that he did not realise that he was included in Mr. Lambert’s Wills. He did not have an interest in other people’s money. He always earned his own. He did not know about the increase in legacies.
He was not initially aware that he was suffering from Parkinson’s disease but once, when driving by the park noticed he was walking lob-sided. He exercised the whole time to keep his illness at bay. While he did not understand Parkinson’s he noticed slowness in his speech but did not notice slurring. He was aware that he was salivating a bit but he did not query it really because he appeared to be in good form.
When he signed the power of attorney it was explained to him but that was all he knew about it. He was willing to try it because Mr. Lambert needed help. He agreed that he had read the document in its entirety before he signed it. He was aware that it had no force until it was registered. He said he did not exercise the power of attorney as he did not have a power complex. He did not see any need for it. Mr. Lambert’s doctors would decide what training or rehabilitation he should get.
He said he had spoken to Dr. Tim Gleeson who had replaced Mr. Lambert’s previous G.P. when he came home from hospital in December 2002. His previous G.P. had said he did not want to treat him unless he got help at home. He had not suggested the change in G.P. He said he consulted with Dr. Brenda Moore McCann and with Catherine Marshall. The former recommended Dr. Gleeson.
He said that he was aware that Mr. Lambert had mentioned to Jean that he was not leaving her anything in his Will but was leaving it to their children to minimise (inheritance) tax.
In reference to the enduring power of attorney and the right to inspect Mr. Lambert’s personal papers, Mr. Lyons said that he did not exercise that right as there was no reason to do it.
He said that Ham Lambert must not have read the whole Will as Jean Lambert was to get Ham’s portion if he pre-deceased her.
He first had difficulties with the family the day they removed Mr. Lambert from his house and sent him to hospital in September, 2002. He agreed that there was no reason to complain before that.
He had contacted McCann Fitzgerald on 3rd January, 2003, which was twelve days before the registration of the power of attorney. It was put to him that he had no entitlement to make any decision at that time. He said that the solicitors had not told him that. He said he did not know that it had not been registered at the time. He believed it was the same power of attorney but was not familiar with the technicalities of registration. There was a lot of pressure at the time coming from the family to see him. He had never asked it to be registered at all.
Mr. Lyons was asked if it were a fabrication that Ham Lambert or the family had been in contact with St. John of God. He said he did not fabricate it. He took the call. The attendance the following day of 29th September by Patricia Rickard-Clarke referred to it.
His evidence was that he had given it, that Mr. Ham Lambert had said “He’s gone mad, he will have to go to hospital and that’s it”. Then he picked up the phone which (answered) said it was St. John of God as he had indicated. He said it was completely true. He was there.
Mr. Lyons agreed that it was true that (as it was not registered) he had no power of attorney on 29th September and agreed that Mr. Lambert’s next-of-kin at that stage was Ham Lambert.
He was referred to a general power of attorney dated 1st October, which was signed C.G. Lambert. Mr. Lyons said he did not know if Mr. Lambert had signed it but that it was Mr. Lambert’s handwriting. He did not know whether there was any attendance in relation to that power of attorney which was signed by him and witnessed by Patricia Rickard-Clarke.
An objection was made that the validity regarding the general power of attorney was not pleaded. It appears also that it was not included in the discovery documents. It was claimed it was a way of circumventing the enduring power of attorney. Counsel for the plaintiff agreed that it had not been raised as an issue in the pleadings.
The court ruled that leave to mend the particulars regarding the enduring power of attorney and general power of attorney would be refused.
The nursing assessment form dated 28th September, 2002, gave the next of kin as Hamilton Lambert and agreed that his telephone number was included in the form.
The nursing assessment form also contained the words “relationship, Anthony Lambert, son”. Mr. Lyons did not know who Anthony Lambert was but agreed that his phone number was underneath. He said that he had no hand, act or part in that form. The person who accompanied Mr. Lambert by ambulance was Janette Lambert. He did not get to the hospital until about 10 o’clock that night. He said that, when he got the power of attorney, he went and presented it to the hospital and said that they should deal with him now. He gave the power of attorney to the hospital the following Monday, 1st October.
The bottom of the nursing assessment form says “solicitor, Anthony Lyons”. He had no explanation as to how they thought he was a solicitor. He had not done so. He assumed that, when the hospital knew he had a power of attorney, they thought he was a lawyer.
The hospital notes had queried whether Mr. Lambert had dementia. On 3rd October, there was an entry “need to speak with next of kin”. He said nobody spoke to him at that time about that and that it did not follow that he was not regarded as his next of kin.
He agreed that he had no communication with McCann Fitzgerald until the end of December, 2002, at a time when he had a general power of attorney. He believed the suggestion regarding the registration of the enduring power of attorney came from McCann Fitzgerald.
Mr. Lyons said he was not disappointed in the attitude of the family ignoring Mr. Lambert over Christmas. It was Mr. Lambert who was disappointed and made that known to his solicitors. It was put to Mr. Lyons that Hamilton had recorded that he had phoned to visit Mr. Lambert on Christmas Day. The note said “cancelled – he is going to Tony for the day”.
Mr. Lyons said that he took him for the day because the carer wanted to be with her own family and they went to Mr. Lyon’s house.
On 27th December, 2002, Mr. Lyons said, “Hamilton Lambert began ringing again looking for Gordon alone”. The carer would have taken the call. He said that he did not instruct the then staff not to let the family in. It was put to him that he instructed Susan Taylor not to let the family in. He said that Ms. Taylor had not come for several years later. He had never said that there was anything improper in Hamilton wanting to see him alone.
Mr. Lyons said that he had no problem with Mr. Lambert taking the attitude of not wanting to see Hamilton specifically. Mr. Lambert was very angry with the Lamberts. When Hamilton Lambert had arrived on 17th December Mr. Lambert had two other visitors and did not want to see Hamilton alone. That was not Mr. Lyons doing. He said he knew nothing about it until afterwards.
He believed that an apology to Mr. Lambert would have helped. Mr. Lyons did not want an apology. He accepted from the papers now available to him, that the family felt that it was he who wanted the apology.
The questionnaire was not entirely his idea and he reiterated his comment that he had not said enough to Susan O’Connell. He noted what Mr. Lambert had said and typed it. It was not for him to dictate what Mr. Lambert should or should not do.
Mr. Lambert also objected to Ham approaching his solicitor and wrote to Ham to that effect, that he had lost all trust in him. Mr. Lyons said he did not discuss that with Mr. Lambert.
He said that Mr. Lambert had been very embarrassed that he had bestowed the power of attorney on him and that it had landed him in all that trouble. He had said several times “sorry, I got you into this awful mess”. So he thought maybe an apology would be acceptable. Mr. Lyons said he did not want one and had never asked for one but agreed that Ms. O’Connell seemed to be under the impression that he did.
He agreed that Ms. O’Connell had suggested a meeting between Ham and Gordon and Gordon was quite open about it.
The matter of the call from St. John of God psychiatric hospital, mentioned in the second half of page 2 of the questionnaire, was put to Mr. Lyons on the basis that Mr. Lambert could not have known that except from him. He agreed.
Mr. Lambert had asked him some time before telling him of any decision he was making. Mr. Lambert wanted to hear everything that was going on and Mr. Lyons said that he told him everything. He thought he said that Mr. Lambert would never get over the trauma of being dragged from his own home and put into a hospital. He thought that what happened was that Ham Lambert had phoned St. John of God and said he had a patient he wanted to take in and thought there would be no difficulty.
Susan O’Connell had said that Mr. Lyons needed to be careful and that Mr. Lambert would be looking to him for advice and that he needed to stand back from it and ensure that he did not influence Mr. Lambert with his own views in relation to family members. She said that Mr. Lyons had agreed with this. Mr. Lyons said that would be her job to advise. He had suggested that maybe Padraig Madigan would come and visit Mr. Lambert himself. Susan O’Connell said that might be a good suggestion. Mr. Lyons said that was not putting Mr. Lambert under undue influence. He had said that he should come to talk to him. He was referred to the attendance of 13th May, 2003, which was a long conversation that Mr. Lyons had with Susan O’Connell. Mr. Lyons said that that note from Susan O’Connell had also said as follows:
“I explained to Tony that I was happy to put it on the basis that Ham himself had mentioned to me about St. John of Gods.”
(Ms. O’Connell’s recollection was that Mr. Lyons was the person who told her that Ham had contacted St. John of God Hospital. She thought that they knew that because a telephone call came through to the house, but she was never clear as to whether Mr. Lambert knew this himself directly or whether he knew it because Mr. Lyons had told him.) (See Book 12, pp. 49 and 50).
The Court is satisfied that Ham had not mentioned it to Susan O’Connell.
Indeed Mr. Lyons agreed that the question of St. John of God could only be referable back to him and that Mr. Lambert’s awareness could only have come from him. Mr. Lyons said that whether it came from him or not, Mr. Lambert wanted it included in the letter. It had been a very frightening morning for him.
The reason that Mr. Lyons did not come out to identify himself when Mr. Lambert was being brought to the ambulance was that he did not want him to think he was part of what he regarded as an outrageous deed.
In cross-examination by Mr. Gilhooly, Mr. Lyons said that Mr. Lambert was protesting when he was being removed to hospital. He said he heard shuffling and Mr. Lambert calling his name but he did not see him going out of the house.
The attendance of Susan O’Connell was that Hamilton Lambert had made the decision without reference to Mr. Lambert or to his doctors.
Mr. Lyons agreed that he was an executor in every Will since 1996 and was so informed by Mr. Lambert. However he was not informed of the content of the Wills.
He said he had not row with Hamilton Lambert. There were exchanges, he was annoyed, so he stopped communicating with him. He did not want an apology. He said that on 23rd May, 2003, there was a telephone attendance re amendment to Mr. Lambert’s letter to Susan O’Connell. He said he had no part in Mr. Lambert’s letter to Susan O’Connell. He agreed that Mr. Lambert was isolated from his family as he did not want to see them. He said he could contact them when he did want to see them. He was very angry about the way the family had treated him (Mr. Lyons). He said that Hamilton Lambert had been abusive, shouting at him and was very demanding. He knew that there would be trouble with the Will when Mr. Lambert died but did not know the content of the Will.
Mr. Lyons agreed that Mr. Lambert had expressed a wish that the family should see the Will so that they would all know everything had been divided fairly. Mr. Lyons had objected to anyone seeing the Will.
He did not know he was a beneficiary in ever increasing sums. He knew that the house had been sold for €4.5 million. He did not think that it was his business to know the value of assets as that was a matter for the solicitors to get a valuation. He said he had no interest in others wealth. He agreed that Gerard O’Toole of Nissan had called on Mr. Lambert who got an auctioneer who valued the house at €1.5 million. Drucker Fanning had telephoned him with the value of €1.5 million. He said he consulted Mr. Lambert regarding this possibly in 2004.
Mr. Lyons said that he had never seen the spreadsheet which had indicated a valuation by Mr. Lambert of €600,000 and €700,000.
He said during Mr. Lambert’s last hospitalisation he did not give him instructions but he did say “I want to change the Will” and he replied that he should wait until he got home.
The Court notes that there is no claim in relation to the failure of Mr. Lambert to arrange for a new Will.
He said that Mr. Lambert had spelt out on an alphabet board: “They are all using me. I must change the Will”.
He said he told Cormack Brennan that Mr. Lambert did not have long to live and left a message with Nora Lillis of McCann Fitzgerald after Mr. Lambert had died. He said that Mr. Lambert was in no position to change his Will at that stage.
In cross-examination by Mr. Woulfe regarding the proposed new Will he said that Mr. Lambert had never specified when or where or anything. He did not think he could have given instructions.
He accepted that in 1997 Patricia Rickard-Clarke had explained the enduring power of attorney to him but he did not think she did so in 2002 when it was registered.
7.4 Anita Delaney
The evidence of Anita Delaney was that she had acted as a full-time carer with Mr. Lambert from 29th June, 2003 until March, 2005, sometime after Mr. Lambert had died. She had been an operations manager in South Africa beforehand. She had previously worked for the Irish Wheelchair Association. She was a carer on shift initially. Then Mr. Lambert asked her to become full time. She said she virtually lived in and did so towards the end.
She said Mr. Lambert had quite a few visitors and phone calls to his mobile and landline. She stayed with Mr. Lambert in hospital from 31st October, 2004 to 14th January, 2005 and when he came home.
She said that Mr. Lambert was very weak. He still had a sound mind. He had been in isolation from MRSA in hospital as was his wish as he did not want to be embarrassed with the oxygen mask.
She said that Pauline Slater had telephoned to see Mr. Lambert. Ms. Delaney said that he was in isolation and could have no visitors. She insisted and “I put the phone to his ear for 5 seconds”.
Four days later Ms. Slater came to Mr. Lambert’s room. Ms. Delaney said that as she could not see him but, nonetheless she came in. Mr. Lambert had a mask on at the time.
She said that Tony Lyons and Mr. Lambert were very good friends. Mr. Lambert was demanding, perfectionist, and demanding both of Mr. Lyons and on her time. Mr. Lambert looked forward to Mr. Lyons company. He called him nearly every night. Mr. Lyons would collect Mr. Lambert from day hospital to which Mr. Lambert did not want to go. Mr. Lambert did not discuss his family with her. On occasions he would say that if they rang not to put them through. She only met the family at the funeral where there was no interaction as she did not know them.
She never saw Mr. Lambert, with whom she was then with for 24 hours, being neglected or treated cruelly. He had every possible care.
It was put to her that Ms. Slater had said that Mr. Lyons had refused to speak to Mr. Lambert for two weeks and he had ignored him in the last while of his life and that Anita Delaney had said that something had to be done “because it was cruel what was happening to that man”.
Anita Delaney said that there was no occasion when Mr. Lyons was refusing to speak to Mr. Lambert and she did not have such a conversation with Ms. Slater.
She said she never heard any suggestion that Ms. Slater had overheard Mr. Lyons saying to Mr. Lambert that he was not to contact his family. She could not comment on whether Mrs. Slater overheard anything.
The rector did not have to check with Mr. Lyons if he wanted to see Mr. Lambert – he would pop around without any appointment and chat with Mr. Lambert.
She did not hear Mr. Lyons saying he would walk away if Mr. Lambert defied his wishes.
It was put to her that Mrs. Taylor had said that if Mr. Lambert had visitors that the carers had to report to Mr. Lyons. She said that no such regime was in place as far as she was concerned. She was not told that the family were not to be informed of his death or that his family were not to be allowed into the house.
She said that Mr. Lambert and Mr. Lyons got on very well. They just “bounced off each other and had so much in common”. She referred to their interest in gardening, dogs, television”. She said there was a very good rapport between them.
In cross-examination by Mr. Smith for the plaintiffs she agreed that Mr. Lyons was in charge of orientation of the carers. She confirmed that she did not hear the alleged exchanges between Mr. Lyons and Mr. Lambert or that Mr. Lyons would walk away.
She said that Mr. Lyons was in isolation in a private room when he had contracted MRSA in hospital.
7.5 Patricia Rickard-Clarke
Ms. Rickard-Clarke, a Law Reform Commissioner from 2001 having been part time Commissioner from 1997 to 2001 had previously been a solicitor with McCann Fitzgerald from 1980, and a partner from 1985. She was involved in trust, State, State planning, tax and succession. She had a particular interest in the capacity of older people and contributed to the Law Reform Commission and to the draft Mental Capacity Bill of 2008.
She said that Mr. Lambert was a client of McCann Fitzgerald for over 20 years. She had a good relationship with him from 1983.
She said he was independent and efficient but could be pernickety. He was up to date in his affairs and very well informed on law and taxation. She was one of the first to be told of his Parkinson’s disease. She had no difficulty in understanding and was used to dealing with Mr. Lambert.
He was interested in his family but did not want them involved in his affairs. He had close friends with whom he confided.
In 1996/1997 there was new legislation governing enduring powers of attorney.
She explained that taxation and investment changes, the rise and fall of the value of his estate and, indeed, the birth of a grand-niece and death of a sibling were examples of occasion to change his Will. She never had any doubt about his testamentary capacity.
Before February, 1997, an ordinary power of attorney would lapse if persons lacked capacity. Mr. Lambert was under the impression that then the next of kin could decide. She informed him that there was no such situation in Ireland unless the next of kin were appointed as a ward or under the Enduring Power of Attorney Act.
Mr. Lambert did not want his family involved and was concerned that they might wish him to be hospitalised or put into a nursing home.
She was not really aware of his friendship with Mr. Lyons before 1997 other than him being a beneficiary under Mr. Lambert’s Will since 1985. He had been an executor of the Will since 22nd January, 1996. He considered his friends, Ms. Beaumont and Ms. Tomlinson and herself and eventually he wished to appoint Mr. Lyons. The enduring power of attorney was executed on 17th November, 1997 but had no effect without registration when the donor was or was becoming mentally incapable. She explained that to Mr. Lyons on the execution.
There was an increased provision for Mr. Lyons when Mr. Lambert was getting more dependent on him.
She had no impression whatsoever of undue influence. She had experience of and was very alert to undue influence in vulnerable people and aware of Parkinson’s and how it affects people.
She referred to the Will of 15th May, 2000, which referred to Tony Lyons in the following terms:
“…whose steadfast care and attention in my progressive illness has enabled me to live a life of mobility, good humour and close association with my family and trusted friends. In my direst need he has never failed me.”
She said that Mr. Lambert had drafted that himself.
It was typical of the way he dealt with his Wills that he would give instructions and then make amendments and, indeed further amendments on the draft prepared for him.
She recalled the execution of the Will of 13th April, 2002. Her husband, David Clarke, also a solicitor was with her and was called in after she had spoken to Mr. Lambert, in order to witness the execution of the Will. Mr. Lambert was able to communicate properly with her. He was fine. She had no concerns whatsoever about his testamentary capacity. She noted the increased provision for Mr. Lyons which Mr. Lambert had discussed with her. Mr. Lambert was relying on Mr. Lyons who facilitated him to be at home. She was satisfied that he knew the contents of the Will.
She recalled the codicil of 18th May, 2002. Mr. Lambert did not take any part in any discussions but went into the garden with her husband. She was not concerned about his capacity in May – he was able to communicate properly with her and she read over the codicil and was satisfied that he knew the contents thereof which were attested by her and her husband.
She had no concerns at the time about the possibility of undue influence by Mr. Lyons nor got the impression that he might be asserting any pressure on Mr. Lambert. She would have regarded Mr. Lambert as the stronger, more dominant personality and never got the impression that he would be influenced or unduly influenced.
Susan O’Connell worked with her for seven to eight years and knew the up to date position of the matters coming to a head after the first hospitalisation of Mr. Lambert in September to December, 2002. She had received voice messages from Tony Lyons and from Hamilton Lambert.
She phoned Hamilton Lambert who was under the impression that, as next of kin, he could make decisions with regard to the hospitalisation and care of his brother, Mr. Lambert. She pointed out that he did not have such legal entitlement. Nobody had the right to make a decision on Mr. Lambert’s behalf. The issue of registering the enduring power of attorney which the family knew of in 1997 would arise if Mr. Lambert had not the capacity. She recognised the practical difficulty.
She did not recall any mention of St. John of Gods Hospital in conversation with Hamilton Lambert but Mr. Lyons had mentioned to her and had mentioned his concern about Mr. Lambert’s wishes. He had referred to Hamilton Lambert having seen a copy of Mr. Lambert’s Will and was concerned about the items in the house and regretted that Hamilton had been given a key by him.
She was conscious of the need to ask a doctor to certify Mr. Lambert as capable and talked to him about it.
Meanwhile a (general) power of attorney was executed on 1st October, 2002 in favour of Mr. Lyons. She said she saw Mr. Lambert on Sunday, 30th September, 2002. Mr. Lyons was concerned that he had let Mr. Lambert down. Mr. Lambert was comfortable and annoyed that he had been moved to hospital. He was lucid, had clear capacity but had physically deteriorated. It was clear that he would need carers. She decided to draft a general power of attorney, took instructions on the Monday and Mr. Lambert executed the power on the Tuesday following.
As he had capacity, the enduring power of attorney could not be registered. Under the general power of attorney, Mr. Lambert could direct Mr. Lyons to make the decisions that Mr. Lambert wished.
She ceased to work in McCann’s in October, 2002.
She said there was no obligation on the donee of the enduring power of attorney to get valuations nor, indeed, on the solicitors unless they were on notice that the testator was completely devaluing his assets.
In cross-examination Mr. Gilhooly referred to the hospital notes for the 3rd October, 2002 which described Mr. Lambert as “demented” and asked whether this affected his capacity to make a general power of attorney. She replied that dementia did not mean lack of capacity. Hallucinations would be time specific. The international best practice was to allow a person to be involved in decision-making.
The test for making a person a ward of court was based on old legislation regarding unsound mind and inability to manage affairs. The Law Reform Commission was very critical of the current system. She said that she never spoke to Mr. Lyons except when Mr. Lambert asked her. Mr. Lambert drafted a letter of wishes that nursing care, if required, should be administered in his house and that it was not his wish if he became incapacitated to reside in a nursing home. Only where medical treatment was required in a hospital should he be removed from his house. Hamilton Lambert accepted that she told him regarding him being cared for at home and that he did not need to be hospitalised.
She was very aware of the Northern Rock investment which was to pass directly to Mr. Lyons. She had generally informed Mr. Lyons of his authority to act under the enduring power of attorney. She agreed that undue influence was much wider than physical coercion or emotional suffering. She never got the impression that Mr. Lyons was in any way unduly influencing Mr. Lambert.
When asked about the reference to Mr. Lyons in Mr. Lambert’s Will she said that she was following the instructions given to her by Mr. Lambert. In relation to the valuation of the house, sold for €4.5 million, she said the house had been sold to a developer. She had been working on the valuation that Mr. Lambert had given her.
7.6 Susan O’Connell
Susan O’Connell worked with McCann Fitzgerald from 1993, was a solicitor in the private client group from 1996 onwards.
Her main area of practice was Wills, trusts, State planning, probate, powers of attorney and charities. She was a member of the Institute of Taxation, a member and past chairperson of the Society of Trust in Estate Practitioners and lectured in that area.
She first met Mr. Lambert in 1997 when she was a witness to his Will.
She worked closely with Ms. Rickard-Clarke and broadly understood the affairs of Mr. Lambert. She said that when she first met him he was able to speak without difficulty. In Autumn 2002 he found it difficult to talk. He made a recovery after hospitalisation. He was extremely pleasant and interesting with strong and well formed views and a sense of humour. Only fear was the effect of the Iraq War on the value of his estate and his concern that he would be cared for at home at all times during his illness.
Ms. O’Connell said that she spoke to Mr. Lyons about what happened over the weekend of 7th August, 2002. Mr. Lyons had said that Mr. Lambert told him that he had mentioned to Jean Lambert that he was not leaving her anything in his Will but was rather leaving it to her children for thanks purposes. Mr. Lambert had told him that Jean was very upset.
Ms. O’Connell referred to a discussion she had with Mr. Lambert in hospital in September, 2002, regarding the enduring power of attorney and the (general) power of attorney. Mr. Lambert was anxious about the power of attorney. Her firm contacted Dr. Brendan Walsh of St. James’s who certified on 23rd October, 2002, that Mr. Lambert was becoming incapable by reason of heart failure, Parkinson’s, hallucinations and was becoming incapable by reason of a mental condition. Mr. Lambert was notified on 16th November of the process of registering the enduring power of attorney. He understood and was delighted. Both Jean Lambert and Patricia Rickard-Clarke, as notice parties, were notified by registered post of the registration. The application was filed in the wards of court office before Christmas.
Mr. Lambert was very frail the only time she visited him in hospital. While his speech was difficult to understand he was perfectly lucid and in good form but not in good health.
She agreed with the attendance on Mr. Lyons on 31st December, 2002, regarding the trouble with Hamilton Lambert which was making Mr. Lambert furious. A further attendance on 2nd January, 2003, noted that Mr. Lambert wished to change his Will (as he had done regularly because of tax changes, for example).
In fact, while Dr. Walsh had certified that Mr. Lambert was losing mental capacity, she said that he never became mentally incapable and always retained capacity. In reality the enduring power of attorney never needed to be operated. Mr. Lambert made all the decisions and knew what was going on.
Dr. Gleeson wrote to Susan O’Connell on 12th January, 2003, regarding his long discussion with Mr. Lambert and said that he alone must make decisions. Dr. Gleeson noted that Mr. Lambert had made references to pressures from his family.
She said that Mr. Lambert improved but was still very frail. His speech was difficult to follow but she could tune in to what he was saying. He was adamant that he wanted to rest at home and was under pressure to receive visits from his family but did not want to receive them. She thought this was for two reasons: frailty and a feeling that his family had not visited him often in hospital, were not respecting his own rights to make decisions, were not listening to messages that Mr. Lyons and the carers were delivering to them and were showing a lack of respect for Mr. Lyons. He was also upset about inadvertently showing the Will to his brother Hamilton Lambert.
Ms. O’Connell said that the attendance of 19th February, 2003, regarding a new Will showed his concern that there would not be sufficient assets to meet all of the legacies included in his then Will.
She said that she had no sense that Mr. Lyons was influencing him or putting him under pressure. Mr. Lambert had great respect for Mr. Lyons.
She could understand how people could get the wrong impression.
She had no personal knowledge regarding the hospitalisation but knew that Mr. Lambert was upset that he had not received many visits from his family and that Hamilton Lambert was not accepting his wishes regarding visits.
She was referred to the attendance of 21st February, 2003, regarding the amendment of his Will. She said that she had said to Mr. Lyons that it was important from Mr. Lambert’s point of view that he not change provisions in respect of Hamilton Lambert and his family because it could end up in litigation and his estate would be dissipated through litigation which neither she, Mr. Lyons or anyone else wanted to see happen. If it were the clear wish of Mr. Lambert she would be happy to make a Will accordingly.
She said that while she did not have any sense that Mr. Lyons was behind any of the proposed changes she was, in a way, trying to issue a warning to him to let him know that she was highly alert as they were dealing with a very elderly person who was dependent on Mr. Lyons and that any changes be thought through carefully.
She had, two days earlier, raised the issue of the possibility of the family alleging that Mr. Lambert was under the influence of Mr. Lyons.
She was 100% satisfied that Mr. Lambert was making the decision not to see his family members. In February he was considering seeing Hamilton Lambert again but the letter from Padraig Madigan, solicitor for some members of the family, further aggravated the situation and deepened the wound that the family were not accepting that he had chosen Mr. Lyons as his attorney.
She said the only time she had a meeting with Mr. Lambert and Tony Lyons together took place with her and Cormac Brennan on 3rd April, 2003. Ms. O’Connell had said that it would be beneficial for Mr. Lambert to meet with the family to refute their claim that Mr. Lyons had been hiding Mr. Lambert away and preventing Mr. Lambert from seeing his family.
At that meeting there was a reference to a possible questionnaire which Mr. Lambert had dictated and Mr. Lyons had typed up and Mr. Lambert had amended.
At that meeting Mr. Lambert had said that he was very grateful to Mr. Lyons and appreciated what he had done over a number of years. They shared a sense of humour and genuine respect and showed affection for one another.
The letter of Susan O’Connell of 29th May, 2003, to Mr. Madigan summarised Mr. Lambert’s feeling confirming what he had written to the family on 22nd January, 2003. He was disappointed with his family not respecting his wishes and consulting a solicitor. Mr. Lambert instructed Susan O’Connell to clarify a number of bullet points regarding the incidents surrounding his hospitalisation.
Ms. O’Connell said that at that time Mr. Lambert’s health was excellent and he had got sharper since he came out of hospital. Mentally he was perfectly alert. She had no concern about him giving instructions regarding the amendment of his Will and reducing the legacies. She asked why he had done so and he said he was concerned as there might not be enough assets.
Ms. O’Connell asked if he could provide an estimate of his assets and Mr. Lambert produced a schedule of assets as of 30th May, 2001.
On 6th August, 2003, he was sent a draft of an amended Will and told of the necessity of having Dr. Gleeson present.
Ms. O’Connell had assumed a value of €600,000 for the house which would give a residue of approximately €500,000.
Ms. O’Connell did not have any conversation with Mr. Lyons. There was no evidence of him being involved in any way. She had no concerns regarding undue influence or contact with Mr. Lyons. She had no contact with Mr. Lyons. Mr. Lambert did not mention him. She said that she was very much alive to undue influence.
On 15th August, 2003, Mr. Lambert wished Bruce Lambert’s wife, Sue, to be included and the share to be divided between Bruce, Mark and Ham’s grandchildren and a second share to be divided between Valerie, June and the grandchildren of his later brother Tom, with a maximum in each case of €100,000.
He said he wished a one and a half share to be given to Mr. Lyons and a half share to Catherine Marshall.
Ms. O’Connell referred to the possibility of the family challenging his new Will as two of the beneficiaries had already consulted Padraig Madigan, solicitor. She said that Mr. Lambert was adamant despite her concern.
Ms. O’Connell agreed with Mr. Woulfe, S.C., that she had prepared a schedule for the meeting of 21st August, 2003, to advise Mr. Lambert of the effect of the changes to the draft Will which would reduce the legacies to his family. She explained that Mark Lambert, (the first named plaintiff) would receive a potential €41,000 under the draft as against a potential €96,000 under the 2002 will. Mr. Lyons, on the other hand, would receive a potential €375,000 as against €306,000. This was in the context of an estimate of a residue of some €500,000.
At that meeting Mr. Lambert produced a schedule of his assets as of 30th May, 2001, which had estimated the value of his house at €600,000. The residue for clause 7A and clause 7B was estimated to be €50,000 and €523,000 respectively. (A revised schedule of his assets before the execution of his codicil estimated a value of €780,000.)
On 21st August, 2003, Dr. Tim Gleeson examined Mr. Lambert using a mini-medical state examination and made a report of that day, saying that he was satisfied that Mr. Lambert was mentally alert and had testamentary capacity and confirmed that he was under no pressure from anyone to make any alteration in his Wills.
Mr. Lambert approved the contents of the Will. The attestation was by Susan O’Connell and Cormac Brennan. She was satisfied that the Will was executed in accordance with the Succession Act.
A subsequent report of Dr. Walsh of 6th January, 2004, dealt with his health at August, 2003. Dr. Walsh said that Mr. Lambert was perfectly competent to take full ownership of all his legal affairs and his testamentary capacity was fully intact.
Ms. O’Connell confirmed attending at Mr. Lambert’s home on 21st May, 2004 to execute a codicil with Cormac Brennan and Dr. Tim Gleeson. Ms. O’Connell said that Mr. Lambert was probably in the best health she had ever seen. She confirmed talking Mr. Lambert through the provisions of the codicil and was satisfied that he was capable of knowing and that he did know and approve the contents thereof. His signature was attested by her and Cormac Brennan.
At that meeting Mr. Lambert had prepared a revised schedule of assets with the house now valued at €780,000 or €700,000.
Dr. Gleeson’s report referred to having seen him every two months and that he had excellent health since his last letter. He said it was not appropriate to repeat the mini medical state examination as his Parkinson’s disease was under control. He said:
“He is in full mental health and is in full control of faculties.”
Ms. O’Connell said that there was no issue of any question of undue influence by Tony Lyons nor, as far as she was aware, of any involvement with the codicil.
In relation to the house she said she had spoken to Laurence McCabe of Ganly Walters. Mr. Lambert, on the recommendation of his friend, Gerard O’Toole, had contacted Ganly Walters as he was concerned that the annual upkeep and maintenance and care was amounting to some €160,000 per annum. He did not want to leave the house.
Mr. Drucker of Drucker Fanning also contacted Mr. Lambert.
After he died in January, 2005, Ms. O’Connell contacted two auctioneers for valuation. Sherry Fitzgerald valued the house at €2 million and Lisney’s at €2.75 million. It was a huge surprise when the house was sold for €4.5 million in May, 2006, when the reserve was €3 million.
Mr. Gilhooly in cross-examination suggested that the factors which would predispose someone to susceptibility of undue influence were cognitive impairment, dependence, living alone, no independent adviser, middle or upper income, medication, frailty, change of doctor and solicitor and isolation from family. Susan O’Connell agreed that Mr. Lambert was very dependent on Mr. Lyons when he came home from hospital. She agreed he himself accepted ultimately that he needed hospitalisation in September, 2002 and came out a much healthier person. He was very angry with the manner of his hospitalisation. Ms. O’Connell said that she was not there on 28th September, 2002, when he was hospitalised. She had no knowledge of that period.
Mr. Lambert had told her that Hamilton Lambert wanted to see him alone.
It was put to her that Mr. Lyons had a very active role in dealing with Mr. Lambert’s solicitors.
Ms. O’Connell said that Mr. Lyons role was dealing with the issue of seeing his family as opposed to anything to do with the Will. The only contact was on 5th August, 2003 when Mr. Lambert told her that Mr. Lyons would contact Dr. Gleeson.
Mr. Lyons had left a message for her that Mr. Lambert wished to change his Will. Susan O’Connell said that she brought a copy of the Will to him on 18th January, but he indicated he did not wish to change it.
Ms. O’Connell did not know if Mr. Lyons was discussing (the Will) with members of the family on Mr. Lambert’s instructions or not. She was not aware of other attendances which referred to Mr. Lyons having an involvement in the making of the Will.
Mr. Lambert could not speak very well so he would frequently ask Mr. Lyons to make calls on his behalf for the purpose of setting up meetings.
It was put to Ms. O’Connell that the attendance of 20th January, 2003 referred to her speaking with Mr. Lyons. She said she had seen Mr. Lambert on 18th and that possibly Mr. Lyons phoned on Mr. Lambert’s instructions regarding meetings with Hamilton Lambert.
Ms. O’Connell said that Mr. Lambert was annoyed with Hamilton Lambert telephoning him and telephoning Mr. Lyons and, without him being aware of it, phoning Ms. O’Connell. Mr. Lambert felt that Hamilton Lambert was not respecting his wishes. Ms. O’Connell had no impression that Hamilton Lambert had anything other than good intentions to see his brother. He had written a letter saying that he might not see Mr. Lambert again in his lifetime.
Ms. O’Connell was concerned that Mr. Lambert would look at things objectively. She agreed she could have no control over whether there was undue influence. She could only assess the matter on the basis of the various meetings she had with Mr. Lambert. She only knew what Mr. Lambert’s beliefs were not whether they were correct or not.
She said she did not know anything about the background to the letter that Mr. Lambert sent to June Lambert in September, 2003, other than he sent Ms. O’Connell a copy of that letter in November, 2003. The only person Mr. Lambert expressed in mending bridges with was Hamilton Lambert.
All her attendances on Mr. Lyons were by phone other than the attendance on 5th April, 2003.
Ms. O’Connell spoke about Mr. Lambert being quite open about having a meeting with Hamilton and expressed a wish that Mr. Lyons would be in agreement. She said that Mr. Lambert asked her to speak to Mr. Lyons. The meeting with Mr. Lambert and Tony Lyons dealt with Mr. Lambert wanting the family to answer questions which Mr. Lyons had typed up according to his instructions. She agreed that Mr. Lyons was suggesting asking a number of questions. She though that Mr. Lambert would want the questionnaire to b sent to Mr. Madigan. Ms. O’Connell favoured a letter, the questionnaire was never sent.
She could not recall Mr. Lyons saying that Hamilton Lambert had been unpleasant to him.
The attendance referred to Mr. Lyons advising Mr. Lambert against showing his Will to his family. Mr. Lambert had wanted to do so in order that they would see that everything had been divided fairly. Ms. O’Connell said that she generally advised clients not to show the Will to the family so that they were free to change the Will. She did not think that necessarily meant that Mr. Lyons had seen the Will.
She was not sure whether it was Mr. Lambert or Mr. Lyons need for apology that was keeping the brothers apart. She had offered to convey that to Padraig Madigan but she thought that Mr. Lambert decided that he would express it in a letter to June. She said that Mr. Lyons “never really rode in behind it”, he did not feel an apology would make a difference though Mr. Lambert felt that it would.
Ms. O’Connell said that Mr. Lambert wanted the residue for Mr. Lyons to be dealt with in a separate clause. He decided to put a cap of €100,000 on the legatees.
She was not an expert in valuation of the house which Mr. Lambert had at that stage valued at €600,000 net or €680,000 gross but she thought that the property would be worth no more than €1 million at that stage. She believed that it was probably worth double that on the following year. It needed a lot of work. Mr. Lambert was concerned that his cash was about €800,000. She agreed that the site had potential.
Mr. Gilhooly referred to the existing power of attorney being like Schroedinger’s cat-in-the-box which was both alive and dead and that was in abeyance until it was activated where the need arose. Ms. O’Connell agreed that but said that Mr. Lambert had the right to have the enduring power of attorney revoked so long as he was not mentally incapable.
She said it was Dr. Walsh who suggested it would look bad if both he and Dr. Gleeson examined Mr. Lambert on the same day.
Mr. Fox asked if Susan O’Connell knew that Mr. Lambert had an accountant. She said she knew but did not know how often she had contacted him. She never had any sense that Mr. Lyons was around, involved, or discussed matters in relation to the Will and she certainly did not see any evidence of any undue influence.
7.7 Evidence of Catherine Marshall
Catherine Marshall, the third named defendant, was the executrix of the August 2003 Will. She was an art historian, the head of the Irish Museum of Modern Art (I.M.M.A.) (the museum) and senior curator there. She was previously on secondment to the Arts Council and currently on secondment to the Royal Irish Academy. She lectured at Trinity College, Dublin and the National College of Art and Design.
She met Mr. Lambert in June, 1995 when Mr. Lambert was on the museum board. A close friendship developed. Mr. Lambert was very supportive to the staff of museum. He was then suffering from Parkinson’s disease but fully participated in the board to the end of 1997. She had contact with him. The museum was like a family to him. She said she visited him on Wednesday evenings and Saturday mornings. She was his companion when he was given a special achievements award by President McAleese.
He was a lovely, kind, fair-minded, generous person and fountain of information about art and advertising in Ireland for 40 to 50 years.
She said she had little contact with his family. She met them when he was given an honorary fellowship in Trinity College, Dublin. It was a regret that he was not close to his family. He did not discuss at all the contents of his Will.
Around 2002 Mr. Lyons appeared at the openings of the museum with Mr. Lambert and was also present in Áras an Uachtaráin when he drove Mr. Lambert and attended those events. She gradually realised that there was a strong friendship between them. She got to know Mr. Lyons after Mr. Lambert’s first illness in 2002. Mr. Lyons was involved in Mr. Lambert’s care. When she had returned from the country at the end of September, 2002, she had a very agitated message from Mr. Lyons on her phone to the effect that they (the family) were taking Mr. Lambert to hospital and he had also mentioned in that message the someone had tried to put him into St. John of God’s Hospital. She described the message as almost incoherent.
She said she went to his house on the following day, Monday 30th September and virtually every day or twice a day during the entire period he was in hospital. The hospital was five minutes away from the museum. She had a relative with Parkinson’s disease so she knew that he needed liquids. He picked up rapidly but had a bout of hallucinations. She knew Dr. Brendan Walsh who was his consultant.
She had no difficulty visiting him – twice a week. Mr. Lambert would often ask her to come when he had visitors at his home. She mentioned four close friends and his brother, Hamilton and Hamilton’s wife Jean at Christmas 2002 and January 2003.
2003 was the best year she had known him. He was well care for. The home was bright and warm and he was at ease in his own home. He had regular care which was good for him. He had twelve visits from Dr. Vera Ryan, a writer who interviewed him and included him in a book on movers and shakers in Ireland. She had been with him from October, 2003 to October 2004.
8. Submissions on behalf of the plaintiffs
Counsel referred to the fiduciary position of Mr. Lyons as a relationship where a person undertakes to act on behalf of or for the benefit of another, often as an intermediary with a discretion or power which affects the interests of the other who depends on the fiduciary for information and advice.
There was, it was submitted, a presumption of undue influence by fiduciaries. Reference was made to Keating on Probate, 3rd Ed., 11-20 to 11-24, distinguishing between undue influence in equity as distinct from undue influence in probate matters.
The plaintiffs submit that once the presumption of undue influence is raised, the onus is on the defendant to establish that the gift was the free exercise of the will of the donor.
Counsel relied on Carroll v. Carroll [1991] 4 I.R. 241 regarding the presumption of undue influence.
Carroll concerned a transaction inter vivos and would seem to have no application to the onus of proof in the present case.
9. Legal submissions on behalf of the first named defendant
Counsel, referring to Keating on Probate at 11-21 submitted that the onus of proof rested on the party alleging undue influence. Counsel referred to Williams on Wills and to the case law cited therein. He referred to Craig v. Lamourex [1920] AC 349 where the Privy Council held:
“When once it is proved that a Will has been executed with due solemnities by a person of competent understanding, and apparently a free agent, the burden of proving that it was executed under undue influence rests on the person who so alleges. That burden is not discharged by showing merely that the beneficiary had the power unduly to overbear the will of the testator; it must be shown that in the particular case the power has been exercised, and that execution of the Will was obtained thereby.” (Viscount Haldane at 349.)
Reference was made also to Millers Irish Probate Practice (1900) at 132-133 where it was stated that a defendant was not entitled to an issue of undue influence left to the jury unless reasonable evidence was given that:
1). The person charged had influence over the testator.
2). That he exercised such influence over the testator to the extent of coercion.
3). That the execution of the impaired impeached papers by the exercise of such coercion.
Counsel also refer to Tristam and Coote: Probate Practice, 13th Ed. at 34.38.
Counsel submitted that there was no presumption of undue influence.
Counsel referred to Patrick Kavanagh: Healy v. MacGillicuddy & Lyons [1978] I.L.R.M. 175 where Costello J. stated the established principles at 178 as follows:
“(1) (a) In equity, persons standing in certain relations to one another are subject to certain presumptions in respect of inter vivos transactions. No presumption of undue influence, however, arises in the case of Wills and the burden of proving undue influence in relation to Wills always rests on the person alleging it…
(3) The court may infer undue influence, it cannot however act on mere surmise or suspicion. If the evidence leaves no other rational hypothesis on which the conduct of the testator can be accounted for then it may be that undue influence was exercised.”
10. Submissions on behalf of the second and third named defendants.
It was submitted that the burden of proof of the claim of duress and undue influence rested upon the plaintiffs. Order 19, rule 6 (1) and (3) of the Rules of the Superior Courts provided that:
“In probate actions it shall be stated with regard to every claim or defence which is pleaded, what is the substance of the case in which it is intended to rely; and further:
(1) Where undue influence is pleaded, the party making such plea shall, before the case is set down for trial, give particulars of the names of the persons against whom the charge of undue influence is perfected, the nature of the conduct alleged to constitute the undue influence and the dates upon which the acts alleged to constitute undue influence were exercised and ….
(3) Except by leave of the court, no evidence shall be given of any other instance of undue influence … at the trial.”
These defendants also referred to Re Kavanagh, Wintle v. Nye [1959] 1 W.L.R. 284 at 291; Hall v. Hall, cited by Costello J. in Re Kavanagh and Elliott v. Stamp.
In relation to the standard of proof, counsel referred to Potter v. Potter [2003] N.I. (Unreported, High Court, Gillen J., 5th February, 2003).
It was submitted that no presumption of duress and undue influence arises; that the deceased was a free agent when he executed his Will and codicil, that he was medically examined and found to have testamentary capacity and there was evidence that he was acting freely and voluntarily.
In surveying the evidence it was submitted that Mark Lambert, under cross-examination confirmed that he was not privy to what happened at the time in relation to the making of the Will (day 2, pp. 131 and 132). He confirmed that he had no evidence to support his claims other than his own belief and suspicions (day 2, pp. 133 & 134).
In his evidence Dr. Bruce Lambert, under cross-examination referred to his strong suspicion regarding the first named defendants allegedly exerting undue influence on the deceased (day 3, p. 116). He acknowledged that there was no solid evidence for this and he accepted that his suspicions were based on surmise and conjecture (day 3, p. 119).
In her evidence June Lambert under cross-examination confirmed that she last saw the deceased in December, 2002 (transcript day 3, p. 119) which was eight months prior to the execution by the deceased of the Will, and seventeen months prior to execution by the deceased of the codicil.
It was submitted that June Lambert was unable to adduce any evidence of undue influence allegedly exerted by Mr. Lyons over the deceased in relation to the making of the Will or codicil.
It was submitted that the plaintiff’s had tendered no evidence that Mr. Lyons had a power unduly to overbear the will of the deceased nor was there cogent evidence that that power had been exercised in fact and that it was by means of it that the Will and the codicil was obtained.
11. Decision of the Court
11.1 Issue
The plaintiffs plead that Mr. Lyons unduly influenced Mr. Lambert by “sapping his free will by pressure and influence amounting to duress and undue influence” such that Mr. Lambert could not freely dispose of his assets. They plead that the Will was inconsistent with Mr. Lambert’s previous conduct and attitude.
The particulars are based on an allegation that Mr. Lyons told Mr. Lambert certain matters in relation to his brother, Hamilton; that Mr. Lyons prevented the family seeing Mr. Lambert; that the family were unkind to him; that they had refused to allow contact with the vicar and so overbore the Will of Mr. Lambert that he was in fear of Mr. Lyons.
It was submitted on the plaintiffs’ behalf that, given the fiduciary relationship which existed between Mr. Lyons and Mr. Lambert’s attorney and Mr. Lambert that the burden passes to the defendants, once the presumption is raised, to prove that there was no undue influence.
The Court will first of all consider whether the plaintiffs have established that there was evidence of undue influence.
If there is no such proof the Court will then consider whether the onus shifts to the defendants.
The Court has carefully considered the evidence adduced by and on behalf of the plaintiffs in relation to duress and undue influence on the part of Mr. Lyons in relation to Mr. Lambert’s last will and testament.
The first named plaintiff, Mark Lambert confirmed in cross-examination that he was not privy to what happened at the time in relation to the making of the Will and, indeed, admitted that he had no evidence to support his claims other than his own belief and suspicions. Indeed, the pleadings in relation to particulars refer to the evidence of Pauline Slater, amongst others, in relation to the belief and suspicions. The Court is not satisfied that Mark Lambert’s evidence substantiates any of the allegations particularised. Belief and suspicion do not prove allegations.
Dr. Bruce Lambert under cross-examination referred to his strong suspicion regarding Mr. Lyons exerting undue influence on the deceased. He agreed that there was no solid evidence for this and accepted that his suspicions were based on surmise and conjecture from the overall situation of Mr. Lyons being Mr. Lambert’s attorney. He believed that Mr. Lyons was in some way responsible for his family not being able to visit Mr. Lambert. Such belief, surmise and/or conjecture do not establish the particulars of the plaintiffs’ claim
In her evidence June Lambert under cross-examination confirmed that she last saw the deceased in December 2002 which was eight months prior to the execution by the deceased of the Will and seventeen months prior to execution by the deceased of the codicil. The Court has had regard to the relationship which existed between her and Mr. Lambert from the time when she was appointed a founding trustee of the Gordon Lambert Trust to her resignation. The Court has regard to the letters between Mr. Lambert and June Lambert. The Court has also considered the communications between her and Mr. Lyons including those after the death of Mr. Lambert.
The Court is satisfied that June Lambert did not adduce any evidence of undue influence allegedly exercised by Mr. Lyons in relation to the Will or codicil.
The issue of Mr. Lambert indicating to Mr. Lyons, shortly before Mr. Lambert died, of changing his Will is, in the view of the Court, not relevant to the issue of undue influence in relation to his last Will and codicil.
Valerie Rowan lived in Northern Ireland and was shocked when she read about the letter from Susan O’Connell in January, 2003. She contacted Padraig Madigan, solicitor. She believed that it was unfortunate that the matter had got blown out of proportion. She had not seen her uncle since she brought him his Christmas present in hospital in 2002. She gave no evidence in relation of her belief or suspicion in relation to undue influence.
It would appear from the pleadings that the evidence relied on by the plaintiffs was that of Pauline Slater, who had been a part time cleaner from 1996 onwards in Mr. Lambert’s house and Susan Taylor who was a carer for a year.
The evidence of Ms. Slater regarding exchanges between Mr. Lyons and Mr. Lambert “might be only snippets”, she said, and she had not been in the room with him. She said she heard Mr. Lyons saying he would walk away if Mr. Lambert tried to get in touch with his family. Mr. Lyons denied this. There were some contacts with the family. She was not quite sure about Ms. Beaumont’s visiting and about Mr. Lambert being furious with her. She admitted she got a bit confused in relation to that matter.
Her evidence in relation to Mr. Lyons requesting that everybody had to check with him before they could get into the house was not borne out by the evidence of the vicar, Mr. Edward Woods and the evidence of Catherine Marshall and Anita Delaney and was denied by Mr. Lyons.
Ms. Taylor was a carer with Mr. Lambert from early 2003 to early 2004, though she was not sure of the dates. She left the employment because an alarm or a monitor connecting Mr. Lambert with the carers was not functioning.
She said she had instructions from Mr. Lyons to let him know what visitors Mr. Lambert had and who phoned him. She said that Mr. Lyons instructed her not to let the family know in the event of his death. She was not allowed to let visitors in under any circumstances and especially the Lambert family.
This was denied by Mr. Lyons and seems inconsistent with the evidence of Anita Delaney.
Ms. Taylor had said that Mr. Lyons had helped Mr. Lambert with his correspondence but did not see him typing.
June Lambert had said that nurses (sic), which she identified as Ms. Taylor had advised her that they saw Mr. Lyons dictating to Mr. Lambert and saw Mr. Lyons dealing with “nasty correspondence” to her.
Ms. Taylor did not give such evidence.
Neither Ms. Slater nor Ms. Taylor told any member of the Lambert family of any concern when Mr. Lambert was alive or at or about the time of his death. It would appear that the first contact was immediately prior to the initiation of these proceedings.
Anita Delaney was a part time carer from 29th June, 2003 until Ms. Taylor left in early 2004 when Ms. Delaney became a full time carer with Mr. Lambert until Mr. Lambert’s death in January, 2006. Her evidence was of Mr. Lambert having quite a few visitors and phone calls to his mobile and landline phone. She said she stayed with Mr. Lambert in his second hospitalisation from 31st October, 2004 to 14th January, 2005 when he came home. She was with him until his death on 27th January, 2005.
She said that Mr. Lyons and Mr. Lambert were very good friends and that Mr. Lambert looked forward to Mr. Lyons company when he called nearly every night. Ms. Delaney said there was no occasion when Mr. Lyons refused to speak to Mr. Lambert and she did not have a conversation with Ms. Slater to that effect.
She said she had never heard any suggestion that Ms. Slater had overheard Mr. Lyons saying to Mr. Lambert that he was not to contact his family.
She said the rector did not have to check with Mr. Lyons if he wanted to see Mr. Lambert. She did not hear Mr. Lyons saying that he would walk away if Mr. Lambert defied his wishes.
She said that no regime was in place whereby the carers had to report the visits to Mr. Lyons. She said that she was not told that the family was not to be informed of his death or that his family were not to be allowed into the house.
The Court prefers her evidence as Ms. Delaney would appear to the Court to be in a better position as carer about the time that Mr. Lambert instructed Ms. O’Connell in relation to the drafting and execution of his Will of 21st August, 2003 and as a full time carer when he was involved in the instructions and drafting and executing the codicil of 21st May 2004.
She said that both Mr. Lambert and Mr. Lyons “bounced off each other and had so much in common”. She referred to their common interest in gardening, dogs and televisions.
The Court is satisfied from her evidence as a full time carer that she was in a better position to assess the relationship between Mr. Lambert and Mr. Lyons.
Moreover, her evidence does not bear out, and appears to be at odds with that of Ms. Slater and Ms. Taylor.
The Court considered the evidence of Dr. Rachel Doyle and Dr. Hugh O’Donnell. The Court accepts that their evidence, based on hospital records of late 2002, was necessarily limited to that year, and was based on instructions they were given. Neither had examined Mr. Lambert nor had sight of Dr. Gleeson’s or Dr. Walshe’s report. Those instructions did not relate to the subsequent interaction between Mr. Lambert and his solicitors in relation to the drafting of the Will of 21st August, 2003 and the codicil of 21st May, 2004.
The evidence of both medical doctors, of Susan O’Connell and Catherine Marshall pointed to a recovery in Mr. Lambert’s physical health, a soundness of mind, an active involvement in his testamentary affairs and an assurance by him that he acted freely and without influence.
The Court is not satisfied that the matters pleaded in relation to duress and undue influence have been proved by the plaintiffs.
The Court now considers whether there are circumstances whereby the onus shifts to the defendants to prove that there has been no duress or undue influence.
In their written submissions, the plaintiffs submit that “having regard to Mr. Lyon’s fiduciary position as the donee of a registered EPA (enduring power of attorney), he is put upon explanation of this result and must satisfy the Court that it did not come about as the result of undue influence on his part”. They continue:
“having regard to this presumption of undue influence arising out of his fiduciary position, it is submitted that once the fiduciary position has been established, the burden of proving that the gifts in question were not the result of undue influence falls upon the first-named defendant.”
In the written submission of both the first defendant and the second and third defendants, it is argued that the burden of proof in respect of the alleged undue influence rests upon the plaintiffs and that no presumption of undue influence arises so as to shift that burden to the defendants.
Thus, the parties disagree as to the legal principles applicable to the proof of undue influence in the instant case.
There are three elements of this dispute. First, it is necessary to consider whether the doctrine of undue influence in the context of wills is the same as that doctrine as it applies in the context of transactions inter vivos. Secondly, if the doctrine is the same in both contexts, it is necessary to consider whether the relationship between the deceased and the first named defendant is such as to give rise to a presumption of undue influence. Thirdly, if such a presumption arises, it is necessary to consider whether that presumption has been rebutted on the basis of the evidence in the case.
11.2 Undue influence in the context of Wills and in the context of transactions inter vivos
In their legal submissions, counsel for the plaintiffs refer to a distinction drawn by Keating on Probate (3rd., Thomson Round Hall, 2007) between undue influence in the context of gifts and other transactions inter vivos and undue influence in the context of wills. At para. 11-22 (p. 172), Keating states that “in probate law, unlike in contract law, or indeed, in equity, the nature of the relationship that existed between the testator and the person exerting the pressure will not give rise to a presumption of undue influence”. Keating goes on to comment that “nevertheless, the circumstances of a case may arouse the suspicion of the court, especially where a fiduciary relationship exists between the testator and the person alleged to have exerted pressure …”. With respect to the proof of such a claim, Keating states (at para. 11-23, p. 173) that “the party who alleges undue influence must prove it and the evidence adduced at the trial must be material to the issues alleged”, citing inter alia Boyse v. Russborough 6 H.L.C. 2.
The plaintiffs also refer to the case of In bonis Kavanagh: Healy v. Lyons [1978] WJ-HC 2724, in which Costello J., citing Boyse, took the view that “no presumption of undue influence …arises in the case of wills and the burden of proving undue influence in relation to wills always rests on the person alleging it”. Nevertheless, the plaintiffs contend that it is difficult to see why the law would or could reasonably distinguish from an evidential point of view between the recipient of a gift inter vivos who by reason of a fiduciary relationship is presumed unduly influential and the recipient of a gift in a will whose relationship with the testator at the time of making it was precisely the same.
On this basis, they submit that Irish law makes no such distinction. In support of this proposition, they cite a Canadian academic authority, Shepherd on the Law of Fiduciaries (Toronto, 1981) where the author criticizes this distinction and submits that “the fact that the presumption of undue influence does not apply in the case of gifts by will is an anomaly, and wrong”. Shepherd, while criticizing the law, is affirming the distinction.
The case of Allcard v. Skinner from which the distinction between “actual” and “presumed” undue influence flows was concerned with a situation where a will had been made by the plaintiff on entering the sisterhood and a number of transactions inter vivos had taken place during her time in the sisterhood and prior to her leaving that community.
The plaintiffs’ legal submissions do not reflect the law as it currently stands in this jurisdiction. The judgment of Costello J. in In bonis Kavanagh is authority in Irish law for this longstanding distinction between wills and transactions inter vivos. It is also reflected in the leading academic commentaries in this area: see, in addition to Keating, Brady, Succession Law in Ireland (2nd ed., Butterworths, 1995) citing in turn Keane, Equity and the Law of Trust in the Republic of Ireland (at pp. 338 et seq).
There are a number of reasons for this distinction. In Boyse, the court referred to “the natural influence of the parent or guardian over the child … or the attorney over the client [which] may be lawfully exerted to obtain a will or legacy so long as the testator thoroughly understands what he is doing and is a free agent”. Quite distinct considerations will often apply, in the context of testamentary gifts, to parties in the special relationships of the type which trigger the presumption of undue influence in the context of transactions inter vivos.
The editors of Theobald on Wills (16th ed., Sweet & Maxwell, 2001) state, at p. 41, para. 3-27-29, that “the legal burden of proof of undue influence or fraud always lies on the person alleging it” and that “no presumption of undue influence arises from the existence of a confidential relationship between a donee and the testator”. A footnote in Williams on Wills, (8th ed., Butterworths, 2002, p. 57ff.) states that while certain relationships may raise a presumption of undue influence in the case of contracts, “in the case of wills, these relationships (or most of them) are naturally the source and reason of the testator’s bounty and no such presumption is made”. The editors cite Parfitt v. Lawless (1872) LR 2 P & D 462. They continue by saying: “Nor does the doctrine of fiduciary relationship, gifts to executors and trustees as such, excite any suspicion”.
The difficulties in respect of the remedies potentially available in the case of undue influence in respect of a will and in respect of a transaction inter vivos may provide another justification for this distinction: see, for example, the reference to remedies in the legal submissions of the plaintiff. The plaintiffs ask the Court, in the event of a finding of undue influence, to set aside “any undue gift and to allow the same to fall into the residuary estate”. The plaintiffs seek an order striking down the Will of 21st August, 2003 and the codicil of 21st May, 2004.
Irish law, accordingly, recognises a distinction between the proof of undue influence in the context of wills and in the context of transactions inter vivos. In the case of undue influence in the context of wills, the burden of proof is on the plaintiffs and there is no presumption of undue influence arising from special relationships.
Undue influence in the context of probate – because it does not have the special probative rules which apply in other contexts – is more closely aligned to common law duress (where the burden of proof rests squarely on the plaintiff at all times).
Nevertheless, if this conclusion is wrong and there is no distinction between undue influence in the context of wills and transactions inter vivos, does the relationship between the deceased and the first defendant give rise to a presumption of undue influence? If so, it falls to the defendant to rebut that presumption.
11.3 The relationship between the deceased and the first named defendant
The types of relationship triggering the presumption of undue influence in the case of transactions inter vivos include: that between solicitor and client, trustee and cestui que trust, doctor and patient, religious adviser and pupil, parent and child, guardian and ward (see Delany, Equity and the Law of Trusts, Ch. 16). The list is not exhaustive. Similarly, the types of relationship properly described as fiduciary cannot be exhaustively enumerated (see Delany, Ch. 8).
The relationship arising from the registration of a power of attorney derives from an instrument voluntarily executed by the donor in accordance with statute (Powers of Attorney Act 1996). Costello (“The Enduring Problem of Powers of Attorney” (1998) 3(2) CPLJ 35) states as follows:
“At common law an attorney is in a fiduciary position. He must, thus, not allow himself to do anything in which he has a personal interest which may possibly conflict with the interests of the donor; and from this general rule, certain specific applications follow (for example, that the attorney keep the donors money separate from his own: Henry v. Hammond ([1913] 2 K.B. 515). In principle therefore the attorney could never act so as to benefit himself, but a rigorous application of such a principle could cause obvious hardship particularly where a donor and an attorney are related …”
In principle, therefore, the relationship between the deceased and the first named defendant would appear to constitute a relationship which is fiduciary in nature and of the kind which gives rise to a presumption of undue influence. Assuming that such a presumption of undue influence applied in the instant case, it falls to be considered whether that presumption has been rebutted on the facts of the case.
11.4 Rebuttal of the presumption of undue influence
As the Supreme Court in decision in Carroll v. Carroll [2000] 1 I.L.R.M. 210 (which was concerned with a transaction inter vivos) makes clear, the most significant factor in rebutting the presumption of undue influence is, first, whether the donor had independent legal advice. Secondly, the court must consider whether the transfer was an independent act taken in the exercise of the transferor’s free will. As the judgment of Denham J. makes clear, this is a matter of evidence which must be considered on the facts of the particular case.
The Court is satisfied from the evidence of Susan O’Connell that the testator knew and approved of the contents of his Will. He initiated the request to change the Will and gave instructions to Susan O’Connell in relation thereto. He had explained his instructions to cap certain legacies and to limit the legacy to the Irish Museum of Modern Art.
Some of the issues, e.g., the valuation of the house, often arise in the context of actions for undue influence in respect of transactions inter vivos in which additional reliefs – such as declarations that the transaction was improvident and unconscionable – are sought. While always an important factor in the broad context of undue influence, in case of such reliefs, issues such as alleged undervalue may play a greater rule than in the context of undue influence. See, e.g. Grealish v. Murphy [1946] I.R. 35; Keating v. Keating [2009] IEHC 405.
The increase of valuation of the late Mr. Lamberts home (which had been his parent’s family home) after his death is, no doubt, a post facto event. In this case insofar as it exceeded Mr. Lambert’s valuation in his detailed schedule of assets of 2003, it accordingly, enhanced the residuary estate. It has, accordingly, no relevance to the claim of duress or undue influence either in relation to the Will or the codicil though may have been a factor in the commencement of these proceedings.
The legal situation arising on such relationships being established is described in Delaney on Equity and the Law of Trusts in Ireland at 482 as follows:
“Once a relationship giving rise to a presumption of undue influence is established, and it is shown that ‘a substantial benefit’ has been obtained, the onus lies on the donee to establish that the gift or transaction resulting from the ‘free exercise of the donor’s will’. As Dixon J. put it in Johnson v. Butress, the evidence must establish that the gift was ‘the independent and well understood act of a man in a position to exercise a free judgment based on information as full as that of the donee. The manner in which this presumption may be rebutted relates to two main issues; first, the question of whether independent legal advices has been received and secondly, whether it can be shown that the decision to make the gift or transfer was ‘a spontaneous and independent act’ or that the donor ‘acted of his own free will’.’”
Denham J. in Carroll v. Carroll at 254 adopted this analysis of the law and applied it.
Prior to the first and second question arising there must be evidence of an independent and well understood act to exercise a free judgment based on full information.
The evidence in this case, particularly that of Susan O’Connell, is that Mr. Lambert was intimately involved in the instructions given to his solicitors in relation to the several changes of his Will and, in particular in relation to the drafting of the Will executed on 21st August, 2003 and the codicil of 21st May, 2004. His professional background as a chartered accountant, the concern for the legatees and beneficiaries of his successive Wills, the manuscript schedule of his assets in 2001 and 2003 and the calculation of his residuary estate on the assumption of certain valuations for his house in 2001 and 2003 would appear to point to full information and a well understood act.
The Court, while primarily concerned with the Last Will and Testament of Mr. Lambert, is conscious of the consistency and development of each of the 31 Wills and codicils made by Mr. Lambert.
The plaintiffs’ claim that his Will was inconsistent with his previous conduct and attitude is not proven.
He had included nieces and nephews once they were born; was conscious of tax efficiency in relation to inheritance tax, and included Dr. Bruce Lambert’s wife in his last Will. Mr. Lambert appointed Mr. Lyons as executor of 13 Wills from 22nd January 1996 onwards. He expressed his indebtedness to Mr. Lyons in his Will of 21st August, 2003.
Mr. Lambert’s central concern, in his last Will and codicil, was the adequacy of his assets to meet all the legacies. He mentioned to Dr. Gleeson before he made his last Will, that the value of his art collection given to the museum had increased in value and that, accordingly, he had reduced the legacy to it.
Ms. O’Connell agreed that she had prepared a schedule of changes to be discussed at a meeting of August, 2003 prior to the execution of his Will on 21st August. She advised Mr. Lambert as to the effect of the changes in the Will which would reduce the benefit to his family. Ms. O’Connell told him that she was concerned that this might lead to litigation as Mr. Madigan, solicitor, had already written in respect of two of the beneficiaries.
Ms. O’Connell pointed out that Mark Lambert would get a potential €41,000 in the proposed Will as distinct from a potential €96,000 in the 2002 Will. Mr. Lyons would get €375,000 as distinct from €360,000 in the previous Will. All of this was in the context of an estimate of the residuary estate of about €500,000.
In the schedule produced by Mr. Lambert of his assets as to the 30th May, 2001, on the assumption of a valuation of his house at €600,000, the residue for clause 7A and clause 7B was €50,000 and €523,000.
Mr. Lambert had told Susan O’Connell that he estimated the cost of care and of running his house to have amounted to €160,000 per year.
The Court is satisfied that these considerations, referred to above, which were communicated to his solicitor at the time of his last dispositions are the independent and well understood act of a person with full information.
The Court is also satisfied that it is an exercise of free judgment given the clear evidence of Ms. O’Connell at the time of the execution of the Will. The evidence of Dr. Gleeson in this regard is also significant.
Dr. Gleeson asked Mr. Lambert if the change to his Will would disadvantage any of his relations. Dr. Gleeson’s evidence was that Mr. Lambert had answered that it would not, that it would not be to their benefit. It is clear that given the unexpected increase in value of the house and the cap of €100,000 on the legacies to members of the family that the changes did not, in fact, benefit the family as much as the residuary legatees. This is, of course, ex post facto. It does not, in the opinion of the Court, advance the plaintiff’s case.
The Court, having heard the evidence of Patricia Rickard-Clarke and Susan O’Connell in relation to the legal advice given is satisfied that that advice was independent. Mr. Lyons was not involved in the drafting of the Will, was not present at its execution and was not aware of the contents thereof.
Accordingly, even if there were a presumption, the Court is satisfied that that presumption of undue influence has been rebutted.
The Court is conscious of the freedom of testamentary disposition which encompasses freedom from duress and undue influence as much as freedom of a testator to benefit whosoever a testator chooses.
The Court has also been concerned to see that solicitors prepare a draft Will according to the instructions of the testator and is satisfied that Mr. Lambert’s solicitors were assiduous in complying with his instructions. They explained the effects of the proposed changes in a detailed schedule and asked and were given explanations for the changes.
The Court in the present case is satisfied as to the “righteousness” of the transaction”. (See Hegarty v. King 5 L.R. Ir. 249). That it established, not only by showing that the testator knew of and approved this will but also by the thoroughness of his instructions recorded in his solicitor’s attendances and the explanations and reasons given to his solicitors in respect of the changes made from his previous Will.
The solicitors were conscious of the possibility of duress and undue influence as, indeed, was Dr. Gleeson, and were satisfied with the answers of Mr. Lambert that he acted freely and according to his own will and not subject to the manipulations of another. Mr. Lyons as the donee of the power of attorney was not involved nor privy to the changes made in Mr. Lambert’s testamentary disposition.
11.5 Order of the Court
Accordingly, the Court determines the issues ordered by the Master on 12th November, 2008 to be answered as follows:
(A) The first named defendant, his servants or agents did not exercise duress or undue influence over Mr. Gordon Lambert, deceased, (“the deceased”) of such a character as to deprive him of his free will in connection with the disposition of his estate in respect of his Will dated 21st August, 2003, and the codicil of that Will dated 21st May, 2004.
(B) The testamentary document executed by the deceased on 21st August, 2003, and the codicil to the Will executed by the deceased on 21st May, 2004, should be admitted to probate if necessary in solemn form.
(C) Does not arise.
(D) The Court will set aside the citation entered herein on 15th March, 2007.
Contents
1. Overview
2. Pleadings
2.1 Plenary summons;
2.2 Particulars of claim;
2.3 Further and better particulars;
2.4 Amended defence and counterclaim of the first named defendant;
2.5 Defence of the second and third named defendant;
2.6 Order of the Master;
2.7 Reply
3. Legacy to Anthony Lyons
4. Attendance and instructions of the deceased
5. Powers of attorney: enduring and general
6. Plaintiffs’ evidence
6.1 Mark Lambert
6.2 Bruce Lambert
6.3 Pauline Slater
6.4 Susan Taylor
6.5 Dr. Rachel Doyle
6.6 Dr. Hugh O’Donnell
6.7 Bill Murphy
6.8 Valerie Rowan
6.9 June Lambert
7. Defendants’ evidence
7.1. Anthony Lyons
7.2. Dr. Tim Gleeson
7.3. Rev. Edward Woods
7.4. Anita Delaney
7.5. Patricia Rickard-Clarke
7.6. Susan O’Connell
7.7. Catherine Marshall
8. Submissions of behalf of the plaintiffs
9. Legal submissions on behalf of the first named defendant
10. Submissions on behalf of the second and third named defendants
11. Decision of the Court
11.1 Issue
11.2 Undue influence in the context of Wills and in the context of transactions inter vivos
11.3 The relationship between the deceased and the first named defendant
11.4 Rebuttal of the presumption of undue influence
11.5 Order of the Court
In the Goods of John Curtin, deceased
Dodd, J.
Applications are made to the Court and freely granted to “substantiate proceedings” where a formal grant is needed to clear a record or to regularise proceedings. What is sought for here is not within the *49 practice. It is sought to make the bank, in fact, both plaintiff and defendant in an action to declare a right. There would be no legitimus contradictor. It is to be noted that in Wm. Byrne’s case (44 Ir. L. T. R. 98) the grant was given to a workman to enable him to proceed to recover compensation under the Workmen’s Compensation Act, 1906, 6 Edw. VII., c. 58. There was a legitimus contradictor. And in In re Carroll, decd. (31 L. R. I. 389) what was wanted was a legal owner in a proceeding for the sale of lands, again there was a legitimus contradictor. I will give a regular grant of administration to the nominee of the bank as creditor.
Notice having been duly given in accordance with the practice of the Court by citation to the next-of-kin, the case stood over to enable Mr. Phelps to communicate with his clients to see if they would accept such a grant. On the resumed hearing, Mr. Phelps said his clients did not seek such a grant.
The Judge.
[Then I will refuse your application and make it a Court Order that you can appeal.]
In the Matter of the Goods of Bridget Gorman, deceased, and in the Matter of the 78th Section
High Court of Justice.
(Probate).
2 March 1926
[1926] 60 I.L.T.R 60
Hanna J.
March 2, 1926
Administration—Creditor—Leave to apply without citing next-of-kin.
Leave was given to a creditor of deceased to apply for a grant of letters of administration without inquiring as to whether certain next-of-kin, last heard of twenty years ago and then resident in the United States of America, were still living.
This was an application ex parte on behalf of a creditor of deceased above-named that a grant of letters of administration issue to him without citing the next-of-kin. From the affidavit of said creditor, a solicitor, it appeared that deceased died on the 27th January, 1926, at the County Home, Limerick, intestate. The principal assets of deceased consisted of a possessory title to a house and premises situate in the city of Limerick, estimated to be worth £200 at the time of her death. The only next-of-kin of which applicant had any knowledge was a brother of deceased, last heard of in 1898, when he was employed on the Denver and Colorado Railway, United States of America, and a sister, Mrs. Harkins, whose address, given in a letter of 1908, exhibited, and in several other letters of earlier date, was 3558 Fifth Avenue, Chicago. Applicant was unaware if either of said next-of-kin were now living. Applicant was a creditor of deceased and on September 24, 1921, had furnished her with an account for £79 18s. 0d., which sum was still unpaid and as security for which he held the title deeds of said house and premises. Applicant was willing to pay the funeral expenses and debts of deceased, and sought a grant of administration without being required to try to ascertain if the relatives of deceased aforesaid were still alive or not. Applicant agreed to enter into a bond to take out administration, if administration were granted to him.
J. Comyn, for applicant, referred to In the Goods of Cooley, deceased, 3 N. I. J. 18.
The Court granted the application subject to applicant notifying the Attorney-General that such order had been made.
Elliot v Stamp
[2008] IESC 10
JUDGMENT of Mr. Justice Kearns delivered the 12th day of March, 2008
This case raises an important issue about costs in probate actions and is perhaps the first time this topic has been revisited since the seminal decision of this Court in In bonis Morelli:Vella v. Morelli [1968] I.R.11 (hereafter “Vella v Morelli”).
Nicholas Roche, the deceased herein, late of Ballyvalden, Blackwater, Co. Waterford, died a bachelor without issue on 3rd May, 2003. He was seventy years old. His assets, amounting in value to approximately €1.5 million, included a residential farm, credit union deposits and cash. The deceased was survived by three sisters, Anastasia Elliott, the first named plaintiff, Bridie Stamp, the second named defendant and Mary Roche, an unmarried sister who gave evidence in the case but was not a party to the proceedings. The second named plaintiff is a son of the first named plaintiff and is acting on her behalf pursuant to a Power of Attorney granted on 6th April, 2004. The first named defendant is a son of the second named defendant and is thus a nephew of the deceased. He is the principal beneficiary and sole executor appointed under the will of the deceased dated 20th February, 2003.
In the proceedings brought by the plaintiffs the parties agreed that the issues to be determined at trial were as follows:-
(a) Whether the will was executed in accordance with the provisions of the Succession Act, 1965;
(b) Whether the testator Nicholas Roche was of sound disposing mind and
(c) Whether the will was procured by duress or influence of the defendants or either of them
(d) Such other issue as to the Court might seem proper
The proceedings began by way of Plenary Summons dated 13th July, 2004. Certain particulars were given in the Statement of Claim regarding alleged dominion and control and the involvement of the defendants, and in particular the first named defendant, who is an accountant, in the procuring of a solicitor for the purposes of preparing and executing the will which, the particulars continued, was not the product of the free and voluntary act of the deceased but rather was the result of requests and/or demands made of the deceased by the defendants or either of them. It was further claimed that the deceased was in fear of not complying with the said requests.
The defence denied that the will was void. It contended that the act of the testator was the free act of a person who made the will with full capacity, competence and understanding. The will had been prepared over a two day period between 19th and 20th February, 2003, with the advice and assistance of a senior legal executive who had special responsibility for conveyancing and wills in a solicitor’s firm. It was denied that there had been any interference, duress or influence, undue or otherwise, in and about the making of the will. It was further contended that the will contained numerous legacies and bequests in accordance with the testator’s detailed instructions to his solicitor.
By Notice of Motion dated 30th January, 2006, the defendants applied for an order striking out the plaintiffs’ claim for failure to comply with the requests for further particulars and on the grounds that the plaintiffs’ claim disclosed no reasonable cause of action. It was contended that there was no evidence to support the plaintiffs’ claim of undue influence on the testator and that no evidence of same had been provided in the plaintiffs’ replies to particulars. The motion was grounded on the affidavit of the first named defendant and exhibited medical reports from two medical practitioners as to the state of health of the testator. There were further affidavits of Mr. Dick Parle, a beneficiary under the will and a neighbour and friend of the deceased; of Mrs. Bridie Stamp, the second named defendant, and of Mr. Tom Murphy, legal executive in the firm of M. J. O’Connor & Co., Solicitors, as to his role in taking instructions, drafting and witnessing the execution of the will.
On 23rd June, 2006, the High Court (Quirke J.) refused the application to dismiss and directed that the issues recited above be determined in relation to the said purported will.
The matter came on for hearing in the High Court between 17th and 18th October, 2006. Prior to the commencement of the case the plaintiffs withdrew their claims in relation to due execution and testamentary capacity and elected to run the case on undue influence alone. A large number of witnesses were heard at the hearing and judgment was thereafter given by Murphy J. on 7th November, 2006.
The learned High Court judge resolved all issues in favour of the defendants, holding firstly that the said will had been validly executed, secondly, that the testator was of sound mind, memory and understanding and thirdly, that the making of the will had not been procured by any undue influence or duress of the defendants or either of them.
In a separate hearing on the issue of costs which took place on 10th November, 2006, Murphy J. heard oral submissions from both sides before awarding the plaintiffs one-third of their costs from the estate.
It is from that latter finding and decision that this appeal is brought, the plaintiffs alleging that, pursuant to the well established authority of Vella v. Morelli, Murphy J. should have awarded to the plaintiffs their full costs from the estate of the deceased. Mr. Brian Spierin, Senior Counsel for the plaintiffs, contended that, on the facts, it had been reasonable to bring the proceedings and, secondly, that the same were brought bona fide, thus meeting the two requirements of Vella v. Morelli. Ms. Mary Laverty, Senior Counsel for the defendants, invited the court to further develop the jurisprudence within Vella v. Morelli, by indicating that when an executor makes all relevant information relating to the issues in dispute available to the plaintiffs prior to trial and the court is later satisfied, having evaluated that material objectively, that the plaintiffs should at that point have desisted from further maintaining the proceedings, then the court should not award costs from the estate to an unsuccessful litigant. She argued cogently that many small estates were liable to be dissipated entirely unless some mechanism existed whereby a plaintiff who needlessly or vindictively maintained proceedings beyond a certain point was put on hazard of not recovering costs from an estate in such circumstances.
BACKGROUND
Nicholas Roche was born on 1st March, 1933, and was thus aged seventy years at the date of his death on 3rd May, 2003. He had made no previous will and was illiterate. He had remained on the family farm while his sisters had married and moved elsewhere. It seems he was a quiet and simple man who was in failing health in 2002. He had severe arthritis and a condition known as polymyalgia rheumatica which caused him a great deal of pain. Such was his condition that he stayed with the second named defendant for a seven week period from before Christmas 2002 until he went to Wexford Hospital on 21st February, 2003. During that time the first named defendant introduced him to a new doctor and made arrangements for Mr. Tom Murphy, legal executive, to come to the house to put his affairs in order.
Mr. Murphy attended on Mr. Roche on 19th February and spent some two hours with him. He felt Mr. Roche was clear minded and gave him details of family members, assets and wishes. He took instructions for the purpose of drafting a will, but on the next day, 20th February, 2002, Mr. Stamp rang him to say that Mr. Roche had got a bed in hospital for which he had been waiting and asked if Mr. Murphy would come that day. He arrived out with the draft will. Mr. Stamp was present in the house and, as an issue of tax on the farm bequest arose, Mr. Murphy asked Mr.Roche for permission to discuss this matter with Mr. Stamp. Afterwards Mr. Murphy asked Mr. Stamp to leave the room and continued with Mr. Roche. No changes were made to the will which was then executed by the deceased in the presence of Mr. Murphy and his wife who had been brought in for the purpose of witnessing the will from a car waiting outside.
When cross-examined, Mr. Murphy agreed that Mr. Stamp, who is an accountant, had business from time to time with the firm M. J. O’Connor. He further agreed that Mr. Stamp had been told of the bequest and the implications for tax before the will was executed. Mr. Murphy agreed that Mr. Stamp had played a significant role in notifying Mr. Murphy of Mr. Roche’s desire to make a will.
The court also had evidence from Mrs. Mary Murphy, the other attesting witness, who said she found Mr. Roche sitting in his chair on the occasion in question. She said he was quite bright and smiling when she saw him sign the will in a somewhat shaky manner, and then Mr. Murphy signed and she signed and that completed their dealings with Mr. Roche.
Evidence was given by Mary Roche, the sister of Anastasia and Bridie, who described her brother as quiet, dyslexic and “not being good on the land”. She did not believe the testator could make a detailed will as he could not read or write.
Mr. Niall Elliott, the second named plaintiff, saw the deceased for three weeks in September and October, 2002 and noted that he had deteriorated. He believed that if his uncle had made a will, he would have divided the farm equally between his three sisters.
Various neighbours were called as witnesses on behalf of the defendants, all of whom spoke highly of the deceased. In particular, Mr. Dick Parle, who was a friend and neighbour. He regarded the deceased as a gentle and honest man who had a good memory. He had seen the deceased the day before he died sitting up in the dayroom of the nursing home in a chair. He was surprised that the deceased had died the following day.
No medical evidence was called, but the court had the benefit of the medical reports furnished by Dr. Bart Curtis, General Practitioner, and Dr. Michael Riordan, Consultant Physician.
Dr. Curtis met the deceased for the first time in January, 2003 and saw him on four occasions thereafter, all being prior to the date of the making of the will. Not surprisingly, Dr. Curtis was primarily concerned with the testator’s complaints of pain in his upper limbs, right knee and neck. He noted that the testator was severely limited in his movements and required considerable medication for relief. When his condition did not improve, a decision was made to admit him to Wexford General Hospital. In relation to his mental state, Dr. Curtis simply stated:-
“While his physical condition was a cause for concern, at no stage do my notes indicate that his mental state was other than normal. My memory of him was that of a normal country man of the age stated with whom it was possible to communicate easily.”
In his report, Dr. Curtis records that the testator was discharged from Wexford Hospital to St. John’s Hospital in Enniscorthy and that he did reasonably well there. Thereafter he was moved into Lawson Nursing Home on 5th April, 2003.
The report of Dr. Curtis reveals that the testator, prior to the execution of the will, was placed on a variety of medications for his physical ailments, including anti-inflammatory medication, a mild hypnotic (the name of which is not stated), Salazopirin and Deltacortril.
Dr. Michael Riordan had a limited recall of the deceased and so stated in a letter dated 19th October, 2005, written by him to the defendants’ solicitors. He noted that the deceased was in a great deal of pain on arrival to Wexford General Hospital the day after he made his will. He needed assistance in washing and dressing himself as an in-patient in Wexford, but his condition did improve when he got to the rehabilitation ward at St. John’s. He was then mobilised with a stick. He stated as follows in his report:-
“Mentally, he was orientated to his place and had no problems with communicating, according to the nursing notes. From what I recall of him last is that mentally he was bright and while there was no objective test done, the comments and the notes certainly don’t give rise to concern via his mental state and therefore I would conclude that he was probably mentally competent enough to make a will. However, it is very difficult to be absolutely certain of this, as I am depending on this from my own memory and from the limited notes that have been written about his mental state as an in-patient.”
DECISION
While the case of Vella v. Morelli concerned proceedings in which the issue of undue influence was withdrawn at the door of the court, the present case is one which, by way of contrast, the issue of testamentary capacity was withdrawn at the door of the court. Nonetheless, this difference or distinction strikes me as being of no particular importance in considering the appropriate principles to be applied with regard to costs in probate actions.
It is undoubtedly the case that, going back to the time of the Prerogative Court, costs were awarded out of the estate of a deceased where it was deemed reasonable to bring proceedings.
In his judgment in the case of Fairtlough v. Fairtlough (1839) 1 Milw. 36, Dr. Radcliff, the then judge of the Prerogative Court, said at p.39:-
“The principle of awarding costs out of the fund in testamentary cases is not confined merely to cases where the question arises upon the state in which the deceased has left his testamentary papers. The rule should be taken in a wider view, and wherever it is proper to specially bring the matter before the court for its opinion, the costs may be given out of the estate.”
Miller’s Probate Practice (Maxwell: 1900 Ed.) contains the following statement at pp. 438 – 439:-
“Two questions are to be considered with reference to an application for costs of the unsuccessful party:- (1) Was there reasonable ground for litigation? (2) Was it conducted bona fide?. Where both these questions can be answered in the affirmative it is the usual practice of the Court, without having regard to the amount or the ownership of the property, to order the general costs to be paid out of the personal estate”.
In numerous cases referred to by Budd J. in the course of his judgment in Vella v. Morelli, this was the view taken by courts in this jurisdiction. The questions to be considered were:-
(a) Was there reasonable ground for litigation? and
(b) Was it conducted bona fide?
If the answer to both questions was in the affirmative, then a litigant, even if unsuccessful, could recover his legal costs from the estate. That practice was continued in the Probate Court towards the end of the 19th century and continued throughout the last century.
The underlying principle was formulated by Budd J. in Vella v. Morelli in the following terms (at pp.34 – 35):-
“In our country the results arising from the testamentary disposition of property are of fundamental importance to most members of the community and it is vital that the circumstances surrounding the execution of testamentary documents should be open to scrutiny and be above suspicion. Accordingly, it would seem right and proper to me that persons having real and genuine grounds for believing, or even having genuine suspicions, that a purported will is not valid, should be able to have the circumstances surrounding the execution of that will investigated by the court without being completely deterred from taking that course by reason of a fear that, however genuine their case may be, they will have to bear the burden of what may be heavy costs. It would seem to me that the old Irish practice was a very fair and reasonable one and was such that, if adhered to, would allay the reasonable fears of persons faced with making a decision upon whether a will should be litigated or not. If there be any doubt about its application in modern times, these doubts should be dispelled and the practice should now be reiterated and laid down as a general guiding principle bearing in mind that, as a general rule, before the practice can be operated in any particular case the two questions posed must be answered in the affirmative.”
In the present case, as already noted, the learned trial judge determined that the plaintiffs had failed to establish there had been any undue influence or pressure brought to bear on the testator by either of the defendants.
In ruling on the submissions made with regard to costs, the learned trial judge felt he should distinguish Vella v. Morelli from the present case, given that the former dealt only with the due execution of the will, whereas the present case largely consisted of an allegation of undue influence which was not substantiated at trial. The learned trial judge placed considerable store on the fact that the executor had made a great deal of evidence available to the plaintiffs before the case ever came to court. This was in the context of the application to dismiss, and the information made available included the medical reports of the two medical practitioners, together with statements from the witnesses already referred to. The learned trial judge then continued:-
“I am not sure it is quite accurate to say that all of the evidence that came to the court was then in the hands of the plaintiff. But certainly considerable evidence was in the hands of the plaintiff and certainly by the time of the motion of Quirke J., as I have already indicated, affidavits were lodged in relation to the three persons that I have indicated. (Robert Stamp, Dick Parle and Thomas Murphy).
It does seem to me that in the circumstances that I should award only part of the costs of the plaintiffs in this case to come out of the estate. It seems to me that the appropriate order should be that one-third of the costs of the plaintiffs should be defrayed from the estate. Then I would affirm the orders that were already made that the will be proved in solemn form, that the defendants are entitled to their entire costs from the estate, and that the plaintiffs are entitled to one-third of their costs from the estate.”
While counsel for the defendants has referred to recent rulings by this Court on costs, including the case of Dunne v Minister for the Environment and Others [2007] IESC 60, to argue that costs should follow the event in this case, I am satisfied that this submission fails to take account of the fact that a special jurisprudence in relation to costs was developed in this jurisdiction for the reasons so eloquently expressed by Budd J. in Vella v. Morelli. It is a departure from that jurisprudence which requires a ‘reasoned basis’ in a will suit. Unfortunately, the learned trial judge does not expressly set out why he elected to depart from the principles enunciated in Vella v. Morelli, nor does he indicate any reasoned basis for awarding the plaintiffs only one-third of their costs. Implicit in the judgment, however, is the clear sentiment of the learned trial judge that, once an executor fully and fairly sets out the available evidence pertaining to testamentary capacity and any other issue set down for trial, a plaintiff who elects nonetheless to maintain the claim thereafter but who loses the case should not recover costs from the estate. The difficulty which arises, however, is in relation to the form of award of costs actually made. Either the plaintiffs were entitled to costs, in which event it should have been a full order as to costs, or to no costs. If the plaintiff was to recover only one-third of the costs, a basis for so deciding should have been clearly stated. In the instant case that could only be on the basis that the plaintiffs’ conduct in maintaining the proceedings following the application to Quirke J. was unreasonable to such a degree that the plaintiffs were thereby disqualified from any entitlement to recover full costs from the estate. However, the learned trial judge does not so state at any point in his judgment.
I believe the defendants in this case were entirely correct to set out by means of statements and reports the evidence which they proposed to rely on at trial. I would encourage such an initiative in all testamentary proceedings which lend themselves to such a step. It is beyond doubt that small estates can be entirely dissipated by legal proceedings brought by disappointed parties whose intention may be to force the executor into some form of settlement or to vindictively waste the assets in legal proceedings which, even if capable of being seen as properly brought at the outset, can no longer be seen as such once the full picture has been made available by those defending the proceedings. I see this as the equivalent in probate terms of a lodgment or tender made in a personal injuries action. I believe it is an approach which should be adopted whenever possible. It would represent a valuable protection for the estates of deceased persons, without in any way diluting the principles enunciated in Vella v. Morelli. Thus, while it may be reasonable to commence and bring proceedings, and to bring them bona fide, a point may arrive where, as a result of disclosure made by the defence, the further maintenance of the claim can no longer be seen as reasonable. In such circumstances, it seems to me a trial judge should not be fettered in the exercise of his discretion as to costs and should be free both to decline costs from the estate to an unsuccessful litigant or even to award costs against such a litigant from the time of disclosure.
In the instant case, however, I am not satisfied, based on an objective evaluation of the documentation supplied to the plaintiffs before trial, that there was sufficient information therein to meet all of the requirements or concerns which the plaintiffs may reasonably have had. Firstly, the testator was an elderly man in poor health who had never before made a will. Thus, until a matter of months before his death, the estate of Nicholas Roche would have fallen to be distributed on intestacy in equal shares among his three sisters. Given that there was no family disharmony of any sort at that time, the terms of the will mark a radical shift from that position, given that each sister was left a sum of only 10,000 euro. Secondly, this case is marked by the somewhat unusual occurrence that the services of the testator’s General Practitioner were dispensed with by Robert Stamp – perhaps for very good reason – and a new GP was brought in by him when the testator moved to the home of the second named defendant. The arrangements for making the will were made and procured by the first named defendant apparently without reference to the other sisters of the testator. One of those sisters, Mary Roche, who is not a party to the proceedings, nonetheless told the court that she had considerable reservations about her brother’s ability to make a will, noting that he could neither read nor write. The very professional detail of the will as finally executed is in stark contrast to the state of affairs described by this particular witness. Thirdly, the medical evidence is understandably focused on the testator’s physical condition and would fall short of what would normally be required by the Probate Court when assessing testamentary capacity in an uncontested case coming before it. I would see these medical reports as providing limited support only for the testamentary capacity of the testator and his ability to withstand undue influence.
I stress I am in no way stating that there was undue influence or anything of the sort in this case. In particular I would wish to emphasise that I am not suggesting that Mr. Murphy’s role was anything less than fully professional and appropriate. There is no appeal from the findings of the learned High Court judge in these respects and Mr. Spierin has confirmed to this Court that his clients are satisfied following the hearing to abide the findings made in the High Court, other than as regards costs. I confine myself exclusively to the issue as to whether or not it was reasonable to continue with the proceedings following the level of disclosure made by the defendants and in this regard I have concluded that it was reasonable for the reasons set out above. These concerns, or some of them, could not have been dispelled without the benefit of a full hearing. Despite the expense involved, there will obviously be cases such as the present one where nothing short of a full hearing will satisfy parties to a family dispute that all is above board. Any judge who has had experience of such cases either as barrister, solicitor or judge will be well aware that the cathartic nature of a full hearing may in certain instances provide the only solution.
I would therefore allow the appeal in this case and allow the plaintiffs their full costs from the estate, including the costs of this appeal. In so saying, I would hope that in future those representing estates will avail whenever possible of the option of the “probate lodgment” concept described above.
Scally v Rhatigan
[2012] IEHC 387
Judgment of Ms. Justice Laffoy delivered on 1st day of October, 2012.
The subject of the judgment
1. This judgment is concerned with the costs of the two modules of these proceedings, which have been decided by the Court, namely:
(a) the first module, in which judgment was given on 21st December, 2010 (Neutral Citation [2010] IEHC 475), which is now reported at [2011] 1 IR 639; and
(b) the second module, in which judgment was delivered on 28th March, 2012 (Neutral Citation [2012] IEHC 140).
2. The parties have agreed that all claims arising out of the defendant’s counterclaim which were not addressed in those judgments should be struck out. The Court was informed that the plaintiff had tendered her resignation as trustee of the will in issue in the proceedings.
Costs of the first module
3. The will of Brian Rhatigan (the Testator) in issue in these proceedings was made on 9th May, 2005. The Testator died on 7th February, 2006. When the proceedings were initiated the plaintiff was the sole surviving executrix of the will, the other executor nominated by the Testator having died in April 2008.
4. The immediate background to these proceedings was that the defendant’s solicitors entered a caveat in the Probate Office on 20th November, 2008. The plaintiff, as the surviving executrix, warned the caveat in the Probate Office on 27th February, 2009. On 10th March, 2009 the defendant’s solicitors entered an appearance to the warning. In consequence, it became necessary for the plaintiff to prove the will in solemn form of law. These proceedings were initiated by plenary summons which issued on 8th April, 2009 to achieve that end.
5. The issues which it was agreed between the parties required to be determined by the Court in the first module were:
(a) whether the will was executed in accordance with the formalities required by s. 78 of the Succession Act 1965 (the Act of 1965);
(b) whether the deceased knew and approved of the contents of the will; and
(c) whether, at the time of executing the will, the deceased was of sound disposing mind and had capacity to make a valid will.
In reality, the question of the testamentary capacity of the Testator at the date on which the will was made was the issue which the Court had to determine in the first module. In the judgment given at the conclusion of the first module, despite the evidence adduced by, and the submissions made on behalf of, the defendant, the Court concluded that the Testator did have testamentary capacity when he made the will and, accordingly, admitted the will to probate in solemn form. In other words, the plaintiff was successful in the proceedings. Although unsuccessful, the defendant claims that she is entitled to her costs of the first module out of the estate of the Testator.
6. The entitlement of a party to a probate action who has unsuccessfully challenged the admission of a will to probate was considered by the Supreme Court in In bonis Morelli; Vella v. Morelli [1968] I.R. 11 and more recently by the Supreme Court in Elliott v. Stamp [2008] 3 IR 387. As was pointed out by Kearns J. in delivering judgment in Elliott v. Stamp, in numerous cases referred to by Budd J. in the course of his judgment in In bonis Morelli, the position which had been adopted by the Irish courts was that two questions were to be considered with reference to an application for costs of the unsuccessful party to a probate action, namely:
(a) Was there reasonable ground for litigation? and
(b) Was it conducted bona fide?
If the answer to both questions was in the affirmative, then a litigant, even if unsuccessful, could recover his legal costs from the estate. As Kearns J. pointed out, that practice was continued in the Probate Court towards the end of the nineteenth century and continued throughout the twentieth century. The underlying rationale for the “old Irish practice” was explained and the relevant principle was formulated by Budd J. in In bonis Morelli (at p. 34) in the following terms:
“In our country the results arising from the testamentary disposition of property are of fundamental importance to most members of the community and it is vital that the circumstances surrounding the execution of testamentary documents should be open to scrutiny and be above suspicion. Accordingly, it would seem right and proper to me that persons, having real and genuine grounds for believing, or even having genuine suspicions, that a purported will is not valid, should be able to have the circumstances surrounding the execution of that will investigated by the court without being completely deterred from taking that course by reason of a fear that, however genuine their case may be, they will have to bear the burden of what may be heavy costs. It would seem to me that the old Irish practice was a very fair and reasonable one and was such that, if adhered to, would allay the reasonable fears of persons faced with making a decision upon whether a will should be litigated or not. If there be any doubt about its application in modern times, these doubts should be dispelled and the practice should now be reiterated and laid down as a general guiding principle bearing in mind that, as a general rule, before the practice can be operated in any particular case the two questions posed must be answered in the affirmative.”
7. In Elliott v. Stamp, Kearns J. stated (at p. 395) that a “special jurisprudence in relation to costs was developed in this jurisdiction for the reasons so eloquently expressed by Budd J.” and, if there is to be a departure from that jurisprudence, it requires a “reasoned basis” in a will suit. I see no basis from departing from the special jurisprudence in this case because I am satisfied that both questions which the Court has to consider must be answered in the affirmative in this case when considered from the perspective of the defendant’s application for costs of the first module out of the estate.
8. First, I am absolutely satisfied that, having regard to all of the evidence adduced at the hearing of the first module and, in particular, to the fact that the Testator was suffering from motor neuron disease when he made the will and that the disease had advanced to a stage where he was unable to communicate verbally, there were reasonable grounds for the litigation and, in particular, for putting the plaintiff on proof that the Testator had testamentary capacity when he made the will, notwithstanding that the plaintiff had furnished a copy of the report of Professor Timothy Lynch dated 18th May, 2005 (referred to at para. 47 of the judgment on the first module) with her letter dated 21st August, 2006 (referred to in para. 3.4 of the judgment in the second module) to the defendant. Secondly, the only issue on which there was contention between the parties in the first module was the issue of the testamentary capacity of the Testator. I am satisfied that the defendant conducted the defence of the first module and, in particular, of that issue in a bona fide manner.
9. Accordingly, I am satisfied that the defendant is entitled to the costs of the first module out of the estate of the Testator.
10. Insofar as it is relevant, in my view, the defendant’s contention that the plaintiff did not conduct the pleading process in, and the hearing of, the first module in a bona fide manner is not sustainable. Accordingly, I reject the defendant’s submission that the plaintiff is not entitled to her costs of the first module out of the estate of the Testator.
The costs of the second module
11. As I recorded in the judgment on the second module, the principal issue which arose in the course of that module and which had to be addressed by the Court in the judgment was whether one of the reliefs sought by the defendant in her counterclaim, namely, a declaration that the plaintiff was not an appropriate person to act as an executor of the Testator’s estate should result in the plaintiff, as the surviving executrix, being refused a grant of probate of the will of the Testator. The conclusion I came to was that the plaintiff’s previous professional involvement, as solicitor for the Testator before his death, and also as solicitor for the multiplicity of corporate vehicles in which there were vested assets, which the evidence indicated were settled by him during his lifetime, both before and after the Testator’s death, gave rise to a professional conflict which precluded her from acting as executor of the will of the Testator, because, as I stated in the judgment (para. 7.3), it would be impossible for her to steer a non-conflicted passage between the interest of the beneficiaries of assets which formed part of the estate of the Testator and the conflicting interest of the beneficiaries of non-estate assets the destination of which after his death, as the evidence indicated, the Testator had been the ultimate arbiter. However, I also found that, if a grant of probate of the will issued to the plaintiff, she would not only be conflicted as to her professional duties as solicitor, but she would have a conflict of interest by virtue of the fiduciary capacity in which she would hold the assets of the Testator by virtue of s. 10(3) of the Act of 1965. Accordingly, the net effect of the outcome of the second module was that the defendant was successful in pursuing her opposition to the plaintiff acting as executrix of the will of the Testator and the plaintiff was unsuccessful in endeavouring to obtain a grant of probate of the will in that capacity.
12. The outcome of the second module did give rise to the ancillary issue as to who should extract a grant of letters of administration with the will of the Testator annexed. On 18th April, 2012 I made an order pursuant to s. 27(4) of the Act of 1965 that Tom Kavanagh, Accountant, should be entitled to extract the grant. Therefore, the Court did not accede to the application of the defendant in her counterclaim that she be given liberty to apply for and extract the grant, on the ground that she also had a conflict of interest.
13. As regards the costs of the second module, the position of the defendant is that, as she was successful in contesting the plaintiff’s entitlement to act as executrix of the will of the Testator, the costs of the second module should be awarded to her, but they should be awarded against the plaintiff personally rather than out of the estate of the Testator. The position of the plaintiff is that she is entitled to the costs of the second module out of the estate subject to an exception. The exception is that, as regards her defence of the defendant’s counterclaim, insofar as it related to allegations of wrongdoing made in the counterclaim against the plaintiff which were not pursued at the hearing, the plaintiff should be entitled to those costs against the defendant personally. It is understandable that the plaintiff may feel aggrieved by the specific allegations of misconduct against her, for example, an allegation that she had been “guilty of gross inordinate and inexcusable delay” in respect of the administration of the estate of the Testator, but which were not pursued at the hearing of the second module. However, taking an overview of the matter, in my view, to the extent that those allegations required to be addressed by the plaintiff in preparation for and at the hearing of the second module, doing so did not have an impact on the costs of the second module to a degree that the Court would be justified in distinguishing them from the overall costs of addressing the aspect of the counterclaim actually dealt with at the hearing of the second module. In short, in my view, the proper exercise of the overriding discretion which the Court has by virtue of Order 99 of the Rules of the Superior Courts 1986 (the Rules) is to refuse to treat the costs which the plaintiff has sought to have treated as an exception differently from the overall costs of the second module.
14. Before outlining the legal position, on the basis of the submissions made on behalf of the parties, which helpfully included comprehensive written submissions from each side, I find it useful to identify in summary form what I consider to be the remaining issues which arise in relation to the costs of the second module. They are:
(a) as regards the costs of the defendant, who succeeded in her claim on the counterclaim that the grant of probate of the Testator’s will should not issue to the plaintiff, which was the core issue in the second module, and who is clearly entitled to her costs of the second module, whether the costs awarded to her should be paid out of the estate of the Testator or awarded against the plaintiff personally; and
(b) as regards the costs of the plaintiff, who unsuccessfully defended that claim, whether she should be awarded her costs from the estate or, alternatively, whether there should be no order for costs made in her favour, so that she has to bear the costs she incurred personally.
Both issues raise very difficult questions against the background of very unusual and complicated facts.
15. In the light of some of the submissions made on behalf of the plaintiff, I think it is important to emphasise that the Court is only concerned in this judgment with the costs of the proceedings, not any costs which the plaintiff may have incurred in relation to her involvement in the administration of the estate of the Testator to date. Moreover, the Court cannot express any view on the suggestion made on behalf of the plaintiff that the probability is that the estate of the Testator is insolvent. That is a bridge that will have to be crossed if one comes to it, but it is not a matter to be addressed in this judgment.
16. The crucial consideration which underlies the issues which the Court has to decide in relation to the costs of the second module is identifying the fundamental nature of the issue for determination by the Court. The second module was not about the type of issue identified by Budd J. in In bonis Morelli – “the circumstances surrounding the execution of testamentary documents” – which had arisen and had been disposed of in the first module. Although not framed in this way, what the issue was about was whether the Court should exercise the jurisdiction conferred on it by s. 27(4) of the Act of 1965 and appoint somebody other than the plaintiff, the executrix chosen by the Testator, to apply for a grant of administration with the will of the Testator annexed. In other words, it concerned whether the Court should confer the status of personal representative of the Testator on a person other than the survivor of the two executors nominated by the Testator in his will, and, specifically whether the Court should refuse to confer that status on the plaintiff. The reason that question required to be addressed was because of the assertions made by the defendant in the counterclaim that, because of her professional position and by her conduct, the plaintiff was not an appropriate person to act as executor of the Testator’s estate, which, of course, were denied by the plaintiff. As reflected in the Master’s order of 5th May, 2010 which set out, by consent of the parties, the issues which were to be tried, the relevant issue was formulated as follows:
“Whether, by reason of any of the matters listed at paragraphs 6 – 9 inclusive hereof, the Plaintiff is not an appropriate person to act as legal personal representative of the deceased.”
The matters alleged in paragraphs 6 – 9 raised a number of questions: whether the plaintiff had failed to carry out proper inquiries and to take reasonable or sufficient steps to recover the assets of the estate of the Testator; whether she had been guilty of gross, inordinate and inexcusable delay in respect of the administration of his estate, being the example adverted to in paragraph 13 above; and whether, in acting as legal personal representative of the deceased, she “is conflicted in her interests”.
17. As I have made clear in the judgment on the second module, at the hearing of the second module, the primary focus was on the assertion that the plaintiff, as personal representative of the Testator, would have a conflict of interest. It was submitted on behalf of the plaintiff that, in addressing the costs of the second module, the Court should have regard to the fact that the defendant made allegations against the plaintiff which amounted to an attack on her reputation, and that, so long as those allegations were levelled against her, she was entitled to oppose the counterclaim. Those allegations were never formally withdrawn, it was asserted. That, in my view, is a factor to be taken into account but it is peripheral.
18. The important factor is that the defendant, as the beneficiary of the Testator’s will for whom the single largest provision had been made, asserted that, because of her past history in acting for the Testator and the various corporate vehicles in which he had vested non-estate assets, the plaintiff would have a conflict of interest in protecting the interest of the beneficiaries of his will. In the findings made by the Court, which are summarised in paragraph 7 of the judgment on the second module, it was found that the plaintiff would be “inevitably” embroiled in a professional conflict, if the status of personal representative of the Testator were to be conferred on her, to the extent that the welfare of the beneficiaries of the Testator’s will could not be protected. Additionally, the Court found that, if the status of personal representative were conferred on her, the plaintiff would be actually conflicted.
19. Counsel for the defendant relied on two authorities from the Channel Islands in support of the defendant’s position as regards the costs of the second module: In the matter of E. L. O. & R. Trusts [2008] JRC 150; and In the matter of Y Trust [2011] JRC 155A.
20. In the earlier authority, the Jersey Court was concerned with the costs of proceedings in which the issue was whether Verite Trust Company Limited (Verite) should retire or be removed as trustee of certain trusts on the ground of an alleged conflict of interest between its role as trustee of the family trusts in question and its role as trustee of related family trusts. Shortly before the matter was due to be heard, Verite had agreed to retire as trustee. The case made on behalf of the beneficiaries of the family trusts who had sought its removal was that Verite had acted unreasonably in not retiring earlier and that, accordingly, its remuneration and legal costs incurred in connection with the matter should not be payable out of trust funds, and that, further, Verite should be ordered to pay the costs of the other parties on an indemnity basis.
21. In outlining the relevant law, the Court referred first to the judgment of Millett L.J. in Bristol & West Building Society v. Mothew [1996] 4 All ER 698, to highlight the nature of a fiduciary duty and quoted, inter alia, the passage quoted in the judgment on the second module (para. 2.13). On the question of the removal of a trustee under the court’s inherent jurisdiction, the Court referred to passages from Lewin on Trusts, 18th Edition, at paras. 13 – 49 and 13 – 50, which set out the principles on which the courts in the United Kingdom act. One could not take issue with the content of either passage, which reflect the law in this jurisdiction as outlined in Delany on Equity and the Law of Trusts in Ireland (5th Ed.) at p. 434 et seq. The Court then went on to state (at para. 28):
“The Court may of course remove a trustee where he has failed to recognise a conflict of interest. See Hunter v. Hunter [1938] NZLR 520. Clearly, when faced with a request to retire, a trustee should bear in mind the principles applied by the Court in connection with its jurisdiction to remove trustees.”
Again, one could not take issue with that proposition, and, indeed, the decision in the second module is in line with it. However, in the next paragraph, the Court dealt with the issue of trustee costs and stated:
“A trustee may only be denied an indemnity for its costs if it has acted unreasonably, which is a high hurdle. In Hunter the Court also made it clear that a trustee who defends proceedings which are brought to secure his removal and in which his defence fails, may not only be deprived of his costs, but may be ordered to pay the plaintiff’s costs.”
22. In applying the law to the facts before it, the Jersey Court held that, while Verite had acted in good faith, its position was “an elementary case of a plain and obvious conflict of interest”. Verite should have retired without seeking directions from the Court. Its decision not to do so was wrong to the extent that it could properly be characterised as “unreasonable”. While both the facts and the legal process in that case were complicated, in broad terms, the outcome was that, because Verite had acted unreasonably, the Court deprived Verite of costs incurred by it and awarded the opposing parties their costs against Verite, to some extent on an indemnity basis and to some extent on what would be referred to in this jurisdiction as on a party and party basis. It would seem that the Court in Jersey was particularly influenced by the decision of the New Zealand Court in Hunter v. Hunter. Unfortunately, the only information this Court has in relation to that authority is to be found in the two paragraphs from the decision of the Jersey Court quoted above.
23. In the later authority, the trustee of a trust, N, had applied to the Court to sanction a particular decision which had been made. It is disclosed in the judgment that the application to the Jersey Court was an “administrative application brought by N for the sanction of the decision made in December 2009”. It would appear that the decision had varying implications for different beneficiaries. It was stated in the judgment that it is recognised that normally costs of all parties to such an application would be paid out of the trust fund, citing Lewin on Trusts, 18th Edition, para. 21 – 85. It was further stated that it had not been suggested by any of the parties that N had acted improperly in invoking the jurisdiction of the Court. The Court then referred to the fact that it had been found in the earlier authority that “a trustee can be denied indemnity for costs if it is found to have acted unreasonably”, but it was stated that “this was a high hurdle”. The Court then quoted two passages from Lewin.
24. The first quotation (being part of para. 21 – 64) is to the following effect:
“A trustee may be deprived of costs, or ordered to pay costs, not only by reason of his conduct which occasioned the proceedings, but also by reason of his unreasonable conduct in bringing unnecessary trust proceedings, or his conduct in the proceedings themselves, for example by taking procedural steps which needlessly increase costs, by acting in a partisan manner to some beneficiaries against others, by adopting an excessive role in trust proceedings by contesting claims which ought to be contested by others, not the trustees, or which ought not to be contested at all. If the Court, upon the question of costs being drawn to its attention, makes an order that the judge does not think fit to make any order as to costs, that is an order depriving the trustee of costs and disentitling him from indemnity, and so preventing him from claiming a right of indemnity under the general law.”
25. What the editors of Lewin were dealing with in that passage was one aspect of the costs of trust proceedings, that is to say, proceedings which relate to the construction, administration or execution of express trusts, the parties to which do not include strangers to the trust, or trustees or beneficiaries claiming otherwise in their capacity as such. The passage quoted by the Jersey Court is at the end of the paragraph in Lewin which is headed: “Trustee deprived of costs or ordered to pay costs by court order on grounds of breach of trust or misconduct”. The beginning of that paragraph is in the following terms:
“The right of a trustee to indemnity in respect of costs extends only to costs properly incurred in execution of the trust. By this is meant costs which have been both honestly and reasonably incurred. A doubt is to be resolved in favour of the trustee, and so the right is sometimes expressed in terms of a double negative, that is the trustee is entitled to costs not improperly incurred. The right of indemnity can be lost or curtailed by such inequitable conduct on the part of the trustee as amounts to a violation or culpable neglect of his duty as trustee. Thus if breach of trust causing loss to the trust fund or misconduct is established against the trustee, the trustee may be deprived of his right of indemnity and further ordered to pay costs of other parties. The word ‘misconduct’ is a strong one, yet it is clear that conduct that might be characterised by milder terms such as caprice and obstinacy, or neglect, negligence or carelessness, suffice to deprive a trustee of the right of indemnity, or justify an order for costs against him. While the mere fact that the trustee has made a mistake is not enough, it is equally clear that dishonesty is not requisite. Consequently either ‘misconduct’ should be widely construed so as to cover unreasonable conduct or in the alternative the ‘inequitable conduct’ on the part of a trustee which causes his right of indemnity to be lost or curtailed includes both misconduct in the sense of dishonesty and unreasonable conduct. We will here use ‘misconduct’ in the wider sense.”
(Emphasis added)
In relation to that passage, I would make two observations. First, I consider that the first two sentences represent the law in this jurisdiction, which is set out in Delany (op. cit.) at p. 447 by reference to the decision in Re Beddoe [1892] 1 Ch 547 and subsequent authorities. Secondly, it is to be noted that the words to which I have added emphasis in the above quotation are not supported by any authority identified by the editors of Lewin.
26. The second passage quoted from Lewin (at para. 21 – 85) was designed to show that a beneficiary “convened” to an administrative application could be at risk as to costs by reason of his conduct, which has no relevance for present purposes.
27. The outcome of the judgment on costs in the Y Trust case was that the applicant, N, was found to have acted unreasonably and it was found that the unreasonable conduct had a direct effect on the level of costs incurred. Therefore, N was deprived of a material part of its costs, which was determined at one half of its costs on a “broad brush” basis.
28. Neither of the Channel Island authorities is of direct relevance in determining where the costs for the second module should lie. That is because they were concerned with the costs of trust proceedings. What the Court is concerned with here is the defendant’s contention that the plaintiff should not have defended the counterclaim in a probate action that the plaintiff was not an appropriate person to be conferred with the status of personal representative of the Testator, because of the conflict of interest to which such conferral would inevitably give rise. However, there is an analogy here to the trust proceedings costs issues, in that the defendant’s position is that the plaintiff, in a fiduciary capacity, acted unreasonably in contesting the issue in the second module. It is interesting to review the circumstances, as recorded at p. 446 et seq. in Miller’s Irish Probate Practice (Maxwell: 1900 Ed.), which publication was the subject of much consideration by Budd J. in In bonis Morelli but which neither party cited, in which an executor who was unsuccessful in a probate action was condemned in costs. Of course, here the contention that the plaintiff acted unreasonably was made by only one of the beneficiaries of the Testator’s will, albeit the beneficiary who was entitled to one third of the estate assets. As counsel for the plaintiff submitted, the plaintiff’s fiduciary obligations were owed to all of the beneficiaries of the Testator.
29. The real problem in this case for the plaintiff is that, as the Court has found, the professional and actual conflict identified in the judgment and summarised at para. 11 above precluded her from acting as personal representative of the Testator. The plaintiff should have recognised her conflicted position because, to take just one example, there was a clear conflict even among the beneficiaries for whom provision was made in the will, in the sense that in at least the case of one beneficiary, namely, Ms. Kiely, provision had been made for her outside the will in a manner which may have depleted assets which would otherwise have passed under the will of the Testator for the benefit of all the beneficiaries. The plaintiff, who had an involvement in the making of that provision for Ms. Kiely both before and after the Testator’s death, was facing a claim under s. 120 of the Act of 1965, in her capacity as executrix, under the defendant’s counterclaim, as outlined in the judgment on the second module (paras. 4.5 and 4.6).
30. As I have already found, the plaintiff acted properly in initiating the proceedings to prove the will of the Testator in solemn form and in prosecuting the first module thereof, which ensured that the Testator’s wishes were given effect to. Thereafter, while the plaintiff was unquestionably placed in the difficult position in which she found herself by the Testator, nonetheless, as a solicitor, she should have recognised the seriousness of the conflict of interest to which conferral of the role of personal representative of the Testator on her was inevitably going to give rise. Accordingly, following the conclusion of the first module, she should have acknowledged that, because of the conflict of interest, she would not seek to be granted probate of the will of the Testator or the status of his personal representative, so as to obviate the hearing of the second module and the costs associated with such hearing. In consequence, I have come to the conclusion that the plaintiff should not be entitled to the costs of the second module out of the estate of the Testator.
31. On the other hand, I think it would be going too far to award the defendant her costs against the plaintiff personally for a number of reasons. First, as is to be inferred from my observations in para. 25 above, there is no authority cited in Lewin which identifies the legal principles by virtue of which, in a trust proceedings costs issue, it is determined that a trustee, who should be deprived of his indemnity in respect of costs, should also be ordered to pay the costs of opposing parties. Secondly, it is probable that, as regards conflict of interest, in many cases the position of an executor fiduciary before the will is admitted to probate is less clear cut than the position of a trustee under an express trust. While the conflicted position of the plaintiff was clearly established at the hearing of the second module, the relevant facts emerged over a number of years, albeit to some extent through the endeavours of the defendant’s solicitors. Therefore, it is probable that the finding of a clear conflict on the part of the plaintiff was informed by an element of hindsight. While I am satisfied that the plaintiff’s conduct in defending the second module constituted unreasonable conduct, in the sense of the meaning given to that expression in Lewin, I do not think that it would be fair to fix the plaintiff personally with the defendant’s costs of the second module. Thirdly, there is the peripheral matter, namely, the allegations of wrongdoing made by the defendant against the plaintiff in the counterclaim, which, while ultimately not pursued at the hearing, hung in the air throughout the hearing of the second module. It is wholly understandable that the plaintiff should wish to protect her reputation against such allegations, as she did by defending the second module.
32. Accordingly, as regards the second module, I consider that the appropriate determination in relation to the defendant’s costs is to award them to the defendant out of the estate of the Testator and to make no order in relation to the costs of the plaintiff.
Summary of conclusions
33. Both the plaintiff and the defendant are entitled to their costs of the first module out of the estate of the Testator, such costs to be taxed in default of agreement.
34. As regards the second module, there will be no order for costs in favour of the plaintiff. The defendant will be entitled to her costs out of the estate of the Testator, such costs to be taxed in default of agreement.
In the Goods of Laurence Griffin
High Court.
27 February 1931
[1931] 65 I.L.T.R 108
Hanna J.
This was an ex parte application on behalf of Mary Griffin, of Millbrook Terrace, Kilmacthomas, County Waterford, for an order presuming the death of her husband; so that she might obtain a Grant of Administration.
The application was grounded on an affidavit by the applicant which set out the facts as follows.—
I was married to the above named Laurence Griffin on the 25th day of April, 1907, at the Roman Catholic Church of Carbally, Parish of Duncannon, in the County of Waterford. From the day of our marriage until Christmas day, 1929, my said husband and I lived happily together at the above address. There are three children living of our marriage—namely, Bridget, aged 23; Alice, aged 21 and John, aged 20.
The said Laurence Griffin served in the British Army during the Great War, from August, 1914, to the middle of 1916, at which date his period of service as a reservist expired. From the year 1913 until Christmas 1929, with the exception of his period of war service, my husband was employed as a postman, attached to the Post Office at Kilmacthomas, his wages being three pounds per week.
My said husband was a man of very regular and sober habits and our married life was of the happiest description. So far as I am aware he had no debts or troubles of any kind, such as would be likely to make him wish either to take his own life or to absent himself from his home or his employment.
On Christmas day, 1929, my husband left home at about 11 a.m. for the purpose of delivering letters in the neighbourhood of Kilmacthomas and Stradbally, and informed me that he would return home as early as he could that night. I am personally aware that in the course of his duties he had to go to Stradbally, a distance of about eight miles from Kilmacthomas. These duties consisted of the delivery of mails and the collection of letters from boxes and subpost offices. *108
On leaving home he was in his usual health and spirits, and I fully expected to see him that night between 10 and 11 p.m., when I expected he would be finished his day’s work. From the time he left home at 11 o’clock aforesaid, I have never seen my husband, nor have I received any communication from him by letter or otherwise.
I have made the most diligent enquiries in the village of Kilmacthomas, and in all the surrounding neighbourhood and have been informed by various friends and acquaintances as well as by strangers, that my husband was last seen alive in the village of Stradbally, which is about eight miles from Kilmacthomas, on Christmas day, 1929, at about 7 p.m.
To my knowledge large parties of Civic Guards have searched the village of Stradbally and the surrounding country, in order to obtain trace of my husband either dead or alive; but these searches have been of no avail, save that his bicycle and leggings, which I identified as his property, were found on the road between Stradbally and Kilmacthomas, about two miles from Stradbally. This has led me to believe that my husband has met his death, but whether by accident or foul play, I am unable to say.
Certain persons to the number of ten, were charged in the District Court at Waterford with my husband’s murder and with disposing of the body to prevent an inquest, but. after prolonged hearings and adjournments, informations were refused against them and they were all discharged.
Out of his said wages my husband always gave me two pounds ten shillings per week, and I believe that he had no money with which to leave the country or to support himself, without his weekly wages from the post office. Nevertheless, he has not reappeared either at his own home or at the post office at Kilmacthomas, to resume his employment.
A most assiduous and prolonged search was made by the officers and men of the Civic Guards with the object of finding my husband either dead or alive, but the efforts of the authorities proved fruitless in getting any trace of my said husband. I also employed a party of men at my own expense to search, with the assistance of my friends, certain localities in the vicinity of Stradbally which had been named to me in anonymous letters as likely places where my husband’s body would be found, but these searches also proved abortive.
The only assets my said husband left were two policies of insurance with the Prudential Insurance Company, Limited (Industrial Branch) which amount to £22 10s. 0d. I am advised and believe that the post office authorities would, in the event of a Grant of Administration being extracted by me, be liable to pay me as Administratrix of the said Laurence Griffin a sum of £156, being the amount of a gratuity payable under the Superannuation Acts.
I am informed and believe that it will be necessary for me to apply to this Honourable Court for liberty to apply for a Grant of Administration, as in the case of intestacy, and in the affidavit to lead to such Grant to state that the death of deceased, not positively but to the best of my knowledge and belief, as having occurred on or since the 25th day of December, 1929.
All the facts arising out of the disappearance of Laurence Griffin, as set out in the affidavit, had come before Hanna, J., in three civil actions arising out of the matter.
J. J. Mooney for applicant.
Hanna, J., in the course of his judgment said that this was a case in which he was entitled to take judicial notice of what was in his recollection from what he had already heard in the Courts.
In an application of this kind it was not customary to presume death and he would not make such an order, but without presuming the death he would give the applicant liberty to apply for a Grant of Administration alleging the death of her husband not positively but to the best of her belief.
Dooley v. Dooley
[1927] IR 197
Sullivan P. 197
Supreme Court.
KENNEDY C.J. :I have read the judgment about to be delivered by FitzGibbon J., and I entirely concur in it, and have nothing to add to it.
FITZGIBBON J. :
This is an appeal from an order of the President of the High Court, dated April 19th, 1926, dismissing this action, which was instituted to revoke two grants of letters of administration of the personal estate of James George Dooley, and to establish in solemn form an alleged will of James George Dooley, dated the 23rd of July, 1913. The order of the learned President was made, not after a plenary trial of the action, but upon an interlocutory motion heard upon affidavits only, and was based upon a finding that the plaintiff was estopped from even attempting to establish the document alleged by him to be the last will of his father, and from denying that his father had died intestate. The case, like the order appealed from, presents some unusual features, but there is little controversy about the material facts and dates, which appear to be as follows:
James George Dooley, whose alleged will is the subject of the action, died on the 15th of August, 1916, leaving the plaintiff, his only son, and six daughters, Catherine, who was married to one, Nicholas Kelly, Bridget, Mary, Annie, Margaret, and Frances, surviving. He left a document purporting to be his last will, dated July 23rd, 1916, though it appears to have been written on August 14th, 1916, the day before his death, which appointed as executors his brother, Patrick Dooley, and his son-in-law, Nicholas Kelly, and which was attested by Catherine Kelly, his daughter, and one Richard Maloney, and was also signed by the two persons named as the executors. The plaintiff brought this document to his solicitors shortly after the death of his father, but upon investigation it was discovered that the deceased had not affixed or acknowledged his signature in the presence of the persons who had signed as witnesses, and that the latter had not appended their signatures in the presence of the deceased. With the exceptions of some small charitable bequests, a legacy of £500 to the plaintiff’s sister, Mary Dooley, a right of residence conferred upon the plaintiff’s sisters, a conditional gift to Michael Murphy of one of the fifteen farms owned by the deceased, and some provision for employees, the deceased left his property, the total value of which appears to have been nearly £30,000, to the plaintiff.
In addition to the invalid will, there was found among the papers of the deceased a memorandum, dictated by him to his secretary, which appeared to designate the amounts which he contemplated giving to his four daughters, Annie, Bridget, Frances, and Margaret, by way of addition to the incomes already possessed by them. No mention was made in this memorandum of the married daughter, Catherine, or of Mary, to whom a legacy of £500 was given in the will. The plaintiff’s solicitors advised him that this document was as inoperative as the invalidly attested will, and that the property of the deceased was divisible in equal shares among the seven children. The plaintiff endeavoured to induce his sisters, or some of them, to agree to a distribution of their father’s assets upon the basis of the intentions indicated by the will and memorandum, but whether any agreement was ever reached, and the extent of it if there was one at all, is in dispute, and it is certain that it did not include Catherine, who would not have been entitled to anything upon the suggested basis of distribution, and who had put forward a claim for some share in the estate. As her demand was not conceded, she applied for, and obtained, a grant, dated August 8th, 1917, of letters of administration to the personal estate of the deceased as upon an intestacy. The plaintiff then decided to buy her out, and she agreed to assign her distributive share of the assets to him for the sum of £2,750. It does not appear that she did anything in the way of administering the estate, and she died upon March 4th, 1918, before the assignment was completed, but the transaction was carried out by deed of assignment, dated January 9th, 1919, made between the plaintiff and Nicholas Kelly, the husband of Catherine. The plaintiff has admittedly been in occupation of the property of his father, and in receipt of the rents and profits down to the present date, but his contention is that this was with the consent of his sisters other than Catherine, and in accordance with the alleged agreement for distribution of the assets in accordance with his father’s wishes.
It was necessary that someone should be clothed with legal authority to deal with the property, and upon March 11th, 1920, the plaintiff took out a grant of letters of administrationde bonis non. The application was grounded upon the usual affidavit, stating that James George Dooley had died intestate, that a grant of administration had been issued to Catherine Kelly, and that she had died without having fully administered. Differences arose, if they had not previously existed, between the plaintiff and his sisters; and in the month of June, 1922, Annie Dooley, by her solicitors, demanded an immediate payment on account of her share of her father’s assets, and threatened an action to administer his estate. In reply to a request from her solicitors, an account, which is not before us, and the accuracy or sufficiency of which it is not necessary to consider, was furnished by the plaintiff, but without further notice Annie Dooley on July 6th, 1923, issued an originating summons, in which she claimed as one of the next-of-kin of the deceased, against George Dooley as his administrator, the administration of the estate of James George Dooley, deceased, and on July 25th, 1923, the then Master of the Rolls made the usual order for administration. Pursuant to an order in the matter, dated 28th January, 1924, a special certificate was made up by the Chief Clerk on February 29th, 1924, certifying the next-of-kin, that the only debt remaining due was in respect of an untaxed bill of costs, and that the funeral expenses of the deceased had been paid. Upon the 4th of May, 1925, an order was made by Mr. Justice Johnston that four payments of £2,000 each be made respectively to Annie Dooley, Bridget Dooley, Frances Dooley, and Margaret Dooley out of the funds in Court to the credit of the matter, amounting to over £18,000, on account of their respective shares of the assets of their father. George Dooley, the present plaintiff, was represented by counsel at the hearing of the summons upon which this order was made, and it is mainly upon this order that the President has based his decision in the present case, that the plaintiff is estopped from even bringing this action to a formal hearing.
In the month of November, 1925, certain facts came for the first time to the knowledge of the plaintiff, which resulted in the institution of the present action. The learned President dealt with the motion upon the assumption that the plaintiff was acting in good faith, and that his account of the events which led up to the institution of this action is true, and as no application was made to have the plaintiff cross-examined upon his affidavit, and as he is corroborated in material respects by other witnesses whose testimony has not been impeached, this assumption must be made for the purposes of the present application. The account given by the plaintiff is in the following words: “I admit that from 1917 onwards I never questioned the fact that my father had died intestate, and, in fact, I believed that he had. This was due to the fact that in 1917 when the question arose of proving the purported will of the 23rd day of July, 1916, I ascertained from my father’s secretary, Miss Mary Deasy, that the will of the 23rd July, 1913, referred to in the pleadings in this action, had been burnt by my father’s directions, and I so informed my solicitor, the late Mr. John R. Colfer, who advised me that this was a most effective means of revocation. I accepted this advice without further question, and at the same time I was advised by the said Mr. Colfer that the said purported will of the 23rd day of July, 1916, was invalid, because the witnesses were not present at the same time when the said will was being executed. I knew nothing more as to the circumstances under which the will of 1916 was drawn up and the will of 1913 burnt until the month of November, 1925, as hereinafter set forth. In or about the month of August, 1925, Mr. William Haughey, who had been an assistant in the office of Messrs. Colfer and Son, and had charge of the Chancery suit, but had left New Ross in June, 1925, returned there on a visit, and meeting me one day said to me that he had been reading a case lately something like mine, in which a will was successfully set up, and he mentioned something about conditional revocation. I then thought he was referring to the 1916 will and the possibility of setting it up. I had never heard at that time the phrase ‘conditional revocation,’ and I did not know the meaning of it. The same day I brought the matter before Mr. Thornton, who had succeeded Mr. Haughey as assistant to Mr. Colfer, but considerable delay then took place owing to the fact that I was occupied with the auditors in taking certain accounts directed by the Court, and the matter was further delayed by the harvest operations. In the month of November, 1925, I was in Mr. Colfer’s office and saw Mr. Thornton. He told me to go and see Miss Deasy, and ascertain from her exactly how the 1913 will was destroyed, and who was present. I went out and saw her, and she told me that she had burnt the 1913 will in the kitchen range at Tramore when there was no one about. I came back at once and told this to Mr. Thornton, who read something from a law book dealing with revocation, and it was then for the first time from what Mr. Thornton told me that I learned that a will could be destroyed without being revoked, and of the necessity for the destruction being effected in the presence of the testator. Subsequently a full statement was obtained from Miss Deasy by Mr. Colfer and submitted to senior counsel, who on the 12th day of December, 1925, advised that as the will of 1913 was not burned in the testator’s presence, and was burned solely because the testator believed that he had substituted for it a valid and operative will, the said will of 1913 had not been revoked, and that proceedings to have it proved in solemn form as the last will of the testator could be instituted.”
Accordingly on the 21st of January, 1926, the writ in the present action was issued by the plaintiff against his five surviving sisters, praying that the grant of administration de bonisnon to himself on March 11th, 1920, and if necessary the grant to Catherine Kelly on August 8th, 1917, might be revoked, and that the destroyed will of James George Dooley, which he propounds from a reconstruction made by Miss Deasy, his father’s secretary, who swears that she witnessed it, and that it was used by the testator and herself as the draft from which she wrote out the will of 1916, may be duly established. Service was accepted and undertakings to appear were given on behalf of four of the defendants, and the defendant, Mary Dooley, was duly served.
On the 28th of January the plaintiff served a notice of motion to stay the proceedings in the administration matter, and on the 2nd March Mr. Justice Johnston granted a stay pending the decision of the probate action. The plaintiff filed his affidavit of scripts on March 5th, 1926, and a statement of claim was delivered on March 11th. On March 16th a summons was taken out on behalf of the defendants, Annie and Frances Dooley, asking that all further proceedings in this action be stayed, and the action dismissed on the grounds that the plaintiff is estopped from seeking to establish the alleged will, that he is guilty of such laches as to disentitle him to proceed with this action, and that the order and decision in the Chancery Division is a res judicata, and that the action is vexatious and an abuse of the process of the Court. Of the defendants one, Margaret Dooley, did not appear, and was not represented upon the motion, which was grounded upon an affidavit of Annie Dooley, which sets out the facts as hereinbefore stated and the proceedings in the Chancery matter, as to which there is no substantial difference between her and the plaintiff except as to certain matters of account and surcharge which have not yet been decided, and the existence of the alleged agreement to distribute the assets in accordance with the supposed wishes of the deceased.
The learned President delivered a considered judgment in which he held, first, that the taking out by the plaintiff of a grant of administration de bonis non did not in itself disentitle the plaintiff to bring this action. For that he relied upon the decision of Horridge J. in Williams v. Evans and Another (1).The facts were far stronger against the plaintiff in that case than they are here. He brought an action to contest the validity of a will to which he had taken out double probate, after the decease of his co-executor, whom he had declined to join in the original probate because he believed, with the same knowledge which he possessed at the date of the action, that the will was not duly executed, that the testator was not of sound memory and understanding, that he did not know and approve of its contents, and that it had been obtained by the undue influence of his co-executor. In that case the plaintiff had been advised by his solicitors, whom he had consulted with full knowledge of the facts, that it was too late for him to oppose the will, and that he should take out double probate. Nevertheless it was held by Horridge J. that he had not disentitled himself to sue for revocation of the probate. In the present case, the plaintiff did not know the facts, though it is said he might by making careful inquiries have ascertained them; he was advised that a will, the contents of which he did not know, had been duly revoked by destruction; and he had only applied for a grant de bonis non in a case in which the Court, upon an application to which he was no party, had already made a grant of administration as upon an intestacy. It was not unreasonable upon his part to assume that proper inquiries had been made before his sister, Catherine Kelly, took out the grant, especially as she was a witness to, and her husband was one of the executors named in, the invalid will.
We agree with the view of the learned President that there was nothing in the application for a grant de bonis non, or in the plaintiff’s conduct leading up to it, to estop him from attempting to set up the will of 1913. But the President has decided against the plaintiff upon the further ground that he is estopped by matter of record upon the proceedings in the administration matter, and it is to this branch of the case that the greater part of the argument addressed to us was directed. There is no doubt that the President treated the estoppel as one by matter of record. Mr. Dickie would not commit himself quite so far, but contended that proceedings in an action which did not contain the essentials necessary to create an estoppel by record, might, if coupled with conduct which was nat sufficient to create an estoppel in pais, constitute some nebulous form of estoppel which was neither by record nor in pais, but partly one and partly the other, which he himself described as “some kind of conglomerate of record and conduct,” and he suggested that the opinion of Lord Shaw in Hoystead v. Commissioner of Taxation (1) was an authority for its existence. That case was the authority upon which the President founded his decision that there was a genuine estoppel by record. He says:”Different considerations apply to the proceedings in the administration action. In that action the death intestate of James George Dooley was the ground of the plaintiff’s claim. It was the basis of the primary decree for administration made on the 25th July, 1923, and of all the orders subsequently made in that suit during the years 1924 and 1925. On the 29th February, 1924, the Chief Clerk made and filed his special certificate ascertaining the next-of-kin. On the 4th May, 1925, Mr. Justice Johnston, on the basis of such special certificate, directed payments out of the funds in Court of sums of £2,000 to each of the intestate’s daughters on account of the distributive shares of their father’s assets to which they were respectively entitled. That order necessarily involved a determination by the learned Judge, 1, that James George Dooley died intestate, and, 2, that the special certificate of the Chief Clerk was correct, and should be confirmed. Does that decision by a Court of competent jurisdiction operate as an estoppel,or is it ineffective for that purpose by reason of the fact that the matters so determined were not really in controversy between the parties? That question seems to be answered by the judgment of the Privy Council in Hoystead v. Commissioner of Taxation (1)”; and then he cites from Lord Shaw’s opinion the passages on pp. 165 and 168. With all respect to the President, we think that he has overlooked the nature of the proceedings instituted in the Chancery Division. It was an originating summons by a next-of-kin for administration against the defendant as administrator. It was not open to the defendant to challenge in those proceedings the fact that he was an administrator. The existence and validity of the grant, the obtaining of which the President had already decided did not estop him from applying in the present action for its revocation, could not be questioned by the defendant upon an originating summons. Even in a plenary suit it is difficult to see how he could have pleaded ne unques administrator, or how the question whether James George Dooley did or did not die intestate could ever have been put in issue by him so long as the grant remained unrevoked; and as no proceedings could be instituted for its revocation by George Dooley except in the Probate Division, they certainly could not have been taken by way of quasi counterclaim in the administration matter. He was not the moving party in those proceedings, he was sued as administrator, a character which he actually possessed, and he cannot therefore, in our opinion, be held estopped as having admitted a fact which it was never open to him to deny, and upon which he could not have asked
It is not necessary to deal seriatim with the mass of cases which have been cited during the argument, but there are two or three which have some bearing upon the case. In Braham v.Burchell (1), Sir John Nicholl allowed a protest by an executor who had proved in common form, extended into an act, against a citation to bring in the will and prove it per testes, otherwise to show cause why the probate should not be revoked, and letters granted, as in case of intestacy. The testatrix in that case died in 1817, leaving a mother, her only next-of-kin, who would have been entitled to all her personal estate upon an intestacy, and who was the only person interested in contesting the will. Probate of her will, dated in 1797, was granted a couple of months after her death to the executor named therein upon an affidavit made by the mother, who was not only privy, but a party, to the probate, and described the deceased as a spinster. The mother survived her daughter for four years, during which she not only acquiesced in the will, but actively co-operated in giving effect to, and carrying into execution, the provisions and bequests contained in it; and received, and gave discharges for, the income to which she was entitled under it. After the death of the mother, the promoter of the suit, who was an illegitimate son of the deceased, took out administration to her, and in that capacity, as personal representative of the sole next-of-kin of the deceased, instituted the suit with the object of setting aside the will, upon the ground that the testatrix was a married woman at the date of her will. The Judge, after perusing five affidavits filed in support of the protest and twelve in support of the promoter, came to the conclusion that there was no reason to believe, under all the circumstances, that a valid marriage was ever contracted between the deceased and her alleged husband, who was not the reputed father of the promoter. He also came to the conclusion that the alleged husband, if he had survived the testatrix, and had been married to her, might not have been able to challenge the probate, though he might have questioned the dispositions, of the will; and, further, that the testatrix, who had in fact survived, had republished her will after she became a feme sole. He found that the mother entertained no doubt of the validity of the will; that, if she had entertained any doubts, she was at liberty to waive them, and had done so, and with full knowledge of all facts which might, if they existed, have entitled her to challenge the will. And in these circumstances it is not surprising that he held that her personal representative was not entitled to do, after her death, what she had never attempted to do in her life-time, upon mere suggestions that the daughter, who, her mother swore, had died a spinster, was, in fact, a married woman. In Hoffman v. Norris and White (2), leave was refused to a next-of-kin to call in the probate of a will which had been proved in common form, upon the ground that the challenger had admitted, in his answer in a Chancery suit, the making and due probate of the will, had alleged that a certain legacy had lapsed, and had claimed, and received, his share of it under the decree. He gave no reasons for questioning the validity of the will, but merely stated that he had strong reasons to doubt it. In these circumstances, Sir William Wynne dismissed the suit. In Mahon v. Quin (1) Andrews J. dismissed an action by a next-of-kin to revoke a probate granted nearly ten years previously. The plaintiff had been aware all along of the existence of the will and of its terms, by which assets, amounting in all to £37, were bequeathed to the Superioress of a religious community, and a Catholic curate was appointed executor. Shortly after the death, the plaintiff had made a disturbance at the convent, and had been silenced by the executor, after which he stood by for nearly ten years, until the assets had been fully administered. These were all cases in which a next-of-kin was held to have precluded himself from setting aside a will after a considerable lapse of time, and acquiescence in the distribution of property under its provisions.
The case of recalling a grant of administration as upon an intestacy for the purpose of setting up a will appears to us to stand upon a somewhat different footing. Next-of-kin may, and often do, waive their rights as such in order to let the, supposed or invalidly expressed wishes of a deceased person have effect; but it is quite another matter when next-of-kin are seeking to defeat the wishes of a testator by preventing even an attempt to establish his will. In the former case, they relinquish their statutory rights in favour of the wishes of the testator; in the latter, they seek to substitute the provisions of the statute for the case of an intestacy for a will which, ex hypothesi, might be established at law. We have not been referred to any case of that description. In Mohan v. Broughton (2) the plaintiff, who sought to recall a grant of letters, was not seeking to set up an alleged will, but to obtain a substituted grant to herself as the nearest of kin. Her object was to establish her claim as such to the surplus of an estate which had already been distributed in a Chancery action. Gorell Barnes J. dismissed the action upon the ground of laches covering a period of five years, from the date at which she had unsuccessfully attempted to establish her relationship in the Chancery action; but in the Court of Appeal (3), Lindley M.R. and Vaughan Williams and Romer L.JJ., while affirming the decision, appear to have done so largely upon the ground that she could obtain in the Chancery Division any relief to which she might be entitled without recalling the grant of administration; and that her prospects of success were so hopeless, that it was inadvisable to recall the grant, even if she were, in fact, the person to whom it should have been issued in the first instance. All the Judges agreed that her action was not frivolous or vexatious, and that there was no res judicata against her.
In cases of estoppel by record, it is the actual decision, based either upon the admission of the parties or the evidence adduced, which converts the subject of the controversy into a res judicata, and there is nothing contrary to justice in holding a party bound by a decision if he has failed to bring forward evidence in support of his case which was either within his knowledge or which he might have discovered if he had exercised ordinary diligence in protecting his own interests.
That principle cannot be extended so as to bind in pais a person who is not bound by the record as such, and to impute, as Mr. Dickie has asked us to do, to the plaintiff knowledge not only of the provisions of the Wills Act, but of the law of dependent relative revocation, and to import constructive notice to him through Miss Deasy, who was not his agent, of the alleged inefficiency, in fact, of the destruction of the will of 1913, appears to us to be contrary to established principles and to common justice.
While we are not to be taken as expressing any opinion upon the credit to be attached to the evidence in support of the will which the plaintiff seeks to propound, we are of opinion that he has done nothing which precludes him from submitting that evidence to a jury or a Judge, and from asking their opinion upon the question whether the will of 1913 was, in truth, the last will of James George Dooley, and whether it was ever validly revoked. Again, while we hold that the plaintiff is not estopped by anything which has taken place in the administration matter from propounding and attempting to establish the will of 1913, we must not be taken as expressing any opinion upon the question whether, or how far, if that will be established, his interest under it may be liable to make good any representations he may have made to his sisters that his father’s assets might be distributed, so far as he was concerned, upon the basis either of an intestacy or upon any other basis. In other words, the plaintiff may have created equities against himself as to the disposition of the property to which he may become entitled under the will, though he may not have been estopped from setting up the will itself.
In considering whether the plaintiff should be precluded from propounding the will, it must not be forgotten that the will confers benefits upon persons other than the plaintiff and his sisters, and it is hardly consistent with the duty of a Court to distribute the assets of a deceased person, as upon an intestacy, with information that there are in existence a document which may be the valid last will of the deceased, and a beneficiary who is willing to propound it.
The action of Mr. Justice Johnston in staying the proceedings before him until the question of the testacy or intestacy of the deceased had been decided by the proper tribunal was absolutely right. It was scarcely to be expected that the survivor of the two executors named in the will of 1913 would propound it, as he had already received £2,750 out of the assets of the testator in respect of his deceased wife’s share upon the basis of an intestacy. One further question was discussed before us, but we express no opinion upon it until it becomes necessary to decide it, that is, whether in the event of the will being established, the grant of letters of administration is wholly void or only void as from the date upon which it is recalled; but we observe that in Hewson v. Shelley (1), upon which Mr. Dickie relied, no reference was made either in the argument or in the judgment of Phillimore L.J. to the decision of the Lord Chief Baron in Fitzpatrick v.M’Glone (2), concurred in by Andrews J., whose experience as Judge of Probate matters enhanced his authority as a very learned and careful Judge, followed by Barton J. in Creed v.Creed (3), or to the authorities in the Criminal Law. Hewson v.Shelley (1), while entitled to respect as the decision of an English Court of Appeal is not binding upon us, and in this country we are not inclined to ignore the decisions of Chief Baron Palles. That matter is, however, another day’s work to be dealt with when, if ever, it comes before us.
At present we decide only that the plaintiff is not estopped from prosecuting this action, and that the order of the learned President to that effect should be discharged. The plaintiff’s costs of the motion before the President should abide the result of the action, but the respondent, Annie Dooley, who was the only defendant represented in this Court, must pay the costs of this appeal.
MURNAGHAN J. :
I also agree, and for the reasons stated.
In re Begley;
Begley v. McHugh.
[1939] IR 479
Supreme Court.
SULLIVAN C.J.:
16. Dec.
The appellants in this appeal are the defendants in an action in which the respondents are plaintiffs and which was tried by Hanna J. and a jury on the 20th, 21st, 22nd, and 23rd days of June last.
The action is one in which the respondents claim to be next-of-kin to Julia Begley, deceased, and claim to have a pretended will of the deceased, dated the 29th March, 1934, in which the appellants are named as executors, condemned, on the grounds that the alleged will was not duly executed, that the deceased at the time of the execution of the alleged will was not of sound mind, memory and understanding, and that the deceased did not know and approve of the contents of the alleged will at the time of its execution.
The appellants in their defence admitted that the respondents are next-of-kin of the deceased, but they traversed the grounds on which the respondents alleged that the will was invalid, and they counterclaimed that probate of the said will be decreed in solemn form of law.
At the trial the jury found that the will was duly executed, and that the deceased was at the time of the execution of sound mind, memory and understanding, but that the deceased did not know and approve of the residuary clause or of the contents of the will apart from the residuary clause. On these findings the learned Judge gave judgment condemning the will.
The appellants now seek to have the findings of the jury that the deceased did not know and approve of the residuary clause, or of the contents of the will apart from the residuary clause, and the judgment entered by Hanna J. set aside, and ask that judgment be entered admitting the will to probate, or, alternatively, admitting the will apart from the residuary clause to probate, or that a new trial be directed of the issue of knowledge and approval of the will.
The grounds of appeal relied on in the arguments were that the findings of the jury that the deceased did not know and approve of the residuary clause and of the contents of the will apart from the residuary clause, were contrary to the evidence and to the weight of evidence, particularly in view of the presumption arising from the fact that the deceased was of sound mind, memory and understanding, and that the will had been read to her before she executed it.
The deceased, Julia Begley, died on the 16th December, 1937, aged 81 years. The value of her assets was approximately £21,000, of which £13,915 represented the value of shares held by her in certain public companies. She had never married and her next-of-kin were nephews and nieces and the children of deceased nephews and nieces who had predeceased her, twenty-two in all.
By the will in question she bequeathed pecuniary legacies, mainly charitable, value £4,500, and left the residue to be divided equally between the Maynooth Mission to China and the African Mission, to be applied in Saorstát Éireann for the charitable objects and purposes of the said Missions, and she appointed the Very Reverend Michael Canon McHugh, the Very Reverend Thomas O’Malley and Peter Tuohythe appellants in this appealexecutors.
At the time of her death the deceased resided in premises in Claremorris which she had acquired from one of her brothers in the year 1899 and in which she carried on business as a draper and general grocer and provision merchant. Up to the year 1929 it would seem from the evidence that she had taken a very active part in the management of the business and of her household affairs.
Towards the end of that year she had a serious illness and in the following year she was for some time in a hospital in Dublin. From that time she seems to have left the entire management of her business in the hands of her Manager, Thomas Hughes, and the management of her household affairs in the hands of her housekeeper, Anne Kelly. She was delicate, constantly complaining of her health, and at times forgetful. She also suffered from deafness, some witnesses described her as “very deaf,”others as “slightly deaf.” But there was a very considerable body of independent evidencegiven by her stockbroker, William Tunney, her doctor, Dr. Ronayne, and the Manager of the branch of the bank in which she kept her accountsthat entitled the jury to find that on the 29th March, 1934, when the alleged will was made, she was of sound mind, memory and understanding.
On the evidence it seems to be quite certain that the deceased did not appreciate the number or value of the shares that she held, and therefore did not appreciate that the value of the property disposed of by the residuary clause would exceed £16,000; but the finding of the jury that she was of sound mind, memory and understanding has not been challenged.
That being so, the appellants contend that, as the evidence established that the will had been read to the deceased before she executed it, the jury were bound to presume that she knew and approved of its contents, unless there was evidence to rebut that presumption, and they contend that there was no such evidence before the jury.
On the other hand the respondents say:
(1) that the presumption in question can only arise where the facts on which it is based are proved by clear and satisfactory evidence, and that the evidence to establish those facts in this case was given by a witness whose testimony the jury were not bound to accept, and therefore that the presumption did not arise; and
(2) that, even if the presumption did arise, there was evidence to rebut it.
The most important witness in this case was Mr. Edward Fitzgerald, a solicitor who practised in Ballinrobe. The will was prepared by him, was read by him to the deceased, was executed in his presence, and was attested by him. If the jury hud accepted his evidence as satisfactory there cannot be any doubt that they would have felt themselves bound to uphold the will. The evidence given by him in answer to the 768 questions put to him
is contained in 79 pages of the transcript before us, but it is not necessary for me to refer to it in great detail. He says that on 20th March, 1934, Father O’Malley called on him at his office and told him that Miss Begley wanted to settle her affairs; that on the 21st March he saw her in her house and took her instructions, of which he took a full note in writing, which note he read to her and got her to sign; that on that evening or the following day he prepared a draft will in accordance with her instructions; that on the 23rd March he took the instructions and the draft will to Galway where he submitted the draft will to counsel and had it settled by him; that he then returned to Ballinrobe and made a copy of the draft will as settled by counsel; that on the 28th March he saw Miss Begley again and read to her that copy of the draft will, that she suggested certain alterations in the draft and gave him further instructions which he wrote down at the foot of his note of the original instructions; that he returned to his office and prepared a second draft in accordance with the instructions, original and supplemental; that on the 29th March he again visited Miss Begley, read to her the draft will of which she approved, and it was then executed in his presence and in the presence of her housekeeper, Anne Kelly; that he then took the will to his office; that about a month later Father O’Malley came to him and said that it might be well if Miss Begley had a copy of the will, and was given a copy, which he took away. The note of the instructions taken on the 21st March begins with particulars of Miss Begley’s property, and in these particulars stocks of thirteen denominations are mentioned. It names Canon McHugh, Father O’Malley, and Joseph Begley as executors, and directs all the property to be realised and divided as therein mentioned, and states that her relatives are nephews and nieces and grand-nephews and grand-nieces. Then follow a list of bequests, the first two being £500 to the Maynooth Mission to China and £200 to the African Mission, and then come legacies for Masses and other charitable purposes, and legacies to certain relatives and to other persons, the residue going to her executors “(perhaps) for charitable purposes in the Archdiocese of Tuam.”
The note of the instructions taken on the 28th March named Peter Tuohy as an executor in place of Joseph Begley, directs certain legacies mentioned in the original instructions to be struck out and others to be altered, mentions several additional legaciesmost of them for charitable purposesand directs that the residue shall go to the Chinese Mission and African Mission. The will, as executed by Miss Begley, embodies substantially the intentions expressed in the instructions of the 21st March as altered and supplemented by the instructions of the 28th March except that it does not mention, as one of the objects of the legacy to the Parish Priest of Mayo Abbey Church, the celebration of an Anniversary Mass.
So far I have done no more than outline the main features of Mr. FitzGerald’s evidence on his direct examination, and if the matter had rested there the case would have been a simple one. But his answers to the questions put to him on cross-examination were such as might well cause a jury to hesitate to accept his evidence as satisfactory. It is only fair to say that fraud or undue influence was not alleged in the pleadings, and although some of the questions put to Father O’Malley in cross-examination were not too happily worded, we have been assured by counsel that he did not intend to make any charge of fraud or undue influence against any person.
Some of the matters dealt with in the course of Mr. FitzGerald’s evidence on cross-examination were more material on the issue of testamentary capacity than on the issue of knowledge and approval of the will, though I do not think they were quite irrelevant to the latter. He admitted that of the thirteen denominations of shares that Miss Begley mentioned on the 21st March she had only three, that she had shares value £4,000 in five other Companies which she did not then mention, that she thought she had only thirty Guinness Shares when in fact she held 430, that he had no idea that the residuary bequest would amount to more than £16,000, and that he did not think she had, but that she thought it would amount to a “fairly Bulky sum.” But, passing from those matters, the cross-examination dealt with other matters that bear more directly on the weight to be attached to Mr. FitzGerald’s evidence. The first matter is this. He took the first instructions on the 21st March, and he had no communication with Miss Begley between that date and the 23rd March, when he submitted the draft will that he had prepared on those instructions to counsel for settlement. Yet the draft will omitted six legacies amounting to £1,450 mentioned in the instructions, viz., £500 to the Chinese Mission, £200 to the African Mission, £300 to Anne Kelly, £100 to Tommie Hughes, £150 to trustees the dividends to be devoted to an Anniversary Mass and the repairs to a monument over her brother’s graveand £200 to the Parish Priest of Mayo Abbey for repairs to the family burial plot. When asked to explain why these legacies were omitted from the draft will his answer was:”All I can say is that this will was only the ground work, she intended to have a further interview with me. It was only the ground work. There were a number of points I was not quite clear about with regard to perpetuities.”The cross-examination proceeds:[Reads questions 361 to 368 inclusive and questions 376-382 inclusive, concerning the omission of the legacies mentioned from the draft will.]
As far as the legacies to Anne Kelly and Tommie Hughes are concerned the note of the instructions taken on the 28th March directs these legacies to be deleted, and the witness at a later stage of his cross-examination explained that the legacy to Anne Kelly was to be deleted because it was intended that she should beas she subsequently wasa witness to the will, and that the legacy to Tommie Hughes was to be deleted because Miss Begley said “she would provide for him otherwise in cash.” But while that may explain the instructions on the 28th March to delete these legacies, it cannot explain the omission of those legacies from the draft will prepared before these instructions were given.
The witness was next cross-examined as to certain differences between the first instructions and the draft, as distinct from omissions. In the instructions the residue goes to her executors “(perhaps) for charitable purposes in the Archdiocese of Tuam.” In the draft the residue goes in three equal portions to the Director of the Maynooth Mission to China, the Superior of the African Missions and the Archbishop of Tuam. His explanation was given in his answers to questions 408-416 inclusive.
Again, he was asked to explain why a legacy of £200 to the Parish Priest of Mayo Abbey for repairs to the family burial plot and an Anniversary Mass is altered in the draft will to a legacy of £300 for the maintenance of the Church. His explanation is given in answer to questions 419-424 inclusive, and again in answer to questions 562-564 inclusive.
The general result of his cross-examination on these matters is summarised in the questions put by the learned Judge and his answers:
Q. 440. Mr. Justice Hanna:”What Mr. Wood is at isWhat explanation can you give for omitting so many vital bequests and legacies from the draft will you put before counsel, and of altering others?”
A. “The only explanation that I can give is human weaknessthat possibly I forgot or overlooked them.”
Q. 453. Mr. Justice Hanna:”Anyway, the document you prepared and put before counsel is a long way from carrying out the ‘present intentions’ ‘of the testatrix, Julia Begleyyou will admit that?”
“Yes.”
The evidence to which I have referred at such length dealt with the instructions of the 21st March and the preparation of the draft will submitted to counsel on the 23rd March. The cross-examination dealing with the additional instructions taken on the 28th March and the execution of the will on the following day is much briefer, and the witness’s answers are not open to such adverse comment as might be made on the answers I have quoted. The suggestion underlying the cross-examination on these additional instructions is that their effect was to alter the original instructions in such a manner as to make them conform with the draft will submitted to counsel, and that the alterations must have been suggested to the witness before the draft will was prepared by some third person who subsequently suggested them to Miss Begley before she gave the additional instructions to the witness. That suggestion was repudiated by the witness, and there does not seem to have been any evidence that he had been in communication with any person before he prepared the draft will. But some colour is lent to the suggestion that the additional instructions may have been suggested to Miss Begley by the fact elicited from the witness that on the occasion when she gave those instructions she had some notes in her hand which she consulted from time to time. The evidence on that matter was given in reply to the Judge (questions 638-646 inclusive).
The only other matter on which the witness was cross-examined at any length was his action in giving a copy of the will to Father O’Malley. He admitted that he had no authority from Miss Begley to do so, but he said that Father O’Malley had come to him and said that he thought it proper that Miss Begley should have a copy of her will, and that, as Father O’Malley was a clergyman and a cousin of Miss Begley’s, witness gave him a copy, protesting at the time that it was not a usual thing to do. He admitted that he had previously given Miss Begley a copy of the will, but he could not say if he told that to Father O’Malley when he (Father O’Malley) asked for a copy for her. At the conclusion of the cross-examination the witness on re-examination was asked:”Did every single thing in the will emanate from Miss Begley herself?”;and, on his replying, “All emanated from Miss Begley,” the Judge interposed the comment: “Surely, it is ridiculous, after the admissions you have made about the things in the will, to say that everything emanated from her. Don’t say ‘Yes’ to every question that is put to you.”
I now pass to the evidence of Father O’Malley. He is a first cousin of Miss Begley’s, a legatee under her will, and an executor. He visited her occasionally in the year 1934, and did so on the 20th March. His evidence is that on that occasion she told him she had not settled her affairs and he told her she should, and pressed her to do so and that (as he understood that she wanted her affairs kept private) he suggested Mr. FitzGerald as a suitable solicitor to take her instructions, that she accepted that suggestion and asked him to call on Mr. FitzGerald and ask him to call on her; that she discussed what she proposed to do in her will and said she would leave a certain amount to the China Mission, and discussed who should be her executors; that he suggested that Anne Kelly, Margaret Begley, Maria Begley (McGrath), Maura Begley and Imelda Tuohy should get legacies, and that Miss Begley said she would give Maura Begley £300, and would give something, £400, to Margaret Begley, and either £200 or £400 to Imelda Tuohy; that he discussed with her the making of some provision for the upkeep of her brother’s grave and of the family grave plot in Mayo Abbey; that she mentioned that she would leave money for the upkeep of the churches under his (witness’s) charge. Asked by the Judge:”I suppose you had a good deal of influence over her?” he replied:”Well, perhaps in a sense, but she was a woman that it was very hard to influence. I didn’t influence her in any way at any time. They were friendly visits.” He said that on his way home he stopped his car opposite Mr. FitzGerald’s house and that Mr. FitzGerald came out to the car and witness gave him Miss Begley’s message. He said he could not be certain if he saw Miss Begley between the day of that conversationthe 20th Marchand the 28th March, when she made her will. He admitted that some time after the will was made be got a copy of it from Mr. FitzGerald, but he said that he did not ask for it but that Mr. FitzGerald gave it to him, saying that it was given to him (FitzGerald) by Miss Begley and that she directed him to give it to him (witness), and that he subsequently gave it back to Miss Begley.
On cross-examination his attention was directed to Mr. FitzGerald’s evidence that on the 28th March when the second instructions were taken Miss Begley was consulting some document that she held in her hand, and he was asked could he give any explanation of that. His answers were as follows:[Reads questions 1746 to 1753, 1766-1771, and 1830-1838.]
I have referred at some length to parts of the evidence given by Mr. FitzGerald and Father O’Malley, as they were the most important witnesses examined in support of the will. The other witnesses called by the appellants were Anne Kelly, the housekeeper, who witnessed the will, Dr. Ronayne, who attended Miss Begley professionally from the year 1929 to the date of her death, James Hurley, Manager of the National Bank, Claremorris, William Tunney, the stockbroker, Ernest Walsh, accountant, who audited her accounts, and Canon McHugh, an executor of her will. The evidence of these witnessesother than Anne Kelly who witnessed the willwas directed to establishing the testamentary capacity of the deceased, which was seriously challenged at the trial, and has little direct bearing on the question of knowledge and approval of the contents of the will. But at the close of Dr. Ronayne’s evidence he gave an answer to a question put by Hanna J. which may have influenced the jury. The will was handed to him and he was asked:”Look at the first and second and third pages of that document. Do you think she would understand a document like that?” Answer:”I don’t know, my Lord, I don’t think so.” A similar question was put to Mr. Hurley, the Bank Manager:”Now you have seen this will. Look at that will. Do you think that she was a lady who was capable of understanding a document like that or the contents of it?”Answer: “Well, you see my Lord, any time I interviewed her she was always very nice. She received me and I didn’t discuss anything at all with her except minor matters and I could’t judge very well if she could sign the document.”
On behalf of the respondents three witnesses were called Thomas Hughes, who managed the business for the deceased, Joseph Begley and Miss Bride Begley. According to Thomas Hughes’ evidence the deceased took practically no part in the management of the business after her illness in 1930, and left everything in his hands except the drawing of cheques, which she did on his instructions and after explanations from him.
Joseph Begley’s evidence was that for five or six years before her death she had lost her memory and was so deaf that you could not carry on a conversation with her. Miss Bride Begley said that after the deceased’s illness”her mind was very vacant at times and very, very forgetful” and she was “a bit deaf,” though at times a very clever and intelligent woman and quite pleasant to talk to.
I do not profess to have done more than to outline the nature of the evidence that was submitted to the jury in this case and to refer in particular to certain parts of it that seem to me to be particularly relevant to the question that we have to determine on this appeal.
We start with the proposition that it was entirely a question of fact for the jury to decide whether the deceased knew and approved of the contents of the will, and the next proposition is that the onus of establishing that the deceased knew and approved of the contents of the will rested upon those propounding the will, the appellants on this appeal. Neither of these propositions has been disputed in the present case and it is unnecessary to refer to authority in support of either of them.
A further proposition, for which Tyrrell v. Painton (1)is an authority, was also accepted by counsel on both sides. That proposition is stated in the headnote to that case, as follows:”The rule throwing upon the party propounding a will prepared by a person who takes a benefit under it the burden of showing that the paper propounded expresses the true will of the deceased, is not confined to cases where the will is prepared by a person taking a benefit under it,, the true rule to be deduced from Barryv. Butlin (2), Fulton v. Andrew (3), and Brown v. Fisher (4)being, that wherever a will is prepared and executed under circumstances which raise the suspicion of the Court, it ought not to be pronounced for unless the party propounding it adduces evidence which removes such suspicion, and satisfies the Court that the testator knew and approved of the contents of the instrument.”
That there were in the present case circumstances in connection with the preparation and execution of the will which might well raise the suspicion of the jury I entertain no doubt. The most obvious are these. One of the executors propounding the will is Father O’Malley, to whose evidence I have referred at some length. He is also a legatee. There was ample evidence which, if accepted by the jury, established that he had considerable influence over the deceased. On his own evidence it was established:(1) that he induced the deceased to make the will; (2) that he suggested to her that she should give her instructions for the will to Mr. FitzGerald; (3) that Mr. FitzGerald had never acted as solicitor for the deceased on any previous occasion, and was unknown to her; (4) that Mr. FitzGerald had previously acted as his solicitor in connection with several matters; (5) that he interviewed Mr. FitzGerald before Mr. FitzGerald attended the deceased to take her instructions; (6) that he had discussed with the deceased some, at least, of the dispositions that she should make of her property, and had suggested to her the names of some persons as proper legatees; (7) that he wrote out a list of bequests and gave it to the deceased to enable her to give her instructions to Mr. FitzGerald; (8) that he did not inform any of the next-of-kin, some of whom lived in the same street and were constant visitors to the deceasedthat the deceased intended to make a will, and that he did everything that he could to keep her intention secret; (9) that the value of the property disposed of by the will was approximately £21,000, of which about £18,500 was bequeathed for charitable purposes with which Father O’Malley would very naturally and very properly sympathise. And when, in addition to all these matters. Mr. FitzGerald has to admit, as he did in his evidence on cross-examination which I have quoted, that, in preparing the draft will which he submitted to counsel for settlement, he omitted from it six bequests amounting to £1,450 which he had been instructed to include in the will and had altered other bequests without any authority from the deceased to do so, and when the only explanation he could offer was that those omissions and alterations were made “possibly by error” or through “human weakness,” his evidence, so far from removing the suspicion of the jury, may well have added to it.
But it is said on behalf of the appellants that as the jury found that the deceased was of sound mind, memory and understanding, and as there was evidence that the will had been read to her before she executed it, a presumption arises that she knew and approved of its contents, and that the jury were not entitled to find that she did not. There is clear authority for the proposition that, where a competent testator has had a will read over to him and subsequently executes it, a presumption arises that he knew and approved of its contents, and that proposition has not been challenged by the respondents in this case. But in order that that proposition should apply in any case it must be established to the satisfaction of the Court, or of the jury if the case is tried with a jury, that the will was read over and that it was read over in such a way as to make plain its contents to the testator.
In Fulton v. Andrew (1) a jury trying the issue raised in a probate suit found:(1) that the will in question was duly executed; (2) that the testator was of sound mind, memory and understanding; (3) that the execution of the will was not obtained by undue influence; (4) that the execution of the residuary clause was not obtained by the influence of the plaintiffs; (5) that the testator knew and approved of the contents of the will; and (6) that the testator did not know and approve of the residuary clause. The trial Judge directed a verdict to be entered for the plaintiffs on the first five issues, but for the defendants on the sixth. On the application by the plaintiffs to the Court of Probate, that Court entered a verdict for the plaintiffs on all the counts and directed that probate should issue to them of the entire will. The defendants appealed to the House of Lords On the hearing of the appeal counsel for the respondents relied on the fact that the evidence given at the trial established that the will had been read over to the testator before execution, and contended that the jury were bound to assume that he knew and approved of the contents of the will, but that contention was not accepted, the verdict of the jury was upheld, and it was directed that probate should be granted of the will omitting the residuary clause. In his speech the Lord Chancellor (Lord Cairns), discussing the presumption that may arise from the fact that a will has been read over before its execution by a competent testator, says (at p. 463): “The jury must be satisfied that the will was read over, and, in the second place, must also be satisfied that there was no fraud in the case. Now applying those observations to the present case, I will ask your Lordships to observe that we have no means of knowing what was the view which the jury in the present case took with regard to the reading over of the will. The only witnesses upon the subject were those witnesses who themselves were propounding the will. No person else was present, no person else knew anything upon the subject. It appears that these witnesses stated either that the will was read over to the testator, or that
it was left with him overnight for the purpose of being read over. The jury may, or may not, have believed that statement, or may have thought, even if there had been some reading of the will, that that reading had not taken place in such a way as to convey to the mind of the testator a due appreciation of the contents and effect of the residuary clauseand it may well be that the jurors, finding a clear expression of the intentions of the testator or what they may have thought to be a clear expression of the intentions of the testator, in the instructions for the will, were not satisfied that there was any such proper reading or explanation of the will as would apprise the testator of the change, if there was a change, between the instructions and the will.” And again (at p. 465):”It was suggested that, when once the jurors had before them uncontroverted evidence that the will was read over to the testator, any verdict on their part that the residuary clause was not known to the testator would be opposed to their finding upon the issue that he was of sound mind, memory and understanding. I say that that again was a question for the jurymen, and it might well be that they would not believe the evidence with regard to the rending over of the will.”
The judgment of Sir F. H. Jeune in Garnett-Botfield v.Garnett-Botfield (1) is to the same effect.
In the present case the only evidence that the will was read over to the deceased is the statement of Mr. FitzGerald, and the credibility as well as the accuracy of his evidence was obviously challenged on cross-examination. It was for the jury, having heard his evidence, to say to what extent they accepted it as truthful and accurate, and I do not know whether or not they accepted his statement that he read the will to the deceased. It is therefore impossible for me to say that the presumption upon which the appellants rely ever arose in this case, and the argument based on the existence of that presumption must accordingly fail.
I am of opinion that on the evidence in this case it was open to the jury to find as they did, and, that being so, this Court cannot interfere with their verdict. The fact that there was ample evidence on which, if they accepted it, they could have come to a different conclusion is quite immaterial, and for that reason I have not referred to that evidence. I express no opinion on the verdict of the jury beyond that which I have stated.
MURNAGHAN J.:
I have read the judgment which has just been delivered by the Chief Justice, and I agree with it and have nothing to add.
MEREDITH J.:
It is most unfortunate that the result of this case will be that a number of charities, which the deceased unquestionably intended to benefit, will receive nothing from her estate.
I have never had any doubt that the verdict of the jury as to the residuary clause could not be disturbed.
But the will as a whole, without the residuary clause, seems in a very different position.
The case against knowledge and approval by the testatrix rests on suspicion of a most vague and indefinite kind, and suspicion for the most part arising out of answers to questions that had nothing to do with knowledge and approval. But, as Father O’Malley, who propounded the will and was instrumental in its preparation, took benefits under the will, the jury were entitled to act on such suspicion, even in face of the presumption arising from the reading of the will to a testatrix found to have duly executed it and to have been of sound mind, memory and understanding. Also Mr. Edward FitzGerald, who had acted previously for Father O’Malley and not for the testatrix, and whose position may have been regarded as somewhat ambiguous, did not point out to the testatrix the several discrepancies between the will and the instructions as he ought to have done.
As to the suggestion that the jury may not have been satisfied as to the reading of the will, it seems to have been first made at a late stage of the hearing before this Court. Despite the extreme length of the cross-examination, no question was put to Mr. FitzGerald as to the mode of reading the will, and I can hardly imagine that the learned trial Judge in his charge to the jury can have suggested any doubt on that point; since, if he had, counsel, after the jury had retired, could not have made his request as to the presumption arising from the reading in the form he did. I would also infer that the learned trial Judge had not in fact given the jury any direction whatever in respect of the presumption. But as the Judge’s charge is not before us I cannot rely on the doubt that strongly presses on my mind.
I have only to add that, although the jury might have availed themselves of the opportunity afforded them of distinguishing between the residuary clause and the rest of the will, when they have not chosen to do so, but have condemned the will both in whole and in part, it could only be under very exceptional circumstances that the Court could insist on a differentiation, and accept the finding of the jury as to part of the will and reject their finding as to the rest.
For these reasons I concur in the judgment which has been delivered by the Chief Justice.
GEOGHEGAN J.:
The Chief Justice has permitted me to read the judgment which he has just delivered. I agree with it, and I feel that there is nothing I can usefully add to what the Chief Justice has said
Dwyer and Dwyer v Dowling and O’Flynn
2017 5531 P
High Court
10 April 2019
unreported
[2019] IEHC 271
Mr. Justice Noonan
In the Matter of the Estate of Angela O’Loughlin Late of 100 Rathdown, Terenure, 6W in the County of Dublin Deceased
JUDGMENT
1. The above named Angela O’Loughlin died on the 8th of September, 2016 aged 90 years having made her alleged last will on the 13th of December 2013 by which she appointed the plaintiffs her executors and principal beneficiaries. She is alleged to have made an earlier will on 29th April, 2013. The plaintiffs are husband and wife and the first name plaintiff is a niece of the deceased. The defendants are also nieces of the deceased and are sued in these proceedings because they entered caveats in the Probate Office. Accordingly, the plaintiffs seek that the will of the 13th December, 2013 be admitted to probate in solemn form of law. The defendants are substantial beneficiaries under an earlier will of the deceased which the first defendant, Ms. Dowling, seeks to propound as the last valid will of the deceased. In essence, the 2013 wills are challenged by the defendants on the grounds that the deceased was not of sound disposing mind when she made them. That is, in substance, the only issue in the case.
2. It would appear until late February or perhaps early March of this year, Ms. Dowling was represented by Messrs Willit Solicitors who have now been discharged and she continues these proceedings as a litigant in person. The second defendant, Ms. O’Flynn also represents herself.
3. There are three motions for discovery currently before the court, two brought by the plaintiffs against each of the defendants and a third motion brought by Ms. Dowling. It is with this latter motion that I propose to deal first.
4. Following taking this matter into case management on the 11th of March 2019, I gave liberty to each of the parties to issue these motions. However, in relation to Ms. Dowling’s motion, that had been the subject matter of extensive correspondence between the parties’ respective solicitors for about a year. On the 21st March, 2018, Messrs Willit wrote to the plaintiffs’ solicitors, Messrs David R. Fowler seeking discovery of seven categories of documents as follows:-
(1) All written material produced by the deceased, to include correspondence and diary entries.
(2) Any video footage of the deceased from the beginning of 2012 to the end of 2014.
(3) All medical records pertaining to the deceased from the beginning of 2012 to the end of 2014 that had not to date been provided by the plaintiffs to the defendant.
(4) All statements pertaining to any and all bank accounts held by the deceased.
(5) All documents having come into existence by reason of any savings or financial investments of the deceased.
(6) All documents disclosing the assets and liabilities of the deceased in 2013, or, at the plaintiffs’ election, a sworn inventory of the deceased’s assets and liabilities, as nearly as can be identified, on the 29th April 2013 and the 13th December 2013.
(7) All documents (not including, inter partes correspondence or pleadings) on which the plaintiffs intend to rely in support of their claim to have the testamentary document dated the 13th December 2013 admitted to proof.
5. The plaintiffs’ solicitors responded on the 23rd of April, 2018 as follows:-
(1) This category is obviously too broad and no time period has been specified.
(2) We are instructed that no such video footage of the deceased, as is requested, exists.
(3) Agreed. You will note that we have previously voluntarily provided you, under cover of our letters dated 8th January, 2018 and 30th January, 2018 with all of the available medical records of the deceased. As previously stated, we are not aware of any other GP, save Dr. Joyce, treating the deceased. We have recently reviewed the original records of Dr. Joyce and there are now a number of small records of Dr. Joyce to hand. We will forward you a copy of same under separate cover shortly. In addition, we have also recently received a copy of medical records from the HSE regarding the public health nurse and we have already sent you a copy of these records under separate cover.
(4)—(5) These categories are declined. We will however provide you with sufficient documentary evidence to demonstrate that the deceased, at all material times, was fully in charge of and prudently and properly managing her affairs.
(6) This category of document appears broadly, insofar as financial assets of the deceased are concerned, to replicate what has been requested under category 4. The deceased’s assets are comprised of her house and contents thereof at 100 Rathdown Park, Terenure, D6W, the funds in three bank accounts, and a small number of prize bonds. It is not necessary or relevant for the defendants to know the nature or extent of the deceased’s assets. No significant liabilities of the deceased, other than funeral expenses and conventional household outgoings, are known to our clients.
(7) Declined. This is not a proper matter for discovery. In advance of the trial of the action a booklet of core documents on which it is intended the plaintiffs will rely on at trial will be copied to you and we will expect you to reciprocate this arrangement.
6. Further correspondence ensued and the final position that appears to have been reached by the parties’ solicitors regarding the categories sought was as follows:-
(1) Ms. Dowling’s Solicitors indicated that they would accept category 1 confined to a period of 5 years prior to the death of the deceased. In response, the plaintiffs’ solicitors offered to make discovery of the diary entries of the deceased for a period of one year prior to the date of execution of each of the wills in issue and a period of one month thereafter.
(3) As already noted, this was agreed.
(4)-(5) The plaintiffs agreed to make discovery of the bank accounts of the deceased for a period of one year prior to the execution of each of the wills.
(6) The defendants’ solicitors continued to insist on this and the plaintiffs’ solicitors reiterated that they had already indicated the deceased’s assets.
(7) Ms. Dowling’s solicitors continued to seek this but the final response of the plaintiffs’ solicitors was to reiterate that they would provide a booklet of core documents in advance of the trial on a reciprocal basis.
7. The motion now brought by Ms. Dowling simply seeks general discovery without specifying any categories but those are to be found in her very lengthy affidavit sworn on the 22nd of March 2019. In summary, Ms. Dowling reiterates her solicitor’s stance with regard to the documents sought but with the following additional matters now being sought:-
(2) This category is now expanded to include photographic evidence as well as video footage.
(3) This category now seeks discovery of the medical records of the deceased for 5 years prior to her death, whereas previously, Ms. Dowling’s solicitors, on her instructions, sought 3 years, which was agreed. No explanation has been given for the change. In addition, Ms. Dowling in substance makes complaints about the discovery already made by the plaintiffs under this category and suggests that it falls short in a number of material respects. In the normal way this would be a matter for further and better discovery but in the interests of expedition, efficiency and the saving of costs, I propose to deal with all of these issues in this motion. She complains about the quality of some of the records already furnished but also of what she claims to be significant other records that have not been furnished. Thus she says that the plaintiffs have obtained no documents from the deceased’s pharmacy. She also complains about the failure to initially discover documents from the public health nurse but that has now been rectified. She says that discovery ought to have been made of the records of a physiotherapist and occupational therapist who attended the deceased at her home following discharge from the Beacon Hospital in July, 2013. She also refers to the fact that a carer looked after the deceased for a period of time and no discovery of his or her records has been made. She also seeks liberty to apply for non-party discovery from the Beacon Hospital, St. James’s Hospital, the HSE and Dr. Joyce, although his records have already been furnished.
8. In relation to the outstanding categories, she seeks the documents as originally sought by Messrs Willit but gives new and expanded reasons in her affidavit for seeking these documents. In addition, Ms. Dowling seeks to add two new categories as follows:-
(8) Additional financial documents already sought under categories 4, 5 and 6 but now extended up to the date of this motion.
(9) isclosure of all communications to Ms. Dowling from the first named plaintiff in which Ms. Dowling was purportedly kept apprised of the deteriorating health of the deceased.
9. It is axiomatic that the onus rests upon the party seeking discovery to prove that the documents sought are relevant to the issues in the case and necessary for its fair disposal or for saving costs. Many judges in recent times have expressed serious misgivings about the discovery process as it currently stands and of the fact that frequently, grossly disproportionate costs are incurred in the pursuit of discovery which often bears little or no fruit. It is widely recognised as an area of the law in need of urgent reform.
10. The time, cost and effort involved in making discovery must be proportionate to the objective to be attained. This is of particular importance in the context of a probate action such as the present where frequently, although not always, the costs of all parties including those who may have unsuccessfully challenged a will, are borne by the estate to the ultimate detriment of the beneficiaries.
11. Cases such as the present frequently turn in large measure on the opinion of medical experts regarding the capacity of the deceased at the time he or she made the will in issue. This case appears likely to be no different. The plaintiffs have already obtained medical opinion supportive of their case. The plaintiffs have made this position clear for a considerable period of time to the defendants. As recently as the 19th of March, 2019 the plaintiffs’ solicitors wrote to the defendants inviting them to exchange medical reports and inviting them to a meeting of medical experts.
12. By the time of the hearing before me on the 3rd April, 2019, no response to this invitation was forthcoming. Nor is it mentioned in Ms. Dowling’s subsequently sworn affidavit. Of importance, Ms. Dowling’s affidavit contains no reference whatsoever to any medical evidence that she is proposing to call at the trial of the action. It is clear from Ms. Dowling’s own affidavit that almost all of the requests for discovery of documents that have not so far been agreed by the plaintiffs rest upon assertions by her of the deceased’s state of mind by reference to Ms. Dowling’s own interpretation of various documents, including medical records, that have been made available to her.
13. She purports to give evidence that the deceased was suffering from various conditions at various times based on her analysis of these records. Many of her averments are predicated by the assertion “my research indicates”. Ms. Dowling does concede in her affidavit that she is not an independent medical expert but says that she has a certain proficiency in deciphering medical records from her extensive litigation experience. Despite that, the fact remains that Ms. Dowling is not a doctor and is not entitled to give opinion evidence on medical matters pertaining to the deceased’s mental health. Her affidavit is however replete with such purported opinion evidence.
14. It therefore came as something of a surprise during the course of oral submissions at the hearing of this motion that Ms. Dowling indicated that she had consulted a medical expert, Professor William Molloy, who had formed the opinion that the deceased lacked capacity at the time she made her will. Ms. Dowling did not indicate when she had consulted Professor Molloy or if he has prepared any report.
15. However, one assumes that if he was in a position to reach the conclusion that the deceased lacked capacity, he felt able to arrive at the conclusion on the basis of the documents already furnished by way of discovery by the plaintiffs. Nowhere in Ms. Dowling’s affidavit is it suggested that she had either retained a medical expert or that such expert required further documents in order to come to a conclusion. In fact, as I have said, in her submissions, she asserted to the contrary that he had in fact come to a conclusion.
16. To take some examples of the wide ranging discovery sought, category 1 seeks discovery of the deceased’s written materials for a period of 5 years prior to her death. This includes a period of approximately three years after which she made the contested wills. How that could ever be relevant to the issues in the case is not explained by any admissible evidence and certainly not by any medical evidence. Similarly, it is not clear to me how the documents of a physiotherapist, occupational therapist, pharmacist or carer, could be required by any medical expert for the purpose of forming an opinion, and as I have pointed out there is no evidence to that effect. Nor is there any evidence or explanation justifying why the 3 years of medical records sought, agreed and provided should now be 5 years.
17. As was submitted by counsel for the plaintiffs, while a party making discovery is required to discover relevant documents within his or her possession or procurement, there is no onus on a deponent to carry out an extensive investigation to establish if other parties might potentially have in their possession documents which could possibly have some relevance to the issues in the case. In any event, in the normal way a party is only obliged to produce on discovery documents either in his possession or in respect of which he has a legal right to demand their production — see Thema International v HSBC [2013] 1 IR 274. It is not clear to me that such right exists in the context of people such as therapists and carers but in any event, the onus of course rests upon Ms. Dowling to establish such right and she has not done so.
18. With regard to category 7, the plaintiffs have proposed producing a core booklet of documents on which they intend to rely in advance of the trial and have offered to share same with the defendants on a reciprocal basis. This is not an appropriate matter for discovery but in any event, the offer has not been responded to in kind other than to state that production is required by Ms. Dowling now.
19. For these reasons therefore the applicant has not satisfied me that any of the documents that are sought, beyond those which have already been either furnished or offered, are relevant or necessary for the fair disposal of the proceedings and I accordingly will direct the plaintiffs to make discovery confined to the documents already offered by their solicitors in correspondence.
20. With regard to the discovery sought by the plaintiffs against the defendants, in my view no substantive reason has been advanced by the defendants as to why such discovery should not be granted and I therefore propose to make an order in the terms of the plaintiffs’ notices of motion.
Elliot v Stamp
[2008] IESC 10
Date of Delivery: 12 March 2008
Court: Supreme Court
Composition of Court: Kearns J., Macken J., Finnegan J.
Judgment by: Kearns J.
Status of Judgment: Approved
Judgments by
Result
Concurring
Kearns J.
Appeal allowed – vary High Court Order
Fennelly J., Macken J.
JUDGMENT of Mr. Justice Kearns delivered the 12th day of March, 2008
This case raises an important issue about costs in probate actions and is perhaps the first time this topic has been revisited since the seminal decision of this Court in In bonis Morelli:Vella v. Morelli [1968] I.R.11 (hereafter “Vella v Morelli”).
Nicholas Roche, the deceased herein, late of Ballyvalden, Blackwater, Co. Waterford, died a bachelor without issue on 3rd May, 2003. He was seventy years old. His assets, amounting in value to approximately €1.5 million, included a residential farm, credit union deposits and cash. The deceased was survived by three sisters, Anastasia Elliott, the first named plaintiff, Bridie Stamp, the second named defendant and Mary Roche, an unmarried sister who gave evidence in the case but was not a party to the proceedings. The second named plaintiff is a son of the first named plaintiff and is acting on her behalf pursuant to a Power of Attorney granted on 6th April, 2004. The first named defendant is a son of the second named defendant and is thus a nephew of the deceased. He is the principal beneficiary and sole executor appointed under the will of the deceased dated 20th February, 2003.
In the proceedings brought by the plaintiffs the parties agreed that the issues to be determined at trial were as follows:-
(a) Whether the will was executed in accordance with the provisions of the Succession Act, 1965;
(b) Whether the testator Nicholas Roche was of sound disposing mind and
(c) Whether the will was procured by duress or influence of the defendants or either of them
(d) Such other issue as to the Court might seem proper
The proceedings began by way of Plenary Summons dated 13th July, 2004. Certain particulars were given in the Statement of Claim regarding alleged dominion and control and the involvement of the defendants, and in particular the first named defendant, who is an accountant, in the procuring of a solicitor for the purposes of preparing and executing the will which, the particulars continued, was not the product of the free and voluntary act of the deceased but rather was the result of requests and/or demands made of the deceased by the defendants or either of them. It was further claimed that the deceased was in fear of not complying with the said requests.
The defence denied that the will was void. It contended that the act of the testator was the free act of a person who made the will with full capacity, competence and understanding. The will had been prepared over a two day period between 19th and 20th February, 2003, with the advice and assistance of a senior legal executive who had special responsibility for conveyancing and wills in a solicitor’s firm. It was denied that there had been any interference, duress or influence, undue or otherwise, in and about the making of the will. It was further contended that the will contained numerous legacies and bequests in accordance with the testator’s detailed instructions to his solicitor.
By Notice of Motion dated 30th January, 2006, the defendants applied for an order striking out the plaintiffs’ claim for failure to comply with the requests for further particulars and on the grounds that the plaintiffs’ claim disclosed no reasonable cause of action. It was contended that there was no evidence to support the plaintiffs’ claim of undue influence on the testator and that no evidence of same had been provided in the plaintiffs’ replies to particulars. The motion was grounded on the affidavit of the first named defendant and exhibited medical reports from two medical practitioners as to the state of health of the testator. There were further affidavits of Mr. Dick Parle, a beneficiary under the will and a neighbour and friend of the deceased; of Mrs. Bridie Stamp, the second named defendant, and of Mr. Tom Murphy, legal executive in the firm of M. J. O’Connor & Co., Solicitors, as to his role in taking instructions, drafting and witnessing the execution of the will.
On 23rd June, 2006, the High Court (Quirke J.) refused the application to dismiss and directed that the issues recited above be determined in relation to the said purported will.
The matter came on for hearing in the High Court between 17th and 18th October, 2006. Prior to the commencement of the case the plaintiffs withdrew their claims in relation to due execution and testamentary capacity and elected to run the case on undue influence alone. A large number of witnesses were heard at the hearing and judgment was thereafter given by Murphy J. on 7th November, 2006.
The learned High Court judge resolved all issues in favour of the defendants, holding firstly that the said will had been validly executed, secondly, that the testator was of sound mind, memory and understanding and thirdly, that the making of the will had not been procured by any undue influence or duress of the defendants or either of them.
In a separate hearing on the issue of costs which took place on 10th November, 2006, Murphy J. heard oral submissions from both sides before awarding the plaintiffs one-third of their costs from the estate.
It is from that latter finding and decision that this appeal is brought, the plaintiffs alleging that, pursuant to the well established authority of Vella v. Morelli, Murphy J. should have awarded to the plaintiffs their full costs from the estate of the deceased. Mr. Brian Spierin, Senior Counsel for the plaintiffs, contended that, on the facts, it had been reasonable to bring the proceedings and, secondly, that the same were brought bona fide, thus meeting the two requirements of Vella v. Morelli. Ms. Mary Laverty, Senior Counsel for the defendants, invited the court to further develop the jurisprudence within Vella v. Morelli, by indicating that when an executor makes all relevant information relating to the issues in dispute available to the plaintiffs prior to trial and the court is later satisfied, having evaluated that material objectively, that the plaintiffs should at that point have desisted from further maintaining the proceedings, then the court should not award costs from the estate to an unsuccessful litigant. She argued cogently that many small estates were liable to be dissipated entirely unless some mechanism existed whereby a plaintiff who needlessly or vindictively maintained proceedings beyond a certain point was put on hazard of not recovering costs from an estate in such circumstances.
BACKGROUND
Nicholas Roche was born on 1st March, 1933, and was thus aged seventy years at the date of his death on 3rd May, 2003. He had made no previous will and was illiterate. He had remained on the family farm while his sisters had married and moved elsewhere. It seems he was a quiet and simple man who was in failing health in 2002. He had severe arthritis and a condition known as polymyalgia rheumatica which caused him a great deal of pain. Such was his condition that he stayed with the second named defendant for a seven week period from before Christmas 2002 until he went to Wexford Hospital on 21st February, 2003. During that time the first named defendant introduced him to a new doctor and made arrangements for Mr. Tom Murphy, legal executive, to come to the house to put his affairs in order.
Mr. Murphy attended on Mr. Roche on 19th February and spent some two hours with him. He felt Mr. Roche was clear minded and gave him details of family members, assets and wishes. He took instructions for the purpose of drafting a will, but on the next day, 20th February, 2002, Mr. Stamp rang him to say that Mr. Roche had got a bed in hospital for which he had been waiting and asked if Mr. Murphy would come that day. He arrived out with the draft will. Mr. Stamp was present in the house and, as an issue of tax on the farm bequest arose, Mr. Murphy asked Mr.Roche for permission to discuss this matter with Mr. Stamp. Afterwards Mr. Murphy asked Mr. Stamp to leave the room and continued with Mr. Roche. No changes were made to the will which was then executed by the deceased in the presence of Mr. Murphy and his wife who had been brought in for the purpose of witnessing the will from a car waiting outside.
When cross-examined, Mr. Murphy agreed that Mr. Stamp, who is an accountant, had business from time to time with the firm M. J. O’Connor. He further agreed that Mr. Stamp had been told of the bequest and the implications for tax before the will was executed. Mr. Murphy agreed that Mr. Stamp had played a significant role in notifying Mr. Murphy of Mr. Roche’s desire to make a will.
The court also had evidence from Mrs. Mary Murphy, the other attesting witness, who said she found Mr. Roche sitting in his chair on the occasion in question. She said he was quite bright and smiling when she saw him sign the will in a somewhat shaky manner, and then Mr. Murphy signed and she signed and that completed their dealings with Mr. Roche.
Evidence was given by Mary Roche, the sister of Anastasia and Bridie, who described her brother as quiet, dyslexic and “not being good on the land”. She did not believe the testator could make a detailed will as he could not read or write.
Mr. Niall Elliott, the second named plaintiff, saw the deceased for three weeks in September and October, 2002 and noted that he had deteriorated. He believed that if his uncle had made a will, he would have divided the farm equally between his three sisters.
Various neighbours were called as witnesses on behalf of the defendants, all of whom spoke highly of the deceased. In particular, Mr. Dick Parle, who was a friend and neighbour. He regarded the deceased as a gentle and honest man who had a good memory. He had seen the deceased the day before he died sitting up in the dayroom of the nursing home in a chair. He was surprised that the deceased had died the following day.
No medical evidence was called, but the court had the benefit of the medical reports furnished by Dr. Bart Curtis, General Practitioner, and Dr. Michael Riordan, Consultant Physician.
Dr. Curtis met the deceased for the first time in January, 2003 and saw him on four occasions thereafter, all being prior to the date of the making of the will. Not surprisingly, Dr. Curtis was primarily concerned with the testator’s complaints of pain in his upper limbs, right knee and neck. He noted that the testator was severely limited in his movements and required considerable medication for relief. When his condition did not improve, a decision was made to admit him to Wexford General Hospital. In relation to his mental state, Dr. Curtis simply stated:-
“While his physical condition was a cause for concern, at no stage do my notes indicate that his mental state was other than normal. My memory of him was that of a normal country man of the age stated with whom it was possible to communicate easily.”
In his report, Dr. Curtis records that the testator was discharged from Wexford Hospital to St. John’s Hospital in Enniscorthy and that he did reasonably well there. Thereafter he was moved into Lawson Nursing Home on 5th April, 2003.
The report of Dr. Curtis reveals that the testator, prior to the execution of the will, was placed on a variety of medications for his physical ailments, including anti-inflammatory medication, a mild hypnotic (the name of which is not stated), Salazopirin and Deltacortril.
Dr. Michael Riordan had a limited recall of the deceased and so stated in a letter dated 19th October, 2005, written by him to the defendants’ solicitors. He noted that the deceased was in a great deal of pain on arrival to Wexford General Hospital the day after he made his will. He needed assistance in washing and dressing himself as an in-patient in Wexford, but his condition did improve when he got to the rehabilitation ward at St. John’s. He was then mobilised with a stick. He stated as follows in his report:-
“Mentally, he was orientated to his place and had no problems with communicating, according to the nursing notes. From what I recall of him last is that mentally he was bright and while there was no objective test done, the comments and the notes certainly don’t give rise to concern via his mental state and therefore I would conclude that he was probably mentally competent enough to make a will. However, it is very difficult to be absolutely certain of this, as I am depending on this from my own memory and from the limited notes that have been written about his mental state as an in-patient.”
DECISION
While the case of Vella v. Morelli concerned proceedings in which the issue of undue influence was withdrawn at the door of the court, the present case is one which, by way of contrast, the issue of testamentary capacity was withdrawn at the door of the court. Nonetheless, this difference or distinction strikes me as being of no particular importance in considering the appropriate principles to be applied with regard to costs in probate actions.
It is undoubtedly the case that, going back to the time of the Prerogative Court, costs were awarded out of the estate of a deceased where it was deemed reasonable to bring proceedings.
In his judgment in the case of Fairtlough v. Fairtlough (1839) 1 Milw. 36, Dr. Radcliff, the then judge of the Prerogative Court, said at p.39:-
“The principle of awarding costs out of the fund in testamentary cases is not confined merely to cases where the question arises upon the state in which the deceased has left his testamentary papers. The rule should be taken in a wider view, and wherever it is proper to specially bring the matter before the court for its opinion, the costs may be given out of the estate.”
Miller’s Probate Practice (Maxwell: 1900 Ed.) contains the following statement at pp. 438 – 439:-
“Two questions are to be considered with reference to an application for costs of the unsuccessful party:- (1) Was there reasonable ground for litigation? (2) Was it conducted bona fide?. Where both these questions can be answered in the affirmative it is the usual practice of the Court, without having regard to the amount or the ownership of the property, to order the general costs to be paid out of the personal estate”.
In numerous cases referred to by Budd J. in the course of his judgment in Vella v. Morelli, this was the view taken by courts in this jurisdiction. The questions to be considered were:-
(a) Was there reasonable ground for litigation? and
(b) Was it conducted bona fide?
If the answer to both questions was in the affirmative, then a litigant, even if unsuccessful, could recover his legal costs from the estate. That practice was continued in the Probate Court towards the end of the 19th century and continued throughout the last century.
The underlying principle was formulated by Budd J. in Vella v. Morelli in the following terms (at pp.34 – 35):-
“In our country the results arising from the testamentary disposition of property are of fundamental importance to most members of the community and it is vital that the circumstances surrounding the execution of testamentary documents should be open to scrutiny and be above suspicion. Accordingly, it would seem right and proper to me that persons having real and genuine grounds for believing, or even having genuine suspicions, that a purported will is not valid, should be able to have the circumstances surrounding the execution of that will investigated by the court without being completely deterred from taking that course by reason of a fear that, however genuine their case may be, they will have to bear the burden of what may be heavy costs. It would seem to me that the old Irish practice was a very fair and reasonable one and was such that, if adhered to, would allay the reasonable fears of persons faced with making a decision upon whether a will should be litigated or not. If there be any doubt about its application in modern times, these doubts should be dispelled and the practice should now be reiterated and laid down as a general guiding principle bearing in mind that, as a general rule, before the practice can be operated in any particular case the two questions posed must be answered in the affirmative.”
In the present case, as already noted, the learned trial judge determined that the plaintiffs had failed to establish there had been any undue influence or pressure brought to bear on the testator by either of the defendants.
In ruling on the submissions made with regard to costs, the learned trial judge felt he should distinguish Vella v. Morelli from the present case, given that the former dealt only with the due execution of the will, whereas the present case largely consisted of an allegation of undue influence which was not substantiated at trial. The learned trial judge placed considerable store on the fact that the executor had made a great deal of evidence available to the plaintiffs before the case ever came to court. This was in the context of the application to dismiss, and the information made available included the medical reports of the two medical practitioners, together with statements from the witnesses already referred to. The learned trial judge then continued:-
“I am not sure it is quite accurate to say that all of the evidence that came to the court was then in the hands of the plaintiff. But certainly considerable evidence was in the hands of the plaintiff and certainly by the time of the motion of Quirke J., as I have already indicated, affidavits were lodged in relation to the three persons that I have indicated. (Robert Stamp, Dick Parle and Thomas Murphy).
It does seem to me that in the circumstances that I should award only part of the costs of the plaintiffs in this case to come out of the estate. It seems to me that the appropriate order should be that one-third of the costs of the plaintiffs should be defrayed from the estate. Then I would affirm the orders that were already made that the will be proved in solemn form, that the defendants are entitled to their entire costs from the estate, and that the plaintiffs are entitled to one-third of their costs from the estate.”
While counsel for the defendants has referred to recent rulings by this Court on costs, including the case of Dunne v Minister for the Environment and Others [2007] IESC 60, to argue that costs should follow the event in this case, I am satisfied that this submission fails to take account of the fact that a special jurisprudence in relation to costs was developed in this jurisdiction for the reasons so eloquently expressed by Budd J. in Vella v. Morelli. It is a departure from that jurisprudence which requires a ‘reasoned basis’ in a will suit. Unfortunately, the learned trial judge does not expressly set out why he elected to depart from the principles enunciated in Vella v. Morelli, nor does he indicate any reasoned basis for awarding the plaintiffs only one-third of their costs. Implicit in the judgment, however, is the clear sentiment of the learned trial judge that, once an executor fully and fairly sets out the available evidence pertaining to testamentary capacity and any other issue set down for trial, a plaintiff who elects nonetheless to maintain the claim thereafter but who loses the case should not recover costs from the estate. The difficulty which arises, however, is in relation to the form of award of costs actually made. Either the plaintiffs were entitled to costs, in which event it should have been a full order as to costs, or to no costs. If the plaintiff was to recover only one-third of the costs, a basis for so deciding should have been clearly stated. In the instant case that could only be on the basis that the plaintiffs’ conduct in maintaining the proceedings following the application to Quirke J. was unreasonable to such a degree that the plaintiffs were thereby disqualified from any entitlement to recover full costs from the estate. However, the learned trial judge does not so state at any point in his judgment.
I believe the defendants in this case were entirely correct to set out by means of statements and reports the evidence which they proposed to rely on at trial. I would encourage such an initiative in all testamentary proceedings which lend themselves to such a step. It is beyond doubt that small estates can be entirely dissipated by legal proceedings brought by disappointed parties whose intention may be to force the executor into some form of settlement or to vindictively waste the assets in legal proceedings which, even if capable of being seen as properly brought at the outset, can no longer be seen as such once the full picture has been made available by those defending the proceedings. I see this as the equivalent in probate terms of a lodgment or tender made in a personal injuries action. I believe it is an approach which should be adopted whenever possible. It would represent a valuable protection for the estates of deceased persons, without in any way diluting the principles enunciated in Vella v. Morelli. Thus, while it may be reasonable to commence and bring proceedings, and to bring them bona fide, a point may arrive where, as a result of disclosure made by the defence, the further maintenance of the claim can no longer be seen as reasonable. In such circumstances, it seems to me a trial judge should not be fettered in the exercise of his discretion as to costs and should be free both to decline costs from the estate to an unsuccessful litigant or even to award costs against such a litigant from the time of disclosure.
In the instant case, however, I am not satisfied, based on an objective evaluation of the documentation supplied to the plaintiffs before trial, that there was sufficient information therein to meet all of the requirements or concerns which the plaintiffs may reasonably have had. Firstly, the testator was an elderly man in poor health who had never before made a will. Thus, until a matter of months before his death, the estate of Nicholas Roche would have fallen to be distributed on intestacy in equal shares among his three sisters. Given that there was no family disharmony of any sort at that time, the terms of the will mark a radical shift from that position, given that each sister was left a sum of only 10,000 euro. Secondly, this case is marked by the somewhat unusual occurrence that the services of the testator’s General Practitioner were dispensed with by Robert Stamp – perhaps for very good reason – and a new GP was brought in by him when the testator moved to the home of the second named defendant. The arrangements for making the will were made and procured by the first named defendant apparently without reference to the other sisters of the testator. One of those sisters, Mary Roche, who is not a party to the proceedings, nonetheless told the court that she had considerable reservations about her brother’s ability to make a will, noting that he could neither read nor write. The very professional detail of the will as finally executed is in stark contrast to the state of affairs described by this particular witness. Thirdly, the medical evidence is understandably focused on the testator’s physical condition and would fall short of what would normally be required by the Probate Court when assessing testamentary capacity in an uncontested case coming before it. I would see these medical reports as providing limited support only for the testamentary capacity of the testator and his ability to withstand undue influence.
I stress I am in no way stating that there was undue influence or anything of the sort in this case. In particular I would wish to emphasise that I am not suggesting that Mr. Murphy’s role was anything less than fully professional and appropriate. There is no appeal from the findings of the learned High Court judge in these respects and Mr. Spierin has confirmed to this Court that his clients are satisfied following the hearing to abide the findings made in the High Court, other than as regards costs. I confine myself exclusively to the issue as to whether or not it was reasonable to continue with the proceedings following the level of disclosure made by the defendants and in this regard I have concluded that it was reasonable for the reasons set out above. These concerns, or some of them, could not have been dispelled without the benefit of a full hearing. Despite the expense involved, there will obviously be cases such as the present one where nothing short of a full hearing will satisfy parties to a family dispute that all is above board. Any judge who has had experience of such cases either as barrister, solicitor or judge will be well aware that the cathartic nature of a full hearing may in certain instances provide the only solution.
I would therefore allow the appeal in this case and allow the plaintiffs their full costs from the estate, including the costs of this appeal. In so saying, I would hope that in future those representing estates will avail whenever possible of the option of the “probate lodgment” concept described above.