Family Rights & Wills
Cases
In re Urquhart
[1974] IR 202
FitzGerald C.J.
Supreme Court
FITZGERALD C.J. :
30 July
This appeal arises from a claim for estate duty made by the plaintiffs against the defendants who are the executors of Douglas D. Urquhart, deceased. The claim arises in the following circumstances. Douglas D. Urquhart died on the 5th May, 1969, and his wife, Kathleen Mary Urquhart, died on the 4th May, 1969. The husband was unconscious at the time of his wife’s death and did not subsequently recover consciousness; up to the time of his death, he was unaware that his wife had predeceased him.
The wife made her last will on the 6th April, 1967, whereby she appointed the defendants to be her executors and trustees. By clause 3 of her will she provided8 that, if the husband survived her for the space of one calendar month, she gave him all her personal belongings and household furnishings and effects, and the sum of £15,000. She made further bequests, including a bequest of the residue of her estate. By clause 4 of her will it was provided that, in the event of her husband not surviving her by the said period of one calendar month, her property (including the residue) should be disposed of as provided for in the said clause. As the husband failed to survive the wife for the calendar month, clause 3 of her will was inoperative, and her property falls to be divided in accordance with clause 4 subject to the husband’s right, if any, arising under the provisions of the Succession Act, 1965. The assets of the wife have been valued at £95,000.
The husband made his own will on the same day as his wife (6th April, 1967) in similar terms to that made by his wife, in that it was subject to the proviso that she took a benefit under his will if, and only if, she survived him by a calendar month. His assets were considerably less than his wife’s. There were no children of the marriage.
The plaintiffs’ claim is for a declaration that one-half of the estate of the wife was property of which the husband was “competent to dispose” within the meaning of the Finance Act, 1894, and for the orders which would follow such a declaration. In the events which have happened, the claim is that the estate of the husband is liable for estate duty on his “right” to half his wife’s assets, in addition to the estate duty for which it is liable as his own estate in possession. Prior to the enactment of the Succession Act, 1965, there would have been no duty payable in respect of the property which is the subject of the plaintiffs’ claim as, in the events which happened, the husband would have received no benefit under his wife’s will. However, it is submitted on behalf of the plaintiffs that under the provisions of the Act of 1965 the husband had a “right” to half his wife’s estate; and they submit that by virtue of s. 2, sub-s. 1 (a), of the Act of 1894 he was “competent to dispose” of the half share which thus became part of his assets for the purpose of calculating the estate duty.
The relevant sections of the Act of 1965 would appear to be s. 111 and the immediately following sections in Part IX of the Act which deals with the legal rights of a testator’s spouse and the legal rights of children. The Act of 1965 made a number of changes in the law in relation to the functions and duties of executors, the devolution of the estates of intestates and the administration of their assets. The material part of the Act in this case is Part IX. That part of the Act commences at s. 109 and has the effect of limiting the right of a testator to disinherit his spouse or his children. Section 111, sub-s. 1, provides9 that, where a testator leaves a spouse and no children, the spouse shall have the right to one-half of the estate. Sub-section 2 of s. 111 provides that, where a testator leaves a spouse and children, the spouse shall have a right to one-third of the estate. Section 112 provides that the right of a spouse, created by s. 111, shall have priority over devises, bequests and shares on intestacy. [The Chief Justice referred to sub-ss. 1, 4 and 5 of s. 115 of the Act of 1965, and continued] There can be no doubt but that the husband had a legal right to half his wife’s estate if he elected to take it rather than the bequest to him in his wife’s will. However, he would have to exercise his election within the period specified in sub-s. 4 of section 115. In fact the husband was never notified by the executors of his right, and he never elected. In the events which happened, he never became entitled to any share of his wife’s estate under her will.
It was contended on behalf of the plaintiffs that liability to estate duty arises by virtue of s. 2, sub-s. 1(a), of the Finance Act, 1894, which provides that:”Property passing on the death of the deceased shall be deemed to include the property following, that is to say:(a) Property of which the deceased was at the time of his death competent to dispose.” This raises the question as to whether the half-share in the wife’s estate, which the husband could have elected to claim as his legal right, was property of which the husband was competent to dispose. In my opinion, the husband’s right to establish and receive a half-share of his wife’s estate depended upon a number of factors under the Act of 1965. First, it depended upon him surviving his wife. Secondly, it depended upon him becoming aware of the fact that he had survived her. Thirdly, it depended upon the husband then deciding to claim the half-share within the time prescribed. In point of fact, he did survive his wife but he never knew it. Consequently, he was never in a position to decide whether he would elect to claim his right to half his wife’s estate or not. In those circumstances, it appears to me that he could not be deemed competent to dispose of the half-share. I am fortified in this opinion by the provisions of s. 115, sub-ss. 4 and 5, of the Act of 1965 which specifically provide for a case where the surviving spouse is of unsound mind and, consequently, not in a position to exercise the election himself.
The plaintiffs placed reliance on the decision of Luxmore J. in Penrose v. Penrose 10 and on Parsons v.The Attorney General 11 which was a decision of the English Court of Appeal. In Penrose’s Case 10, a married woman, by her will, bequeathed and devised her real and personal estate to trustees upon trust to pay the income therefrom to her husband for his life, and upon his death to such persons of a certain class as the husband should by deed or will appoint. The husband survived his wife and by deed appointed a portion of the residuary estate to himself, being one of the class of persons to whom he could appoint. This appointment was valid; he could have appointed the whole of the residue to himself, and not merely a part of it. In those circumstances, it was hardly surprising that the learned judge held that he was competent to dispose of the residue. In point of fact, the case appears to have been appealed and then settled.
In Parsons’s Case 12 a testatrix gave a legacy of £10,000 to her husband absolutely, and she gave the income of her residuary estate on trust for her husband for life, and after his death on trust for her son absolutely. The husband disclaimed the legacy by a formal deed of disclaimer and the legacy fell into the residue. On the husband’s death, the revenue authorities claimed estate duty in respect of the legacy on the ground that, although the husband had disclaimed the legacy, he was competent to dispose of it and the liability for duty was not excluded by s. 52 of the Finance Act, 1894. It was held by the Court of Appeal that during the period between the death of the testatrix and the date of the disclaimer the husband was competent to dispose of the legacy within the meaning of s. 5, sub-s. 2, of the Act of 1894, and that estate duty was payable. On its particular facts, the decision was clearly correct. The surviving husband was in a position to accept or reject the legacy. He was aware of the position and, in point of fact, he decided to disclaim. Those circumstances are very different from those existing in the present case, where the husband never knew that he had survived his wife and that he was in a position, or would be in a position, to elect whether in claim his rights under the Act of 1965 or not.
In my opinion, this action by the plaintiffs is misconceived. The action should have been dismissed; the appeal should be allowed and the order of the High Court set aside.
WALSH J. :
The late Mrs. Kathleen Urquhart died on the 4th May, 1969. She was survived by her husband, Douglas Urquhart, who died on the 5th May, 1969. The wife and her husband were domiciled within the jurisdiction.
The wife made her last will and testament on the 6th April, 1967, and appointed the defendants to be executors and trustees of her will. By paragraph 3 of her will she expressly provided as follows:
“3. If my husband Douglas David Urquhart shall survive me for the space of one calendar month then but not otherwise I make the following dispositions of my property.
(a) To Walter Philip Tappin and his wife Daphne Mary Tappin of The Pines, Sandy Lane, Cobham, Surrey, the sum of £2,000 in equal shares. If either of the legatees predecease me then the said legacy is to be paid to the survivor of them, and in the event of both predeceasing me then said legacy is to be paid in equal shares to their children living at the date of my death.
(b) I give to my husband all my personal belongings and household furniture and effects together with the sum of fifteen thousand pounds.”
By paragraph 4 of her will the wife provided as follows: “If my said husband shall not survive me for the period aforesaid then and in that case I direct and declare that the following dispositions of my property in this clause No. 4 contained shall take effect but that otherwise this clause No. 4 shall be null and void.”
There followed then a disposition of her property to a number of her relatives. On the same date (6th April, 1967) her husband, Douglas Urquhart, made a will in similar terms relating to his wife. The husband died unaware of his wife’s death; he had been unconscious for a period including the time of the death of his wife to the time of his own death. The husband and his wife died leaving no children. The value of the estate of the wife for the purpose of estate duty amounted to approximately £95,000.
The present case has arisen out of the claim for estate duty in respect of the estate of the husband. The defendants delivered an estate-duty affidavit dated the 20th June, 1969, in the estate of the husband; but they did not include in it any share of the husband by way of legal right in the estate of his predeceased wife. When the question was raised by the plaintiffs, the defendants contended that nothing vested in the husband by reason of the death of his wife and that no property passed on his death under that head. The contention of the plaintiffs was that, by virtue of the provisions of s. 111, sub-s. 1, of the Succession Act, 1965, the husband was entitled as of right to a half share in his deceased wife’s free estate. The expression “free estate” apparently was intended to refer to the estate left after the discharge of the costs and expenses of administration. The plaintiffs claimed that by virtue of s. 118 of the Act of 1965 the half share of the wife’s estate bore its due proportion of the estate duty paid on the wife’s estate. The defendants disputed the claim on the ground that the husband had never elected to take the legal right in his wife’s estate under s. 115 of the Act of 1965 and that, therefore, he was not entitled to any share of the estate or to any benefit under the will.
[The judge referred to the provisions13 of s. 115, sub-s.1, of the Act of 1965, and continued] It is claimed by the defendants that s. 115, sub-s. 1 (b), of the Act of 1965 had the effect of confining the husband to his rights under the will of his wife because he did not make an election under the section. It is further claimed that the gift to him under the will lapsed as he did not survive his wife by a month. The opposing contention of the plaintiffs is that, where a testator dies leaving a spouse and no children, the effect of s. 111 of the Act of 1965 is that the spouse’s right to one-half of the estate is a vested right which takes effect immediately and continues to be effective unless divested by an election made under s. 115 within the period set out in sub-s. 4 of that section. It was submitted on behalf of the plaintiffs that, as he had died without making any such election, the husband at the date of his death was competent to dispose of the half-share of his wife’s estate for the purposes of s. 2, sub-s. 1 (a), of the Finance Act, 1894, and that on his death estate duty was payable on this as part of his own estate.
The matter came before Mr. Justice Kenny for decision upon a special summons and he made a declaration to the effect that one-half of the estate of the wife was property of which the husband was competent to dispose at the time of his death within the meaning of the Act of 1894. Against this decision the defendants have taken this appeal.
The Act of 1965 brought about a revolutionary change in the law of succession in this State. Prior to the enactment of this statute, the law of succession in respect of property which passed as personal property in the case of intestacy was determined by the provisions of the (Irish) Statute of Distribution, 1695, and the Intestates Estates Act, 1954. A person who died testate since the coming into operation of the Statute of 1695 could deal with his property as he thought fit. The effect of the Act of 1954 was to give the widow of a man dying intestate and without issue a first charge of £4,000 on his realty and personalty. Prior to the enactment of the Statute of 1695 there was not complete freedom of testamentary disposition. The law was governed by what was called the “custom of Ireland” which was abolished by s. 10 of the Statute of 1695. By the custom of Ireland only one-third of the personal estate of a deceased person, or a moiety of his personal estate was available for disposition by will. The custom of Ireland is set out in s. 10 of the Statute of 1695 in the following words:”And whereas it has been held, that there is a certain custom within this kingdom of Ireland to the effect following, that is to say, that if any person dye possessed of or entitled to any goods, things in action, or personal estate whatsoever; and having at the time of his death, a wife, or child, or children, that in such case all the said estate is to be divided into three equal parts, whereof one third part belongs to the wife, another to the child or children, and the other third part only to be subject to the disposition of the party deceased by his last will or testament, in case he make any, or to go in a course of administration in case he dye intestate; and if he leave a wife only, and no child or children, then the said estate to be divided into two parts, whereof the one moiety to go to the wife, and the other moiety only to be subject to his disposition by will as aforesaid, otherwise to go in a course of administration in case he dye intestate; and so in like manner if he shall leave a child or children, and no wife. . .” The section then goes on to enact as follows:”. . . now it is hereby declared, that the said custom shall from henceforth be absolutely null and void to all intents and purposes whatsoever, and shall not be taken to be in force, or to be binding to any person or persons whatsoever.”
Part II of the Act of 1965 went a considerable distance in abolishing the difference between real and personal estate for practical purposes. Section 10 of the Act of 1965 provides that all property, real and personal, shall devolve on the personal representatives. Section 11 provides for the abolition of primo geniture, dower, tenancy by the curtesy and all then existing rules, modes and canons of descent and of devolution by special occupancy, except in so far as they apply to the descent of an estate tail. Escheat to the State and escheat to a mesne lord for want of heirs was also abolished. Section 12 confers on the personal representatives the same powers over real estate as they had over personal estate. Section 13 provides that where a person dies intestate, or dies testate but leaves no executor surviving him, his real and personal estate until administration is granted in respect of it shall vest in the President of the High Court, who for that purpose shall be a corporation sole. Section 14 provides that in the subsequent provisions of the Act and in any subsequent enactment a reference to the estate of a deceased person shall include, unless the contrary intention appears, a reference to both the real and personal estate of that deceased person. It is clear that s. 111 of the Act of 1965 operates in respect of the real and personal estate. The reference to a testator leaving a spouse and no children, in which case the spouse would have a right to one-half of the estate, is reminiscent of the custom of Ireland which was abolished by s. 10 of the Statute of 1695. It is clear from s. 10 of the Statute of 1695 that in such a case the wife was entitled as of right to one moiety of the estate.
The questions which arise for decision in this case, in so far as s. 111 of the Act of 1965 is concerned, is whether one-half of the estate goes to the surviving spouse as of right or whether by virtue of the provisions of s. 115 of the Act of 1965 the joint effect of the provisions, in a case where there has been a devise or bequest, is to confer on the surviving spouse simply a right to claim one-half of the estate as distinct from a right to take one-half of the estate. In effect, the defendants’ argument is based upon the former interpretation. The wording of s. 111, sub-s. 1, of the Act of 1965 says clearly that what the surviving spouse has is”a right to one-half of the estate.”
Section 46, sub-s. 3, of that Act provides as follows:”Where the estate of a deceased person is solvent, it shall, subject to rules of court and the provisions hereinafter contained as to charges on property of the deceased, and to the provisions, if any, contained in his will, be applicable towards the discharge of the funeral, testamentary and administration expenses, debts and liabilities and any legal right in the order mentioned in Part II of the First Schedule.” Sub-section 4 of s. 46 provides that nothing in sub-s. 3 “affects the rights of any creditor of the deceased or the legal right of a spouse.” Sub-section 5 makes provision for persons entitled under a will or intestacy to have assets marshalled where a creditor or spouse entitled to a legal right applies an asset in the wrong order. The beneficiary whose property is being taken by the creditor or by the spouse will stand in the place of the creditor or spouse “pro tanto as against any property that, in the said order, is liable before his own estate or interest.” Sub-section 6 provides that “a claim to a share as a legal right or on intestacy in the estate of a deceased person is a claim against the assets of the estate to a sum equal to the value of that share.” The effect of this section is to make the legal right a debt due by the estate.
Section 115, sub-s. 4, of the Act of 1965 casts upon the personal representative the duty to notify the surviving spouse in writing “of the right of election conferred by this section.” It goes on to say that the right shall not be exercisable after the expiration of six months from the receipt by the spouse of such notification or one year from the first taking out of representation of the deceased’s estate, whichever is the later. The “right of election” mentioned in sub-s. 4 is a reference to the provisions of sub-s. 1 (a) of section 115.
The provisions of s. 115 must be read in the light of s. 114, which provides that, where a testamentary gift to a spouse is expressed to be in addition to the share as a legal right of the spouse, that share shall be deemed to have been devised or bequeathed under the will in addition to the express devise or bequest already contained in the will. In any other case a devise or bequest in a will to a spouse shall be deemed to have been intended by the testator to have been made in satisfaction of the share as a legal right of the spouse. In the latter event, of course, the right of election under s. 115 arises. Section 113 enables the legal right of a spouse to be renounced in an ante-nuptial contract made in writing between the parties to an intended marriage, or to be renounced in writing by the spouse after marriage and during the lifetime of the testator. Section 112 provides that the right of a spouse under s. 111 (to the legal right) shall have priority over devises, bequests and shares on intestacy.
In my opinion, the whole of this structure presupposes and is based on an assumption implicit in the statute, in addition to what is expressly stated in s. 111, that a legal right arises on the moment of the death of the testator. Where there is no legacy or devise or where there is a legacy or a devise expressed to be in addition to the legal share, the legal share vests upon the death. But when a testator in his will makes a devise or bequest to a spouse and it is not expressed to be in addition to the share as a legal right, then the spouse has a statutory right to take the share as a legal right-but that share does not vest until he takes it. If the spouse does not take the share as a legal right, then the legacy or devise under the will which vested in the spouse at the death of the testator will remain vested in the spouse without his taking any step in relation to it. The spouse can never have both. This result flows from the joint effect of s. 114, sub-s. 2, and section 115.
The right to take the legal share requires a “taking”to vest the share in the spouse. It may be an actual taking, as by an express election to take it instead of the legacy, or it may be a constructive taking by dealing with the legal share in a manner which is inconsistent with any explanation other than that the spouse, in so dealing with it, has elected not to take the legacy. It appears to me, therefore, that the spouse is not competent to dispose of the legal share until either he has made a formal election or has dealt with it in a way such as I have just described. In effect, that means that actual disposition of the share by the spouse may amount not only to such disposition but it may also be the very act which in itself is the first “taking” of the share and which for the first time puts the spouse in the position where he can be said to be competent to dispose of it. I think that in a case falling within s. 115 of the Act of 1965 the essential differences between the legacy and the legal right is that in respect of the legacy there is nothing the legatee has to do to make it his own, whereas in respect of the share as a legal right there is something the spouse has to do to make it his own: to state it succinctly, if the spouse does not take it he does not get it.
Therefore, the right to take the legal share is not exercisable at all until something is done, within the period specified in sub-s. 4 of s. 115, which amounts to an election not to take the legacy. If the death of the spouse takes place before such election is made, then the legal share does not form part of the spouse’s estate because the spouse had done nothing before death to take the share as a legal right. I think this view is borne out by the terms of sub-s. 5 of s. 115 which provide that even in the case of the surviving spouse being a person of unsound mind the right of election must be exercised either by the committee or, where there is no committee, by the High Court or the Circuit Court as the case may be. Failure of any of these bodies to act will result in a position where the legal right, which the surviving spouse had been entitled to take, had not in fact been taken.
In my view, the true construction of s. 115 of the Act of 1965, in the light of the other sections, is that the surviving spouse is entitled to take the share as a legal right referred to in s. 111, but that it must be taken. Where there is no “taking” of the property there is no competence to dispose of it though, for the reasons I have given, actual disposition may in itself be sufficient evidence of election.
What the husband had immediately before his death was a statutory right to take the property in question. In so far as that right itself could be said to be”property”, it ceased upon his death and therefore could not be subject to a claim for estate duty. Furthermore, it was a right which was exercisable only in his own favour. The claim made for duty in the present case has been not in respect of the value, if any, of the right as such but in respect of the property which the husband could have obtained if he had elected to take the property. The plaintiffs have relied upon the decision of Luxmoore J. in Penrose v. Penrose14 and have endeavoured to equate the statutory right in the present case with the general power of appointment which was the subject matter of that particular case. In that case the deceased was himself one of the objects of the power and appointed to himself. It was held that he was a person “competent to dispose” within the meaning of s. 5, sub-s. 2, of the Finance Act, 1894. It was sought to argue in that case on behalf of the estate that as the testator had appointed the whole of the property to himself he had simply acquired it but had not disposed of it, and that his power to dispose of it did not arise under the power but after he had exercised it in his own favour. It was held there that the donee of a power who could freely appoint the whole of the fund to himself and so acquire the right to dispose of the fund in accordance with his own volition was competent to dispose of that fund as he thought fit, and that it made no difference that it could only be done by two steps instead of one, namely, by an appointment to himself followed by a subsequent gift or disposition instead of by a direct appointment to the object or objects to which it might finally be given. It was held that if under a power the donee could make the whole of the property subject to it his own, he could by exercising the power in his own favour place himself in the position to dispose of it as he thought fit, and that the power to dispose is a necessary incident of the power to acquire the property in question.
[The judge referred to the provisions15of s. 22, sub-s. 2 (a), of the Finance Act, 1894, and continued] The deceased in the present case clearly had no interest or estate in the property but simply a statutory right to take it if he chose to do so. The plaintiffs therefore rely upon the reference to “such general power” as covering the present case.
The Penrose Case 16 dealt with a rather complicated settlement and was one to which s. 5, sub-s. 2, of the Act of 1894 applied. The present case falls within s. 2 of the Act of 1894. In the Penrose Case 16 the person who had the power of appointment which he could exercise in his own favour had in fact exercised it. I cannot accept the decision as an authority which should be followed for the general proposition that, if at the time of death the deceased possessed the ability to make property his own by exercising an option or an election, the property must be deemed to pass on his death whatever his wishes or actions in the matter. In so far as any part of the judgment in that case appears to support that proposition it is obiter only. To adopt that view, for which the Penrose Case 16 was stated to be an authority, would be to hold that under the provisions of the Act of 1965 a person who was entitled to a legal right, and who elected expressly not to accept it, could be held to have been competent to dispose of the property; and that he had in fact disposed of it by refusing to take it. It would also appear to lead inevitably to the conclusion, absurd though it is, that a spouse who died within the period for election without electing might be charged estate duty on both the share to which he or she was entitled as a legal right and on any legacy or devise because the latter vests immediately upon death; and this would be so although the Act of 1965 expressly provides that the surviving spouse cannot have both.
In my view, the provisions of s. 2 and the particular definition of “competent to dispose” in s. 22, sub-s. 2 (a), of the Act of 1894 never contemplated that estate duty would be payable in respect of property which a person could obtain by exercising an election and foregoing a testamentary disposition where the property did not pass by the will and where no such election was ever made.
The position of the husband in the present case cannot be compared with that of a person to whom a gift has been made by a will and who later chooses to disclaim it; in that situation the legatee, until he disclaims, has from the moment of the death of the testator a full right to dispose of the gift. In such a case a legatee who dies before disclaiming will benefit his estate because his executors or personal representatives can claim the legacy he has not disclaimed. In a case such as the present one, if no election is made then no right becomes vested; and if the election is not made within the statutory time during the lifetime of the person entitled thereto nothing is acquired; and if the person should die before making the election the right of election or the benefit of such an election does not pass to the executors or personal representatives.
At best the legal share provided by the Act of 1965 can be described as a statutory offer which is not binding upon the surviving spouse until it is accepted. The mere ability to make a thing one’s own is not sufficient to attract estate duty and the use of such a phrase by Lord Greene M.R. in Parsons v. The Attorney General 17 must be read in the context in which it appears. In that case a surviving spouse who had been left £10,000 in stock subsequently disclaimed by a deed the benefit of the settlement or bequest; it was held that, notwithstanding the disclaimer, he had during the continuance of the settlement been competent to dispose of the property within the meaning of s. 5, sub-s. 2, of the Act of 1894. It is in that context that Lord Greene’s remark must be read, particularly as it is followed by a sentence which reads:”From the moment of the testatrix’s death the husband was able to make the legacy his own.”
For these reasons I am of opinion that at the date of his death the husband, Douglas Urquhart, was entitled to take the half share of his wife’s estate as a legal right but that, as he did not do so before his death, it was not property which he was competent to dispose of within the meaning of s. 22, sub-s. 2 (a), of the Act of 1894.
HENCHY J. :
The husband, as the surviving spouse, not having been disqualified by any provision in Part IX of the Succession Act, 1965, was entitled under the provisions18 of s. 115, sub-s. 1 (a), of that Act to elect to take either the bequest in his wife’s will or the one-half share in her estate to which he was entitled as a legal right. Since the bequest in the will was conditional on his surviving his wife by one calendar month and, in any event, was of much less value than half her estate, he would no doubt have elected for the legal right. However, he was unconscious when his wife died; and he died a day later without recovering consciousness. In those circumstances, s. 115, sub-s. 1 (b), of the Act of 1965 operated to confine him to his rights under the will, because he did not make an election. But under the will, because he did not survive his wife by a month, the bequest to him lapsed. Therefore, the wife’s estate devolved to the persons specified in clause 4 of her will. No argument has been put forward to suggest that the devolution of the wife’s estate was otherwise.
The question giving rise to this litigation is whether, as the husband did not elect to take the legal right in lieu of the bequest in the will, estate duty is payable on the amount of the legal right. Therefore, the case falls to be decided on the interpretation of the Finance Act, 1894, as well as the Succession Act, 1965.
Under the Finance Act, 1894, property passing on death is made subject to estate duty. Section 2, sub-s. 1, of the Act of 1894 provides that property of which the deceased, at the time of his death, was competent to dispose is deemed to pass on his death. Section 22, sub-s. 2 (a), of the Act of 1894 further provides that a person is deemed competent to dispose of property if he has such an estate or interest in it, or such a power or authority, as would, if he were sui juris, enable him to dispose of it as he thinks fit. The plaintiffs contend that estate duty is payable on the amount of the legal right because, although the husband had not elected to take it, he was competent (if only his health had allowed) to dispose of it. The contention of counsel for the defendants, who are the husband’s executors, is that he had not acquired a power to dispose of the legal right because an election by him to take it was a condition precedent to the acquisition by him of the legal right.
As far as spouses are concerned, the primary purpose of Part IX of the Act of 1965 is to ensure that (save in the excepted cases) the surviving spouse shall have a legal right to one-half of the estate if there are no children and to one-third if there are children, notwithstanding any testamentary disposition to the contrary. This right is established by section 111. Section 114 of the Act of 1965 gives a statutory construction to the will of the deceased spouse by providing that, where the will expresses a devise or bequest to be in addition to the legal right, the will is to be construed as giving both the devise or bequest and the legal right; in the absence of such an expressed intention in a will, a devise or bequest is to be deemed to have been intended to be in satisfaction of the legal right.
Section 115, sub-s. 1, of the Act of 1965 gives the surviving spouse the choice of taking either what has been given by the will or the one-half or one-third to which he is entitled as a legal right. The election as to which he will take must be made within the time specified in sub-s. 4 of section 115. Sub-section 1 (b) of s. 115 enacts that, in default of election, the surviving spouse will be entitled only to what was given by the will and not to the share representing the legal right. Unless and until an election is made by the surviving spouse within the specified period, the choice of taking either the devise or bequest under the will or the one-half or one-third share (as the case may be) remains open to him as a personal option. No particular formality is prescribed for the making of an election, so it will be a question of fact in each case whether, by words, writing, or other conduct, the spouse has made an unambiguous decision to opt for one or other of the two mutually exclusive benefits open to him.
Such being the law, can it be said that the surviving spouse in the present case, having died the day after his wife’s death without having elected to take the one-half share of her estate for which he could (health considerations apart) have elected, was competent to dispose of that one-half share for the purposes of the Finance Act, 1894? Section 22, sub-s. 2 (a), of the Act of 1894 gives the words “competent to dispose” a specialised connotation by providing that they shall include “every power or authority enabling the donee or other holder thereof to appoint or dispose of property as he thinks fit” exclusive of powers exercisable in a fiduciary capacity of the kind set out in the sub-section. Therefore, for the estate of the husband in the present case to be liable for estate duty on the one-half share of the wife’s estate, it is not necessary for the plaintiffs to show that he had acquired any estate or interest in it. It is sufficient if they can show that he had a power or authority to dispose of it as he thought fit.
The argument of counsel for the defendants is that such power or authority never vested in the husband because, before it could vest in him, it was necessary for him to elect to take the one-half share. It is said that such electionwhich, admittedly, he never madewas a condition precedent to the acquisition by him of a power or authority to dispose of the one-half share. I readily accept that an election by the husband to take the one-half share was necessary to validate a disposition of it by him. But I do not accept that the election was a condition precedent to the existence of a competency to dispose. I see no reason why the election and the disposition could not have coalesced in one legal act. For example, in a single sentence in a will (such as:”I will to A.B. the one-half share in my wife’s estate to which I am entitled under the Succession Act, 1965″) he could have elected to take the one-half share and also made a valid disposition of it. But even if it be said that in such an act two steps are necessary to effect a transfer of ownership (i.e., the election and the testamentary disposition), it would not take from the fact that he had a power of disposition. Once he had the power to make the property his own (as he undoubtedly had) he also had the power to dispose of it. All that stood between him and the exercise of that power was his state of health, and it is agreed that that is an irrelevant consideration for the purposes of this case.
That this is the effect of s. 22, sub-s. 2(a), of the Act of 1894 has, as far as I know, been unquestioned since the decision in Penrose v. Penrose .19 In that case a husband had a power of appointment over certain property under his wife’s will in favour of a class which included himself, and the issue was whether estate duty was payable on his death in respect of that property. It was held that, since he could have exercised the power of appointment so as to vest the property in himself, he had power to dispose of it and estate duty was therefore payable on it. Dealing with the argument (similar to that made in the present case) that what the husband had was a power to acquire the property rather than a power to dispose of it, Luxmoore J. said at pp. 807-8 of the report:”It is argued that the power in the present case is a limited power and does not authorize the donee to appoint or dispose of the property subject to it as he thinks fit. It is said that if he appoints to himself he only acquires the property but does not dispose of it, and that his power to dispose of it as he thinks fit does not arise under the power but after he has exercised it in his own favour. In my judgment this is too narrow a construction to place on the words of the definition. A donee of a power who can freely appoint the whole of the fund to himself and so acquire the right to dispose of the fund in accordance with his own volition, is, in my judgment, competent to dispose of that fund as he thinks fit, and it can make no difference that this can only be done by two steps instead of by onenamely, by an appointment to himself, followed by a subsequent gift or disposition, instead of by a direct appointment to the object or objects of his bounty. If under a power the donee can make the whole of the property subject to it his own, he can by exercising the power in his own favour place himself in the position to dispose of it as he thinks fit. The power to dispose is a necessary incident of the power to acquire the property in question.”
Therefore, the question in the present case is to be solved by deciding what property the husband was competent at the date of his death to dispose of as he thought fit. As to the bequest to him under the wife’s will, he was incompetent to dispose of that, for the effectiveness of that bequest was conditional on his surviving his wife by one month. So if he had made a deed or will purporting to dispose of it, no property would have passed. All he had was a contingent right to the property bequeathed to him, and his death wiped out that right. But as to the one-half share in his wife’s estate to which he was entitled under the Act as a legal right, if at the date of his death he had made a deed or a will disposing of that one-half share to somebody, that person would have got a perfectly good title. Leaving aside the husband’s health (which counsel for the defendants concedes to be irrelevant for the purpose of this case), the husband’s legal capacity to make such a disposition could not be successfully impugned. He was therefore “competent to dispose” of it in the sense in which those words are defined in s. 22, sub-s. 2(a), of the Act of 1894 as including “every power or authority enabling the donee or other holder thereof to appoint or dispose of property as he thinks fit.” If the husband had made a deed or will alienating the one-half share to somebody he would be validly exercising a competency to dispose of it no less effectively than if he had exercised a general power of appointment over it that had been vested in him.
The result is that the one-half share of the wife’s estate fell within the reach of the Act of 1894 for the purpose of estate duty. This means that the husband’s estate is burdened with estate duty on property that was never part of that estate. However, such an artificial basis for the incidence of estate duty has been part of our law since the passing of the Act of 1894. The result would have been exactly the same-and the basis for it no less artificial-if the husband had done no more than announce that he was electing to take the one-half share and had died before either taking it or disposing of it. If a deceased was “competent to dispose” of property, estate duty falls inexorably on it according to the terms of the Act of 1894. Whether the wider incidence of that duty resulting from the operation of Part IX of the Succession Act, 1965, should be relieved by amending legislation is a matter for the legislature. I would dismiss the appeal.
In the Matter of the Estate of Thomas Cummins deceased
and
John O’Dwyer and Gerard Charleton v. Thomas Keegan; William Cummins, Patrick Cummins, Senior, Michael Cummins, Patrick Cummins Junior and Kathleen Morely (notice parties)
in the Matter of the Estate of Kathleen Cummins deceased
1996 Nos. 228, 231 and 251
Supreme Court
8 May 1997
[1997] 2 I.L.R.M. 401
(Nem. Diss.) (Murphy, Lynch and Barron JJ)
8 May 1997
BARRON J
(Murphy and Lynch JJ concurring) delivered his judgment on 8 May 1997 saying: Thomas Cummins and Kathleen Cummins in the title hereof were husband and wife. Thomas Cummins died on 2 February 1995. At the time of his death his wife was in a coma. She died later on the same day without having regained consciousness and without becoming aware that her husband had died. The couple had no children. They both died testate. The wife left a substantial estate, its net value being £370,914.06. That of the husband was considerably greater, amounting to £2,408,211.14.
Since her husband made no provision for his wife by his will, the question arose as to what interest, if any, Kathleen Cummins acquired in her husband’s estate under the provisions of Part IX of the Succession Act 1965 by reason of his death before hers. She had not renounced her rights under that part in accordance with the provisions of s. 113 nor had she been disentitled to succeed by virtue of the provisions of Part X of the Act.
A residuary legatee of her estate claimed that her estate included the legal right under s. 111 of the Act. Accordingly, her executors commenced these proceedings in which they sought the determination of the following question: *403
Whether by virtue of the death of her husband Thomas Cummins, Kathleen Cummins acquired a half share in the estate of her husband.
This appeal raises a net issue, whether the right given by s. 111 of the Succession Act 1965 creates an interest in the property comprising the appropriate share in the estate of a deceased or merely a right personal to the widowed spouse to elect to take such interest. Part IX of the Act gives to a widowed spouse a right to share in the estate of the deceased spouse notwithstanding testamentary disposition to the contrary. S. 109 provides as follows:
(1) Where, after the commencement of this Act, a person dies wholly or partly testate leaving a spouse or children or both spouse and children, the provisions of this part shall have effect.
S. 111 is as follows:
(1) If the testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate.
(2) If the testator leaves a spouse and children, the spouse shall have a right to one-third of the estate.
The question which arises is as to the meaning to be given to the words ‘shall have a right to’. It is not just a question of construing the word ‘right’ in the context in which it is used because in s. 112‘the right of a spouse under s. 111 is to be known as a “legal right”.’ This expression is defined in s. 3 of the Act as meaning ‘the right of a spouse under s. 111 to a share in the estate of a deceased person’. ‘Share’ in relation to the estate of a deceased is also defined in s. 3 to include ‘any share or interest, whether arising under a will, on intestacy or as a legal right, and includes also the right to the whole estate’.
From these definitions, two matters are clear. First, the surviving spouse has a right to a share in the estate, and secondly, this right has the same quality as an interest arising under a will or a share arising on intestacy. The two latter interests vest on death. In my view, the former does so also.
A similar view has been expressed by Walsh J in In re Urquhart [1974] IR 197 at p. 211. Having considered several sections in Part IX of the Act he continued:
In my opinion, the whole of this structure presupposes and is based on an assumption implicit in the statute, in addition to what is expressly stated in s. 111, that a legal right arises on the moment of the death of the testator. Where there is no legacy or devise or where there is a legacy or a devise expressed to be in addition to the legal share, the legal share vests upon the death. But when *404 a testator in his will makes a devise or bequest to a spouse and it is not expressed to be in addition to the share as a legal right, then the spouse has a statutory right to take the share as a legal right — but that share does not vest until he takes it. If the spouse does not take the share as a legal right, then the legacy or devise under the will which vested in the spouse at the death of the testator will remain vested in the spouse without his taking any step in relation to it. The spouse can never have both.
In In re Urquhart a husband survived his wife by a day and the question which arose was whether or not the legal right arising on the death of the wife became part of the husband’s estate. In that case a legacy had been left to the husband in the wife’s will but had lapsed because the husband had not survived her by the time prescribed by the will. Accordingly, the question of election under the provisions of s. 115 arose as did also the question of tax law as to whether or not a husband was competent to dispose of the particular interest. These considerations do not arise in the present case and it seems to me that the appropriate statement to take from the judgments in that case is that to which I have referred and which relates to a construction of Part IX in general.
Even if I did not take the view as to the proper construction of the section from the provisions to which I have referred it seems to me that the absence of any procedure whereby the surviving spouse could be notified of the right and given the opportunity to exercise it would have been fatal to the plaintiffs’ contentions.
It is true that the interest of a spouse on intestacy is expressed in different terms. But the concept of the legal right deals with an estate all or part of which may have been left by will away from the spouse. This requires special treatment and is particularly recognised by the provisions of s. 112 which give priority to the interest of the spouse over those created by the will.
In my view it is not appropriate to submit that to construe s. 111 as creating a vested interest is to frustrate the intentions of either or both of the deceased and the surviving spouse. The situation in the instant case arises through misfortune, but the legal result is not so dependent. It must be presumed that in the absence of a renunciation under s. 113 that both spouses realised that the survivor of them would be entitled to the legal right and, even accepting that this was an interest conditional on acceptance, so could distribute the relevant assets as he or she wished. It is important that the law should be certain so that those who rely upon it when they make their wills should be in no doubt as to how their assets will be distributed not only in expected circumstances but in unexpected circumstances also.
There will be an order allowing the appeal, and the question posed in the special summons will be answered in the affirmative.
Thomas Reilly v Patrick J. McEntee and Francis Joseph Murphy
1982 No. 268
High Court
20 December 1983
[1984] I.L.R.M. 572
(Murphy J)
20 December 1983
MURPHY J
delivered his judgment on 20 December 1983 saying: Patrick Murphy late of Drumgeeney (or Drumsheeney), Three-Mile-House, County Monaghan died on 21 October 1971, survived by his wife Margaret Murphy. He was not survived by any children or remoter issue. The said Margaret Murphy herself died intestate and with no issue on 31 December 1979 and letters of administration intestate to her estate were granted forth of the district probate registrar for the district of the Counties of Louth and Monaghan on 22 December 1980 to Thomas Reilly who is a brother of the said Margaret Murphy and is the plaintiff herein.
In an affidavit sworn by him in these proceedings Mr Reilly says that at the date of Patrick Murphy’s death it was thought by his widow the said Margaret Murphy that he had died intestate and that the said Margaret Murphy had duly applied for letters of administration intestate to the estate of the said Patrick Murphy. It is not clear what the source of Mr Reilly’s information was but there is no doubt that Mrs Murphy applied for and obtained (again from the registrar for the district of Louth and Monaghan) letters of administration intestate to the estate of the said Patrick Murphy on 6 September 1973. Furthermore the fact that Mrs Murphy believed that her husband had died intestate was not disputed in the affidavit sworn by the defendants herein. Perhaps surprisingly, however, the death of the said Patrick Murphy is shown in the letters of administration granted to his widow as being 21 October 1972 and this may have been the cause of a regrettable misunderstanding.
In fact it appears that Patrick Murphy had some months before his death, that is to say, on 7 May 1971 made his last will whereby he appointed his solicitor Patrick J. McEntee, the first-named defendant, to be executor thereof and gave and bequeathed to his wife Margaret all the stock on his lands at the date of his death for her sole use and benefit. In addition he devised and bequeathed his lands at Drumsheeney to his wife Margaret for her life and after her death to his nephew Francis Joseph Murphy, the second-named defendant, absolutely. It is not without significance to add that Patrick H. O’Doherty, another solicitor, was one of the two witnesses to that will.
In his affidavit Mr Thomas Reilly says that it was subsequent to the death of the said Margaret Murphy that a will purporting to be the will of Patrick Murphy deceased was discovered in the offices of McEntee and O’Doherty, solicitors in Monaghan. Whilst the statement was not contradicted in the affidavit sworn herein jointly by the defendants, counsel on their behalf informed the court that in fact on 5 July 1972, that is to say, less than a year after his death, an application was made to have the will of the late Patrick Murphy admitted to probate. It appears that no further steps were taken to process that application until the month of March 1980, that is to say, after the death of Margaret Murphy, and that ultimately probate was granted on 9 July 1981. That probate was not produced in court but it was clearly conceded in the proceedings that Patrick J. McEntee is the lawful personal representative of Patrick Murphy deceased. Finally it may be noticed in relation to the history of the matter that these proceedings were instituted on 26 March 1982, that is to say, within twleve months of the date of the grant of probate.
*574
The late Margaret Murphy took possession of the assets of her late husband and held possession thereof for some eight years until her death in December 1979. Her title so to do derived in part from the letters of administration and partly, that is to say, to her beneficial occupation, to her right to succeed to all property of her spouse under s. 67(1) of the Succession Act, 1965. On 26 September 1973 Mrs Murphy was registered as full owner of the said lands. It is not suggested that her right to beneficial occupation of the assets was challenged in any way or at any time. On the other hand it is not suggested that the executor Mr Patrick J. McEntee notified Mrs Murphy in writing or otherwise of the right of election conferred on her by s. 115 of the Succession Act, 1965 in accordance with the duty imposed on him by that same section. Whilst an amendment was sought to the summons herein to raise the issue whether Margaret Murphy should be deemed to have elected to take her legal right by reason of the fact that she procured herself to be registered as full owner of the lands comprised in the estate of her husband I do not accept that in the circumstances such an argument would be sustainable. I do not believe that it could be said that a person has elected as between one of two rights conferred on her — in this case a right to take a particular devise with the alternative of taking a legal right — where the surviving spouse had no knowledge whatsoever of the existence of the devise in her favour and had no reason to suppose that a legal right existed as she was unaware of the existence of the will. No authority was opened in support of the proposition that election could be made or could be deemed to have been made in those circumstances and in the absence of coercive authority I would not accept that such is the case.
The scheme of the Succession Act, 1965 in so far as it relates to the matters in issue is relatively straightforward. S. 111(1) of the 1965 Act provides that: ‘If the testator leaves a spouse and no chidlren, the spouse shall have a right to one-half of the estate’. That right of the spouse is defined in s. 112 as being a ‘legal right’. However where the testator makes a devise or bequest in favour of a spouse the spouse must elect to take either that devise or bequest or the share to which he or she is entitled as a legal right. If the spouse neglects to elect the statute provides, see s. 115(1) (b), that he shall be entitled to take under the will and he shall not be entitled to take any share as a legal right.
The relevant section, that is to say, s. 115 goes on in sub-s. 4 thereof to impose a duty on the personal representative of the deceased testator to notify the spouse in writing of the right of election conferred by that section. That sub-section then in turn goes on to fix the time limits for elction in the following terms:
The right shall not be exercisable after the expiration of six months from the receipt by the spouse of such notification or one year from the first taking out of representation of the deceased’s estate whichever is the later.
If Margaret Murphy were still alive it is clear that time would not have run against her as she was not at any time notified of her right of election. However Mrs Murphy having died the issue raised by her personal representative is *575 divided broadly into two parts. First whether in all of the circumstances she was or had become prior to her death entitled to the legal right as opposed to the testamentary bequest or alternatively whether the right of election survived for the benefit of the estate and accordingly was exerciseable by the plaintiff.
As already pointed out I take the view that there is no basis on which Mrs Murphy could be deemed to have exercised a right of election between alternative choices of which she was wholly ignorant. Whilst it is regrettable and perhaps reprehensible that Mrs Murphy was left for eight years in ignorance of her rights I do not see any basis on which this omission could alter the clear scheme of the legislation as already outlined. The widow having been given a testamentary benefit is entitled to that benefit and that benefit only unless and until the statutory election is made within the statutory period in favour of the legal right. It seems to me that conclusion is fully supported by the majority judgment of the Supreme Court in In re Urquhart [1974] IR 201 and in particular the conclusion of Walsh J at p. 212 in the following terms:
If the death of the spouse takes place before such election is made, then the legal share does not form part of the spouse’s estate because the spouse had done nothing before death to take the share as a legal right.
Even allowing that the decision in the Urquhart case related to the special problems relating to the imposition of estate duty on property passing on death whereas the instant case related to the application of the Succession Act, 1965 in different and indeed very special circumstances I believe the principle enunciated by Walsh J is still applicable. If the election is not made for whatever reason prior to death then the property comprising the legal right cannot in my view form part of the estate of the spouse entitled to exercise such right.
This leaves remaining the question whether the right of election itself, as distinct from the property rights which it might confer, passed on the death of the surviving spouse to her personal representative.
As already pointed out the scheme of the Succession Act, 1965 and in particular s. 115 thereof is to the effect that where a deceased spouse makes some testamentary provision for the surviving spouse that the surviving spouse is not entitled to take any share as a legal right unless he or she elects so to do. That right of election is expressed throughout s. 115 as being a right which may be exercised by the spouse and, subject only to the particular case of the surviving spouse being a person of unsound mind where the right of election is exercisable by the committee of the spouse’s estate or the court, the election is expressed to be exerciseable by the spouse and not by any person other than the spouse.
There is no doubt but that the right of election may be in this and other cases a very valuable right. It may enable a surviving spouse to exchange a nominal testamentary benefit for a moiety of a substantial estate. But it is not the value of this right which is in issue. It is the identity of the the person by whom it is exercisable. The statute confers it on the surviving spouse and no reference has *576 been made to any provision in the Act or any other authority which would justify the proposition that the right so conferred may be extended or transmitted to any other person.
Counsel on behalf of the defendants have argued, in my view correctly, that the purpose and intent of the legislation is to give to the surviving spouse a personal discretion as to whether he or she would take under the will or under the Act. In exercising that discretion the surviving spouse will, or so the argument goes, have regard to personal and domestic considerations which would influence and perhaps determine the decision to be taken. In some cases no doubt a surviving spouse will prefer to honour the testamentary wishes of the deceased spouse even though this may entail considerable financial loss. On the other hand the exercise of a right of election by somebody who is not a spouse and not otherwise related to the deceased would be based on different considerations: presumably the hypothetical outsider would be guided largely if not exclusively by financial considerations. It was contended that the testamentary dispositions should be upset only at the behest of the surviving spouse and that the legislation was properly expressed to achieve this purpose.
In my view the argument made by the defendants aforesaid is correct. No authority was opened in support of either contention but perhaps some support for the defendants argument can be gleaned from the decision of the Supreme Court in the Urquhart case to this extent. If the right to elect was, as the plaintiff argues, a chose in action capable of passing on death then that chose in action itself would have been liable for estate duty so that presumably it was accepted by the parties to the Urquhart case and by implication by the court itself that the right of election did not survive the death of the spouse in whom it had vested. In those circumstances it seems to me that the plaintiff is not entitled to the relief claimed.
At the conclusion of the hearing I directed that the defendants do file an affidavit setting out the date on which the application for probate was lodged and the date on which it was granted as these facts had been mentioned in court by counsel but not recorded on affidavit. After the foregoing judgment was dictated an affidavit was lodged which dealt with those matters and in addition went on to raise a conflict of fact which was not raised still less resolved in the hearing before me. However, having regard to the view which I take of the law and the undisputed facts I do not find it necessary to re-enter the matter for further hearing or argument.
Strong -v- Holmes & Ors
Strong -v- Holmes & Ors [2010] IEHC 70 (12 March 2010)
JUDGMENT of Mr. Justice Roderick Murphy delivered the 12th day of March, 2010.
1. Special Summons
1.1 The plaintiff, a retired solicitor, and the Governor and Company of the Bank of Ireland had been appointed by the deceased to be his executor and trustee under his last Will and testament of the 3rd December, 1994 and codicils of the 4th December, 1998 and the 17th June, 1999.
By deed dated the 28th February, 2008 the Governor and Company of the Bank of Ireland retired as trustee.
The deceased died testate on the 12th April, 2007 without issue, leaving him surviving his widow, the first named defendant herein.
The second and third named defendants are grand-nephews of the deceased and are joined in the proceedings as residuary legatees and dividees under the Will.
On the 5th December, 2007 the plaintiff extracted a grant of probate to the estate of the deceased. The gross value of the deceased’s estate recited in the Revenue affidavit was €11,425,283.83 while the net value recited therein was €11,402,460.42.
Under the terms of the deceased’s Will and codicils the deceased bequeathed a sum of money equal to class threshold (b) under the Capital Acquisitions Tax Act 1976, to each of one named nephew (William Thomas Holmes) and three named nieces (Carol Ann Florence Holmes, Valerie Lillian Mary Ganderton and Irene Francis Witherford). The deceased also bequeathed a sum of money equal to class threshold (c) to one named grand-nephew and four named grand-nieces and a named sister-in-law.
By way of pecuniary legacies, the deceased bequeathed IR£10,000 each to Bridie Mulvey and Rory O’Neill, the sum of IR£5,000 to the Rector and church wardens of Castlepollard parish, the Church of Ireland, to be invested for the upkeep and the maintenance of Castlepollard Church of Ireland and IR£2,000 to the first named defendant.
Thereafter the deceased’s last Will and codicil thereto devised all of the deceased’s land to his trustees and the deceased gave the first named defendant an exclusive right of residence in the dwelling house at Newcastle together with use of the furniture and contents therein along with the rental income from all of the said lands for lifetime.
The deceased also gave a one-tenth (1/10th) share of the deceased’s residuary estate to his trustees to hold the same and pay the income therefrom for life to the first named defendant.
The issue in this case relates to the second element of the “Residuary Estate” whereby the deceased gave, devised and bequeathed the remaining nine-tenths (9/10th) of his residuary estate to his trustees upon a discretionary trust for the benefit of the second and third named defendants with remainder over to whoever of the second and third named defendants should be living at a future date therein.
Those defendants are joined in these proceedings as persons whose interests could be adversely affected by any order that the court would make. The court is satisfied that they are appropriately joined as defendants.
Prior to his death the deceased and the first named defendant ordinarily resided in the dwelling house and at the time of the death of the deceased the first named defendant was ordinarily resident therein as defined by s. 56 of the Succession Act 1965.
On the 18th June, 2007 the first named defendant elected in writing pursuant to s. 115 of the Succession Act 1965, to take her legal right share to one half (1/2) of the estate of the deceased pursuant to s. 111 of that Act.
In compliance with his duty under the Succession Act 1965, on the 17th December, 2007 the plaintiff served a written notice of right of appropriation upon the first named defendant pursuant to s. 56 of the Act.
On the 3rd June, 2008 the first named defendant’s solicitors wrote to the plaintiff stating that they were instructed by their client to formally advise the executor that she wished to appropriate:
(a) The family home together with the lawns, yard and the avenue,
(b) The balance of the personal assets remaining after payment of, or provision for, debts, liabilities and pecuniary legacies,
(c) A sufficient portion of the land absolutely in order to satisfy the balance of her legal right share. In that regard she wished to appropriate approximately fourteen acres immediately surrounding the house and if possible the field known as “the bullock field” which is contiguous to the house and gardens.
1.2 The plaintiff claimed:
(i) A direction of the court as to the right of the first named defendant to require an appropriation pursuant to s. 56 of the Succession Act 1965 of the dwelling house at Newcastle, Castlepollard in the County of Westmeath forming part of the estate of the deceased and in which she was ordinarily resident at the date of the death of the deceased given that the dwelling is one to which the provisions of s. 56(6) applied;
(ii) If the court is of the view that an appropriation may proceed, direction as to the extent of the property that might be appropriated and proper compliance with s. 56 of the Succession Act 1965;
(iii)A direction as to whether the appropriation as sought by the first named defendant is proper and permissible and if an appropriation in such terms would constitute administration of the estate in accordance with law;
(iv)Such further or other direction in the administration of the estate as seen just and proper.
1.3 On the second day of hearing the parties agreed as to the extent of appropriation of the lands to include the dwelling house, parcels A and C as part of the curtilage of the house and the six parcels of land K1 to K6 situate to the north east of the farmlands which, if not included, would have no direct access to the roadway.
The court is of the view, having regard to the evidence, that such appropriation is proper and permissible.
That appropriation was agreed to take place pursuant to s. 55 of the Succession Act which makes provision for the powers of the personal representatives as to appropriation. Section 55(10) provides as follows:
“(10) For the purposes of such appropriation, the personal representatives may ascertain and fix the values of the respective parts of the estate and the liabilities of the deceased person as they may think fit, and may for that purpose employ a duly qualified valuer in any case where such employment may be necessary; and may make any conveyance which may be requisite for giving effect to the appropriation.
(11) Unless the court on an application made to it under subsection
(3) otherwise directs, an appropriation made pursuant to this section shall bind all persons interested in the property of the deceased whose consent is not hereby made requisite.”
The court is of the view, in the light of the appropriation under s. 55 and having regard to the evidence, that such appropriation is proper and permissible.
There remains one further element and that is that the court has to be satisfied that the rights of all beneficiaries has been considered. In this regard the date of valuation is pertinent to the calculation of the first named defendant’s legal share.
2. Submission of the executor regarding the valuation date
Counsel on behalf of the plaintiff’s executor submitted that the valuation date for the calculation of the first named defendant’s one half legal right share was the date of distributions which the executor believed to be the logical operative date.
Counsel referred to Williams, Mortimer and Sunnocks on Executors and Administrators at para. 67.12 in the analogous context of hotchpot being a general remixing of property in order to secure equal division among heirs of an intestate. In such a case it is a general rule of administration whether in court or out of court, settled by long practice that, in the absence of an express direction to the contrary in the Will, the distributive assets are to be valued at the date of this distribution and not at the date of the testator’s death. In such a case advanced beneficiaries are to be debited with interest on the amount of their advances to the date of distribution.
It was submitted that in cases where appropriation is permitted, the date of appropriation is the date of the order of the court which should be as close as possible to the date of distribution. That is the current market value of the estate on that date which is relevant. Williams on Wills, (9th Ed.) 2009 at 29.11 states:
“An appropriation must be fairly made at a valuation taken at the date of the appropriation …”.
In Robinson v. Collins [1975] 1 All E.R. 321, Pennycuick V-C in the Chancery Division held the date of valuation for the purpose of appropriating an intestate’s matrimonial home is the date of appropriation and not the date of the death of the deceased.
All values of all estate assets and shares in the estate must be valued on the same day using the same valuation methods: the first named defendant is not entitled to a fixed monetary amount or to any fixed value of any asset, other than at that date.
3. Submissions on behalf of the first named defendant
Counsel on behalf of Mrs. Holmes, the widow of the deceased and first named defendant, submitted that the ability or otherwise of the plaintiff to appropriate the dwelling house and curtilage in partial satisfaction of her legal right share was entirely different to the right of election that a widow has under s. 115 of the Succession Act.
Counsel referred to H. v. O. [1978] 1 I.R. 194 where Henchy J. stated:
“In the general context of the Act, it must be assumed that legislative intention was that the legal right (where elected for) is to be discharged in the same manner as if one half or one third of the estate had been expressly given in the Will in priority over all devises and bequests.”
In the estate of Douglas Urquhart, deceased (1974) 1 I.R. at 197, Walsh J. stated:
“In my opinion, the whole of this structure presupposes and is based on the assumption explicit in the statute, in addition to what is expressly stated in s. 111, that a legal right arises on the moment of the death of the testator, where there is no legacy or device or where there is a legacy or device expressed to be in addition to the legal share, the legal share vests on the death. When a testator in his Will makes a device or bequest to a spouse and it is not expressed to be in addition to the share as a legal right, then the spouse has a statutory right to take the share as a legal right – but that share does not vest until he takes it.”
It is submitted that the balance of the decision of Walsh J. points to the valuation date for a legal right share being the date that the legal right share vests.
Counsel submitted that s. 46(6) of the Succession Act is relevant. That sub-section provides as follows:
“(6) A claim to a share with a legal right on intestacy in the estate of a deceased person is a claim against the assets of the estate to a sum equal to the value of that share.”
In that context the legal right share in the present case crystallised as on the 11th May, 2007 which was the date when it is accepted that the first named defendant elected to take her legal right. At that date the value of the legal right share was 50% of the estate after the payment of administration costs and expenses. Even assuming a generous level of provision in that context, this would give a figure somewhere in the region of €5 million. At all stages it seems that the dwelling house and the 21.5 acres in the curtilage of A and C were a relatively small portion of the estate and was then agreed to have a valuation of some €775,000. There were sufficient assets in the estate to satisfy the balance of the legal right share of the first named defendant, leaving aside any issue that might arise in the context of an appropriation of the dwelling house and 21 acres. However, no such distribution took place.
Counsel referred to s. 112 of the Succession Act regarding the right of a spouse under s. 111 having priority over other devises, bequests and shares in intestacy. He submitted that the effect of the statutory provisions as outlined in respect of the legal right share are to provide that as from the date of election of the spouse became entitled to a legacy which had priority to the value of the relevant legal right which was therefore fixed at that date given that the value of legacies should not ordinarily fluctuate.
He submitted that the issue of appropriation was separate and in the context of the proceedings. Appropriation related only to a very limited portion of the actual legacy. The value of the legacy was fixed and should not be affected unless there were insufficient assets in the estate to satisfy the same.
A significant distinction between an election under the provisions of s. 115 and a claim under s. 117 was that the exercise of right of election by the spouse effectively crystallised the entitlement which then became in essence a legacy. The claim under s. 117 remained merely a claim until such time as the validity of the same was determined by the court and the amount of proper provision was equally determined by the court.
In that context, clearly it was arguable that the right of election precluded the spouse from taking an advantage of an increase in the value of the estate, but in fairness it has to be seen in the context of the background to the Succession Act, when significant variations in the value of the estate were not contemplated. It should also be seen in the context that once the right of election had been exercised that the personal representative would ordinarily be in a position to satisfy, or significantly satisfy, the entitlement of the spouse.
In that context a delay, as in the present case, of approximately two and a half years between the election and the payment of the same, would be unusual. Counsel referred to the provisions and circumstances of the election of the legal right share provision.
4. Submissions on behalf of Richard Holmes and Mark Holmes
The second and third named defendants are grand-nephews of the deceased. They had been joined in these proceedings because of their interest as residuary legatees and devisees under the deceased’s Last Will and Testament of 3rd December, 1994 and codicils of 4th December, 1998 and 17th June, 1999.
The testator gave, devised and bequeathed nine tenths of his residuary estate to his trustees upon a discretionary trust for the benefit of the second and third named defendants.
Counsel on their behalf submitted that the date of valuation of the assets was the date of appropriation and not the date of death. There should be fairness. The entitlement of the spouse, the first named defendant, to an appropriation under s. 56 is subject to that defendant discharging the burden of proof required under s. 56(5). Accordingly, the date of the approval of the appropriation by the court is the valuation date.
5. Decision of the Court
5.1 In the present case, having proceeded on a notification by the first named defendant pursuant to s. 56, the parties agreed on the second day of the hearing that the plaintiff, as personal representative, would exercise his powers under s. 55 and to appropriate the part of the lands in which the dwelling was situate towards the satisfaction of the first named defendant’s share.
Section 55 stipulates that the power of appropriation may be exercised “subject to the provisions of this section as provided for in sub-sections (2), (3)”.
It is clear that the first named defendant’s notification to proceed under s. 56 bound the plaintiff, as personal representative, to deal with that section. This had the result of delaying the administration of the estate until the court, as is required by s. 56, allows the appropriation to take place having been satisfied that it would not affect the valuation of the remaining lands.
The court held the section was silent as to how the court is to exercise its jurisdiction, which was essentially supervisory and prohibitive.
The personal representatives hold the estate under s. 10(3), as trustees for the persons by law entitled thereto. The exercise of the statutory discretion to appropriate must be viewed as an instance of the trusteeship. It is the court’s duty to prohibit the appropriation if it is calculated to operate unjustly or inequitably by unduly benefiting one beneficiary at the expense of another. Where not prohibited by law and where the conditions of the section have been observed and the personal representatives have made a bona fide decision to appropriate, the exercise of their discretion to appropriate should not be interfered with.
5.2 The obligation of trusteeship is critical in relation to the valuation date in a fluctuating market and, in particular, in the steep decline in property values from the date of death to the date of the proposed appropriation. It is the court’s duty to prohibit the appropriation if it is calculated to operate unjustly or inequitably by unduly benefiting one beneficiary at the expense of another. Where there is no settled law as to the date of valuation, such consideration is paramount.
Under the conditions prevailing in the 1960s when the 1960 Succession Act was debated and passed, markets were not fluctuating. It was incumbent on personal representatives to administer the estate as soon after the death as was reasonably practicable having regard to the nature of the estate, the manner in which it was required to be distributed and all other relevant circumstances referred to in section 62.
While the election of the first named defendant to take her legal right was made promptly, some time passed until notice of appropriation was made under section 56. The effect of such election and appropriation request necessitated an application which, in the court’s view, was dealt with promptly by the personal representative once notification was served under that section.
In order to ensure that the appropriation was calculated to operate justly and equitably it cannot unduly benefit one beneficiary at the expense of another. If, for example, the date of valuation were to be the date of death then the half share of the estate then valued at €11 million approximately would almost exhaust its present value of over €6 million.
The exercise of a right to take her legal share overrides other bequests and, to that extent, the wishes of the testator. It is distinct from the trustee obligation to act justly or equitably by not unduly benefiting one beneficiary at the expense of another.
It appeared to be common case that the power of appropriation of the widow is confined to section 56. All parties acknowledge that the dwelling house was held with agricultural lands. The appropriation of the dwelling house in and towards satisfaction of the legal right share is only permissible provided that the spouse could discharge the onus of proof to identify with sufficient particularity what she claims constituted a “dwelling” within the meaning of s. 56 (14). The court has to be satisfied that the exercise of the right to appropriate is unlikely to diminish the value of the assets of the deceased other than the dwelling in question and, further, provided the first defendants can satisfy the court that appropriation by the first defendant of the dwelling would not result in making it more difficult to dispose of the assets of the deceased in the due course of administration of the estate.
Having elected, the widow is entitled to “one half of the estate” of the deceased, within the meaning of s. 111(1) of the Succession Act of 1965.
As to how “one half” could be construed Henchy J. in H. v. O: [1978] I.R. 194 held at 204:
“But nowhere in the [Succession] Act is there any specific statement as to how the personal representatives are to discharge the surviving spouse’s legal right to one third or one half of the estate, as the case may be. Section 112 gives the legal right priority over other devises, bequests and shares on intestacy.
In the general context of the Act of 1965 it must be assumed that the legislative intention was that the legal right (as elected for) is to be discharged in the same manner as if the one half or one third of the estate had been expressly given in the Will and priority over all devises and bequests.”
It cannot have been the intention of the legislature that the executors would be at liberty to construe “one half” in a manner capable of resulting in the spouse receiving a share in absolute terms worth substantially less or substantially more than one half of the net distributable estate.
A half connotes two equal parts into which something is divisible. It suggests a moiety and it connotes equality with its counterpart. Any contention for an evaluation of the share of the widow in a manner that results in a share greater than one-half of the net distributable estate of the deceased being vested in her is inappropriate. A calculation at the date of death where there is a fall in the value of land from the date of death to the date of distribution is equally inappropriate. Equally where there is an increase in the value it would be inappropriate to proceed on a value at the date of death.
The only operative and practical date for valuation is the date of distribution, since it is the only date on which the true nature and extent of half the net estate of the deceased can be determined.
The court must safeguard the definition which could expose surviving spouses to the vicissitudes of a fluctuating market between the date of death and the date of distribution of the estate.
The appropriate date is the date of distribution of the estate when the true and absolute identity of a “half” for the purposes of s. 111(1) can be ascertained when the net proceeds of sale are known.
5.3 A consideration of Irish case law supports this contention.
In relation to the onus of proof of Kenny J. in H. v. H [1978] 1 I.R. 138 at 143, emphasised the exercise of the right of appropriation:
“When the dwelling is held with agricultural land, the onus of establishing to the satisfaction of the Court that the exercise of the right of appropriation is unlikely to diminish the value of the assets, other than the dwelling, and that it will not make it more difficult to dispose of them in the due course of administration, is on the surviving spouse who wishes to exercise this right. (italics supplied).
It must be established by the surviving spouse that the exercise of the right (and not the existence of the right) is unlikely to diminish the value of the assets other than the dwelling. Thus the circumstances of each case must be considered to answer this question.”
Section 56 (5) (b) was considered in that case. Kenny J. had to decide whether the valuation to be considered under the subsection was the value of all the assets of the deceased or of that part of them to which the beneficiaries, other than the surviving spouse had become entitled? The valuation of agricultural land is problematic. Unless and until the right to appropriate is determined it is not possible to properly value the remainder of the land. While Kenny J. held that the value of the assets of the deceased meant the value of the assets other than those to which the surviving spouse became entitled, the Supreme Court held that it was all the assets other than the dwelling.
The judgment of Kenny J. continued at 143-4:
“Section 56 (5)(b) of the Act of 1965 seems to have been drafted on the false assumption that the person exercising the right of appropriation will not be entitled to any other part of the holding of land when the assets of the deceased include agricultural land. But when the surviving spouse who exercises the right of appropriation is entitled to one half of the holding of land, does ‘the value of the assets’ mean all the assets other than the dwelling or does that phrase mean the assets to which the other beneficiaries become entitled? If it means all the assets other than the dwelling, the right of appropriation can never be exercised when the dwelling is held with agricultural land because a residential holding (particularly a large one) is always more valuable than a non-residential one. But this seems to me to be contrary to the purpose of the section for it would exclude all residential holdings from the right to appropriate. Therefore, it seems to me that ‘the value of the assets of the deceased’ means the value of the assets to which the beneficiaries other than the surviving spouse become entitled.”
The judgment of the Supreme Court in H. v. H. was delivered by Parke J. The Supreme Court held that the wording of s. 56(5)(b) refers to all the assets of the deceased “other than the dwelling” and, to that extent, allowed the appeal. The Supreme Court also took issue with Kenny J.’s assertion that a residential holding was always more valuable than a non-residential one. The finding of the High Court in relation to onus of proof was not challenged and appeared to Parke J. to be clearly correct.
The Supreme Court held at 148 that s. 56(5)(b) requires that the court must be satisfied that neither of two specified eventualities was likely to happen, i.e. a diminution of the value of the assets or the creation of a difficulty in disposing the assets in the course of administration.
The first defendant in the instant case had declined to identify what portion of the farm holding together with the dwelling would satisfy her legal right share entitlement, pursuant to s. 111(1) of the Succession Act.
In the Estate of Denis Kennedy, deceased, Thomas Kennedy v. Breda Kennedy and Seamus O’Riordan (Unreported, High Court, 26th January, 2007) the executor, a beneficiary under the Will of his uncle, the testator, wished to acquire the farmlands and dwelling house. There were no children, the widow had exercised her right of election, pursuant to s. 115 and was entitled to one half of the estate. In the course of his review of the facts of the case O’Neill J. noted that the advice received was to the effect that the correct date was the date of distribution for the purposes of discharging the legal right share.
5.4 The English decision of Re Collins, deceased, Robinson v. Collins [1975] 1W.L.R. 309 is authority for the proposition that where the personal representative has power to appropriate a house in part satisfaction of a charge or entitlement of a surviving spouse in the estate, the valuation to be attributed to the property is the valuation at the date that the legal personal representative makes the appropriation and not the valuation at the date of death.
In the instant case it was submitted that, the entitlement of the widow has not been established pursuant to s. 56 until she discharges, to the satisfaction of the court, the burden of proof that rests upon her by virtue of section 56(5).
Accordingly, the appropriation right has not yet arisen. It is the value of the estate at the date of the appropriation that is material. Pennycuick V.C. in Re: Collins, p. 313 states:
“There can be no doubt that where a personal representative exercises the statutory power of appropriation under s. 41 of the Act of 1925 he must do so at the value of the property appropriated as at the date of appropriation. ‘The value of appropriated security should be taken as at date of appropriation’ per Wilson Holm and Cherries Conveyancing Statutes also the case in Re Chartaris, Swinfen Eady L.J. at p. 386 recited with approval:
‘They raised the point that the value of the securities appropriated should be the value as at the date of appropriation, and not as at the date of the testatrix’s death. In my opinion that contention was well founded; and upon that point being raised by the plaintiff’s advisors the executors took the opinion of counsel with regard to the appropriation, and, having taken it, they sent a copy of it to the plaintiff’s advisors.’”
Pennycuick V.C. also cited in Re Gollin’s Declaration of Trust with approval as authority for the proposition, going on to state:
“The point is sometimes put by treating the appropriation as a notional sale of the appropriated assets to the beneficiary, the legacy to the beneficiary being applied in discharge of the purchase price on the sale. This is a rule of administration too well established to require further discussion.”
5.5 Williams on Wills, 29.11 under the heading: “Value for Appropriation”, states as follows:
“An appropriation must be fairly made at a valuation taken at the date of the appropriation, and an executor or trustee who makes an appropriation which is not fair according to such valuation of the appropriated property is guilty of a breach of trust. A beneficiary who takes the appropriated property with knowledge of such breach of trust is also liable to make good the breach of trust. Not only must the appropriated property be valued, but where the person to whom the property is appropriated is not entitled to a specific sum of money, the other property of the estate must be valued at the same time to ensure he is receiving a proper share and receiving no more than he is entitled to.”
In the instant case having regard to the language of the Succession Act and the manner in which the exercise the legal right share has been construed by the Superior Courts the first named defendant, as surviving spouse, is deemed to have taken a device of one half of the estate. In the approach to be adopted by the executors there must be equality between the spouse on the one hand and the beneficiaries and legatees, including the residuary legatees on the other hand.
The court may derive some assistance from s. 116(2) of the Succession Act, which is a transitional measure to cover situations where a testator had before the commencement of the Act made provision for a spouse. It is provided that permanent provision made for a spouse, i.e. other than periodical maintenance payments was to be off-set against the legal right share of the spouse. Where the value of the provision made equals or exceeds the value of the legal right share, then the legal right share was deemed to be extinguished.
Section 116 (2) provides:
“The value of the property shall be reckoned as at the date of the making of the provision.”
It connotes a trend within the legislation that valuations be effected at the date of vesting.
It would be arbitrary and improper to permit a beneficiary to opt for a valuation date of their beneficial share or interest in the estate, how so ever arising, on a selective basis.
5.6 In the present case counsel for the first named defendant, the widow of the deceased, contended that the date of death was the appropriate date. This matter was also dealt with in Robinson v. Collins [1975] 1 W.L.R. 309 where the Vice-Chancellor stated:
“Counsel for the widow contended that, notwithstanding that in the ordinary case under s. 41 of the 1925 Act, the value of the appropriated assets must be taken as the date of the appropriation, in this particular case an appropriation under Schedule 2 to the 1952 Act the value must be taken as the date of death. He relied, principally, on the point that under Schedule 2 the widow has a right to insist on an appropriation, and then he equated this position with that in which a beneficiary had an option to purchase an asset at the date of the death of the testator. He relied on Talbot v. Talbot [1967] 2 All ER 920, (1968) Ch. 1, in the Court of Appeal which was the case of an option given by a testator to two of his sons to purchase the farms in which they lived together with some land which went with them ‘at a reasonable valuation’. And it was held that the relevant date for the valuation was the date of death because it was then that the rights of the option beneficiaries accrued …
It seems to me, however, that the short answer to that contention is that the 1952 Act did not confer on the surviving spouse an option to purchase. What the 1952 Act does, read in conjunction with the 1925 Act, is to confer a right on the surviving spouse to have the matrimonial home appropriated in or towards satisfaction of a fixed sum charged on the estate, that fixed sum being in the nature of an absolute interest. That being the position, I can see no valid reason for departing from the general rule applicable to appropriation under s. 41 of the 1925 Act. If parliament had intended that the appropriation should take effect retrospectively as at the date of death, one would have expected this result to be achieved by plain words. The words actually used are quite inept to achieve such a result. No injustice is involved in this conclusion. There is no reason that I can see why the widow rather than the other next of kin should benefit from rising house prices or indeed, in the contrary case, less familiar in the circumstances of today, suffer from a fall in house prices.
I conclude that I must answer the question in paragraph 3 of the summons in accordance with alternative (c), i.e. the value thereof at the date when the personal representatives appropriate the same.”
The authority for the proposition that the valuation date was the date of the exercise of the option, Talbot v. Talbot [1967] 2 All E.R. 920, was distinguished by Pennycuick V.C. in Robinson. While there are differences in the statutory provisions considered in Robinson and under the provisions of the Succession Act 1965, it seems clear, that in the absence of any statutory provision, that the valuation date is the actual date of appropriation.
5.7 While the first named defendant is correct in saying that her legal right under s. 111 of the Succession Act arises on the moment of the death of the testator where there is right of appropriation the valuation date is at the date of the exercise of that appropriation.
Messitt v. Henry
Appropriation Dwelling
[2001] IEHC 104 (12th July, 2001)
JUDGMENT of Mr. Justice Finnegan delivered the 12th day of July, 2001 .
1. Laurence Farrell deceased died on the 7th January, 1999. Letters of administration intestate to his estate issued to the Defendant, his sister, on the 11th April, 2000. The deceased left him surviving and entitled to share in his estate the Defendant as to one half thereof and the Plaintiffs, the children of a deceased brother of the deceased, as to one half thereof between them. The sole asset of the deceased, for all practical purposes, is the lands comprised in Folio 436 of the Register County Dublin comprising 7.226 hectares or 17.8 acres. There is a cottage on the lands which if not derelict has outlived its useful life and also some farm buildings.
2. On the 19th October, 2000 pursuant to Section 55 of the Succession Act 1965 the Defendant duly gave notice of her intention to appropriate to herself in satisfaction of her entitlement in the estate part of the lands comprised in Folio 436 of the Register County Dublin containing in area 3.5 acres (the appropriated lands) upon which the cottage and farm buildings were sited. The remainder of the lands some 14.3 acres (the unappropriated lands) would then be available to satisfy the entitlement of the Plaintiffs subject however to the discharge of the liabilities of the estate. Correspondence was admitted and from this it appears that the assets other than lands amount to £1,376.96 and that the liabilities are estimated at £45,426.96. I gleaned this information from a letter dated 3rd May, 2000. In that letter the Defendant made a proposal that the lands be divided and that the Defendant and the Plaintiffs each discharge one half of the net liabilities. The division of the lands proposed corresponds with that in the notice under Section 55 of the Succession Act 1965: the notice is however silent as to the payment of the estate’s liabilities. I am concerned with the notice and must have regard only to the same. On the basis of the notice the estate will be distributed as follows:-
3. To the Defendant 3.5 acres
4. To the Plaintiffs the proceeds of sale of 14.3 acres less the net liabilities of the estate estimated at £44,050.00.
5. The liabilities do not take account of the costs of this action. I must leave them out of consideration as the action had not been instituted at the date of the notice. I note however, that some or all of those costs may fall to be paid out of the estate.
6. The Plaintiffs in this action claimed a number of reliefs but at the hearing all save one were abandoned: the relief pursued at the hearing was an order pursuant to the Succession Act 1965 Section 55(3) prohibiting the appropriation.
7. The Succession Act 1965 Section 55 insofar as it is relevant to these proceedings provides as follows:-
“55(1) The personal representatives may, subject to the provisions of this Section, appropriate any part of the estate of a deceased person in its actual condition or state of investment at the time of appropriation in or towards satisfaction of any share in the estate, whether settled or not, according to the respective rights of the persons interested in the estate.
(3) Except in a case to which Section 56 applies, an appropriation shall not be made under this Section unless notice of the intended appropriation has been served on all parties entitled to a share in the estate (other than persons who may come into existence after the time of the appropriation or who cannot, after reasonable inquiry, be found or ascertained at that time) any one of which parties may within six weeks from the service of such notice on him apply to the Court to prohibit the appropriation.
(10) For the purposes of such appropriation, the personal representatives may ascertain and fix the values of the respective parts of the estate and the liabilities of the deceased person as they may think fit, and may for that purpose employ a duly qualified valuer in any case where such employment may be necessary: and may make any conveyance which may be requisite for giving effect to the appropriation.
(18) The powers conferred by this Section may be exercised by the personal representatives in their own favour”.
8. The first issue to arise is whether the Plaintiffs have complied with Section 55(3) which requires a party within six weeks from the service of a notice on him to apply to the Court to prohibit the application. The special indorsement of claim to the special summons seeks to invoke subsection (3) in the following terms which the Defendant claims are inadequate:-
“The Plaintiff claims
D. An order requiring the Defendant to sell the lands all that and those Farrells Farm, Glencullen Road, Kilternan in the County of Dublin and comprised in Folio 436 of the Register of Freeholders County Dublin by public auction.
E. A declaration that the Defendant is not entitled to appropriate any of the said lands and premises all that and those Farrells Farm, Glencullen Road, Kilternan in the County of Dublin comprised in Folio 436 of the Register of Freeholders County Dublin as her share of the estate of Laurence (otherwise Larry) Farrell deceased without the approval or consent of the beneficiaries.
F. An order requiring the Defendant to sell the premises all that and those Farrells Farm, Glencullen Road, Kilternan in the County of Dublin comprised in Folio 436 of the Register of Freeholders County of Dublin and after payment of all lawful debts and expenses to divide the proceeds in accordance with law.”
9. The Special Summons was issued within six months of the service of the notice. While these reliefs do not follow the wording of Section 55(3) it must have been quite clear to the Defendant that relief under the subsection is what is in issue. All the more so is the case when regard is had to the Grounding Affidavit and to paragraph 8 thereof in particular which reads as follows:-
“The Plaintiffs object to said appropriation by the Defendant/Administratrix on the grounds that the net effect of this appropriation would be that the value of the property to be appropriated and nominated by the Defendant/Administratrix is far in excess of her half share and therefore disproportionate to her entitlement. I refer to a report and valuation of the lands prepared by Mr. Robert Ganly of Ganly Walters, Estate Agents and Valuers, copy of which is attached hereto and upon which marked with the letters BM6, I have signed my name prior to the swearing hereof.”
10. I am satisfied that the Defendant was at all times aware of the relief sought and the basis upon which it is being sought. I am satisfied that the Special Summons is a sufficient invocation of Section 56(3).
11. The second matter to arise is this, if the land should be sold the Defendant would incur a heavy liability to Capital Acquisitions Tax: if she should apportion part of the lands in specie to herself, she would be entitled to agricultural relief. Assuming the value of her inheritance to be in the amount of £300,000 and the lands are sold in the course of administration her capital Acquisition Tax liability would be £96,040.01 while on a distribution to her in specie the liability would be £711.75. I do not consider this to be a factor to which I should have regard: I must look at the pre-tax benefit to the parties for the purposes of Section 55: see Hickey & Company -v- Roches Stores Limited (1980) ILRM 107. If a distribution in specie would benefit all parties however, it may be that the instance of taxation would be relevant.
12. Finally it was urged upon me that the Defendant has an attachment to the appropriated lands which have been the family home for some 300 years. I accept that this is relevant to bona fides and I have regard to it.
13. Section 55 gives little explicit guidance to the Court as to the approach to be taken on an application pursuant to Section 55. The Supreme Court considered this in
H. -v- O. (1978) IR 194 at p. 207 where Henchy J. said:-
“The Court only acquires jurisdiction in the matter when a party, on being served with notice of an intended appropriation, applies within six weeks to the Court to prohibit the appropriation. The Section is silent as to how the Court is to exercise its jurisdiction, which is essentially supervisory and prohibitive. So it must be assumed, having regard to the tenor, the scope and the purpose of the Section, that the Court should prohibit an intended appropriation only
(a) when the conditions in the Section have not been complied with; or
(b) when, notwithstanding such compliance, it would not be just or equitable to allow the appropriation to take place having regard to the rights of all persons who are or will become entitled to an interest in the estate; or
(c) when, apart from the Section, the appropriation would not be legally permissible.
Since the personal representatives hold the estate under Section 10(3) as trustees for the persons by law entitled thereto the exercise of the statutory discretion to appropriate must be viewed as an incident of the trusteeship so that it is the Courts duty to prohibit the appropriation if it is calculated to operate unjustly or inequitably by unduly benefiting one beneficiary at the expense of the other. But otherwise where the conditions of the Section have been observed and the personal representatives have made a bona fide decision to appropriate the exercise of their discretion to appropriate should not be interfered with unless for some reason unrelated to the terms of the Section the appropriation would be legally unacceptable, e.g. if it would amount to a sub division prohibited by law . Such an approach to the scope of the section is also required by the fact that, when the Act of 1965 was passed, it was settled law that, without any statutory enablement, personal representatives could appropriate a specific part of the estate (such as a leasehold) as part of the share of a beneficiary with his consent on the ground that they could sell it to the beneficiary and set off the purchase money against his share: see In Re: Beverly , Watson -v- Watson .”
14. On this application I have had the evidence of two reputable and highly experienced valuers. They agree that the appropriated lands would be regarded as being likely to have planning permission granted in respect thereof for a substantial dwelling and so are highly saleable being in a much sought after location. Mr. Ganly for the Plaintiff valued the same at two thirds the value of the whole, the unappropriated lands having a value of one third thereof. In his opinion a sale in one lot would yield a greater return than a sale in two lots. The former would yield £750,000. However, his evidence is that agricultural land in this location would fetch between £20,000 and £25,000 per acre: this puts a value on the lands not appropriated as between £280,000 and £350,000. These lands have virtually no prospect of ever receiving planning permission being zoned GB (commonly called “ Green Belt ”). Taking his evidence as a whole I believe its effect to be as follows:-
1. A sale in one lot of the entire holding would realise £750,000.
2. Of this sum it would be reasonable to apportion £320,000 to the unappropriated lands.
3. Of this sum it would be reasonable to apportion £425,000 to the appropriated lands.
15. Mr. Lennox for the Defendants is of opinion that the entire holding sold as one lot would not produce a better return. It is too large for a single dwelling and a smaller area, ideally circa 3 acres, sold as a potential site as one lot and the remainder sold as agricultural land with a prospect of planning permission albeit slim as a second lot would produce the best result. Each lot would command £300,000 in his opinion.
16. Thus there is a difference in professional opinion as to whether the best return could be obtained by a sale in one or two lots and also as to the relative values of the appropriated and unappropriated lands.
17. As to the first matter Section 55 empowers a personal representative to employ a qualified valuer. The Defendant did this and she is entitled to take his advice and act upon it, not alone as to values but also as to the manner in which that value may be optimised. The standard of care expected of her is that of a trustee, namely that of a prudent man of business in the conduct of his own affairs. While the opinion of the Plaintiff’s valuer Mr. Ganly differs from the advice of Mr. Lennox, this alone would not justify the Court in interfering to prevent the Defendant acting bona fide on the advice which she has obtained.
18. Accordingly I move on to consider whether there is as the Defendant contends substantial equally and value between the appropriated and unappropriated lands. As I read Section 55 the onus is on the Plaintiff to satisfy me on the balance of probabilities that there is not. As to the respective values I prefer the evidence of Mr. Ganly. The unappropriated lands are unattractive for a number of reasons:-
1. Their irregular configuration.
2. The nature of their access.
3. The aspect from the same is blighted by a garage business carried on in an adjoining cottage.
4. As agricultural land they are largely of poor quality.
5. The prospect of obtaining planning permission is remote in the extreme.
6. Even if planning permission should be obtained the area of the same greatly exceeds that considered ideal for a single dwelling.
19. Valuation is not an exact science: this is clear from the conflicting firmly held views of the two valuers who have given evidence. On that evidence I find that the proportionate values of the appropriated land and the unappropriated land is in the ratio 55:45. Thus on Mr. Ganly’s evidence a sale in one lot at £750,000 would result in the Plaintiffs and the Defendant realising £337,500 and £412,500 respectively, an inequality of £75,000. On Mr. Lennox’s evidence allowing that a sale in two lots would achieve a total of £600,000, that not being less than a sale in one lot would achieve, the Plaintiffs would receive £270,000 and the Defendant £330,000 an inequality of £60,000.
20. The matter does not end there however. The parties agree and I accept that on this application I may only make or refuse to make an order prohibiting the proposed appropriation. I have no jurisdiction to modify the same. I must take the notice in the terms in which it is given. Upon this basis the inequality will be compounded as in its terms the notice requires the liabilities of the estate to be borne by the Plaintiffs. I may not have regard to the correspondence in which it was envisaged that the Defendant would bear one half the liabilities of the estate. Having regard to the foregoing regardless of whether the valuation of Mr. Ganly or Mr. Lennox is accepted a material discrepancy exists. I accept the bona fides of the Defendant. I accept that she acted on the advice of a highly qualified and reputable valuer and was fully justified in so doing. She is in the position of a trustee and notwithstanding that she was exercising her statutory entitlement in her own favour she conscientiously carried out her duties as befits a trustee. As I said valuation is not an exact science and the guide prices and option results published week after week are evidence of this. Certainty in such matters can only be achieved in the sales room. Accordingly my findings in no way reflect on the bona fides of the Defendant or on the expertise of her valuer.
21. I find that the appropriation proposed would be inequitable and would unduly benefit the Defendant and accordingly I propose to made an Order prohibiting the same.
Estate of Clohessy
[2017] IEHC 797
JUDGMENT of Mr Justice Binchy delivered on the 20th day of December, 2017
1. This is a motion brought by Patricia Hickey, General Solicitor for minors and wards of court ( the “Committee”) who was appointed as committee of the person and of the estate of Ann Clohessy (the “Ward”) on 19th August, 2016, by order of Kelly P., he having found the Ward to be a person of unsound mind.
2. By this motion, the Committee seeks an order pursuant to s. 27(1), s. 27(4) and/or s. 27(7) of the Succession Act 1965, granting liberty to one Richard Hammond, Solicitor, to extract a grant of representation pendente lite in the estate of Peter Clohessy, deceased (the “deceased”), pending the determination of proceedings that have issued in the Circuit Court between Valerie Coleman (daughter of the deceased) and Fintan Coleman (who were both appointed executors in the estate of the deceased pursuant to his last will and testament), plaintiffs and Ann Clohessy, Veronica Clohessy and Patrick Clohessy, defendants, together with the further and additional power to distribute the legal right share of the Ward in the estate of the deceased, who had been her husband, but from whom she had been estranged, for many years.
3. All of the parties to the proceedings referred to in the last paragraph were served with notice of this application, which was returnable before this court on 18th December, 2017, by registered letter sent to each of them on 11th December, 2017. Mr. Patrick Clohessy (“P.C.”) , son of the Ward and the deceased, filed an affidavit in opposition to this application on 13th December, 2017, but did not serve it on the Committee or her solicitor. He swore his affidavit before a Commissioner for Oaths at 3 Inns Quay, Chancery Place, Dublin 7. The offices of the solicitor acting for the Committee are in the Capel Building, a little more than a stone’s throw away. The Committee herself, who is of course the General Solicitor for wards of court and minors, operates out of premises at Phoenix Street North, also a short distance away. In spite of this, P.C. who it appears has some considerable experience in litigation, failed to serve his replying affidavit on the Committee or her solicitor. He said that he did not have time to do so. While I appreciate that he got the application herein at quite short notice, he nonetheless managed to assemble a replying affidavit and have it sworn five days in advance of the return date of this motion. I do not think it credible that he would not have had time to post, email, or even leave a copy of his affidavit into the office of the Committee of her solicitor. Be that as it may, I afforded the Committee an opportunity to consider the contents of P.C.’s affidavit and it was possible for the application to proceed having due regard to P.C.’s affidavit and the arguments that he made in person, in opposition to this application.
4. The Ward is 95 years of age. The deceased died on 26th January, 2010, survived by his wife, the Ward, and three children. One of those children, together with her husband, was represented by Counsel at this application as executors nominated by the will of the deceased which he executed on 9th January, 2008. They did not object in principle to this application, but they did express some concerns and made suggestions as to conditions that might be attached to any order the court might make, which I address below. However P.C. did raise objections to the application, both in the affidavit referred to above , and in person.
5. At the time of his death, the deceased and the Ward were estranged and the deceased left the Ward only the sum of €1,000 in his will. On 6th May, 2010, solicitors acting on the instructions of the executors wrote to the Ward informing her of her entitlement to one third of the estate of the deceased, and putting her on her election for the purposes of s. 115 of the Succession Act 1965. I understand that the Ward did not reply to that letter.
6. By order made on 26th July, 2017, by Kelly P., the Committee was authorised in the name and on behalf of the Ward to elect to take her share in the estate of the deceased to which she is entitled as her legal right share which, in this case, amounts to one third of the estate of the deceased. The solicitors acting on behalf of the Committee wrote to the solicitors acting on behalf of the executors nominated by the deceased on 1st August, 2017, informing them that the Ward was exercising her right of election in accordance with s. 115 of the Succession Act 1965. On 25th October, 2017, Kelly P. made an order authorising the Committee to apply on behalf of the Ward for a limited grant of representation pendent lite in the estate of the deceased and further authorising the Committee when making such application to apply for the power to distribute the legal estate of the Ward.
7. The Committee then brought forward this motion on 4th December, 2017, grounded upon the affidavit of the Committee. In this affidavit, Ms. Hickey expresses concern that having regard to the age of the Ward, and the delay that there has already been in extracting letters of representation in the estate of the deceased, that the Ward may never receive the benefit of her entitlements in the estate of the deceased. She says that the Ward is resident in a hospital and has ongoing care needs and requires finances. She says that she, the Committee, has had no cooperation from family members and she is unaware as to the precise assets of the Ward. She further avers that she has no idea as to the condition of the deceased’s lands or other assets or what has happened to rents and profits from those lands.
8. She avers that the estate of the deceased gave rise to the filing of seventeen caveats, three of which remain live. In addition, there have been proceedings before the Circuit Court. One set of testamentary proceedings was struck out on 4th April, 2014, “without prejudice”. This is because an affidavit of verification had not been filed at the time of issue of the testamentary Civil Bill. However, further proceedings issued on 26th August, 2014 and are ongoing. The Committee avers that those proceedings have given rise to numerous interlocutory applications in respect of which there are outstanding appeals. It seems clear from the averments of the Committee that no end to these proceedings is in sight.
9. The Committee has moved this application in order to ensure, if at all possible, that the Ward will have the benefit of her inheritance in the estate of the deceased. She asks that the assets of the estate be identified, secured, and if necessary, sold in order to realise the entitlement of the Ward. She says that if necessary there can be some provision for accounting recoupment to the estate of the deceased upon the conclusion of the second set of testamentary proceedings referred to above.
10. As mentioned above, Counsel on behalf of the executors indicated that the executors were not opposing the application but did express concern as to the possibility that the distribution of one third of the estate for the benefit of the Ward, before the conclusion of the testamentary proceedings, could give rise to a shortfall in relation to the costs payable in respect of those proceedings. Counsel suggested that that in permitting a distribution of her legal right share to the Ward, the Court ought to have regard to this possibility and put in place some mechanism to avoid what might turn out to be an over payment to the Ward, such as requiring the provision of a bond to meet this contingency, or alternatively by directing that some of the Ward’s share should be retained until the costs associated with the administration of the deceased’s estate are known.
11. P.C. opposed the application on the following grounds:-
(i) He claims that the order of 19th August, 2016 whereby the Ward was declared of unsound mind and incapable of managing her personal property is invalid, by reason of the fact that it has not been perfected in accordance with O. 115 of the Rules of the Superior Courts.
(ii) Furthermore, he says that the order of 19th August, 2016 is invalid because it was not served on the Ward herself, or on P.C. himself, and he argues that the further orders of Kelly P. dated 26th July, 2017 and 28th October, 2017 referred to above are not valid for the same reasons.
(iii) He also complains that the Committee exercised the right of election on behalf of the Ward without notice to him, P.C.
(iv) He argues that the Committee should have applied to become a party to the testamentary proceedings, and has not done so.
(v) He argues that the Committee was out of time in exercising the statutory right of election on behalf of the Ward. In this regard in s. 115(4) of the Succession Act 1965 provides:-
“It shall be the duty of the personal representatives to notify the spouse in writing of the right of election conferred by this section. The right shall not be exercisable after the expiration of six months from the receipt by the spouse of such notification or one year from the first taking out of representation of the deceased’s estate, whichever is the later”.
It is not disputed that six months has elapsed since the Ward received notification from the solicitor’s acting on behalf of the executors pursuant to their letter of 6th May, 2010. However, the Committee relies upon the second part of the limitation period and says that that period has not begun to run because letters of representations in the estate of the deceased have not yet been taken out. P.C. says that there is no reference in s. 115(4) to the grant of letters of administration or probate and that the executors have been acting as such since the death of the deceased, and that accordingly time has expired for the purposes of s. 115(4).
(vi) P.C. complains that if the orders sought are granted, the estate of the deceased will be gathered and sold and that this will include his (P.C.’s) house and lands. Insofar as P.C. claims an entitlement to lands to which the deceased had title at the date of his death and over which P.C. claims ownership, P.C. accepts that a dispute in this regard has already been the subject of an adjudication (unfavourable to P.C.) by this Court on appeal from the Circuit Court, but P.C. claims that there are ongoing proceedings arising out of that determination. P.C. failed to mention those proceedings or the outcome of the same in his affidavit.
(vii) In his affidavit, P.C. makes another argument that, while very hard to follow, appears to be to the effect that the provisions of the Lunacy Regulation (Ireland ) Act 1871 is unconstitutional and that he is entitled , on behalf of the Ward o advance such a case to the intent of having the order made by Kelly P. on 19th August, 2016 set aside.
12. After giving due consideration to all of the above I am of the opinion that the application should be granted in full in the terms of the notice of motion, subject only to the limitation mentioned below . My reasons for this are as follows:-
(1) The order declaring the Ward to be of unsound mind and incapable of managing her person, and appointing this General Solicitor to be Committee of the person and the estate of the Ward subsists and has not been set aside. Both Counsel for the Committee and P.C. himself referred to a determination of the Supreme Court in respect of two appeals brought by P.C. arising out of decisions made firstly by Kelly P., and secondly by Ryan P. in the Court of Appeal, in relation to applications brought by P.C. pursuant to Article 40.4 of the Constitution. It appears from the determination of the Supreme Court that P.C. sought an inquiry into the detention of the Ward on two different occasions complaining about the treatment of his mother while detained in hospital. In its determination (dated 5th September, 2017) the Supreme Court noted that no challenge had been brought to the appointment of the Committee either in the High Court or by way of appeal from the order made by Kelly P. The Supreme Court endorsed the comments of Ryan P. in the Court of Appeal to the effect that the wardship order subsists until set aside. P.C. accepts that the order has not been set aside, and while I am unclear from what he submitted whether or not any proceedings have been brought with a view to setting the order aside, what is clear is that, in considering this application, I must do so on the basis that it is a valid subsisting order until evidence to the contrary is provided.
(2) While P.C. is correct that O. 115(4) of the rules of the superior courts provides that every order of the High Court shall be “passed and perfected with all convenient speed” and O. 115(2) states that the date of perfecting shall be endorsed on the order, it does not follow that the order is invalid simply because of the absence of the word “perfected” This is an issue that would require to be raised by proceedings appropriately taken, and argued in the context of such proceedings. It cannot simply be raised as an argument in response to a motion which is founded on a subsisting order. It may be noted that the order is properly dated and signed by Kelly P. in accordance with O. 115.
(3) As to the argument that the order declaring the Ward to be of unsound mind should have been served on the Ward, P.C. advanced no authority for that proposition. Counsel for the Committee submitted that the Ward was of course notified of the application to declare her to be a person of unsound mind, but once that declaration is made, it is not the practice to serve such orders for the very practical reason that the Ward is by that time a person of unsound mind, as a matter of law. He also submitted that there is was no obligation to serve P.C. himself with that or any subsequent orders, which are in any case procedural in nature. It seems to me to be very likely that Counsel for the Committee is correct in these submissions, and the onus is on P.C., in advancing this argument, to support it with authority. He has not done so and accordingly I accept the submissions of Counsel in this regard, and reject P.C.’s argument that this application should be refused because the order of 19th August, 2016 and subsequent orders have not been served on the Ward and/or P.C.
(4) Similarly, I can see no basis at all for the argument that the Committee had an obligation to notify P.C. that she was exercising the Ward’s right of election. The Committee is charged with the responsibility of looking after the affairs of the Ward, and in doing so may exercise all the rights enjoyed by the Ward as though she herself was of sound mind and doing so.
(5) I simply do not understand the argument that P.C. makes that the Committee should have applied to become a party to the testamentary proceedings. That is a matter entirely for Committee, and has no bearing on the present application. The duty of the Committee is to safeguard the interests of the Ward and in that context to secure the legal right share of the Ward in the estate of the deceased. The Committee is meeting her obligations to the Ward in this regard by bringing forward this application.
(6) It is quite clear that the reference in s. 115(4) of the Succession Act 1965 to the “first taking out of representation of the deceased’s estate” is a reference to a taking out of a grant of probate or administration in the estate of a deceased person. Indeed the word “representation” is defined in the interpretation section of the Succession Act 1965 as meaning probate or administration. Accordingly the limitation period for exercising the right of election pursuant to s. 115(4) has not yet commenced running as against the Ward, and her right of election has been exercised in time.
(7) As to P.C.’s concern that the administrator pendente lite may gather in and dispose of assets which P.C. claims belong to him, two points may be made. Firstly, the administrator can only gather in and sell assets belonging to the estate of the deceased. If there is any dispute concerning ownership of assets, the administrator may have to initiate proceedings to resolve that dispute, or in the context of a sale of land, take such steps as are necessary in order to clear any claims off title in order to be able to convey a good and marketable title to a purchaser.
(8) As I mentioned above, P.C. did not volunteer in his affidavit opposing this application that there has already been a determination, by the High Court on Circuit, of a dispute concerning lands belonging to the deceased and over which P.C. claims ownership. Accordingly, there was no actual evidence of before me in relation to that dispute or the precise nature of the determination of the court, but Counsel for the executors informed the court of the outcome of the circuit appeal, following 25 days hearing before Budd J. P.C. does not dispute that he was unsuccessful in those proceedings, although he appears to say that he continues, in some manner that is unclear to me, to dispute what is the final determination of the High Court on appeal from the Circuit Court. For these reasons it does not seems to me that P.C’s claim to any entitlement to lands belonging to the deceased at the date of his death should operate as a bar to the administrator gathering in and disposing of the assets of the deceased, including lands, and accounting to the Committee for the one third share of the Ward.
(9) As to the argument that this application should not be allowed in order to enable P.C. challenge the validity of the Lunacy Regulation (Ireland) Act 1871, on behalf of the Ward, that clearly must be dismissed. The purpose of such proceedings could only be to try and set aside the order of 19th August, 2016 , or to delay matters further. As stated above, the order made by Kelly P. on 19th August, 2016 subsists unless and until it is said aside by a higher court.
13. For all of these reasons, I am satisfied that P.C.’s objections to this application should be dismissed. Moreover, the deceased died almost eight years ago and it seems clear that the administration of his estate has become consumed by internecine disputes which show no signs of resolution. On the contrary, if I understand P.C. correctly he intends to continue purporting to challenge a decision of this Court which has already become finial. That is apart altogether from the testamentary proceedings before the Circuit Court, which have not even been set down for hearing because they have become bogged down in interlocutory applications. It is quite simply intolerable that his mother, in her 95th year, should be deprived of her legal right share for even one day longer than is necessary in light of the comfort that her share in the estate of the deceased could afford her in whatever time remains to her.
14. There is some validity in the concern raised by Ms. Beechinor on behalf of the executors. A straightforward pay-out of one third of the assets of the deceased on behalf of the Ward would almost certainly result in an overpayment to the estate of the ward because she could only be entitled to receive one third of the net estate. Ms Beechinor suggested that it might be possible to deal with this though the provision of a bond, but a bond of this kind is likely to expensive, if it could be obtained at all. I think that the more correct approach is the alternative that she suggested which is that when the estate of the deceased is realised, the Committee should make application, on notice to the executors to make a payment out of he share to the Ward, having due regard to whatever the liabilities of the estate may be, and it would be a matter for the executors to respond appropriately to that application by providing full particulars of all liabilities of the estate of the deceased then known to the executors, and an estimate of any liabilities not yet determined: at that point the court can make an appropriate order as to payment out of the estate of the Ward.
Rose Ann Hamilton v George Armstrong and James McCartney
In the Matter of the Estate of Henry James Hamilton, Deceased
1981 No. 844 SP
Appropriation House
High Court
2 May 1983
[1984] I.L.R.M. 306
(O’Hanlon J)
O’HANLON J
delivered his judgment on 2 May 1983 saying: Henry James Hamilton died on 7 December 1979, leaving his surviving widow, Rose Ann Hamilton, the plaintiff in these proceedings as originally constituted.
By his Will, Henry James Hamilton gave three small pecuniary legacies to named legatees and subject thereto gave all the rest, residue and remainder of his property, both real and personal, to his executors, to hold the same in trust for his wife, Rose Ann Hamilton, for her life, and thereafter for fourteen named beneficiaries in equal shares.
Rose Ann Hamilton, instead of taking the life estate given to her by the terms of her husband’s will, exercised her right under the Succession Act, 1965, s. 115, to take instead the share of the estate of her deceased husband to which she was entitled as legal right under the provisions of the Act. As the couple were childless she thereby became entitled to one half of the estate of the deceased absolutely. She then proceeded to exercise a further right given to her under the provisions of s. 56 of the Act, and by letter dated 8 August 1980, written on her behalf by her solicitors to the solicitors for the executors she called on the executors to appropriate in or towards satisfaction of her claims against the estate ‘the house and land and the household furniture and effects’.
This is taken as meaning, for the purpose of the present proceedings, the assertion of a claim to have appropriated in her favour the dwelling in which, at the time of the deceased’s death, his surviving spouse was ordinarily resident, as well as the household chattels contained therein.
A problem has arisen as between the executors and the widow and those *308 claiming under and through her, as to the manner in which the expression ‘dwelling’ as used in s. 56 of the Succession Act should be construed in its application to the estate of Henry James Hamilton, deceased. He and his wife lived togehter for the last eleven or twelve years of his life in a small, two-bedroomed bungalow situate on a parcel of land comprising 5 acres, 3 roods and 35 perches fronting onto Headford Road on the outskirts of Kells, Co. Meath.
The deceased had been a grocer all his life, until his retirement from business about 1967 or 1968. His place of business and residence were in the town of Kells, but he had inherited the plot of land at Headford Road from his father in the 1930’s and when he himself came to retire from business he built a bungalow on it, immediately adjoining the public road, and enclosed the bungalow with an evergreen hedge and a post and wire fence. The area of the dwellinghouse is only about 950 square feet, and the garden to front and rere is minute, so that the plot enclosed by the hedge and wire fence represents only a small fraction of the total area of the field which belonged to the deceased and which he retained up to the time of his death.
Access from the house to the field is through a small wooden gate suitable for passage on foot but not wide enough to allow the passage of any vehicle of any substance. Further up the road there is a full-size gate leading into the field from the Headford Road, and suitable as an entrance through which any vehicle or machinery or livestock could be brought into the field.
While the deceased was alive and living in the bungalow, his practice was to keep a few head of cattle on the land and look after them himself, selling them when the time was ripe for doing so, and replacing them with other young stock. At times there would be no stock on the land, but usually there were from four to six cattle grazing the field. It was described as being more of a hobby than a business venture for the deceased, but I find it hard to believe that he did not embark on this activity in the hope of showing a reasonable profit each year, and of driving some suplement to his income, however small, from buying and selling in this manner.
The septic tank serving the bungalow was located by the deceased in the field a suitable distance away from the dwellinghouse and the small garden surrounding it. The well from which water is piped into the house is also outside the hedge surrounding the house, but within the present line of the wire fence which prevents cattle from the field coming into the garden of the bungalow.
The word ‘dwelling’ as used in s. 56(14) of the Succession Act is defined as meaning:
an estate or interest in a building occupied as a separate dwelling or a part so occupied, of any building and includes any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling.
The word ‘dwelling’ has had to be considered in a number of other contexts also — for example, under the provisions of the Rent Restrictions Acts, and under the English Town and Country Planning Acts, but I do not consider *309 that any help is to be derived from observing how the term has been construed under the provisions of other statutes. The Succession Act provides its own dictionary in this respect, and if the definition of ‘dwelling’ in s. 56(14) is wide enough to capture the field as well as the small garden attached to the Hamilton property, then that would decide the issue in favour of the claim made by the widow.
I do not consider that the field — that is the area of ground outside the hedge and post and wire fence which enclose the bungalow — is a ‘garden’ within the meaning of sub-s. (14). Neither do I consider that it is ‘required for the amenity or convenience of the dwelling’ having regard to the use made of it at all times while the deceased owner was still alive, and the use to which it could appropriately be put having regard to the size and character of the dwelling located at its focal point. It is however a ‘portion of ground’. It is ‘attached to’ the dwelling insofar as the deceased constructed his dwellinghouse with a gate leading into the field and giving him ready access to it without having to go onto the public highway and from the highway into the field. The location of the septic tank in the field to serve the bungalow and the location of the well from which the house draws its supply of water, are also features which support the view that the field remained ‘attached’ to the house throughout the lifetime of the deceased. So also does the fact that the deceased as long as he lived in the house made constant use of the field for his own purposes.
The phrase ‘usually occupied with the dwelling’ causes more difficulty. A field of five acres is not usually occupied with a dwelling consisting of a small, two-bedroomed bungalow, suitable only for one or two persons of modest circumstances. But this particular five-acre field was usually occupied with the dwelling by the owner thereof from the time the dwelling was built and throughout a period of eleven or twelve years, during the whole of which time he could have — if he were so minded — let it out for grazing, or applied for permission to develop it as building land, or sold it off in sites for similar purposes. Instead he elected to occupy it constantly with the dwelling for the particular purpose which appealed to him. If the phrase in the sub-section were to read ‘usually occupied with a dwelling’, I would not consider that the definition covered the field referred to in the present case, but when it says ‘usually occupied with the dwelling’, I take that as referring to the use which has been made in the past of this particular dwelling to which the particular application relates. Viewed in this light I have come to the conclusion — not without some hesitation — that the ‘dwelling’ which the widow was entitled to have appropriated to her own use under the Act included the parcel of land surrounding the house comprising approximately 5 acres, 3 roods, 35 perches, which formed part of the estate of her deceased husband.
A further complication was introduced into the claim, however, by reason of the fact that the widow, having elected to take her legal right and share of the estate, and having applied to have the dwelling and the contents appropriated in satisfaction of her claim, died on 29 December 1981, shortly after the institution of these proceedings in which she asked the court to declare her *310 entitlement to the house and the field surrounding the same. The proceedings have now been reconstituted by substituting her acting executor as plaintiff in her place. Mr Fitzsimons, for the executors, queried whether it was open to anyone other than the spouse to maintain such a claim, having regard to the fact that the statutory provisions appear to be designed to avert hardship in the case of a spouse who might otherwise be deprived of the family home when the assets of a deceased person have to be applied in due course of administration.
I prefer, however, to adopt the argument put forward by Mr Geoghegan in reply to this contention, and to hold that once the widow has elected in favour of her legal right under the Act, this constitutes a claim against the estate which can be enforced on behalf of her estate, if necessary, and similarly that when she has applied for the appropriation of the dwelling in satisfaction of her claim against the estate and equity arises immediately in her favour which can be enforced by her personal representatives should she, herself, die before the personal representatives of the decease spouse have carried out the obligations imposed on them by the Act to appropriate the dwelling in her favour. This entitlement is, of course, subject to the obligation which may arise on her part or on the part of her personal representatives, to pay any balance that may be necessary to make up the difference in value between her share of the estate and the value of the dwelling which is to be appropriated in her favour. It would seem equitable that the two valuations should be made with reference to the time when the request for appropriation was made and when the wishes of the spouse should have been carried out by the personal representatives, but this issue does not appear to arise for determination, of necessity, in the present case as the expert evidence given by auctioneers on both sides was to the effect that there has been little change in the market value of the property at any time since the death of the deceased on 7 December 1979.
I assess the value of the property at £48,000. I will make the orders sought at pars. 1, 2 and 3 of the indorsement of claim, and give liberty to all parties to apply in relation to any further consequential orders that may be required hereafter.
H. v. H.
Kenny J. [1978] IR 138
H.C.
Kenny J.
10th December 1974
The testator died on the 28th January, 1971, without issue but leaving his widow (the plaintiff) surviving him. He was the registered owner of the lands in folio______of the register of freeholders for the county of Clare. These lands contain 113 acres approximately and are divided by a main road. There is a dwellinghouse on one division where the testator and the plaintiff lived and in which the third defendant has a right of residence and support. The lands were first registered on the 31st October, 1950. Though the testator died in 1971, the earlier history of the lands prior to 1950 is relevant to the issues in this case.
On the 15th March, 1930, J.H. (senior) conveyed 114 acres of these lands to his brother, P.H. (senior), who on the 25th April, 1931, conveyed part of them containing 73 acres to the testator but reserved to the third defendant, P.H. (junior), the fourth defendant and M.H. rights to reside in the dwellinghouse on the lands and to be maintained and supported there until they married. P.H. (senior) had five children; they were the testator, the third defendant, P.H. (junior), the fourth defendant and M.H. The title to the lands was not investigated when the lands were registered subject to equities, and so the reservations in the deed of the 25th April, 1931, do not appear on the folio.
The testator made his will on the 22nd January, 1965, and by it he appointed the first defendant to be the executor. By his will the testator gave all his property to the second defendant for his own absolute benefit subject to, and charged with, the right of the plaintiff to have the exclusive use of a bedroom in the dwellinghouse on the lands and a right to be supported and maintained in the house, and subject also to an annual payment of £150 to his brother the third defendant “in consideration of the services to be rendered by him on my lands as heretofore.” This right to an annual sum of £150 was stated in the will to be “in addition to the rights already in existence affecting my dwellinghouse in favour of my said brother [the third defendant].”
The plaintiff elected under s. 115 of the Succession Act, 1965, to take her legal right to one half of the estate and she required the first defendant, as personal representative, to appropriate the dwellinghouse and the household chattels to her. The second defendant objected to the appropriation of the dwellinghouse to the plaintiff, and the parties have been unable to agree on the division of the lands. It is a grave defect in the Act of 1965 that it does not provide any method by which lands may be divided between the widow, who is entitled to one half or one third of an estate, and the other beneficiaries; when agreement cannot be reached the only remedy is the expensive, cumbersome and dilatory action for partition.
The first defendant did not wish to become involved in the disputes between the plaintiff and the second defendant and wisely he did nothing. On the 23rd May, 1973, the plaintiff issued a special summons in which she named the first defendant as the only defendant and in which she sought an order declaring that she was entitled to one half of the estate of the testator, an order directing the first defendant to transfer one half of the estate to her, and an order requiring him to appropriate the dwellinghouse and the household chattels towards satisfaction of her one-half share. Nobody in the case has tried to explain how the first defendant could ascertain the one-half share of the lands to which the plaintiff is entitled under s. 111 of the Act of 1965. When the case came on for hearing for the first time on the 5th November, 1973, I refused to take any steps in it until the second defendant was added as a defendant, and the matter was adjourned so that this could be done. On the 25th March, 1974, when the case again appeared in the list, I was informed that the third defendant was claiming a right of residence and support in the dwellinghouse. The deed of the 25th April, 1931, could not be found anywhere and so the third defendant claimed the right of support and maintenance by prescription; he was then added as a defendant. The deed of 1931 had been prepared by the late Mr.____who could have been the model fo
an attorney in a satirical novel by Charles Dickens. To my knowledge his office was in a state of indescribable confusion. That deed was found ultimately and then the fourth defendant, who had not married, was added as a defendant. This was done after the third defendant had given evidence on the 14th November, 1974. The case appeared again in the list on the 10th December, 1974, when the fourth defendant gave evidence.
It has not been seriously contested by the plaintiff that the third defendant has a right to reside in the dwellinghouse and to be supported and maintained there. He has never married and, as he is 79 years old, it is unlikely that he will marry.r
The fourth defendant remained living in the dwellinghouse from 1931 until about 1940. Her father had died in 1937 and relations between the plaintiff and the fourth defendant were not good. I am satisfied that she knew of her rights under the deed of 1931 from the time when that deed was executed and that she did not exercise her rights under it since 1940. She returned on a number of occasions to the dwellinghouse for daily visits but since 1940 she never spent a night in the house. The third defendant continued to bring her fruit and eggs from the farm but the testator did not know this. In my opinion the rights of the fourth defendant under the deed of 1931 have become barred under the Statute of Limitations. When the plaintiff’s summons was issued in May, 1973, there had been a period of 33 years during which she had not exercised her rights or claimed under them. P.H. (junior) and M.H., who were the other children of P.H. (senior), had married and so had no right of residence or support.
The question whether the plaintiff is entitled to require the appropriation of the house and furniture to her is one of extreme difficulty because of the terms1 of s. 56 of the Act of 1965 which has not been considered by any court up to now, the failure of either party to give evidence about many material matters, and the absence of argument as to the meaning of this very difficult section. I suppose I should be flattered by the assumption that I understood it without the necessity for argument. A debate in the first case in which the meaning of an obscure section is involved would have been of great assistance.
[The judge referred to s. 56, sub-ss. 1, 2, 5(b) and 6(b), of the Act of 1965, and continued] Paragraph (d) of sub-s. 10 is not relevant and the plaintiff, the surviving spouse, was ordinarily resident in the dwellinghouse from the time of her marriage to the testator until his death. The dwellinghouse is undoubtedly held with agricultural land an estate in which forms part of the testator’s assets and so the questions arise (a) whether the exercise of the right of appropriation is unlikely to diminish the value of the assets other than the dwellinghouse and (b) whether the exercise of that right will make it more difficult to dispose of them in due course of administration. Sub-sections 5 and 6 of s. 56 present a number of difficult problems of interpretation which must be resolved before their application to the instant case can be considered.
When the dwelling is held with agricultural land, the onus of establishing to the satisfaction of the Court that the exercise of the right of appropriation is unlikely to diminish the value of the assets other than the dwelling, and that it will not make it more difficult to dispose of them in due course of administration, is on the surviving spouse who wishes to exercise this right. No evidence by an auctioneer or any independent person as to the matters in sub-s. 5(b) was given, and the only attempt to deal with them is in paragraph 9 of the affidavit of the second defendant who says that, in his opinion, the value of the lands on which the house stands as an agricultural holding would be seriously affected and that it would be difficult to sell them at a proper figure if an appropriation was made. The second defendant does not claim to have any specialised knowledge of these matters and the paragraph reads more like one drafted by counsel in a pleading than a spontaneous statement.
It must be established by the surviving spouse that the exercise of the right (and not the existence of the right) is unlikely to diminish the value of the assets other than the dwelling. Thus the circumstances of each case must be considered to answer this question.
The next question is whether the value to be considered is the value of all the assets of the deceased or of that part of them to which the beneficiaries other than the surviving spouse become entitled. In the instant case the plaintiff is entitled to a one-half share of the assets and so the problem arises whether the relevant value is that of the assets to which the second defendant has become entitled under the combined effect of the will of the testator and the Act of 1965. But this cannot be known until the partition suit is determined. Section 56, sub-s. (5) (b), of the Act of 1965 seems to have been drafted on the false assumption that the person exercising the right of appropriation will not be entitled to any other part of the holding of land when the assets of the deceased include agricultural land. But when the surviving spouse who exercises the right of appropriation is entitled to one half of the holding of land, does “the value of the assets” mean all the assets other than the dwelling or does that phrase mean the assets to which the other beneficiaries become entitled? If it means all the assets other than the dwelling, the right of appropriation can never be exercised when the dwelling is held with agricultural land because a residential holding (particularly a large one) is always more valuable than a non-residential one. But this seems to me to be contrary to the purpose of the section for it would exclude all residential holdings from the right to appropriate. Therefore, it seems to me that “value of the assets of the deceased” means the value of the assets to which the beneficiaries other than the surviving spouse become entitled.
If “value of the assets” in s. 56, sub-s. 5(b), means the market value of all the assets other than the dwelling and household chattels, the plaintiff’s claim to appropriate fails. As I do not think that this is the meaning of the phrase, this is not a valid objection to her claim. I think that the exercise of the right of appropriation by the plaintiff is unlikely to diminish the value of the assets to which the second defendant will become entitled, for I think it certain that the Court, in making partition, will allocate the lands surrounding the home to the plaintiff as she has exercised the right of appropriation.
The next problem is the meaning of the words “to dispose of them in due course of administration.” Do they refer to a sale or to a distribution of the assets among the beneficiaries? The noun corresponding to the verb”dispose” is “disposition” and this certainly includes a voluntary transfer or a distribution by an assent by the personal representative in the administration of an estate. This conclusion gets support from the words “in due course of administration” for, if they meant “to sell them in due course of administration,” the section would have read “or to make it more difficult to sell them in due course of administration.” If the beneficiaries do not want the assets other than the dwellinghouse to be sold (in which case the personal representatives are obliged to give effect to their wishes so far as this is practicable: see s. 50, sub-s. 1, of the Act of 1965), the personal representative would be disposing of them in due course of administration if he assented to the request or if he transferred them to the beneficiaries. Therefore, I am of opinion that the words “or to make it more difficult to dispose of them in due course of administration” refer to a distribution among the beneficiaries when they have indicated a wish that the other assets should not be sold. The word “them” in the phrase “to make it more difficult to dispose of them in due course of administration” refer to the assets other than the dwellinghouse of the deceased.
I come now to apply these principles to the instant case. Part of the background is that the plaintiff has brought proceedings for the partition of the estate: she is entitled to one half of it under s. 111, sub-s. 1, of the Act of 1965 and, as the second defendant and she have been unable to reach agreement on the division of the lands, the executor does not wish to make any decision on the matter. As I pointed out, the party who has brought the partition action has elected to engage in one of the most slow-moving, cumbersome and expensive actions known to the law. However, it seems to me to be certain that, in making partition, the Court will allot the dwellinghouse and the lands surrounding it to the plaintiff as she has been living there all her life and as the third defendant has a right of residence and support there for his life. Another feature is that, as the third defendant’s right to reside in the house and to be maintained there during his life existed at the date of the death of the testator, that right must be taken into account in making partition.
As the lands to be allotted to the plaintiff on partition will almost certainly include the dwellinghouse and the lands surrounding it, it seems to me that the exercise of the right of appropriation will not affect the value of the assets of the deceased other than the dwelling. The second defendant has become entitled under the will of the testator to all the assets of the testator except those passing to the plaintiff under her right to one half. The partition will undoubtedly affect the market value of the lands but the question under s. 56 is whether the exercise of the right of appropriation will diminish the value of the assets of the testator other than the dwellinghouse. This must be answered on the basis that a partition has been made and the appropriation cannot, therefore, diminish the value of the lands to which the second defendant becomes entitled.
The exercise of the right of appropriation will not make it more difficult to dispose of the other assets of the testator in due course of administration. The relevant disposition in the instant case is partition and not sale. It seems to me completely unrealistic to consider what the effect of an appropriation would be on a sale of the other assets for disposition in due course of administration when the relevant disposition is partition. Indeed, the exercise of the right of appropriation will make the decision as to partition easier for, as the plaintiff will be the owner of the house, it will form the fulcrum of the area to be allotted to her.
With considerable doubt I have come to the conclusion that the little evidence I have and the matters of which I have judicial knowledge establish that the exercise of the right of appropriation is unlikely to diminish the value of the assets of the testator other than the dwellinghouse or to make it more difficult to dispose of them in due course of administration. Accordingly, I will sanction the exercise of the right of appropriation.
The second defendant appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard on the 2nd May, 1977.
Henchy J.
13th May 1977
I have read the judgment of Mr. Justice Parke and I agree with it.
Griffin J.
I have read that judgment and agree with it.
Parke J.
This is an appeal against so much of the order of Mr. Justice Kenny dated the 10th December, 1974, as directed the first defendant, as the executor, to appropriate the dwellinghouse on the farm which forms part of the estate of the testator towards the satisfaction of the legal right of the widow of the testator in pursuance of an application by her under s. 56, sub-s. 5(b), of the Succession Act, 1965.
The plaintiff’s application for such an order is only one of a number of disputes between the parties relating to the administration of the testator’s estate. After the hearing before Mr. Justice Kenny, the plaintiff in these proceedings instituted a partition suit in relation to the lands forming part of the testator’s estate. Judgment in that suit was delivered by Mr. Justice McWilliam on the 12th January, 1977, and we have been informed by counsel for the second defendant that it is his intention to appeal to this Court from such judgment. It is clear that no final order for the distribution of the assets of the estate can be made until that appeal is determined by this Court. However, this Court has been asked to determine the issues arising on the construction of s. 56, sub-s. 5(b), of the Act of 1965 so that the rights of the parties in this respect may be ascertained.
[The judge here referred to the provisions2 of sub-s. 1 and sub-s. 5(b) of s. 56 of the Act of 1965]
It appears to me that this appeal raises three questions on the construction of sub-s. 5(b) of section 56. The first relates to the onus of proof. The trial judge held that the onus lies upon an applicant under the sub-section to satisfy the court that the exercise of the right of appropriation is unlikely to diminish the value of the assets of the deceased, other than the dwelling, or to make it more difficult to dispose of them in due course of administration. This finding was not challenged in argument and appears to me to be clearly correct.
The second question is to ascertain the meaning of the words “the value of the assets of the deceased, other than the dwelling.” The trial judge held that in a case such as the present, where the spouse has exercised her legal right to one half of the estate, these words are limited to the value of the assets of the deceased, other than the dwelling, and other than those passing to the spouse. I cannot accept this as being correct. Such a construction would not be in conformity with one of the fundamental rules of interpretation i.e.,that words may not be interpolated into a statute unless it is absolutely necessary to do so in order to render it intelligible or to prevent it having an absurd or wholly unreasonable meaning or effect. No such necessity arises here. The words of sub-s 5(b) of s. 56 are clear and intelligible as they stand. They refer plainly to all the assets of the deceased other than the dwelling. The fact that the dwelling is the only exclusion seems to me to remove any doubt which might exist as to the comprehensiveness of the word “all.”
The trial judge seems to have considered that he was bound to construe the expression in the way in which he did because he considered that any other construction would render it impossible for any application under paragraph (b) to succeed in respect of a residential agricultural holding. This view is based upon the belief which he expressed in his judgment that a residential agricultural holding is invariably more valuable than a non-residential agricultural holding. With the greatest respect to the learned judge, I do not think that this is necessarily so. The common experience of the Courts affords many examples to the contrary. A large, old, and dilapidated dwelling will frequently diminish the value of the holding. In cases, common enough nowadays, where there are two dwellings on a holding the exclusion of one of them will probably enhance the value of what is left. These, and other examples, were cited to us in argument and reinforce the conclusion that it is not necessary to interfere with the clear wording of paragraph (b) on the grounds of avoiding an irrational meaning or effect. In my view the words mean what they say, viz., all the assets of the deceased other than the dwelling.
The third question which arises is as to the meaning and effect of the word “or” which separates the expressions “diminish the value of the assets of the deceased, other than the dwelling,” and “to make it more difficult to dispose of them in due course of administration.” It was urged upon us very strongly by counsel for the plaintiff that its effect is disjunctive. He contended that an applicant under s. 56 could discharge the onus of proof by establishing one or other of two things, namely, that the exercise of the right would be unlikely (a) to diminish the value of the assets or (b) to make them more difficult to dispose of in the course of administration, but that such an applicant was not obliged to establish the unlikelihood of both consequences. He submitted that in a case such as the present, where no sale of the assets is contemplated, the fact that the exercise of the right might diminish the value of the assets was irrelevant and that the exercise of the right would in no way impede the personal representative in distributing the assets in due course of administration. This was the view taken by the trial judge who interpreted the word “them” as meaning “the assets of the deceased other than the dwellinghouse” and the word “dispose” as including voluntary distribution amongst the beneficiaries in specie. I regret that I cannot accept these conclusions. Reading paragraph (b) in its entirety, it seems to me clear that what sub-s. 5(b) of s. 56 requires the court to be satisfied of is that neither of the specified eventualities is likely to happen. In my opinion the submissions on behalf of the plaintiff on the construction of this portion of paragraph (b)must also fail.
Accordingly, the appeal must succeed. In my view, it must be held, that the plaintiff has failed to establish under s. 56 of the Act of 1965 the right of appropriation sought by her. Whether she is otherwise entitled to the dwellinghouse is a matter that must await the outcome of the pending appeal in the partition suit.
Section 56, sub-s. 11, of the Act of 1965 requires all proceedings in relation to s. 56 to be heard in chambers. This does not mean that the judgment in such proceedings in chambers may not be published: per Lord Denning M.R. in Wallersteiner v. Moir .1 The decision in this appeal is being given in court rather than in chambers so that the opinion of the Court as to the correct interpretation of s. 56, sub-s. 5(b), of the Act of 1965 may be promulgated. However, in order to preserve the confidentiality inherent in the requirement of a hearing in chambers, all identifying facts and circumstances, including the names of the parties, are omitted from this judgment.
H. v. O.
[1978] IR 202
Henchy J. 202
S.C.
The testator was the plaintiff’s husband. They had no children. His estate consisted chiefly of a residential farm of 113 acres. Subject to the payment of his debts and his funeral and testamentary expenses, the testator by his will left all his estate to his nephew, the second defendant, subject to certain rights in the dwellinghouse in favour of the plaintiff and subject to and charged with the payment of £150 p.a. in favour of his brother, the third defendant (in addition to rights of residence and support in the dwellinghouse which the latter had under an earlier settlement), and subject also to certain legacies. The first defendant is the personal representative.
On the death of the testator the plaintiff elected under s. 115, sub-s. 1 (a), of the Succession Act, 1965, to take the half share of the estate, for which she became eligible under s. 111, rather than what had been given to her by the will. The combined effect of the terms of the will and that election is that the plaintiff and the second defendant are each entitled to a half share of the estate, subject to the rights of the third defendant.
The plaintiff instituted proceedings in the High Court seeking an order under s. 56 of the Succession Act, 1965, requiring the first defendant, as personal representative, to appropriate the dwelling on the lands in or towards the satisfaction of her half share. Such an order was made in the High Court, but on appeal to this Court it was held3 that the plaintiff had failed to discharge the onus cast on her by s. 56, sub-s. 5 (b), of proving that the proposed appropriation of the dwelling was unlikely to diminish the value of the assets other than the dwelling, or to make it more difficult to dispose of them in due course of administration. The plaintiff was held to be disentitled to the order sought, and so the appeal in those proceedings was allowed.
On the very day that the High Court gave judgment in favour of the plaintiff in that action, a second action was instituted in the High Court by the plaintiff: This second action, which is the one now before us on appeal, was aimed primarily at getting an order under s. 55 of the Act of 1965 allowing the first defendant, as personal representative, to appropriate the part of the lands on which the dwelling is situate in or towards satisfaction of the plaintiff’s half share. Mr. Justice McWilliam made that order in the High Court. The first defendant and the third defendant were joined as defendants, but they have taken a neutral stance in the matter. The contention in both actions is between the plaintiff and the second defendant. It is to be regretted that all disputes between the plaintiff and the second defendant were not disposed of, as they could readily have been, in a single action rather than in two separate actions which have resulted in two appeals to this Court. In consequence, the estate has been unnecessarily burdened with costs; and the administration of the estate has been unduly delayed.
The Act of 1965 provides a legislative code of rules governing succession to the estates, whether testate or intestate, of deceased persons. The Act abolished many of the old rules as to the descent on death of the real and personal property to which a deceased person was entitled. In regard to intestate succession, Part VI of the Act of 1965 laid down a new set of rules as to who is to succeed and in what shares, giving special emphasis to the standing of a surviving spouse, children, parents, and brothers and sisters. In regard to testate succession, for the first time in this State the legislature has asserted by this Act the primacy of familial obligation, so as to trench on and circumscribe freedom of testation. Where the testator has left a child or children surviving him, the court, if it is of opinion that the testator has failed in his moral duty to make provision for a particular child in accordance with his means, may overrule the will to the extent of making such provisions for the child out of the estate as it thinks just: see section 117. Where the testator has left a spouse and there are no children, the spouse shall have a right to one-half of the estate; if there are children, the spouse has a right to one-third of the estate (s. 111); and in either event the spouse may elect to take either such share or what has been devised or bequeathed to him or her by the will. The latter provision was operated in this case. There being no children, the plaintiff as the surviving spouse had a legal right under s. 111 to a half share of the estate, and she exercised her right of election under s. 115, sub-s. 1, by opting for that half share rather than for what was given to her by the will.
The Act of 1965 provides that the real and personal estate of the deceased person shall on his death, notwithstanding any testamentary disposition, devolve on and become vested in his personal representatives: see section 10. The duty is imposed on the personal representatives of distributing the estate as soon after the death as is reasonably practicable having regard to the nature of the estate, the manner in which it is required to be distributed and all other relevant circumstances: see section 62. Various powers, duties and rights are vested in or imposed on the personal representatives in connection with the administration of the estate, and there are specific rules as to payment of debts where the estate is insolvent and as to the order of application of assets where the estate is solvent: see s. 46 and the first schedule. But nowhere in the Act is there any specific statement as to how the personal representatives are to discharge the surviving spouse’s legal right to one-third or one-half of the estate, as the case may be. Section 112 gives the legal right priority over devises, bequests and shares on intestacy. In the general context of the Act of 1965, it must be assumed that the legislative intention was that the legal right (where elected for) is to be discharged in the same manner as if the one-half or one-third of the estate had been expressly given in the will in priority over all devises and bequests.
Subject to the restrictions imposed by s. 50, the personal representatives may sell the whole or any part of the estate for the purpose of distributing the estate among the persons entitled. Sections 55 and 56 enable a share in the estate, including the legal right of a surviving spouse, to be dealt with by appropriation of a specific part of the estate. Section 56 is to the general effect that where the estate includes a dwelling in which, at the time of the deceased’s death, the surviving spouse was ordinarily resident, the surviving spouse may, subject to specified conditions, require the personal representatives in writing to appropriate the dwelling, under s. 55, in or towards satisfaction of any share of the surviving spouse. This right, which is not confined to cases where the surviving spouse’s share is a legal right under s. 111, may be extended to household chattels, and in certain circumstances may be exercised in relation to the share of an infant. I need not elaborate on the conditions requisite for the valid exercise of the right. It is sufficient to say that the plaintiff, being the surviving spouse and having elected for the one-half share which was her legal right, was unsuccessful in the appeal in the first action in her attempt to obtain an order directing the appropriation of the dwelling in or towards the satisfaction of that share. She failed because she had not discharged the onus cast on her by s. 56, sub-s. 5, of showing, as a pre-condition of the exercise of the right, that its exercise was unlikely to diminish the value of the assets other than the dwelling, or to make it more difficult to dispose of them in due course of administration.
Section 55 allows the personal representatives, subject to the provisions of the section, to appropriate any part of the estate in its actual condition at the time of appropriation in or towards satisfaction of a share. While the right conferred by s. 56 is a right conferred on a surviving spouse, the right conferred by s. 55 is exercisable only by the personal representatives and is not confined to the share of a surviving spouse. When the plaintiff, as the surviving spouse who was entitled to a one-half share as her legal right, sought in the present action to get an order directing the first defendant to appropriate the part of the lands on which the dwelling is situate towards the satisfaction of her share, she was seeking to assert a right to which she was not entitled under section 55. The right of appropriation given by s. 55 is an enabling right which may be exercised only by the personal representative. A person entitled to a share is given no right to compel the personal representative to propose an appropriation under section 55. The first defendant, as personal representative, has not chosen to operate the section so, strictly speaking, the plaintiff was misconceived in her efforts to compel him to do so. In the High Court the judge treated the first defendant as having served the notice of intended appropriation which is required by sub-s. 3 of section 55. I do not think that was correct. The first defendant does not seem to have served any document or delivered any pleading which could be said to be a compliance with sub-s. 3 of section 55. However, both in the High Court and in this Court, counsel for the first defendant has raised no objection to his being deemed to have served the necessary notice, and as all the interested parties are before the Court and have not claimed to be prejudiced in any way by want of notice, I deal with the matter on the footing that the first defendant, as personal representative, is willing to operate s. 55 and that the statutory pre-conditions as to notice have been complied with. I do so particularly because no appeal has been taken by any party against the ruling of the judge in this respect, and also because a dismiss of the action on this ground would probably have the effect of burdening this estate with yet another High Court action.
But I wish to stress that a beneficiary is not given any right to compel a personal representative to exercise a power of appropriation under section 55. It is only because of the special circumstances to which I have referred that the personal representative in this case is being treated as having taken the necessary steps for an appropriation under section 55.
Section 55, sub-s. 1, stipulates that the power of appropriation may be exercised “subject to the provisions of this section.” The limitations of the power are to be found in the section itself rather than in the terms of analogous powers given elsewhere in the Act. Leaving aside an appropriation of a dwelling under s. 56, the requirements laid down by s. 55 for the valid exercise by personal representatives of their power to appropriate are these:
1. The appropriation must not affect prejudicially any specific devise or bequest: sub-s. 2.
2. Notice of the intended appropriation must be served on all parties entitled to a share in the estate, other than persons who may come into existence after the time of the appropriation or who, after reasonable enquiry, cannot be found or ascertained at that time: sub-s. 3.
3. Apart from certain exceptions which are not applicable in this case, the following consents are necessary: (a) when the appropriation is for the benefit of a person absolutely and beneficially entitled in possession, the consent of that person; (b) when it is in respect of any settled share, the consent of either the trustee thereof, if any (not being also the personal representative), or the person who may for the time being be entitled to the income: see sub-s. 4.
4. The personal representatives, in making the appropriation, shall have regard to the rights of any person who may thereafter come into existence, or who cannot after reasonable enquiry be found or ascertained at the time of appropriation, and of any other person whose consent is not required by this section.
The court only acquires jurisdiction in the matter when a party, on being served with notice of an intended appropriation, applies within six weeks to the court to prohibit the appropriation. The section is silent as to how the court is to exercise its jurisdiction, which is essentially supervisory and prohibitive. So it must be assumed, having regard to the tenor, the scope and the purpose of the section, that the court should prohibit an intended appropriation only (a) when the conditions in the section have not been complied with; or (b) when, notwithstanding such compliance, it would not be just or equitable to allow the appropriation to take place, having regard to the rights of all persons who are or will become entitled to an interest in the estate; or (c) when, apart from the section, the appropriation would not be legally permissible. Since the personal representatives hold the estate under s. 10, sub-s. 3, as trustees for the persons by law entitled thereto, the exercise of the statutory discretion to appropriate must be viewed as an incident of the trusteeship, so that it is the court’s duty to prohibit the appropriation if it is calculated to operate unjustly or inequitably by unduly benefiting one beneficiary at the expense of another. But otherwise, where the conditions of the section have been observed and the personal representatives have made a bona fide decision to appropriate, the exercise of their discretion to appropriate should not be interfered with unless for some reason unrelated to the terms of the section the appropriation would be legally unacceptable,e.g., if it would amount to a sub-division prohibited by law. Such an approach to the scope of the section is also required by the fact that, when the Act of 1965 was passed, it was settled law that, without any statutory enablement, personal representatives could appropriate a specific part of the estate (such as a leasehold) as part of the share of a beneficiary with his consent, on the ground that they could sell it to the beneficiary and set off the purchase money against his share: see In re Beverly, Watson v. Watson 7 .
I turn now to the circumstances of the case in hand. The holding of land left by the testator was approximately 113 acres, on which he had 68 head of cattle. Of that 113 acres, 12 acres stand some short distance apart from the remainder. The remainder is bisected by the Ennis-Limerick road which runs from north to south. To the west of that road there are 52 acres on which the dwelling stands. The remaining 48 acres are to the east of the road. Therefore, the house and 52 acres form an easily identifiable and severable block. The proposed appropriation would mean that the first defendant, as the personal representative, would convey to the plaintiff the 52 acres (on which the dwelling is situated) in or towards satisfaction of the half share of the estate to which she is entitled. The plaintiff is ready and willing to accept that appropriation. It is opposed, however, by the second defendant, who is entitled to the balance of the estate, which is subject to five legacies amounting in all to £2,200 and to the annuity of £150 and the rights of residence and support in favour of the third defendant.
There is no question but that in any event the legacies will be paid in full; and it has not been suggested that the proposed appropriation would prejudice the annuity of the third defendant or his rights over the lands. He is at present residing in the dwelling with the plaintiff, and is on amicable terms with her. There is good reason to think that the proposed appropriation would best preserve the status quo as far as he is concerned. On the other hand, it is difficult to see how his rights of residence and support would be effectively preserved if the dwelling and all the lands were to be sold. In fact, no argument against the appropriation has been put forward on behalf of the third defendant. The only person who actively opposes the appropriation is the second defendant. Instead of the appropriation, he wants the first defendant to put all the lands and the house up for sale as a single unit, in which case he would hope to become the purchaser. His object is to annex the lands, by means of such purchase, to his own holding which is nearby.
The second defendant puts his case against the appropriation on two grounds. First, he contends that the testator’s primary intention that the lands should pass in their entirety to him would be frustrated by the proposed appropriation; whereas his proposition that all the lands be sold in due course of administration would give him a chance of acquiring them by purchase, thus effectuating the testator’s intention that the lands should not be broken up but should pass to him. I must reject this argument. If we were construing the will, the paramount consideration would be the testator’s intention: but we are not construing the will. We are dealing with the application of s. 55 in circumstances in which the legislature has specifically allowed the testator’s intention to be set aside by enabling the plaintiff as his widow to have, as it were, the will amended so as to give her a half share of the estate in place of the benefits given to her by the testator in his will. It is of the essence of the scheme of the Act in such circumstances that the testator’s intention as to the devolution of his estate on his death must be cast aside. In fact, s. 112 categorically stipulates that the half share to which the plaintiff became entitled as her legal right shall have priority over devises and bequests. Therefore, while the plaintiff and the second defendant are each entitled to a half share in the estate, the plaintiff’s half share, being a legal right, takes priority over the defendant’s half share, which derives from the will. In such circumstances it would be repugnant to the Act of 1965 to apply s. 55 for the purpose of reviving and giving effect to the testator’s intention an intention which the Act requires to be overborne. I consider that the intention of the testator can have no part in the operation of s. 55 in the circumstances of this case.
The other ground on which the second defendant seeks to have the appropriation prohibited is that, in his view, it will unfairly benefit the plaintiff at his expense by making the unappropriated part of the lands worth appreciably less than a half share in the proceeds of the lands if they were sold as a single unit. As I have indicated, if this ground is substantiated it would justify a prohibition of the proposed appropriation. Therefore, it is necessary to consider the financial consequences of the proposed appropriation as compared with those of a sale of the lands as a single residential unit.
At the hearing in the High Court three valuers gave evidence, two for the plaintiff and one for the second defendant. For the purpose of their valuations, the rights of the third defendant were disregarded. One of the plaintiff’s valuers assessed the market value of the house and all the lands as a single residential farm at £112,000 and the other put their value at £110,200; while the defendant’s valuer gave a valuation, by reference to the three component parts, which amounted to £109,600. It is common case, therefore, that a half share of the proceeds of a sale of the house and all the lands as one unit free of the interests of the third defendant, who is now 82, would be approximately £55,000. One of the plaintiff’s valuers valued the house and 52 acres (which is the proposed appropriation) at £58,000 if sold separately, the plaintiff’s other valuer reached the figure of £59,000, and the valuation of the defendant’s valuer was £52,000. The corresponding figures of the valuers for a sale of the rest of the lands were £56,000, £51,000 and £57,000 respectively. No evidence was given of the valuations which the personal representative is empowered by s. 55, sub-s. 10, to get.
Therefore, so far as the evidence in the High Court went, it showed that the proposed appropriation of the house and 52 acres would benefit the plaintiff to the extent of about £55,000, and if the rest of the land went to the second defendant it would represent a financial benefit to him of about the same amount. This is about the same as each would get, or be credited with, if the lands were sold as a single lot. So, instead of supporting the second defendant’s claim that the appropriation would unduly benefit the plaintiff at his expense, the evidence indicates that the appropriation would amount to a partition of the lands on a fifty-fifty basis the plaintiff and the second defendant each getting landed property of approximately equal value. It is true that the personal representative’s valuations may be different from those given in evidence in the High Court, but nothing has emerged to suggest that the value of the appropriation would be appreciably more than half the value of the whole holding. In any event, the holding does not represent the whole of the estate, and the personal representative will be able to make any necessary set-off or adjustment in the accounts so as to ensure that the plaintiff will not get more than she is entitled to.
Therefore, I hold that the second defendant has not substantiated his claim that the proposed appropriation should be prohibited. Not alone does the objection to the appropriation fail but the appropriation would eminently accord with the merits of the case. If the house and all the lands were to be sold, it would mean that the plaintiff would be ousted from the matrimonial home where she has spent all her married life, and the rights of residence andsupport to which the third defendant is entitled would be put in jeopardy. If the appropriation is permitted by the Land Commission (as it requires to be), it will ensure that the plaintiff, who is widowed and without children, will not be condemned to the harsh fate of having to leave the dwelling and seek a new home. Instead of getting her share in money she will acquire the house and 52 acres, which will be a viable agricultural holding, and there will be assured to the third defendant in the terminal years of his life his rights to support and maintenance in the dwelling at the hands of the plaintiff in the manner in which those covenanted rights have been satisfactorily accorded to him up to now.
Being satisfied that the proposed apportionment will be a valid exercise of the discretion vested in the personal representative by s. 55 (provided the consent of the Land Commission pursuant to s. 12 of the Land Act, 1965, is obtained), I would dismiss this appeal. However, I would amend the order under appeal by deleting so much of it as orders the personal representative to execute the conveyance mentioned therein. In lieu thereof, I would declare that, subject to obtaining the consent of the Land Commission, the execution of the said conveyance would be a valid exercise of the powers vested in the personal representative by s. 55 of the Succession Act, 1965.
Griffin J.
I agree.
Parke J.
I agree.
O’Dwyer v. Keegan
[1997] 1 I.L.R.M. 102 Kelly J
Thomas Cummins died on 2 February 1995. His wife Kathleen was comatose at the time of his death. She died twelve hours later without regaining consciousness.
Both Thomas and Kathleen died testate. A grant of probate to Thomas’s estate was extracted on 10 January 1996. The net value of his estate was £2,408,211.14.
A grant of probate was extracted to the estate of Kathleen on 12 October 1995. The net value of her estate was £370,914.06. Thomas did not make provision for Kathleen in his will. Given the value of her estate she was obviously reasonably comfortable in her own right.
Thomas and Kathleen had no children. Kathleen did not renounce her legal right either by way of an ante-nuptial contract or in writing after marriage and during the lifetime of Thomas. Nor was she precluded from taking her appropriate share in his estate by reference to the provisions of s. 120 of the Succession Act 1965 (the Act).
Given these facts it is clear that Kathleen’s entitlements on the death of Thomas fall to be dealt with pursuant to the provisions of s. 111(1) of the Act. Indeed it is that subsection that has given rise to the instant proceedings.
The subsection provides as follows:
If the testator leaves a spouse and no children, the spouse shall have a right to one half of the estate.
I am asked to construe this subsection in the context of the facts already alluded to. On one side it is argued that upon the death of her husband, Kathleen automatically became entitled to one half of his estate and therefore when she died twelve hours later, her estate had been enhanced by having added to it one half of the estate of her late husband.
The counter argument is to the effect that s. 111(1) did not give rise to an automatic transfer of half of Thomas’s estate to Kathleen but rather created a right exercisable by Kathleen, if she so wished, to one half of the estate of Thomas. As she did not exercise that right (and indeed could not in the circumstances) her estate was not increased by the addition to it of one half of Thomas’s estate.
It was agreed at the bar that there is no decided case which is precisely on point. None of the decisions cited deal directly with the true construction of s. 111(1) of the Act. In these circumstances, I propose, in the first instance, to apply *105 the ordinary and well established canons of construction to the relevant provision.
The object of the judicial interpretation of a statute is the ascertainment of the intention of the legislature as expressed in the statute. The intention and therefore the meaning of an Act, is primarily to be sought in the words used. They must, if they are plain and unambiguous, be applied as they stand. If there is nothing to modify, alter or qualify the language which is contained in the Act, then the words and sentences must be construed in their ordinary and natural meaning.
In my view, when s. 111(1) speaks of a spouse having a right to one half of the deceased’s estate, the word ‘right’ is to be given its ordinary and natural meaning. The conferring of a right gives the recipient an interest which will be recognised and protected by law. But the recipient is free to decide whether or not to exercise such a right. Not every right need be exercised and there are circumstances where, if it is not exercised, it may be lost. It appears to me that the right which is conferred under s. 111(1) is a personal right which falls to be exercised by the surviving spouse who is the beneficiary of such right. Applying these ordinary canons of construction, there is nothing in s. 111(1) which suggests that the right which is given to the surviving spouse operates automatically in favour of that spouse regardless of his or her wishes. As with any other right, the surviving spouse may choose to exercise it or not. If he or she does not or cannot exercise the right, the benefits of it do not accrue. I have formed this view by the application of conventional rules of construction. If one adopts the more modern purposive approach to construction, the same result is achieved. I now turn to consider the subsection from that point of view.
The Succession Act 1965 brought about major changes in the law of succession in this State. Prior to its enactment, a person could deal with his property as he thought fit. The legislature was obviously of the view that some curtailment of this freedom was required in the interest of a testator’s spouse. So, Part IX of the Act contains provisions dealing with the legal right of a testator’s spouse. The section under consideration in this case gives a spouse a right to one half of the estate where the testator leaves no children. This is reduced to one third of the estate where there are children who survive the testator. But it must be borne in mind that this section has effect only in circumstances where there existed a lawful marriage between the spouses. That relationship is one of great solemnity and has been described by Costello J (as he then was) in Murray v. Ireland [1985] IR 532 at p. 536; [1985] ILRM 542 at p. 545 as:
… a partnership based on an irrevocable personal consent given by both spouses which establishes a unique and very special lifelong relationship.
This description may require some adjustment having regard to the recent *106 amendment to Article 41.3 of the Constitution. But even if, as a matter of law, marriage may not be lifelong it still retains very special and solemn characteristics.
Given the nature of that relationship, the husband and wife may well order their affairs so that perfectly adequate provision is made one for the other prior to death. In such circumstances, the surviving spouse may, having regard to personal and domestic considerations, prefer to honour the testamentary wishes of the deceased spouse even in circumstances where the survivor has been left nothing under the will. If, on the other hand, the marriage relationship has been less than ideal and the deceased failed to provide in an adequate way for the surviving spouse or chose to exclude her from the benefits of his will, she has a perfect entitlement to enforce her rights pursuant to s. 111. By construing the relevant subsection as being one which confers a personal right which is capable of being exercised by the surviving spouse at his or her discretion, the purpose of the statutory provision is achieved. The mischief which it seeks to rectify is fully addressed with minimal interference with testamentary freedom. At the same time it allows for the surviving spouse to opt either to honour the testator’s wishes or, if appropriate, to insist on her legal rights.
To accede to the argument which is made by Ms Finlay SC would mean that an automatic transfer of one half of the estate would occur even in circumstances where a surviving spouse would desire to honour the testamentary wishes of the deceased.
I am of the view that s. 111(1) did not give rise to an automatic transfer of half of Thomas’s estate to Kathleen. Rather, it created a right exercisable on her part, if she so wished, to one half of the estate of Thomas. Insofar as assistance may be gleaned from the cases which have been cited to me, I am of opinion that they are broadly supportive of this notion. I turn now to consider them.
The first case which was cited in argument was In re Urquhart: Revenue Commissioners v. Allied Irish Banks Ltd [1974] IR 197. That was a claim by the Revenue Commissioners for estate duty. The circumstances were that a wife died having bequeathed by her will a legacy to her husband on condition that he should survive her by a month. She was not survived by any children of her marriage. Her husband survived her by just one day. He died without having made an election pursuant to s. 115 of the Act so that his estate was not benefited by a legal right under s. 111(1) or by the legacy. Nevertheless, the plaintiffs claimed that a half share in his wife’s estate was property of which the husband was competent to dispose at the time of his death for the purposes of the Finance Act 1894. The plaintiffs were successful in the High Court but lost on appeal.
Reliance was placed on the judgment of Fitzgerald CJ but I derive little help from it. In the course of his judgment, Fitzgerald CJ considered the will made by the deceased. By clause 3 thereof she provided that if the husband survived her for the space of one calendar month, she gave him all her personal belongings *107 and household furnishings and effects and a sum of £15,000. Of course the husband did not survive her for the stipulated period. At p. 202 of the report, the Chief Justice said:
As the husband failed to survive the wife for the calendar month, clause 3 of her will was inoperative, and her property falls to be divided in accordance with clause 4 subject to the husband’s right, if any, arising under the provisions of the Succession Act 1965.
The plaintiffs contend that those views of the Chief Justice suggest that because the bequest by the testatrix in favour of her husband became inoperative, he was placed in the position of a person to whom no devise or bequest had been made by his spouse. In other words, they contend that he fell to be dealt with exclusively under the provisions of s. 111(1) of the Act and that no question of an election under s. 115 as between the bequest and the legal right share arose.
I do not think that the Chief Justice’s judgment can be so interpreted. The passages from his judgment at p. 204 of the report appear to me to be quite clearly dealing with the right of election under s. 115 of the Act. He said:
In my opinion, the husband’s right to establish and receive a half-share of his wife’s estate depended upon a number of factors under the Act of 1965. First, it depended upon him surviving his wife. Secondly, it depended upon him becoming aware of the fact that he had survived her. Thirdly, it depended upon the husband then deciding to claim the half-share within the time prescribed. In point of fact, he did survive his wife but he never knew it. Consequently, he was never in a position to decide whether he would elect to claim his right to half his wife’s estate or not. In those circumstances, it appears to me that he could not be deemed competent to dispose of the half-share. I am fortified in this opinion by the provisions of s. 115, subss. (4) and (5), of the Act of 1965 which specifically provide for a case where the surviving spouse is of unsound mind and, consequently, not in a position to exercise the election himself.
If the plaintiff’s argument in this regard were correct and the bequest contained at clause 3 of Mrs Urquhart’s will had been truly regarded as inoperative by the court, no question of election under s. 115 would have arisen at all. In my view, this judgment is dealing with the right of election under s. 115 of the Act and has little, if anything, to say on the question under consideration here.
In the course of his rather more extensive judgment in the same case, Walsh J reviewed many sections of the Act.
Having considered the provisions of ss. 46, 111, 113, 114 and 115 of the Act he said at p. 211:
In my opinion, the whole of this structure presupposes and is based on an *108 assumption implicit in the statute, in addition to what is expressly stated in s. 111, that a legal right arises on the moment of the death of the testator. Where there is no legacy or devise or where there is a legacy or a devise expressed to be in addition to the legal share, the legal share vests upon the death.
If what is meant by that quotation is that there is an automatic transfer of one half of the estate to the surviving spouse in circumstances to which s. 111 applies, in my view it cannot be correct. It is clear that upon death the estate of the deceased vests in the legal personal representative (see s. 10 of the Act). If however the judge meant that the right to obtain one half of the estate vested in the surviving spouse, then I am in entire agreement with him. But as I have already pointed out, the vesting of that right does not necessarily mean that it will be exercised.
Later in the same judgment, the learned judge set forth what in my view is an accurate description of the right which is given to a surviving spouse under s. 111. He said (at p. 215):
At best the legal share provided by the Act of 1965 can be described as a statutory offer which is not binding upon the surviving spouse until it is accepted.
To my mind, that is precisely what the legal right under s. 111 amounts to. To look at it in this light means that the objects of the statute are achieved whilst at the same time maintaining freedom on the part of the surviving spouse to abide by the wishes of the deceased if she so desires.
This view of the legal right created under s. 111 is also consistent with the provisions of s. 113 of the Act. Under that section, the legal right of a spouse may be renounced in an ante-nuptial contract made in writing between the parties to an intended marriage or may be renounced in writing by the spouse after marriage and during the lifetime of the testator. That is strongly suggestive of the view that the right is a personal one to be enjoyed by the surviving spouse. If that spouse is competent to renounce that right during the lifetime of the testator, why, subsequent thereto, should she be denied an entitlement to bring about the same result in circumstances where she may wish to honour the testamentary wishes of her deceased spouse?
The construction which I have placed upon s. 111(1) also appears to me to be consistent with the provisions of s. 115. There, a right of election is given to the spouse either to take under a devise or bequest or the legal right. Again, it is a matter of personal choice insofar as the surviving spouse is concerned.
In Reilly v. McEntee [1984] ILRM 572 at pp. 575–576, Murphy J said of this section:
There is no doubt but that the right of election may be in this and other cases a *109 very valuable right. It may enable a surviving spouse to exchange a nominal testamentary benefit for a moiety of a substantial estate. But it is not the value of this right which is in issue. It is the identity of the person by whom it is exercisable. The statute confers it on the surviving spouse and no reference has been made to any provision in the Act or any other authority which would justify the proposition that the right so conferred may be extended or transmitted to any other person.
Counsel on behalf of the defendants have argued, in my view correctly, that the purpose and intent of the legislation is to give to the surviving spouse a personal discretion as to whether he or she would take under the will or under the Act. In exercising that discretion, the surviving spouse will, or so the argument goes, have regard to personal and domestic considerations which would influence and perhaps determine the decision to be taken. In some cases no doubt a surviving spouse will prefer to honour the testamentary wishes of the deceased spouse even though this may entail considerable financial loss. On the other hand the exercise of a right of election by somebody who is not a spouse and not otherwise related to the deceased would be based on different considerations: presumably the hypothetical outsider would be guided largely if not exclusively by financial considerations. It was contended that the testamentary dispositions should be upset only at the behest of the surviving spouse and that the legislation was properly expressed to achieve this purpose.
In my view the argument made by the defendants aforesaid is correct. No authority was opened in support of either contention but perhaps some support for the defendants’ argument can be gleaned from the decision of the Supreme Court in the Urquhart case to this extent. If the right to elect was, as the plaintiff argues, a chose in action capable of passing on death then that chose in action itself would have been liable for estate duty so that presumably it was accepted by the parties to the Urquhart case and by implication by the court itself that the right of election did not survive the death of the spouse in whom it had vested. In those circumstances it seems to me that the plaintiff is not entitled to the relief claimed.
Although in that case, Murphy J was primarily considering the right of election conferred under s. 115, nonetheless, some of his observations appear to me to be apposite in considering the nature of the right which is conferred under s. 111. It is supportive, in my view, of the construction which I have placed upon it.
There remains the argument which is put forward by Ms Finlay to the effect that because the Act lays down in s. 115 a scheme to deal with the right of election and no such scheme is set forth in s. 111, her interpretation is to be preferred. I do not think that this point is determinative of the issue at all. S. 115 creates an express entitlement to elect. Consequently, machinery was put in place to enable *110 that to be done. S. 111 creates a right exercisable by the surviving spouse. But the legislature did not go on to provide any particular machinery in relation to its exercise. In such circumstances, the legal personal representatives have, as part of their general obligation of administering the estate, to deal with the matter without express statutory machinery. This fact does not appear to me to produce a result different to the views which I have already expressed.
There is one further point which appears to me to lean in favour of the construction which I have placed upon s. 111. In the case of an intestate, a surviving spouse with no issue takes the whole estate. The language used in s. 67(1) is in the following terms:
If an intestate dies leaving a spouse and no issue, the spouse shall take the whole estate.
It is to be noted that the section does not speak of the surviving spouse having a right to take the whole estate. Rather it provides that the surviving spouse ‘shall take the whole estate’. Similar mandatory language is used in respect of an intestate who dies leaving a spouse and issue. Had the legislature wished to produce the result which is contended for by Ms Finlay, similar language might have been used in relation to s. 111. It did not do so.
Re Cummins; O’Dwyer v. Keegan
[1997] 2 I.L.R.M. 401 Barron J
Thomas Cummins and Kathleen Cummins in the title hereof were husband and wife. Thomas Cummins died on 2 February 1995. At the time of his death his wife was in a coma. She died later on the same day without having regained consciousness and without becoming aware that her husband had died. The couple had no children. They both died testate. The wife left a substantial estate, its net value being £370,914.06. That of the husband was considerably greater, amounting to £2,408,211.14.
Since her husband made no provision for his wife by his will, the question arose as to what interest, if any, Kathleen Cummins acquired in her husband’s estate under the provisions of Part IX of the Succession Act 1965 by reason of his death before hers. She had not renounced her rights under that part in accordance with the provisions of s. 113 nor had she been disentitled to succeed by virtue of the provisions of Part X of the Act.
A residuary legatee of her estate claimed that her estate included the legal right under s. 111 of the Act. Accordingly, her executors commenced these proceedings in which they sought the determination of the following question: *403
Whether by virtue of the death of her husband Thomas Cummins, Kathleen Cummins acquired a half share in the estate of her husband.
This appeal raises a net issue, whether the right given by s. 111 of the Succession Act 1965 creates an interest in the property comprising the appropriate share in the estate of a deceased or merely a right personal to the widowed spouse to elect to take such interest. Part IX of the Act gives to a widowed spouse a right to share in the estate of the deceased spouse notwithstanding testamentary disposition to the contrary. S. 109 provides as follows:
(1) Where, after the commencement of this Act, a person dies wholly or partly testate leaving a spouse or children or both spouse and children, the provisions of this part shall have effect.
S. 111 is as follows:
(1) If the testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate.
(2) If the testator leaves a spouse and children, the spouse shall have a right to one-third of the estate.
The question which arises is as to the meaning to be given to the words ‘shall have a right to’. It is not just a question of construing the word ‘right’ in the context in which it is used because in s. 112‘the right of a spouse under s. 111 is to be known as a “legal right”.’ This expression is defined in s. 3 of the Act as meaning ‘the right of a spouse under s. 111 to a share in the estate of a deceased person’. ‘Share’ in relation to the estate of a deceased is also defined in s. 3 to include ‘any share or interest, whether arising under a will, on intestacy or as a legal right, and includes also the right to the whole estate’.
From these definitions, two matters are clear. First, the surviving spouse has a right to a share in the estate, and secondly, this right has the same quality as an interest arising under a will or a share arising on intestacy. The two latter interests vest on death. In my view, the former does so also.
A similar view has been expressed by Walsh J in In re Urquhart [1974] IR 197 at p. 211. Having considered several sections in Part IX of the Act he continued:
In my opinion, the whole of this structure presupposes and is based on an assumption implicit in the statute, in addition to what is expressly stated in s. 111, that a legal right arises on the moment of the death of the testator. Where there is no legacy or devise or where there is a legacy or a devise expressed to be in addition to the legal share, the legal share vests upon the death. But when *404 a testator in his will makes a devise or bequest to a spouse and it is not expressed to be in addition to the share as a legal right, then the spouse has a statutory right to take the share as a legal right — but that share does not vest until he takes it. If the spouse does not take the share as a legal right, then the legacy or devise under the will which vested in the spouse at the death of the testator will remain vested in the spouse without his taking any step in relation to it. The spouse can never have both.
In In re Urquhart a husband survived his wife by a day and the question which arose was whether or not the legal right arising on the death of the wife became part of the husband’s estate. In that case a legacy had been left to the husband in the wife’s will but had lapsed because the husband had not survived her by the time prescribed by the will. Accordingly, the question of election under the provisions of s. 115 arose as did also the question of tax law as to whether or not a husband was competent to dispose of the particular interest. These considerations do not arise in the present case and it seems to me that the appropriate statement to take from the judgments in that case is that to which I have referred and which relates to a construction of Part IX in general.
Even if I did not take the view as to the proper construction of the section from the provisions to which I have referred it seems to me that the absence of any procedure whereby the surviving spouse could be notified of the right and given the opportunity to exercise it would have been fatal to the plaintiffs’ contentions.
It is true that the interest of a spouse on intestacy is expressed in different terms. But the concept of the legal right deals with an estate all or part of which may have been left by will away from the spouse. This requires special treatment and is particularly recognised by the provisions of s. 112 which give priority to the interest of the spouse over those created by the will.
In my view it is not appropriate to submit that to construe s. 111 as creating a vested interest is to frustrate the intentions of either or both of the deceased and the surviving spouse. The situation in the instant case arises through misfortune, but the legal result is not so dependent. It must be presumed that in the absence of a renunciation under s. 113 that both spouses realised that the survivor of them would be entitled to the legal right and, even accepting that this was an interest conditional on acceptance, so could distribute the relevant assets as he or she wished. It is important that the law should be certain so that those who rely upon it when they make their wills should be in no doubt as to how their assets will be distributed not only in expected circumstances but in unexpected circumstances also.
There will be an order allowing the appeal, and the question posed in the special summons will be answered in the affirmative.
In these circumstances, I accordingly answer the question posed in the way in which I have set forth in this judgment.
In Sarah Gunning v Eileen Gunning Hameed,
unreported, High Court, Smyth J., July 31, 2003
James Gunning, late of Chrysanthemum Cottage, Blackline in the County of Wicklow (hereinafter referred to as “the Deceased”) made his last will and testament dated 25th June 1982 whereby he left half of his estate to the plaintiff his (widow/wife) and the other half of his estate between his two daughters – the defendant (his executrix) and her sister Mary. The deceased died on the 10th October 1984 and Probate of his will issued to the defendant/executrix on 3rd September 1985. At that time the defendant/executrix was advised by a firm of solicitors. The deceased’s gross estate amounted to the sum of £39,449.84 and the net value thereof amounted to £38,674.84 as certified by the affidavit of Inland Revenue (which was not before the court). It is undisputed that the defendant in her capacity as executrix paid to the plaintiff the sum of £12000 and to her sister Mary £8000 and in the course of the hearing she stated she paid herself the sum of £8000. No executrix’s account appears to have been furnished to the beneficiaries under the will nor is such exhibited in the affidavits filed in this case.
Central to the issue to be determined by the court is the premises Chrysanthemum Cottage, earlier referred to, in which the deceased and his wife lived for many years (from 1948 onwards) and where they brought up their two daughters, the defendant and her sister Mary. The premises it would appear were the subject of a lease for fifty years from 1935, which expired a short time (1st November 1984) after the death of the deceased. As at the date of the deceased in 1984 the plaintiff was in occupation and possession of the premises. The plaintiff avers that from the date of death of her husband – the deceased until in or about the year 1990 the plaintiff resided on her own in the premises and that during that interval of approximately 5 years the defendant resided in Saudi Arabia and in fact married there. In that interval the plaintiff and her husband came to live in Ireland and frequently stayed with the plaintiff in the premises. Events tangential to these proceedings brought the defendant and her daughter to reside with the Plaintiff in the premises. After some years, relations between the plaintiff and the defendant deteriorated to such an extent that the plaintiff considered she could no longer live in the same house as the defendant. The defendant had no other home for herself and her daughter in which to live and made it clear to the plaintiff that she would not leave the premises. In November 1999 things had come to such a pass that notwithstanding that the premises were the plaintiff’s home she moved out to live with her other daughter Mary. The plaintiff avers that “it is my very strong wish” to return to the premises. How much reality there is in this is open to serious question – not only in the light of the ill health and hospitalisation referred to in the documentation but of the arrival in court of the plaintiff in a wheelchair (manoeuvred by another person whom I took to be her daughter Mary) and bearing support sticks.
Notwithstanding that there was a short unexpired term of a lease as at the date of death of the deceased – it was an asset with all its advantages and disadvantages. It was part of the estate of the deceased and the defendant in her Oath of Executrix had sworn to administer the estate in accordance with law. Under s.10 (3) of the Succession Act 1965 – “the personal representatives shall be representatives of the deceased in regard to his real and personal estate and shall hold the estate as trustees for the persons by law entitled thereto”.
The primary obligation of any trustee is to protect in advance the interests of the beneficiaries. The case of Cowan v Scargill (1985) Ch 270 is the relevant legal authority supportive of this general proposition. Therein Megarry, VC stated that:-
“The starting point is the duty of trustees to exercise their powers in the best interests of the present and future beneficiaries of the trust, holding the scales impartially between different classes of beneficiaries. This duty of the trustees towards the beneficiaries is paramount. They must, of course, obey the law; but subject to that, they must put the interest of their beneficiaries first. When the purpose of the trust is to provide financial benefits for the beneficiaries, as is usually the case, the best interest of the beneficiaries are normally the best financial interest.
Further the Vice Chancellor proceeded to observe as follows:-
“Powers must be exercised fairly and honestly for the purposes for which they were given and not so as to accomplish any ulterior purpose, whether for the benefit of the trustees or otherwise; see Duke of Portland v Topham [1864] 11 HL Cas 32, a case on a power of appointment that must apply a fortiori to a power given to trustees as such will stop”.
The will of the deceased provided (inter ala) is as follows:-
“I give, devise and bequeath onto my wife Sarah Gunning a half interest in all my property, both real and personal of which I die pocessed.”
Furthermore the provisions of Section 56 (1) of the Act of 1965 provides as follows:-
“Where the estate of a deceased person includes a dwelling in which, at the time of the deceased death, the surviving spouse was ordinarily resident, the surviving spouse may, subject to subsection (5), require the personal representatives in writing to appropriate the dwelling under section 55 in or towards satisfaction of any share of the surviving spouse.” The provisions of subsection (5) limit the period in which the surviving spouse may elect to appropriate. It expressly provides as following:-
“A right conferred by this section shall not be exercisable-
a) After the expiration of six months from the receipt of the surviving spouse of such notification of one year from the first taking out of representation of the deceased’s estate, whichever is the later.”
There is no evidence that the plaintiff/widow was ever given or served with notice. In my judgment the rights of the surviving spouse do not cease by mere effluction of time (i.e. the twelve month period) from the date of the grant, because the duty still remains on the personal representative to give notice in writing to the surviving spouse. The failure to give such notice in writing to the surviving spouse after the extraction of the grant of probate (in the instant case) means that such surviving spouse rights remain until the notice is served and more than six months have elapsed form the receipt of such notice. The powers of a personal representative as to appropriation under s. 55 (2) of the Succession Act are specifically delimited by cases to which s.56 of the Act applies.
Notwithstanding the non-observance of the provisions of the act of 1965 two unsuccessful attempts were made in the Land Registry to affect registration by way of adverse possession, the first in 1998 in the names of both plaintiff defendant and in 2002 in the name of the plaintiff only under S. 49 of the registration of titles act 1964. In the events for a range of reasons both applications were abandoned.
Proceedings between the parties hereto were taken on the Eastern Circuit, County of Wicklow, record no. 154/2001, which did not resolve the fundamental issues still outstanding in these proceedings, notwithstanding being proceedings by way of ejectment on the title. The parties in these proceedings did acknowledge that in his ruling His Hon. Judge O’Hagan stated that if the defendant Eileen Gunning entered into possession of the premises “she did so in a trustee capacity”. Her capacity as trustee is consistent with (if it be the case) her duty as the personal representative of the deceased that is governed by s.10 (3) of the Succession Act earlier referred to herein.
The evidence establishes that notwithstanding the conduct of the Circuit Court proceedings the defendant unknown to the plaintiff and undisclosed to the Circuit Court judge set in train a line of enquiry as to the successors in title to the freehold to the premises or the leaseholders to Patrick Gunning, father of James Gunning (the deceased) and without any reference to either the plaintiff or her sisters – both with herself beneficiaries under the will of the deceased, and sought to acquire for her own benefit to be registered as the sole owner of the premises in the Land Registry. Altogether from being mindful of her duties to the court to carry out her duties as executrix in accordance with law, the plaintiff (who is this action has appeared as a personal litigant) has sought to rely on s.126 of the Succession Act which sets out a six year limitation period for actions in respect of estates of deceased persons. This period might have had some significance if the defendant had served the plaintiff with notices provided for under s. 56(1), but as that was not done time has not begun to run against the plaintiff. Likewise the plaintiff has not observed her duties as a trustee such as I have already indicated by the extract from the case of Cowan v Scargill earlier referred to.
The Supreme Court in Dunne v Heffernan [1997] 3 I.R. 431 has held that “once an executor has been appointed, and proven a will and had thus accepted the duty of administrating a testator’s estates, her or she could be removed pursuant to s. 26, subsection 2 of the Act of 1965 only if there were serious grounds or weighty reasons for overruling the wishes of the testator. 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 appointment of a new executor pursuant to s. 27 subsection 4 of the Act of 1965 was not justified merely because one of the beneficiaries felt frustrated or excluded from her legitimate concerns.
In the instant case the dislike of the sisters for each other for a variety of reasons is nihil ad rem: what is very much ad rem is the failure of the defendant to notify the plaintiff under s. 56 (1) and more importantly to seek to acquire and have herself registered in respect of an interest that is primarily that of the plaintiff.
In Flood v Flood [1999] 2 IR 234 it was noted that “although the court would be reluctant to take steps which might have the effect of depleting the value of the estate, the issues between the parties regarding the monies in question, in that case, constituted sufficiently serious circumstances which justified the removal of the defendant from his position as executor.”
In the instant case the defendant’s intention to have herself registered as owner of the premises is in complete conflict with her role as executrix. In my judgment it is a very necessary and serious step to take to remove the defendant from her role – but on the evidence I am satisfied that it must be done. It is the only way in which this matter can be dealt with properly and impartially.
Accordingly, the defendant will cease to be as from this judgment as executrix to the estate of the deceased; the court hereby recalls and cancels the grant of probate of 3rd September 1985 handed into court during the course of the hearing; and pursuant to s. 27(4) of the Succession Act 1965 appoints Brian Sherry, Solicitor. Palmerstown Avenue, Palmerstown, Dublin 20 to be administrator of the estate of the deceased.
Cases Disqualification
A.B. v J.B. and M.B.
[1991] 2 IR 501, Blayney J
This case is concerned with a net issue: whether the plaintiff, who is the widow of W.B. deceased (hereinafter referred to as “the deceased”), is precluded by s. 120, sub-s. 2 of the Succession Act, 1965, from taking any share in the deceased’s estate as a legal right on the ground that she was guilty of desertion which continued up to the deceased’s death for more than two years.
The relevant provision of s. 120, sub-s. 2 is as follows:
“. . . a spouse guilty of desertion which has continued up to the death for two years or more shall be precluded from taking any share in the estate of the deceased as a legal right or on intestacy.”
The plaintiff, who was born on the 16th July, 1925, was married twice. Her first husband, P. McN., by whom she had eight children, died in 1959. She married the deceased, who had not previously been married, on the 2nd June, 1973. There were no children of their marriage.
At the time of her second marriage, the plaintiff was living in County D., with her children, the eldest of whom at that time was 23 and the youngest 11. The deceased was living about a half mile away on his farm in the townland of Dn. with his aunt H. and his brothers H. and J.
After the wedding, and a week’s honeymoon, the deceased continued to live in Dn. but he spent two or three nights every week with the plaintiff in her house in Dk. That was the plaintiff’s evidence. The deceased’s brother J. said that it was four nights every week, rather than two or three. The difference between the two versions is of little importance. Both agree that in effect the deceased continued to live at home but that he spent a few nights every week with the plaintiff.
After four years, during which this continued to be the position, a house on the deceased’s farm, known as E. G.’s, became vacant, and in 1977 the plaintiff and the deceased moved into it. Before they moved in, the deceased did up the house and had water laid on. The house had a kitchen and two bedrooms and according to the deceased’s brother J. was a much nicer house than their own, which was very close to it.
When they first moved in, the plaintiff brought her youngest son J.J. with her. He was then aged 15. But the deceased objected to his being with them and J.J. went back to live in Dk.
From the time they moved into E.G.’s, the deceased slept there every night but would leave early in the morning, more often than not without having had breakfast, and he spent the day working on the farm. He took all his meals with his brothers and only returned to E.G.’s late at night. The plaintiff said he came home at bedtime – between 11 o’clock and midnight. The only break in this routine, and this was the plaintiff’s evidence, was that they went out to a public-house together on an odd Sunday night. According to J.B. the plaintiff often went out at night on her own and the deceased would join her when she got back.
In 1978 the plaintiff began to spend most of the day at her own house in Dk. She said that after she had had breakfast she would clear up and when she had finished she would go to her own house and spend the rest of the day there.
In 1982 the plaintiff left E.G.’s and went back to Dk. and she has lived there ever since. The deceased died on the 14th September, 1987. At that time the parties had been living separately for about five years. The deceased never went to visit the plaintiff after she left.
The plaintiff gave as her reason for leaving that she had got fed up; that she had been getting only the same money from the deceased as at the beginning of their marriage. Her evidence was that from the start of their marriage the deceased would give her a fiver a week or £10 every fortnight. In cross-examination she said she left E.G.’s because the deceased was not supporting her and she denied that there was any other reason. But she agreed that she asked the deceased for money whenever she required it and when she did he would give her £5 or £10. She also said that if the deceased had moved into E.G.’s – meaning no doubt that if the deceased had taken all his meals in the house and spent his evenings there – she would have moved happily in with him. She also said that if the deceased had made a home in E.G.’s she would have been very happy. The plaintiff agreed that when she left she took some of the furniture with her.
J.B. said that he did not believe the plaintiff’s evidence about how much money the deceased gave her. He said his brother was very generous and that any time
she would want money he would give it to her. He said that the deceased had bought a car and that the plaintiff’s son P. drove them around in it.
The deceased stayed on in E.G.’s for about six months after the plaintiff had left. According to J. B. he did this thinking that the plaintiff might return.
The plaintiff said she visited the deceased twice in his own house after she left, and once in hospital a year before his death. On that occasion she had asked the deceased to come to live with her at Dk. and he had refused.
M.B., a sister-in-law of the deceased, being married to the deceased’s brother M., said in evidence that after the death of the deceased’s brother H. in 1982 she had said to the plaintiff: “Why not go back to W?” and the plaintiff had replied that she’d never go back there and that anyway she was alright, she’d have whatever was going because she was his wife. When the plaintiff was asked if she remembered M.B. asking her why she did not go back she said that M.B. had never asked her that. And she denied that she said what M.B. claimed she had said.
The deceased’s aunt H. died in 1978 and his brother H. in October, 1982, so from then on the only person living with the deceased in Dn. was his brother J. The deceased made his last will on the 21st July, 1983, and probate was granted to the defendants, the sole executors named in his will, on the 12th February, 1988. The deceased left his home farm to his brother J. and the farm known as E.G.’s to his nephew W.B., son of his brother M. He left all his stock and crop to his brothers J. and M. equally and the residue of his estate in trust for M.’s children. He gave a legacy of £1,000 to P. McN., one of the plaintiff’s sons. He dealt with the plaintiff in his will as follows:
“The provisions of the Succession Act have been explained to me and I say and believe my wife A.B. has for some years deserted me but notwithstanding this desertion I leave and bequeath to her the sum of £3,000 provided that this legacy shall stand forfeited and completely revoked in the event of my wife making any attempt to claim any part of my estate.”
Counsel for the executors accepted that the onus of proof was on his clients to prove that the plaintiff had been guilty of desertion. He did not rely on what the deceased had stated in his will though he submitted that it was a circumstance to be taken into account if desertion was in fact established. His main submission was that in order to prove desertion four matters had to be established, and that this had been done. The four matters were:
(a) the factual separation of the spouses,
(b) absence of consent to live apart,
(c) an intention to desert, and
(d) absence of just cause for leaving.
Counsel for the plaintiff submitted that what the deceased had stated in his will should be ignored. It was inadmissible under the hearsay rule and could not be evidence of the truth of the facts referred to. His main submission was that no family home had ever been set up and that because of this it was not possible for the plaintiff to be guilty of desertion. He accepted that there had been a factual separation but contended that from the beginning the deceased had consented to the plaintiff living apart; that the intention to desert had not been established, and that there had been serious misconduct on the part of the deceased which gave the plaintiff just cause for leaving.
I now turn to consider the law. In Frowd v. Frowd [1904] P. 177, Jeune P. said in his judgment at page 179:
“Desertion means the cessation of cohabitation brought about by the fault or act of one of the parties. Therefore, the conduct of the parties must be considered. If there is good cause or reasonable excuse, it seems to me there is no desertion at all in law.”
The corollary of this statement of the law is that if the party who brings about the cessation of cohabitation did not have any good cause or reasonable excuse, he or she will be guilty of desertion. What may constitute good cause or reasonable excuse was considered by Barrington J. in P. v. P. (Unreported, High Court, Barrington J., 12th March, 1980) when he dealt with what would be just cause for leaving the matrimonial home. He said in his judgment at p. 6 of the transcript:
“To establish ‘just cause’ for leaving the matrimonial home the partner who has left must establish some form of serious misconduct on the part of the other partner. Such conduct must, as Lord Asquith said:
‘. . . exceed in gravity such behaviour, vexatious and trying though it may be, as every spouse bargains to endure when accepting the other ‘for better or worse.’ The ordinary wear and tear of conjugal life does not in itself suffice’.” ( Buchler v. Buchler [1947] P. 25 at page 45.)
And in Postlethwaite v. Postlethwaite [1957] P. 193 Willmer J. said at p. 196:
“To constitute just cause for one spouse living apart from the other spouse there must be a grave and weighty matter, i.e., conduct of such a kind as, in effect, makes the continuance of married life together impossible.”
The question that I have to consider is whether, applying these principles to the particular circumstances of this case, the plaintiff had just cause for leaving the deceased.
I start by making what it seems to me are the necessary findings of fact. I do not accept that the plaintiff left the deceased for the reason that she gave in evidence, namely, that he was not supporting her. This is inconsistent with her evidence that if the deceased had made a home in E.G.’s she would have been very happy. By this I am satisfied that she meant that if the deceased had all his meals in their house, and had spent his evenings with her, instead of with his brothers, she would have been perfectly happy. The plaintiff said that she had asked the deceased to come and live properly with her and he would not. In my opinion it was because of his refusal to do this that she left and went back to Dk. Did the deceased’s refusal to spend more time with the plaintiff give her just cause for leaving? In my opinion it did not. While the deceased’s conduct was clearly a failure on his part to satisfy one of the normal expectations which a wife is entitled to entertain, namely, that she should enjoy her husband’s company whenever he was not obliged to absent himself for reasons of work, and making due allowances for his right to use some of his spare time independently of her, it seems to me that this failure could not amount to serious misconduct. And it certainly was not conduct of such a kind as made the continuance of married life together impossible. There is no doubt that the plaintiff could have continued to live in E.G.’s with the deceased in the same way as they had from the time they moved in there in 1977. She could have spent most of the day in her own house in Dk. with such of her children as were still living there, and returned to E.G.’s to spend the night with the deceased. But clearly this pattern of life did not appeal to her and so she left. It is understandable that she should have, but that is not sufficient to constitute just cause. As Barrington J. said in P. v. P. (Unreported, High Court, Barrington J., 12th March, 1980) at p. 6 of the transcript:
“When parties marry, they marry for better or for worse. This, as I understand it, includes accepting quirks and difficulties in the character of the other marriage partner.”
The deceased’s quirk was his attachment to his farm and to his brothers. A not surprising quirk perhaps in a man who had been a bachelor until the age of 50. But obviously one that was hurtful and displeasing to the plaintiff. However, it was something that she had to accept. It did not give her just cause for leaving.
The plaintiff’s submission that the deceased had never provided the plaintiff with a family home, and that accordingly she could not have deserted him is not in my opinion well founded. I am satisfied that E.G.’s was the family home of the couple. But, apart from this, desertion can take place even where there is no family home. In Wells v. Wells [1940] N.I. 88 the husband and wife separated immediately after their marriage and never cohabited. The wife’s parents were willing that the spouses should live together in the wife’s parents’ house where there was sufficient accommodation for them; the wife was anxious that they should do so, and asked the husband to live with her there, but he never agreed to do so, and never did so. It was held by Andrews L.C.J. that he was guilty of desertion. He said in the course of his judgment at page 89:
“It is clear that there was no cohabitation between the parties subsequent to their marriage, but in my opinion this is not conclusive against the establishment of desertion.”
Having considered some cases which at first sight appeared to conflict with his view, he continued at p. 90 of the report:
“The view which I have expressed regarding these decisions was taken by Sir Francis Jeune in De Laubenque v. De Laubenque [1899] P. 42, where, though no cohabitation had followed the marriage, yet desertion was held to have been established by the evidence of the wife who said that she was always willing to live with her husband and did not consent to his living apart.”
I am satisfied that the parties did cohabit in E.G.’s but even if it were held that this was not the case that would not preclude desertion being established.
The plaintiff’s submissions that the deceased consented to the plaintiff leaving, and that it was not established that she had any intention to desert, are also in my opinion unfounded. It was suggested that the deceased from the beginning had consented to the plaintiff living apart. That may have been so before they moved into E.G.’s, but it clearly was no longer the case once they had gone to live there. As to whether there was evidence of an intention on the part of the plaintiff to desert, I think that this can clearly be inferred from the fact that she left without telling the deceased and took some of the furniture with her. And the subsequent facts confirmed that she must have had such an intention. She never went back and she never offered to go back. When she went to see the deceased in hospital a year before his death, she did not offer to go back to E.G.’s. Her offer was to take him to her own house in Dk. I think it is probable also that the conversation sworn to by M.B. did take place. But even if it had not, the way in which she left and the fact that she never went back or offered to go back, even though living only half a mile away, is consistent only with an intention to leave permanently.
For the reasons I have given I am satisfied that the plaintiff was guilty of desertion that continued up to the death of the deceased for more than two years, and that she is accordingly precluded from taking any share in the estate of the deceased as a legal right.
Patrick Nevin and Margaret Lavelle v Catherine Nevin
60/17
Supreme Court
7 February 2019
unreported
[2019] IESC 6
Ms. Justice Iseult O’Malley
February 07, 2019
JUDGMENT
Introduction
1. This appeal concerns the admissibility of a criminal conviction for murder in civil proceedings subsequently brought against the person convicted of that murder. The proceedings here relate to the succession rights of Mrs. Catherine Nevin, who was convicted in April 2000 of murdering her husband Mr. Thomas Nevin. She was also convicted of soliciting three men to murder him. The family members of the late Mr. Nevin (“the plaintiffs”) seek, in effect, to establish that she (and now, following her own death, her estate) is debarred from inheriting any part of Mr. Nevin’s estate. The issue of admissibility arises in the context of a motion seeking a ruling brought by the plaintiffs in advance of the substantive hearing. While the claim against the defendant is framed in terms of both common law principles and the provisions of s.120 of the Succession Act 1965, the issue before the Court relates only to the question of the applicable common law rules.
2. The proceedings were initiated by Mr. Nevin’s mother, the late Mrs. Nora Nevin, in 1998. After her death in September 1999, the two siblings of Mr. Nevin now named in the title were joined as plaintiffs. Mrs. Catherine Nevin died while the appeal was awaiting a hearing before this court, and the persons named in the title are her personal representatives. For the avoidance of confusion, I will continue to refer to her as the defendant.
3. Both the High Court and the Court of Appeal held that the conviction was admissible evidence in the proceedings. In its determination dated 31st July, 2017 this Court granted leave to appeal in relation to issues identified by it as being of concern – specifically: whether a motion of this type was appropriate in the circumstances; whether the effect of the Court of Appeal judgment was to compel the plaintiffs to prove a matter of public record, or to compel the defendant to seek to impugn her conviction; whether it would be an abuse of process for the defendant to mount what could be seen as a collateral attack on her conviction; and whether the decision in Hollington v. F. Hewthorn & Co. [1943] KB 587 represents the law in Ireland.
4. The plaintiffs’ position is: that they were entitled to bring the application in order to seek the guidance of the Court and that the defendant did not raise any issue on the substantive appropriateness of the motion; that the decision in Hollington v. Hewthorn. to the effect that a criminal conviction is inadmissible in subsequent civil proceedings is wrong and is not the law in this jurisdiction; that the conviction is prima facie (rather than conclusive) evidence that the defendant committed murder; and that, therefore, it would not be an abuse of process for her to challenge that evidence in the civil proceedings.
5. No criticism was made of the motion by the defendant in the High Court or the Court of Appeal (although there was an unsuccessful attempt to prevent the High Court hearing from going ahead on the date fixed). However, in response to the terms of the determination, a submission has been made that it was not appropriate. This is made mainly on the basis of the defence lodged, which denies guilt of the murder. It is argued that, should the Court rule that the conviction amounts to prima facie evidence, the application will not result in any saving of court time or costs because the plaintiffs will still be obliged to prove the case in full. The plaintiffs have not particularised any evidential difficulties that would be resolved by proof of the conviction. It is also argued that the case is likely to turn on the provisions of the statute rather than on common law principles, but the question of the proper construction of s.120 of the Succession Act 1965 is not encompassed in the motion.
6. The defendant submits that, no matter what criticism may be made of it, Hollington v Hewthorn represents the law in this jurisdiction. Although it is of persuasive authority only in this jurisdiction, the Oireachtas would have been aware of it when enacting the Succession Act in 1965.
Background facts
7. Mr. Thomas Nevin was murdered on the 19th March, 1996. At the time of his death he was married to the defendant. There were no children in the marriage and he died intestate. The defendant was arrested and charged with the murder, and solicitation of the murder, in April 1997. The plenary proceedings were commenced by the mother of Mr. Nevin in November 1997 but did not progress, pending the final determination of the criminal trial process. The reliefs sought in the proceedings are as follows:-
(a) a declaration that the defendant is disinherited at common law from taking any share in the estate of the deceased;
(b) a declaration that by virtue of s.120 of the Succession Act 1965 the defendant is precluded from taking any share either as a legal right or otherwise in the estate of the deceased;
(c) a declaration that the defendant is not entitled to any share in the public house premises known as Jack White’s Inn, Brittas Bay, Co. Wicklow or to any other assets of the deceased;
(d) damages pursuant to the Civil Liability Act 1961 against the defendant for the wrongful death of the deceased;
(e) a declaration that the said licensed premises and other assets form part of the estate of the deceased;
(f) a declaration that the plaintiff is the sole person entitled to share in the deceased’s estate;
(g) an order pursuant to s.27(4) of the Succession Act 1965 appointing the plaintiff personal representative of the estate of Thomas Nevin deceased;
(h) an injunction restraining the defendant from disposing of any assets of the deceased or any part of the said licensed premises or other assets.
8. It is important to stress that the plaintiffs’ claim is, accordingly, based both on common law and on statute. The statutory basis for the claim that the defendant was precluded from inheriting is set out in s.120(1) of the Succession Act 1965. That section provides as follows:-
“A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under section 117.”
9. It is also important to note s.120(4), as amended, which provides:-
“ A person who has been found guilty of an offence against the deceased, or against the spouse or civil partner or any child of the deceased (including a child adopted under the Adoption Acts, 1952 and 1964, and a person to whom the deceased was in loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, shall be precluded from taking any share in the estate as a legal right or from making an application under section 117.”
10. The defendant was ultimately convicted of murder, and of the three counts of soliciting to murder, in April 2000. She continued at all times to maintain her innocence. Her conviction was affirmed by the Court of Criminal Appeal in March 2003, and that Court refused to grant a certificate of leave to appeal to the Supreme Court. An application brought to the European Court of Human Rights was rejected in 2003. An application to have her conviction declared a miscarriage of justice (on the basis of a claim that new or additional information had come to light) was rejected by the Court of Criminal Appeal in November 2010. A further application was then brought for a certificate granting leave to this Court. This was struck out, in the absence of submissions being filed, in December 2012. It appears that an application for leave to re-enter was lodged in February 2013 (shortly before the hearing of this motion) and was refused.
11. This motion, seeking a ruling as to the admissibility, “in civil proceedings”, of the evidence of the murder conviction, ultimately came on for hearing before Kearns P., who delivered judgment in March 2013 (see Nevin and Lavelle v Nevin [2013] IEHC 80).
The High Court Judgment
12. Kearns P. described the issues before the Court as being, firstly, whether a criminal conviction for murder was admissible in a later civil proceeding brought against a person convicted of that murder; and secondly, if so, whether it was conclusive evidence of such murder, or prima facie evidence only. If the latter, it would be open to a defendant to argue that he or she should not have been convicted of the murder. However, as noted by Kearns P., the plaintiffs in this case did not contend that the conviction, if admitted, amounted to conclusive evidence.
13. Kearns P. first considered the statutory position under the Succession Act 1965. He noted the difference in wording between the two subsections set out above, with what he described as the “extraordinary omission” from s.120(1) of a reference to a “finding” of guilt. He saw no rational explanation for this, given that such a finding was required in respect of the lesser offences referred to in s. 120(4), and given that a finding of guilt was a concept appropriate to the criminal, rather than civil, process. In his conclusion on this aspect he said.:-
“One is left not knowing what the section is to mean, unless one supplies the word ‘found’ to subsection (1) where in the text it does not appear. In those circumstances of uncertainty, and given that the section is undoubtedly punitive and conclusive in both nature and effect, its terms must clearly be subject to rules of strict construction in favour of the person against whom it is sought to enforce it.
It seems to me the defendant must be the beneficiary of this ambiguity so I am satisfied that the issue before the Court cannot be resolved by reference to the specific provisions of section 120(1). I am satisfied that, as presently worded, the section cannot be invoked in aid by the plaintiffs to determine the issue in the conclusive way provided for by its terms. Indeed counsel for the plaintiffs, in arguing only that the criminal conviction is admissible as prima facie evidence in the civil case, implicitly accepts that this is the correct approach. It seems to me that s.120 (1) only goes so far as to be declaratory of a public policy which is that the perpetrator of the crime of murder should not be its beneficiary.”
14. Turning to the common law position, the President carried out a detailed examination of the case law and ultimately arrived at the conclusion that the conviction of the appellant for the murder of her husband should be admissible as prima facie evidence of the fact that she committed the murder. This view was based, firstly, on the views of Sir Samuel Evans as enunciated in Crippen (In the estate of Cunigunda (otherwise Cora) Crippen deceased) [1911] P. 108. In that case the issue was a dispute as to the entitlement of Crippen’s executrix to administer the estate of the wife he had murdered. The wife had died intestate, and at that time a husband (or, after his death, his personal legal representative) was entitled to a grant of letters of administration unless “special circumstances” were shown. The President of the Probate Division decided that the husband’s conviction for a felony constituted special circumstances. He then went on to give an obiter opinion on the evidential issue. He rejected the argument of the executrix that the murder conviction was inadmissible as res inter alios acta , stating that he thought that the true principle expressed in that phrase was that a transaction between two parties, in judicial proceedings, ought not to be binding upon a third party not involved in those proceedings. Therefore, neither the evidence given, nor the verdict, nor the judgment of a court could be used to the prejudice of persons who were not party to the earlier case. He noted that under the then-current criminal trial procedure (as opposed to the era from which many of the authorities dated) permitted an accused person to make a defence, examine witnesses and appeal against conviction. In those circumstances he felt that the maxim omnia praesumunter rite esse acta should apply, and he concluded in the following terms.:-
“In my opinion, where a convicted felon, or the personal representative of a convicted murderer who has been executed, brings any civil proceeding to establish claims, or to enforce rights, which result to the felon, or to the convicted testator from his own crime, the conviction is admissible in evidence, not merely as proof of the conviction, but also as presumptive proof of the commission of the crime.”
15. Kearns P. then considered the case of Hollington v. F. Hewthorn & Co. [1943] KB 587 (usually referred to as Hollington v Hewthorn and discussed in more detail below), in which it was held that a criminal conviction was inadmissible in subsequent civil proceedings arising from the same facts. He noted that the judgment in that case had been the subject of extensive critical commentary and that the position in the United Kingdom had been altered with the enactment there of s. 11 of the Civil Evidence Act 1968. He then gave extensive consideration to the decision of the Court of Appeal of New Zealand in Jorgensen v. News Media (Auckland) Limited [1969] NZLR 961, referring to it as a decision that “may fairly be characterised as the best common law authority on this particular topic.” That Court had declined to follow Hollington v Hewthorn and had held that a conviction for murder was admissible evidence (although not conclusive) of the fact of guilt of the crime charged, at the time and place named in the indictment.
16. Turning to the Irish authorities, Kearns P. distinguished the decision in Kelly v Ireland [1986] I.L.R.M. 318 (where O’Hanlon J. had held that it was an abuse of process for the plaintiff in a civil action to challenge the correctness of his conviction). In so doing the President accepted the submission made on behalf of the defendant in the instant case to the effect that, since she was the defendant rather than the plaintiff, she could not be described as mounting a collateral attack on her conviction. He also accepted that in Kelly O’Hanlon J., while sympathetic to an argument similar to that made by these plaintiffs, had specifically left open the issue of the admissibility of a conviction. The judgment of Lardner J. in Breathnach v Ireland [1989] I.R. 489 was, Kearns P. felt, to the same effect as that in Kelly. The final Irish authority cited , Madden v Doohan [2012] IEHC 422, did not specifically address the issue arising in this case.
17. The President concluded that the Irish cases did not support the proposition that the rule in Hollington v Hewthorn represented the law in this jurisdiction and, indeed, evinced a “strong inclination” in the opposite direction. He held that the conviction in the instant case should be admissible as prima facie evidence of the fact that the defendant had murdered her husband, basing his view ultimately on the proposition that its admissibility was either authorised by Crippen or came within an exception to the hearsay rule as held in Jorgensen.:-
“The reasons for so holding were set out with particular clarity in the judgment of Turner J. in [Jorgensen] and they are (a) that there can be no real doubt that a certificate of conviction constitutes unimpeachable evidence not only of the fact that a person was convicted, but also that the court did in fact consider the person guilty of the crime (in other words any of the usual objections to hearsay – that the version given in court may be unsatisfactory as false, unreliable, biased, untested by cross-examination etc – simply do not arise) and (b) any objection that the court may have been wrong is more than addressed by the requirement that the court before convicting must be satisfied beyond all reasonable doubt that the person was guilty of the crime charged.”
18. Kearns P. concluded that to rule out evidence of the conviction as completely inadmissible would be “contrary to logic and common sense and offend any reasonable person’s sense of justice and fairness”. However, he was not prepared to go further than the position adopted in Jorgensen. While the conviction of the defendant for the murder of her husband should be admissible in the civil proceedings, it amounted to no more than prima facie evidence.
The Court of Appeal Judgment
19. The defendant’s appeal to the Court of Appeal was dismissed by a unanimous court, with judgments being delivered by Finlay Geoghegan and Hedigan J.J.
20. Finlay Geoghegan J. noted that the Court was not asked in the motion to determine the proper construction of s. 120(1) of the Act of 1965, but she felt it advisable to comment briefly on the views expressed by Kearns P. on this aspect. While not giving any conclusive view on the interpretation of the section, she offered a different view to that set out by the President.:-
“The interpretation of section 120(1) may not be considered obvious by reason of the difference in wording with s. 120(4). However, one potential interpretation is that a court asked to make a declaration that a person is precluded from taking a share in the estate may be satisfied that the person ‘has been guilty of the murder …’ by proof that such person has been convicted or found guilty of the crime of murder of the deceased and any appeal has been dismissed or time for appeal expired. If this is the true construction (and I am not so holding), then proof in the plenary proceedings that the defendant was convicted of the murder of her husband would be sufficient to meet the requirements of section 120(1). If, however, it is determined at the full hearing this is the true construction then the only question on admissibility would be whether the order of the Central Criminal Court recording the conviction of the defendant is admissible in the plenary proceedings as proof of the conviction. Such admissibility is not in dispute. It is expressly accepted in the written submission on behalf of the defendant that this is the position. Such order or certificate is a public document and as such admissible as prima facie evidence of the facts stated therein i.e. of the conviction or finding of guilt of the murder.”
21. Finlay Geoghegan J. disagreed, therefore, with the judgment of Kearns P. insofar as it might be read as determining that proof of conviction would not of itself meet the proofs required by section 120(1). She was not expressing a conclusive view on the proper interpretation of the section, but felt that that the question whether the conviction was admissible as prima facie evidence of the fact that the defendant was guilty of the murder would become relevant only if it was decided in the High Court, after full consideration at or prior to the substantive hearing, that proof of the conviction of the appellant for the murder of her husband did not satisfy the requirements of section 120(1) (and possibly in relation to the claim at common law).
22. Finlay Geoghegan J. went on to say that it was unfortunate that the Court of Appeal was being asked to determine a question as to the admissibility of evidence as a preliminary issue in proceedings that sought relief under s.120(1), in advance of that section being construed by the trial court. That question of admissibility might not arise if the trial court took a different view of the legislation to that of Kearns P. However, no point had been taken in the appeal on basis that the matter should not have been determined as a preliminary issue.
23. Finlay Geoghegan J. accepted the submission of the defendant that Kearns P. had erred insofar as he considered the law in this jurisdiction to be as stated in the passage from Crippen quoted above, as the comments relied upon from that case were obiter . However, she held that the admission in evidence of the conviction was justified on the grounds of necessity and relevance. Furthermore, she agreed with the President that the reasoning in Jorgensen v. News Media (Auckland) Limited [1969] NZLR 961 in relation to Hollington v. Hewthorn was compelling. The conviction followed a trial in due course of law, and all appeals had been exhausted. She held that its reliability and relevance were undeniable and that Kearns P. had been correct in saying that its exclusion would “be contrary to logic and common sense and offend any reasonable person’s sense of justice and fairness”.
24. Hedigan J. agreed that the quoted passage from Crippen was obiter and that the reasoning of the Court of Appeal of New Zealand in Jorgensen was preferable to that in Hollington. He therefore agreed with the decision of Kearns P. on the core issue – the certificate of conviction, although technically hearsay, was admissible as at least prima facie evidence. He considered that the certificate would also be admissible at common law as a “public document”. He felt that it was not necessary in the circumstances to address the issue raised concerning s.120(1), but he expressed agreement with Kearns P. that it was desirable that the apparent anomaly should be dealt with by way of amendment.
Submissions of the Parties
25. In relation to the first issue identified in the determination of this Court, it should be borne in mind that although the solicitor for the defendant sought to defer the hearing of the plaintiff’s motion, Kearns P. was satisfied that counsel on both sides had agreed that it could be dealt with. The plaintiffs point out that the defendant did not, in either the High Court or the Court of Appeal, complain of the nature of the motion. She had, rather, asserted on affidavit that the hearing of the motion would be prejudicial to applications she wished to make in the Court of Criminal Appeal. Having heard evidence confirming the agreement of counsel, Kearns P. refused the application by the defendant’s solicitor and the matter proceeded.
26. However, as this Court has raised the question, the defendant has submitted that the bringing of the motion was inappropriate.
27. The defendant’s submissions set out a list of relevant factors which may be summarised as follows:
(i) The hearing of a preliminary issue is, as a matter of practice, almost exclusively sought by defendants rather than plaintiffs, and it is inappropriate for a plaintiff to seek to circumscribe the ability of the defendant to defend the proceedings.
(ii) The preliminary hearing procedure is not appropriate for a determination of an evidentiary issue. In the instant case, the factual matrix in which the disputed issue arises – whether the defendant murdered her husband – would only become apparent at the full hearing, as would the necessity or otherwise to extend the list of exceptions to the hearsay rule.
(iii) The plaintiffs rely upon the contention that they will find it virtually impossible to prove the murder if the conviction is not admitted, but have not particularised either the evidence they intend to adduce or the difficulties involved. That, again, is a matter that will only become clear at the hearing and it therefore cannot be said with certainty that the preliminary procedure would result in any saving of time or costs.
28. The defendant relies upon the judgments of this Court in Campion v South Tipperary [2015] 1 I.R. 716 and L.M. v Commissioner of An Garda Síochána [2015] 2 I.R. 45 and says that dealing with this matter as a preliminary hearing did not accord with the criteria set out therein. It did not present the possibility of terminating the claim altogether, or even the possibility of a saving in costs or time by reducing the issues to be tried. The defendant denied that she murdered her husband, and the plaintiffs have accepted that the conviction, if admissible, is prima facie evidence only. The defendant argues that it is therefore not apparent that the admission of the conviction would save any time or effort at all.
29. The plaintiffs, in addition to setting out the procedural history of the motion, rely on Campion in making the straightforward argument that it would have been “bad case management” not to have run the issue. They say that there is no dispute as to the fact of conviction, and that the determination of the question of admissibility will save a substantial amount of time and costs.
30. On the second and third issues, it is submitted by the defendant that the question of there being any collateral attack on the prior conviction cannot arise if the court were to rule either a) that the conviction offers conclusive proof of guilt (a proposition not argued for by the plaintiffs) or b) that it is inadmissible as evidence (the defendant’s position). In the event, however, that the court takes the third view and upholds the ruling that it is prima facie evidence, then it is submitted that it is not a collateral attack on the conviction for a defendant in a civil case to assert innocence. This defendant denied guilt in the trial, and she is not the party who has put her guilt in issue in these proceedings. It would not be an abuse of process, in circumstances where the proceedings are not between the same parties or their privies, and the defendant must be entitled to resist the plaintiffs’ claim on its merits.
31. The plaintiffs accept this analysis. They explain their position by reference to the fact that they are relying on the common law rather than statute, and therefore are attempting to avoid the constitutional issues that would arise if the argument was to be made that the conviction was conclusive evidence.
32. On the fourth question, the defendant points out that the principle in Hollington v Hewthorn has not been impugned in the Irish courts prior to this case. The decision in the case was based on the authorities considered in the judgment, most of which, it is submitted, represent the law as carried over into the law of this State in 1922. They submit that it therefore remains good law in this jurisdiction. While it is accepted that the decision has been subject to criticism, it is submitted that the target has mainly been the perceived unjust outcome in the case, rather than the Court’s analysis of the authorities as they stood at the time that the case was decided.
33. The plaintiffs submit that the decision of the Court of Appeal on the admissibility of the conviction was correct. They submit that would be contrary to logic, common sense, justice and fairness to exclude the evidence.
Discussion
34. The plaintiffs have chosen to base their plenary claim on both the common law and the provisions of s.120 of the Succession Act 1965. However, the argument about the admissibility of the conviction for murder has been confined squarely to the common law principles, and in particular to the issue whether Hollington v Hewthorn is good law in this jurisdiction. The question whether the admissibility issue is affected by the interpretation of the statute has been referred to but not fully addressed.
35. It must be noted, if only with hindsight, that this was not, perhaps, the ideal basis for a preliminary ruling in the case, although one can understand why the parties took the positions that they did.
36. It is true that most applications for a preliminary ruling are brought by defendants seeking to terminate, or at least cut down the scope of, a plaintiff’s claim. However, that does not mean that it is necessarily inappropriate for a plaintiff to seek a ruling, in advance of a substantive hearing, as to the evidential basis on which they may proceed. The plaintiffs in this case obviously needed to know whether they were going to be required to prepare for a lengthy and complex hearing, aimed at establishing the same matters as the criminal trial, which might well have consumed the full resources of the estate. I think that the problem with this particular motion is the fact that it deals only with the common law aspect of the disputed principles. It is generally undesirable to conduct a debate about a common law rule without full attention to a potentially relevant statute. As pointed out by Finlay Geoghegan J., the primary relief sought by the plaintiffs is a declaration or order pursuant to section 120. The fact is that this section embodies the governing legal rules in relation to rights of inheritance where a relevant criminal offence has been committed. In a dispute about succession rights involving an allegation that a relevant offence was committed, one might think that it would be preferable to start with a consideration of the evidential requirements of that section. It is possible that the section could be interpreted in such a way as to displace any common law rules.
37. I would be inclined, therefore, to the view that this particular motion was not framed in such a way as to fully meet the requirement that a trial of a preliminary issue (where sought by a plaintiff) should have the possibility of saving significant time and costs.
Hollington v. F. Hewthorn & Co., Ltd. [1943] 1 K.B. 593
38. The decision in the case concerned in part the admissibility of a conviction for careless driving in an action for negligence. The plaintiff contended that the order of conviction (which certified that the defendant driver had been convicted of driving without due care and attention on the day and in the parish in question) was prima facie evidence of negligent driving. It was accepted by the plaintiff that he would have to prove that the defendant was the person who was convicted, and would have to identify the driving, the subject of the conviction, with the accident. It would, on the plaintiff’s case, have been open to the defendant to show that he should not have been convicted or that the negligence of which he was convicted had not caused the accident. The trial judge ruled against the plaintiff on the issue, holding that it was covered by the res inter alios acta doctrine (i.e. that the criminal trial was “a matter between others”).
39. The judgment of the Court of Appeal (delivered by Lord Goddard) commences with the observation that, for as long as any member of the Court could remember, it was the invariable practice of the judges to reject this class of evidence and that counsel had ceased to tender it in “accident” cases. The court should be slow to differ from the communis opinio unless it was clearly shown to be based on wrong premises.
40. The judgment notes that many of the earlier authorities were concerned with issues relating to the competency of witnesses, in an era when plaintiffs, defendants and any other person with an interest in the outcome of a civil action were not competent to give evidence. Before engaging in detailed consideration of those authorities, Lord Goddard therefore analysed the issue as he saw it in terms of the modern law, where relevance was the key concept for admissibility. With that in mind, the question was whether the conviction was relevant. This question was answered in the following terms.:-
“In truth, the conviction is only proof that another court considered that the defendant was guilty of careless driving. Even if it were proved that it was the accident that led to the prosecution, the conviction proves no more than what has just been stated. The court which has to try the claim for damages knows nothing of the evidence that was before the criminal court. It cannot know what arguments were addressed to it, or what influenced the court in arriving at its decision. Moreover, the issue in the criminal proceedings is not identical with that raised in the claim for damages.”
41. The Court considered that in order to identify the careless driving with the accident it would be necessary, in most if not all cases, to call before the court trying the civil claim substantially the same evidence as had been given in the trial. This meant, in its view, that proof of the conviction by itself would amount to no more than proof that the criminal court came to the conclusion that the defendant was guilty.
42. Further, it was accepted by the plaintiff that the conviction did not create an estoppel and would, if admitted, simply be evidence to which the civil court could attach such weight as it thought proper. If the defendant was challenging the propriety of the conviction, and the conviction was not conclusive, the civil court would have to “retry” the criminal case to establish what weight should be attached to the result.
43. The judgment goes on to suggest that admission of the conviction would breach the rule against the admissibility of non-expert opinion evidence. For example, even a witness who had a complete view of an accident would not be permitted to express an opinion as to which party was negligent – their opinion would not be relevant.:-
“So, on the trial of the issue in the civil court, the opinion of the criminal court is equally irrelevant.”
44. Exclusion of the evidence was also felt to be justified by the injustice of binding third parties who did not have an opportunity to participate in the proceedings (whether civil or criminal) now sought to be relied upon. For that reason, judgments could not be conclusive as against a non-party. Again, if they were not conclusive, to admit them as evidence would involve retrying the original case to determine the weight to be attached.
45. The analysis of the earlier authorities against admission of the evidence refers chiefly to the res inter alios acta doctrine. Lord Goddard referred in particular to Blakemore v Glamorganshire Canal Co (1832) 38 E.R. 639, which he said was a clear authority against the admission of this class of evidence. It seems relevant that he considered that the “alios” being referred to could only be the Crown, who in a private prosecution was “no more than a nominal prosecutor”. Next, the judgment refers to Castrique v Imrie (1870) L.R. 4 H.L. 414, where Blackburn J. had stated “without qualification” that a conviction on an indictment for forging a bill of exchange, though conclusive as to the person being a convicted felon, was not admissible evidence of forgery in an action on the bill. Lord Goddard also cited Leyman v Latimer (1878) 3 Ex, D. 352. This was a defamation action arising from the description of the plaintiff (a newspaper editor) as a “convicted felon” and a “felon editor”. The Court of Appeal held that the first statement could be justified by the defendant simply by proving the conviction. In relation to the second, Bramwell L. J. said that the defendants would have to prove that the plaintiff had actually committed a felony.:-
“It is plain from the numerous authorities cited in Taylor on Evidence…that a conviction for felony is alios res inter acta, and of itself is no evidence in any civil proceeding that the person convicted has committed a felony.”
46. The reference to Taylor was to the 6th edition of that work. Bramwell L.J. thought the rule represented good policy.:-
“…for, if a man will bring charges of this sort against others, he should be required to fully prove them; and it should always be open to a man, so attacked, to show his innocence, if he can.”
47. Brett and Cotton L.JJ. took a somewhat different approach, based on the proposition that a man who had served his punishment could no longer be described as a felon. However, Lord Goddard clearly took the view that Bramwell L.J.’s dictum was “a sufficiently clear ruling by a very high authority”.
48. Of the cases relied upon by the plaintiff in Hollington v Hewthorn, Lord Goddard noted that the first ( Wilkinson v. Gordon 2 Addams 152, which held in 1824 that a conviction for bigamy was admissible) was a decision of the Prerogative Court and not binding on the common law courts. Furthermore, a directly contrary decision was given in a divorce case by a judge ordinary in 1858 ( March v March (1858) 28 L.J. (P.& M.) 30).
49. Referring to the view expressed by Sir Samuel Evans in Crippen, Lord Goddard said that while the “convenience” of the decision was obvious, it was not supported by authority. The Court also disapproved of decisions to the like effect in two divorce cases.
50. Finally, on this issue, the Court commented that if a conviction was to be admitted it must follow that an acquittal could be admitted as evidence in favour of the defendant. This, it thought, only went to show that if the order of the criminal court was admitted as evidence the civil court could get no real guidance from the criminal proceedings without retrying the case.
51. Hollington v Hewthorn was to be the subject of both judicial and academic criticism in the years following. In a case note in the Law Quarterly Review (vol.59, published soon after the judgment) Goodhart expressed some doubt as to its correctness from the point of view of both principle and practicality. He noted that Blakemore came from the era when a party in a cause could not give evidence on his own behalf. Parke B. had held that it followed that it would not be proper to allow a party to put in evidence of a conviction that had been obtained by his evidence in the criminal trial “on account of the inconvenience which it would occasion”. Goodhart commented that the words used left it unclear as to whether a conviction would be admissible if the party in the civil suit had not given evidence in the criminal trial, and whether Parke B. was holding that the res inter alios acta principle applied to criminal verdicts as well as civil records. The basic question, Goodhart felt, was whether a criminal verdict did not more nearly resemble a judgment in rem than it did an ordinary civil action inter partes , so that it should to some degree be evidence of the facts on which it was necessarily based.
52. Goodhart also queried the reliance by Lord Goddard on Blackburn J’s dictum in Castrique v Imrie , noting that there had been no authority cited in his judgment, and that it was not likely to be considered a reasonable or practical rule by the business community
53. He pointed out that the law does in some respects give special weight to convictions, referring here to the provisions of the Criminal Procedure Act 1865. Section 6 of that Act (which is still in force in this jurisdiction and which applies to civil as well as criminal trials) permits the questioning of a witness about any felony or misdemeanour convictions. The convictions may be proved if the witness denies them. Goodhart queried whether this procedure could have any justification if the conviction was not evidence that the witness had committed the crime in question.
54. Two examples of the unfortunate effects of Hollington v Hewthorn are found in decisions of the Court of Appeal where it was followed, albeit with extreme reluctance. Goody v Odhams Press Ltd [1966] 3 All E.R. 369 was a libel action brought by a man who had been convicted of robbery and other offences arising out of the so-called “Great Train Robbery”, who was serving a sentence of thirty years. The allegedly libellous material was an article published some months after his conviction that referred to the part he played in the robbery. He argued successfully that the paper could not rely on the conviction for its plea of justification, but must prove that he was in fact one of the robbers. Lord Denning (who had been the losing advocate in Hollington v Hewthorn) stated bluntly that he thought the decision was wrong. Danckwerts L.J. observed that the law on the subject had “got into some queer twists and tangles”. Salmon L.J. referred to the “strange” rule, and said that he wholeheartedly agreed with Lord Denning.
55. An analogous situation arose in Barclays Bank v Cole [1966] All E.R. 948. The defendant had been convicted of robbing a bank. The plaintiff bank sued him for money had and received, alleging that he had robbed it, and the defendant denied the allegation. The issue in the appeal was whether or not he was entitled to a jury trial (which was in part a discretionary matter), but in addressing this question Lord Denning noted that the plaintiff was being forced to prove the defendant’s guilt “all over again” because of Hollington v Hewthorn. Diplock L.J agreed that the “technical” rule was “ripe for re-examination”. In deciding that the trial judge had correctly exercised his discretion in ruling that there should not be a jury trial, all three members of the court agreed that the conviction meant that the defendant had no reputation entitling him to the protection of a jury.
56. The issue was referred to the Law Reform Committee by the Lord Chancellor. In its report, that body (which included a number of senior members of the judiciary and the legal profession) said of Holington v Hewthorn.:-
“Rationalise it how one will, the decision in this case offends one’s sense of justice. The defendant driver had been found guilty of careless driving by a Court of competent jurisdiction. The onus of proof of culpability in criminal cases is higher than in civil: the degree of carelessness required to sustain a conviction for careless driving is, if anything, greater than that required to sustain a civil cause of action in negligence. Yet the fact that the defendant driver had been convicted of careless driving at the time and place of the incident was held not to amount even to prima facie evidence of his negligent driving at that time and place.”
57. Later in the same passage the Committee considered the comparison made by Lord Goddard between the effect of the conviction and the opinion of a bystander who sees the accident.:-
“It is in a sense true that a finding by any Court that a person was culpable or not culpable of a particular criminal offence or civil wrong is an expression of opinion by the Court. But it is of a different character from an expression of opinion by a private individual. In the first place, it is made by persons, whether Judges, Magistrates or juries, acting under a legal duty to form and express an opinion on that issue. In the second place, in forming their opinion they are aided by a procedure, of which the law of evidence forms part, which has been evolved with a view to ensuring that the material needed to enable them to form a correct opinion is available to them. In the third place, their opinion, expressed in the form of a finding or verdict of guilty or not guilty in criminal proceedings or a judgment in civil proceedings, has consequences which are enforced by the executive power of the State.”
58. The Committee agreed that the test for the admissibility of evidence was whether the material in question had any probative value. In that regard it said.:-
“Our further premise is that any decision of an English Court upon an issue which it has a duty to determine is more likely than not to have been reached according to law and to be right rather than wrong. It may therefore constitute material of some probative value if the self-same issue arises in subsequent legal proceedings. A conviction upon a contested trial is consistent only with the opinion of the criminal Court’s being that it has been established, not merely on the balance of probabilities, but beyond reasonable doubt, that the conduct of the accused did constitute the criminal offence with which he was charged and that it has been so established upon all the material known to the prosecution or the defence and considered by either to be relevant to the issue of guilt….
…We consider that such a conviction has a high probative value in establishing the cause of action in a subsequent civil action founded upon the same conduct, in which the onus of proof is lower. We have no doubt in principle that evidence of the conviction should be admissible.”
59. Ultimately Hollington v Hewthorn was effectively reversed by the Civil Evidence Act 1968.
60. The judgment was given thorough consideration by the Court of Appeal of New Zealand in Jorgensen v News Media (Auckland) Limited [1969] N.Z.L.R. 961. The plaintiff had been convicted in 1964 on a charge of murder, and his appeal was dismissed. In 1967 he instituted libel proceedings against the defendant for publishing the allegation that he had been a principal or party to the murder. In a pre-trial case stated, the Court of Appeal was asked whether the conviction was admissible and, if so, what weight was to be accorded to it.
61. Three judgments were delivered. North P., after recording those criticisms of Hollington v Hewthorn set out above, suggested that Lord Goddard had perhaps overstated the position when he said that for many years there had been a unanimous body of judicial opinion rejecting this class of evidence. It may be important to note that North P. thought that such rejection was correct in “accident” cases, and said that the same practice was followed in New Zealand. The point here was that a conviction for a breach of road traffic regulations would usually have little probative value, since it would not give much assistance in determining the cause of the accident. However, outside this limited field the exclusion of the evidence could cause very grave problems – here, he instanced Goody and Barclays Bank v Cole as cases where it could result in a denial of justice.
62. North P. referred in some detail to the early authorities mentioned above. Without needing to go into the same level of detail, I note here his view that there was general agreement that Blackburn J’s dictum in Castrique v Imrie was obiter . He considered that the Court in Hollington v Hewthorn had “unaccountably” overlooked a significant authority – the decision of the Court of Appeal in Hill v Clifford [1907] 2 Ch. 236. There, a deed of partnership in a dental practice entitled one partner to determine the partnership if another was guilty of professional misconduct. Two of the partners were struck off the register of dentists by the General Medical Council for conduct that was “infamous or disgraceful in a professional respect”. It was argued, on the basis of Leyman v Latimer and Castrique v Imrie, that the order of the Council was not admissible in the partnership action.
63. The Court of Appeal held that the Council order was admissible as evidence of the existence of conduct which was infamous or disgraceful in a professional respect, the proof of which fact had been essential to the validity of the striking-off order. Unless and until evidence to the contrary was given, it proved that the persons concerned were guilty of statutory misconduct. Cozens-Hardy M.R. and Buckley L.J agreed that the order was a proceeding in rem, akin to an inquisition in lunacy. It belonged to the class of in rem judgments which were admissible, although not conclusive, in other proceedings.
64. North P. accorded great weight to the decision of the Privy Council in Harvey v The King [1901] A.C. 601. The question determined in that case was whether a defendant had established that he suffered from a “misfortune” within the meaning of the rules on judgment in default by proving that he had been found to be of unsound mind by a Master in Lunacy. It was held that he had. Per Lord Lindley.:-
“The orders are not conclusive evidence of anything except their own existence; but, being made by a competent tribunal in a matter within its jurisdiction, they cannot be rejected as inadmissible, or as no evidence of the truth of those facts recited in them which are essential to their validity. They are admissible as prima facie evidence, and if uncontradicted they ought to be regarded as sufficient evidence of those facts, not only in this country, but in all His Majesty’s dominions.”
65. North P. found the reasoning in Hill v Clifford, Crippen and Harvey v The King to be preferable to Hollington v Hewthorn. Dealing more specifically with the latter, he rejected as unjustified the proposition that the verdict of a criminal court, given after a trial in which the party now defending the civil action was afforded every opportunity to defend himself, was to be equated with the opinion of a witness. He agreed with the views of the Law Reform Committee on this aspect. He was not satisfied, either, that the res inter alios acta maxim had any application. It was correct that a non-party should not be prejudiced by a judgment in personam , but the person who had been a party in the earlier case was in a different position. The comment in the 3rd edition of Cross on Evidence, to the effect that the maxim should be seen as something that had contributed to the historical development of the modern law of evidence, and not as a fundamental rule, was endorsed. Further, North P. rejected the equation of the probative value of a conviction with that of an acquittal, having regard to the burden and standard of proof in a criminal trial.
66. Finally, North P. said that the only matter that concerned him was the argument that the proposed evidence did not fit within a recognised exception to the rule against hearsay. In this regard he referred to the well-known decision of the House of Lords in Myers v Director of Public Prosecutions [1965] A.C. 1001, where two of the Law Lords (in a minority on this aspect) considered that it was competent for that tribunal to create new exceptions to the rule against hearsay without legislative intervention. North P. did not feel it necessary to go that far, having regard to the body of judicial opinion justifying the conclusion that a certificate of conviction was admissible evidence and proof of the fact of guilt. He felt that it would probably come under the existing exception relating to public documents.
67. Turner J. believed that it had indeed been the settled practice in New Zealand and Australia that such evidence had been excluded in accident cases since before Hollington v Hewthorn. However, the decision had never previously been the subject of a judgment in the New Zealand Court of Appeal and it was therefore possible for the Court to come to the conclusion that it was wrong in principle.
68. He did not accept that the maxim res inter alios acta was applicable in the circumstances, where the person whose participation in the crime was now sought to be proved was not a stranger to the earlier proceedings.:-
“It was a conviction of himself, in proceedings to which he was himself a party.”
69. Notably, Turner J. considered that Hollington v Hewthorn was correct in equating a verdict with the opinion of a witness, and in regarding the evidence of that opinion as hearsay. However, he took the position that the pre-eminent test for admissibility was the degree of logical relevance. He saw the evidence in question as being of “immense” relevance, requiring only a small degree of judicial legislation to be held admissible.
70. Having considered the authorities already discussed here, Turner J. concluded that the better view was that expressed in Harvey v The King and that neither fundamental principle nor the balance of authority required the court to decide that Hollington v Hewthorn should continue to be followed.
71. On the hearsay point, Turner J. stressed that the normal objections under this heading – that the court might be given an inaccurate account of what had been said or that the content of what was reported might be false or unreliable in circumstances where the maker could not be cross-examined – did not arise. The certificate of conviction was unimpeachable evidence of the fact of conviction, and the verdict could only have been reached upon proof beyond all reasonable doubt.
72. McCarthy J. said that in his view the most powerful argument made for exclusion in Hollington v Hewthorn was that the conviction was, in essence, opinion. It represented the opinion of a court on the facts proved in evidence. It might also be said to have been hearsay evidence. However, neither of these exclusionary grounds had ever been absolute, and from time to time exceptions had been created. Both the rules and the exceptions were judge-made. If the New Zealand Court of Appeal, after weighty consideration, reached the viewpoint that in the interests of justice and to meet the particular conditions of the times it was desirable to create a new exception, and it was not obstructed from so doing by compelling or highly persuasive authority to the contrary, it should take that step. He felt that the considerations in favour of admissibility in this case were overwhelming. Firstly, the English cases by no means all went the one way. Secondly, the grounds upon which Hollington v Hewthorn was reasoned were not satisfying. Thirdly, a conviction after a trial requiring proof beyond reasonable doubt was as probative a piece of opinion or hearsay evidence as it was possible to imagine.:-
“Fourthly, there is something almost of the character of a judgment in rem about the decision of a conviction after trial: surely common sense requires us to say that such a conviction should at least be some evidence not only that the convicted was convicted but also that he was guilty of the crime of which he was convicted – the weight to be given to that evidence to be determined in each case by the subsequent tribunal having regard to the circumstances surrounding the conviction and the evidence later proffered by the convicted person.”
73. The fifth consideration, for McCarthy J., was that failure to admit the conviction in circumstances such as those before the court would lead to “positive and manifest injustice”.
The status of Hollington v Hewthorn in Ireland
74. It will be recalled that the defendant has argued that Hollington v Hewthorn was based on an analysis of a body of case law of long standing and that therefore, no matter what criticisms might have been made about it, it represents an authoritative statement of the law as it applied in this State in 1922. On this argument, it could not be departed from by the courts here. Any alteration would require legislative intervention as it did in the United Kingdom.
75. It seems to me that the reason for introducing legislation in the UK was that, apart from the manifest problems that the decision created, the judgment had been followed at least twice in the Court of Appeal and was presumably being applied consistently in the lower courts. By contrast, there has to date been no considered decision on the issue in this jurisdiction and nothing to indicate that it has been considered to be a binding rule. It is evident from the discussion above that the result in Hollington v Hewthorn was by no means a foregone conclusion, and that there was a strong line of authority which pointed in the opposite direction. In particular, the judgments in Crippen , Harvey v. The King and Hill v. Clifford (all of which pre-date the independence of this State) afforded cogent arguments for admissibility. The judgments in Jorgensen demonstrate, in my view, the frailty of the reasoning in Hollington v Hewthorn both in terms of principle and practicality. I therefore consider that it was open to the High Court in this case to refuse to follow it.
76. The root of the problem may lie in the fact that the earlier rationale for an exclusionary rule had evaporated, but the Court of Appeal nonetheless applied what was, on any view, the strictest version of it. A judge-made rule adopted at a time when many prosecutions were initiated by private individuals; when an accused person could not give evidence on his own behalf; when there was no court of appeal; when the onus and standard of proof applicable in criminal trials had not been definitively determined; and when parties could not give evidence in their own civil actions has to be re-examined as to its fitness for purpose at a time when each of those features has been eliminated or otherwise provided for. One should also bear in mind the extra protection now available (under the Criminal Procedure Act 1993) to those who continue to maintain their innocence after an unsuccessful appeal.
77. A conviction on indictment now requires the prosecution, acting in the name of the People of Ireland, to prove guilt beyond reasonable doubt on the basis of admissible evidence adduced in the course of a trial and appeal run in accordance with constitutional and legal requirements. What, now, could be the justification for a purported rule that the conviction is not evidence of guilt in subsequent civil proceedings involving that individual? In principle, I cannot see any. I agree with the criticisms of Hollington v Hewthorn and the principled and practical reasons for adopting the opposite view. However, it may be necessary to enter some caveats.
78. The first is that none of the discussion in this case is intended to affect the principle that a third party should not be prejudiced by proceedings in which he or she had no part. That issue, and the question whether there are circumstances where such a party should indeed be bound by the verdict in a criminal trial, does not arise in the present circumstances.
79. Secondly I note the general agreement of the members of the Court in Jorgensen with the proposition that such evidence would normally be excluded in “accident” cases. This seems entirely practical. Indeed, the outcome in Hollington v Hewthorn may well have been correct purely on the question of relevance and the lack of probative value of the evidence. If the order of conviction merely recited the date and parish of the incident of careless driving (rather than, as the Law Reform Committee believed, the time and place) then the plaintiff would in any event have had to prove both that the driving involved in the offence was the driving involved in the accident, and that the careless driving actually caused the accident. Charges of careless or dangerous driving simpliciter will often cover driving over a period of time and, obviously, some distance. A trial judge might well conclude that the evidence in a particular case will have to be heard in full and that proof of the conviction will add little apart from prejudicial effect. Similar considerations might arise in other personal injury cases where there has been, for example, a conviction for a breach of workplace safety regulations. Proof that such a breach had occurred might not involve proof of the level of negligence required in a civil action, and/or might not assist in establishing causation.
80. By their nature, however, some convictions will be highly specific. Taking road traffic cases again, a conviction for dangerous driving causing the death of a named individual will involve proof of each of those elements. To admit it as prima facie evidence in an action for damages involves no unfairness to the defendant and may obviate the necessity to rerun the evidence from the criminal trial. There will be no scope for confusion, no doubt but that the offence involved the same incident as the death and no doubt that the causative link was proved between the driving and the death. Similarly, evidence of a conviction in a case of murder or manslaughter will leave no scope for argument in a case such as this one as to whether the conduct constituting the offence is the conduct alleged to have brought about the death.
The rules against hearsay and non-expert opinion
81. As stated by Kingsmill Moore J. in Cullen v Clarke [1963] I.R. 368, the rule against hearsay is a general rule, subject to many exceptions, that evidence of words spoken by a person who is not produced as a witness is inadmissible to prove the truth of the facts asserted by those words. In the context of the instant case, it is necessary to examine precisely what the objection is to the evidence of the conviction. The order of the court is undoubtedly a public document within the criteria identified by Hedigan J. and must therefore be admissible to prove the contents. However, (and here I respectfully disagree with Hedigan J.) the “contents” of the document will simply record the verdict and order of the court – the fact that the individual was found guilty and was sentenced. Those matters are not in dispute. The real objection is to the drawing of a conclusion to the effect that the verdict “proves” guilt for the purposes of the civil proceedings.
82. Since the record of conviction is admissible as an exception to the hearsay rule, the core of the argument, in my view, concerns the relevance. Does admitting the record simply inform the court that, on another occasion, a group of individuals came to a particular opinion about the fact in issue? Is the proposed evidence therefore to be equated with the opinion of a non-expert witness?
83. Kingsmill Moore J. also offered a useful formulation of the rule against non-expert opinion evidence, in Attorney General (Ruddy) v Kenny (1960) 94 ILTR 185.:-
“It is a long standing rule of our law of evidence that, with certain exceptions, a witness may not express an opinion as to a fact in issue. Ideally, in the theory of our law, a witness may testify only to the existence of facts which he has observed with one or more of his own five senses. It is for the tribunal of fact – judge or jury as the case may be – to draw inferences of fact, form opinions and come to conclusions.”
84. As McGrath says (Evidence, 2nd ed.), the primary rationale for the rule is to prevent witnesses from usurping the role of the tribunal of fact whose function it is to draw inferences from, and reach conclusions on the basis of, the facts deposed to by witnesses. The objection here, therefore, is that evidence of the opinion formed by other persons in other proceedings (i.e. the jury in the criminal trial) should not be permitted to influence the findings in the current proceedings.
85. Although the point has not really been addressed in this case I am inclined to the view expressed by Goodhart in his commentary on Hollington v Hewthorn and by McCarthy J. in Jorgensen that a criminal conviction has a status greater than that of an expression of opinion, and has something of the character of a judgment in rem. It is not binding against all the world, but belongs to the class of cases described in Hill v Clifford as admissible, although not conclusive, in other proceedings. However, if it is indeed to be regarded simply as an opinion it is undoubtedly one that must carry considerable weight in any subsequent dispute as to whether the defendant engaged in the conduct constituting the criminal offence. The jury in a criminal trial has been presented with all of the admissible and relevant evidence available to the prosecution and defence, has considered the issue in the light of the presumption of innocence and has reached a legally binding, dispositive conclusion on the basis that there is no reasonable doubt on the issue. Where the avenues of appeal have been exhausted, the process prescribed by the constitutional order for the determination of guilt is complete.
86. I would therefore agree with the analysis of Kearns P., the judgments of the Court of Appeal, the judgments in Jorgensen drawn upon by them, and the analysis of the Law Reform Committee. The evidence in question suffers from none of the normal infirmities of hearsay or opinion and has the quality of reliability that comes from a criminal trial concerned with the question whether or not the prosecution has proved a case beyond reasonable doubt. It is difficult to see how confidence in the administration of justice would be aided if civil courts were to exclude that evidence on the application of a technical and out-dated rule, and could then to come to a conclusion on that a plaintiff has not shown that it is more likely than not that the defendant committed the crime.
Section 120 of the Succession Act 1965
87. The observations of both the President and the members of the Court of Appeal on the construction of the section are obiter in the circumstances of this particular appeal, but, since they were made, it may be helpful to offer some further remarks.
88. It will be recalled that Kearns P. held that s.120 was ambiguous because of the absence of the word “found” in subs.1, and that it must be strictly construed in favour of the person against whom it was sought to enforce it. Accordingly, he found that it could be seen only as a declaration of public policy to the effect that the perpetrator of a crime should not be its beneficiary. Finlay Geoghegan J. disagreed, observing that the section was open to the interpretation that the court could be satisfied that a person “has been guilty of the murder” by proof that the person had been convicted of the murder, with any appeal having been dismissed or the time for appeal having expired. The order of conviction would obviously be admissible for this purpose.
89. My own provisional view, in the absence of full argument, would be that the remarks of Finlay Geoghegan J. on this issue are correct. I think it is useful to consider the precise effects and policy of subsections 1 and 4. To recap, subs.1 deals with murder, manslaughter and attempted murder. In each of these cases, the person who is “guilty” of the act constituting the offence will have no entitlement to a legal right share, no right to make an application under s.117 of the Act, and will not inherit under a will unless it was made after the commission of the offence. This exception can arise, obviously, only in the case of attempted murder.
90. Subsection 4 deals with crimes against a broader range of victims. Where there is a conviction for an offence of the specified minimum gravity, there will be no legal right share and no entitlement to apply under section 117. However, the offender can inherit under the terms of a will, no matter when it was made. Subsection 4 expressly operates only where there has been a criminal conviction.
91. It seems to me that there are two principal differences between the scenarios envisaged by the legislature that might explain the third difference – that is, the absence of any reference to a conviction in subsection 1.
92. Where a death is the result of murder or manslaughter there is, firstly, a direct causal connection between the criminal act and the benefit that might otherwise inure to the offender from the death. In barring any claim to that benefit, the legislature has not altered the common law principle that a person should not be allowed to make a financial gain from having unlawfully caused a death. In the case of any other crime, there is no such causal connection between the unlawful act and the possible succession rights (save where distinct issues such as fraud or duress arise).
93. Secondly, in the case of any crime not causing death the legislature has barred the operation of what might be termed both the default rules of inheritance and the statutory right to apply to a court in order to make the case that the applicant should have been provided for by the testator. However, the legislature has acknowledged the right of a person offended against to decide for himself or herself whether or not to forgive the offender and make provision for him or her. In a case as grave as that of attempted murder, such provision will be recognised only if it was made after the criminal act. In any other case, it is sufficient if a testator refrained from amending a will previously made. Either way, it is a matter for the personal decision of the testator. Manifestly, these considerations do not apply where there is a death.
94. That being so, it could certainly be argued that the legislature decided that, in the case of non-fatal offences other than attempted murder, the penal effects of the rules should apply only where the offence had been sufficiently serious to lead to a complaint, and only where that complaint led to a conviction. To provide otherwise might interfere unduly with family relationships and with the intentions of testators, as well as potentially leading to litigation between relatives over long-since forgotten or forgiven misdeeds.
95. However, wholly different considerations might be seen to arise in relation to homicide. The causal connection is clear. The previous intentions of the deceased towards the offender cannot be the decisive factor, and the rule preventing the making of financial gain from the wrongful death takes precedence. It is arguable, therefore, that the legislature considered the importance of this rule to be such that a putative beneficiary should be disinherited if it can be shown on the balance of probabilities in a civil action that he or she unlawfully caused the death, even if no prosecution ensued. It must be remembered that the factors influencing a decision of the Director of Public Prosecutions include the need to prove the criminal offence beyond reasonable doubt.
96. If the foregoing is correct, it might throw some light on the application of subs.1 in a case where a charge of murder has been proved beyond reasonable doubt in a court of competent jurisdiction and all avenues of appeal have been exhausted. If the word “guilty” refers in the first instance to a state of fact – a proven fact that the defendant committed murder – it is difficult to see why the establishment of that fact beyond reasonable doubt, in the process designed by our legal and constitutional system for the administration of criminal justice, should not be accepted as relevant and admissible in a court hearing a civil action that turns upon establishment of the same fact on the balance of probabilities.
97. It must be stressed again that this discussion has not been the subject of full argument and the decision of the Court will be binding only on the common law issue. Despite the comments made above, I do not disagree with the views expressed in the High Court and the Court of Appeal as to the desirability of clarification of s.120 by the legislature.
Conclusion
98. The ruling sought by the plaintiffs in this case relates only to the admissibility of the defendant’s conviction for murder “in civil proceedings”. I agree with the analysis of the Court of Appeal, to the effect that this was an unduly narrow approach in that the proper interpretation of s.120 of the Succession Act 1965 remains to be determined, and may be dispositive of the issue of admissibility.
99. It should perhaps be noted that this judgment is concerned only with the situation that arises where the defendant, whose conviction is proposed to be proved, maintains his or her innocence of the crime. An admission of guilt is always admissible, as an admission against interest.
100. Having considered the question of admissibility in the light of the common law authorities, I am satisfied that evidence of the conviction is in principle admissible.
101. The record of the conviction is a public document, admissible to prove the fact of the conviction as an exception to the hearsay rule. While proof of the fact of the conviction might, in one sense, be seen simply as evidence of the opinion of the jury, it is in my view an “opinion” that carries far greater weight than that of a witness in a hearing, by virtue of the nature of the process through which it is produced. On the other hand its relevance may be open to dispute depending on the facts of the individual case. A trial judge in a civil action may have to consider whether the facts recited in the order of conviction are sufficiently related to the issues to be determined – if not, admission of the record may be refused.
102. For the reasons discussed in the judgment I am of the view that Hollington v Hewthorn was wrongly decided in terms of principle and practicality. It was not an inevitable decision, having regard to the then-extant authorities and also to the changes in the underlying rules relating to the conduct of criminal trials that might have justified a different approach in earlier times. The experience in the courts of England and Wales following the decision demonstrates that the exclusion of such evidence is manifestly capable of bringing about irrational and unjust results.
103. I would therefore dismiss the appeal.
In the goods of Glynn:
Ireland and the Attorney General v Kelly [1992] ILRM 582
Finlay CJ
Part IV of the Succession Act 1965 deals with grants of representation. S. 26 enables the High Court to grant probate to an executor and replaces s. 6 of the Probates and Letters of Administration Act (Ireland) 1857. S. 27 enables the High Court to grant administration (with or without the will annexed) of the estate of a deceased person and to limit the grant. Subs. (3) provides:
subject to subs. (4), the person or persons to whom administration is to be granted shall be determined in accordance with rules of the High Court.
O. 79 r. 5(6) of the Rules of the Superior Courts provides that where the deceased died domiciled in Ireland, leaving a will appointing no executor, or appointing an executor or executors who have been cleared off by death, renunciation, citation, or otherwise, the person, or persons entitled to a grant of administration with will annexed shall be determined in accordance with a stated order of priority. It is unnecessary to state this order since it does not apply to any relevant person. O. 79 r.5(9) enables the probate officer to require notice to be given to other persons entitled in the same class. None of these rules are relevant to the special circumstances here.
S. (4) provides:
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.
S. 12 of the Administration of Estates Act 1959 (repealed by the 1965 Act) provided that where … by reason of any circumstances it appears to the High Court to be necessary or expedient to do so, the court may, notwithstanding any enactment or rule of law to the contrary, appoint such person as it thinks fit to be administrator etc.
None could doubt the apparent impropriety that will arise if Michael Kelly is permitted to act as executor. He has been convicted of the murder of the testator’s sister, who was the life tenant of some 12 acres of land, whose *584 maintenance he had to undertake if the condition set out in the will be enforced, and whose death at his hands accelerated his succession in remainder. It would appear utterly wrong that he should be permitted, even in the most formal manner, to administer the estate. The administration would appear to require the court’s assistance in determining whether or not, in the circumstances, the gift in remainder is valid. Failing its validity, there will be at least a partial intestacy.
Whilst no formal evidence was tendered in respect of it, it was accepted that Michael Kelly is now an inmate of Shelton Abbey Prison and is on daily release for employment training and spends weekends from time to time at home.
The issue is whether or not these facts establish special circumstances from which it should appear to be necessary or expedient to order that administration with the will annexed be granted to the Chief State Solicitor, in substitution for the executor named by the testator.
In In the Estate of Crippen (1911) P 108, Evans P said at 111:
By s. 73 of the Court of Probate Act 1857, this Court has a discretion (which of course must be judicially exercised) by reason of special circumstances, to appoint such person as the court shall think fit to be administrator of the personal estate of a deceased intestate, in lieu of the person who would otherwise be by law entitled to the grant of administration.
In the present case a man who has been convicted of the wilful murder of his wife has, after his conviction, made a will appointing a person his executrix and universal legatee, who claims, as such executrix, to administer the murdered wife’s estate, and as legatee to be entitled to the murdered wife’s property.
These are, surely, ‘special circumstances’.
I therefore pass over and decline to appoint the executrix; and I appoint the applicant as attorney of the deceased woman’s sister to be administrator of the deceased woman’s estate on the sister’s behalf.
If I am right in this exercise of the discretion of the court, there remains nothing which it is necessary for me to decide upon this motion.
In general, on grounds of public policy (Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147) a person who is proved to be guilty of the murder or manslaughter of the testator cannot claim to take under the testator’s will. This was given statutory force by s. 120 of the Succession Act 1965 which excluded from succession a sane person who has been guilty of the murder etc of another, in respect of taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence.
S. 27 is an enabling section, effectively replacing s. 78 of the Act of 1857 which provided:
Where a person has died or shall die wholly intestate as to his personal estate, or leaving a will affecting personal estate, but without having appointed an *585 executor thereof willing and competent to take probate, or where the executor shall at the time of the death of such person be resident out of the United Kingdom of Great Britain and Ireland, and it shall appear to the court to be necessary or convenient in any such case, by reason of the insolvency of the estate of the deceased, or other special circumstances, to appoint some person to be the administrator of the personal estate of the deceased, or of any part of such personal estate, other than the person who if this Act had not been passed would by law have been entitled to a grant of administration of such personal estate, it shall not be obligatory upon the court to grant administration of the personal estate of such deceased person to the person who if this Act had not passed would by law have been entitled to a grant thereof, but it shall be lawful for the court, in its discretion, to appoint such person as the court shall think fit to be such administrator upon his giving such security (if any) as the court shall direct, and every such administration may be limited as the court shall think fit.
S. 78 postulates certain pre-conditions:
(a) death intestate;
(b) death testate but without having appointed an executor willing and competent to take probate;
(c) executor resident out of the jurisdiction;
(d) necessary or convenient in any such case , by reason of the insolvency of the estate of the deceased or other special circumstances.
This is in marked contrast to the provisions of s. 27(4) where the discretion is not made expressly subject to any pre-condition; indeed, the determination of the grantee of letters of administration is made expressly subject to subs. (4). In my view, the subsection should be given a liberal construction. Since the applicant was prepared to undertake the administration and is supported by Michael Donoghue, a pecuniary legatee and a creditor of the estate, who has renounced his right to a grant, and Michael Concannon, another pecuniary legatee, not opposing this application, in my view the appeal should be allowed and the grant of letters of administration not limited to calling in the estate but be a grant in the ordinary form.
In re Nevin
High Court, March 13, 1997,
SHANLEY J:
1. Thomas Nevin was murdered on 19 March, 1996. He was survived by his widow Catherine Nevin, his mother Nora Nevin and by seven brothers and sisters. Following his death, his widow instructed Solicitors to prepare the necessary papers to apply to the Probate Office for a Grant of Letters of Administration Intestate to the deceased’s estate. An Inland Revenue Affidavit was sworn by his widow disclosing gross assets passing under his intestacy of £253,879.00 and net assets amounting to £250,260.00. While the Solicitors for Catherine Nevin were processing her application for a Grant of Administration they became aware that on 19 August, 1996 a Caveat was entered in the Probate Office of the High Court on behalf of Nora Nevin, the mother of the deceased. By letter dated 8 January, 1997, the Solicitors for Catherine Nevin requested the Solicitors for Nora Nevin to withdraw the Caveat which she had entered. Nora Nevin refused to withdraw the Caveat — her Solicitors recounting in a letter dated 17 January, 1997 that the deceased’s death was “caused by a single shotgun discharged to the chest”, that Catherine Nevin had been questioned in relation to the investigation, and that the Caveat would not be received pending a decision from the DPP to proceed.
Catherine Nevin, by Notice of Motion dated 3 February, 1997, sought an Order setting aside the Caveat and a further Order restraining Nora Nevin from lodging any further Caveats. The Motion was grounded upon an Affidavit of Catherine Nevin. It is to be noted that it is not alleged in the Grounding Affidavit that Nora Nevin had no interest in lodging the Caveat or that the Caveat was lodged vexatiously or for the purpose of delay. It is alleged, however, in a replying Affidavit of Catherine Nevin dated 6 March, 1997, that to permit the existing Caveat to remain in force or to allow further Caveats be entered would be “an abuse of the process of the Court”. In her Affidavit filed on the hearing of this Motion before this Court Nora Nevin states as follows:
“I say and believe that the Garda Siochana regard the Applicant as a suspect in the death of my son and that the Garda Siochana have forwarded the file in relation to this investigation to the DPP who is at present considering the matter”
She further states:
“I say and believe that the Applicant remains a suspect in the murder of my son. I say and believe it was my duty as the next person entitled after the Applicant to apply for a Grant of Administration to instruct my Solicitors to enter a Caveat to the estate to ensure that the estate would be protected”
In her reply to the above allegation Catherine Nevin states:
“I am not guilty of any offence in relation to my late husband’s death or any other offence whatsoever in relation to him”
Catherine Nevin was cross-examined on her Affidavit; she agreed that she had been detained for 48 hours by An Garda Siochana after the death of her husband. She said she had made a statement which was provided to the Garda Siochana. She said that during her detention she was interviewed more than once. She said her husband had been murdered.
She continues to manage the business of her late husband, namely, the licensed premises known as Jack White Inn.
While the factual controversy which emerges from the Affidavits and cross-examination has a relevance to the issue of whether or not the Caveat was vexatiously and without interest lodged by Nora Nevin, it is important to note that this Court has no function whatsoever in the determination of the guilt or innocence of any party to the murder of the deceased.
A Caveat is a warning which stops probates and administrations being granted without notice to the person entering the Caveat. A Caveat remains in force for six months or until withdrawn and may be renewed from time to time. The Caveat in the present case was renewed in February 1997. Section 38 of the Succession Act, 1965 and Order 79 Rules 41 to 51 deal with the entitlement to, and procedure for, the entry of a Caveat. This procedure is well summarised by the editor of Maguire on the Succession Act, 1965 (1986 ed) at p 90:
“Notice to the Caveator (called a warning) is made form the Probate Office served upon the Caveator and confirmed by post (Order 80 R 58 Order 79 Rr 48, 49). The Caveator then has six working days or such other period as may be specified in the warning to enter an appearance (RSC apdx Q Form 21). In the appearance the Caveator must indicate what interest he claims (ibid Form 22) enabling the person seeking a grant to resolve the matter in Court. Failing an appearance, the Caveat may be cleared off (RSC Order 79 R 51).”
The effect of these rules in practice is that the warning in response to the Caveat obliges the person entering the Caveat either to abandon his claim to a grant or to take contentious proceedings in furtherance of his claim: where no appearance is entered to the warning as noted above the Caveat (and the claim) can be cleared off.
However, it is possible for a Caveator without entering an appearance to the warning to issue a summons claiming a grant. If he does not enter an appearance or issue proceedings, he effectively abandons his claim: the entry of an appearance by a Caveator (as opposed to issuing proceedings) will usually have the effect of persuading the other side to the controversy to issue the summons and assume the role of plaintiff (see generally Maxwell Irish Probate Practice: Cap 20 pp 240-243).
In the present case it is worth recording that no warning at the instance of Catherine Nevin issued in relation to the Caveat of August 1996 or the Caveat of February 1997.
Section 67 (1) of the Succession Act, 1965 provides that if an intestate dies leaving a spouse and no issue the spouse shall take the whole estate. Under Order 79 Rule 5(1) of the Rules of the Superior Court, Catherine Nevin is entitled to a Grant of Administration to the estate of her late husband in priority to the deceased’s mother. Section 120 of the Succession Act, 1965 excludes certain persons from taking shares in a deceased’s estate. Subsection (1) provides:
“A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other . . .”
Section 120 (5) provides:
“Any share which a person is precluded from taking under this section shall be distributed as if that person had died before the deceased”
The Court has an inherent jurisdiction to set aside a Caveat where the Caveat has been vexatiously lodged; see The Goods of Norris Ir R 1 Eq 334. Equally, the Court has jurisdiction to set aside a Caveat where the Caveator has no interest: see Nugent v Nugent 8 Ir Jur ns 52. In the present case, it is clear that in certain circumstances Nora Nevin would have an interest in the estate of the deceased — and clearly has an interest (which is a contingent interest) sufficient to give her a right to lodge a Caveat. Indeed, it is to be noted that Catherine Nevin does not contend that Nora Nevin has no interest. Neither does Catherine Nevin contend that the Caveat has been lodged “vexatiously” — she does however assert that the lodgment of the Caveat amounts to an “abuse of the process of the Court” which is much the same as an allegation of vexatiousness. To sustain such an allegation, the Court must be satisfied that the lodgment of the Caveat amounted to conduct which in all the circumstances no reasonable person could properly treat as bona fide. The Affidavits filed in these proceedings do not establish such a want of bona fides and while I am not prepared to set aside the Caveat, it should be remembered that its purpose is merely to ensure that no grant issues unknown to the Caveator: its presence does not restrain the Court from ordering a grant where a Caveator is on notice of the application for a grant.
While I am satisfied that Nora Nevin has not abused the process of the Court in lodging a Caveat, and while she clearly has an undisputed interest in doing so, I am also satisfied that Catherine Nevin, as the lawful spouse of the deceased, should be under no legal disability merely because she has been interviewed by An Garda Siochana in relation to her husband’s death. She is entitled to her good name and a presumption of innocence. This Court’s refusal to clear off a Caveat should not be seen as in any way reflecting on her innocence. This Court has no function in adjudicating on any allegation of a criminal kind and it will only assume a jurisdiction to preclude a person from a share in a deceased’s estate where the matters set out in Section 120(1) are established in evidence. It is therefore worthwhile re-emphasising that the decision this Court should not be seen as one which is grounded upon a preference for one account of fact over the other: rather it is a decision based solely on the Caveator’s interest and absence of want of bona fides.
While I am satisfied that the Caveat was not lodged vexatiously and was lodged by a person having an interest in the estate, it does seem to me that the interest which the Caveator seeks to protect can be protected while at the same time (if the Applicant applies to the Court) a Grant of Administration can issue to the Applicant. If the grant to be made is one limited to collecting in and preserving, but not distributing, the estate of the deceased, such interest as the Caveator may have in the estate will be preserved until further Order. Accordingly, if, but only if, the Applicant is desirous of obtaining a Grant of Administration ad colligenda bona I will make such an Order. I will make no Order as to costs. The Applicant may seek an unlimited grant on the expiration of nine months from today’s date.
Cawley v Lillis
[2011] IEHC 515
Judgment of Miss Justice Laffoy delivered on 6th day of December, 2011.
1. Factual background
1.1 Celine Cawley (the Deceased) died on 15th December, 2008. She was survived by her husband, the defendant, and her daughter, the third plaintiff (the Beneficiary), who was her only issue. When these proceedings were initiated by special summons which issued on 15th June, 2010, the Beneficiary was a minor, having been born on 24th November, 1992. By order of the Court (Laffoy J.) made on 27th June, 2011, it was ordered that the Beneficiary, who had attained her majority, be joined as a co-plaintiff in these proceedings.
1.2 The Deceased died testate, having executed her last will and testament on 7th June, 1993. By her said will the Deceased appointed the defendant to be sole executor thereof. She devised and bequeathed all of her property to the defendant for his own use and benefit absolutely and appointed him sole residuary legatee. However, the Deceased made alternative provision in her will, which was to apply should the defendant predecease her or should he not survive her by thirty days. Should either of those events occur, the Deceased appointed the first and second plaintiffs (the Personal Representatives) to be executors and trustees of her will and she directed that they should hold the whole of her estate upon the trusts set out.
1.3 On 29th January, 2010 the defendant was convicted after a trial by a Judge sitting with a jury at the Central Criminal Court of the manslaughter of the Deceased. On 5th February, 2010 he was sentenced to a period of six years and eleven months imprisonment having been so found guilty, the said sentence to commence on 4th February, 2010. Not having appealed against conviction or sentence, the defendant is currently serving the term of imprisonment.
1.4 The conviction of the defendant for the manslaughter of the Deceased has certain implications in relation to the distribution of the estate of the Deceased by virtue of the application of s. 120 of the Succession Act 1965 (the Act of 1965). Sub-section (1) of s. 120 provides:
“A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under section 117.”
After, in the succeeding sub-sections, providing for other circumstances in which persons are excluded from succeeding to the estate of a deceased person, sub-section (5) of s. 120 provides:
“Any share which a person is precluded from taking under this section shall be distributed as if that person had died before the deceased.”
By application of those provisions, the defendant is precluded from succeeding to any interest in the estate of the Deceased. Accordingly, the Beneficiary, being the only issue of the Deceased and having reached the age of eighteen years, is solely beneficially entitled to the residuary estate of the Deceased under the trusts declared in her will.
1.5 Subsequent to his conviction, the defendant executed a renunciation whereby he expressly renounced his right to probate of the will of the Deceased. On 24th March, 2010 letters of administration with the said will annexed of the estate of the Deceased were granted by the Court to the Personal Representatives, being the persons appointed by the Court pursuant to an order of the Court (O’Neill J.) dated 1st March, 2010 made pursuant to s. 27(4) of the Act of 1965. The defendant acknowledged that he had no entitlement to the assets of the Deceased, that is to say, assets that were held by the Deceased in her sole name.
1.6 The issues raised in these proceedings relate to assets which were not held in the sole name of the Deceased but were held in the joint names of the Deceased and the defendant, which will be referred to collectively as “the joint assets”. In summary those joint assets are the following:
(a) The former family home of the Deceased and the defendant known as Rowan Hill, at Windgate Road, Howth in the County of Dublin, which is registered on Folio 31534F of the Register of Freeholders, County Dublin (Rowan Hill). On 16th February, 2000 the Deceased and the defendant were registered as full owners with absolute title on the said Folio. The most recent valuation of Rowan Hill which has been put before the Court was carried out by Sherry Fitzgerald on 1st November, 2011. The value ascribed to the property at that date was €750,000. However, the opinion was expressed by the valuer that, “if the house had no unfortunate history”, the value would be in the region of €1m to €1,100,000. From the submissions made at the hearing of the proceedings on 16th November, 2011, it is clear that both sides are ad idem that the current value of Rowan Hill is in the region of €750,000 to €800,000. I note from the correspondence put in evidence, and in particular from the letter of 17th May, 2011 from the plaintiffs’ solicitors to the defendant’s solicitors, and also from the written submissions of counsel for the plaintiffs, that, while a charge is still registered against Folio 31534F, it was discharged before the death of the Deceased.
(b) A dwelling house, 32, Tramway Court, Sutton, County Dublin (32, Tramway Court). The title to 32, Tramway Court is an unregistered title and the property was acquired by the Deceased and the defendant as joint tenants in fee simple by virtue of a conveyance dated 25th January, 2002. Sherry Fitzgerald put a value of €220,000 on that property as at 1st November, 2011. Once again, it appears that both sides are ad idem as to the current market value of that property (in the region of €190,000 to €220,000), which is let to tenants. I note that a mortgage raised in connection with the acquisition by the Deceased and the defendant of this property was also discharged before the death of the Deceased.
(c) Two bonds in joint names, which appear to have a current value in the region of €45,000.
(d) Two joint bank accounts, one with Permanent TSB and the other with Bank of Ireland, which had credit balances aggregating approximately €24,500 at the date of the death of the Deceased, but which appear to have been operated by the defendant after that date.
I have no doubt that issues will arise in relation to the value of the joint assets consequential on the outcome of these proceedings. For example, the balance on one of the accounts referred to at (d) above has reduced since the death of the Deceased and, apparently, the other account is overdrawn. While I have recorded those facts, it is important to emphasise that the Court is not concerned with that type of detail on this application.
1.7 What is of significance is that it is common case that the properties Rowan Hill and 32, Tramway Court remained vested in the Deceased and the defendant as joint tenants at the date of the death of the Deceased, not as tenants in common.
1.8 A lot of other factual matters were averred to in the various affidavits filed on the special summons: the affidavits of the second plaintiff sworn on 18th June, 2010 and 16th November, 2010; the affidavits of the defendant sworn on 1st November, 2010 and 20th January, 2011; and the affidavit of the Beneficiary sworn on 28th June, 2011. Conflicts of evidence arise on the affidavits. However, in my view, the facts which I have outlined above are the only facts which are relevant to the determination of the issues which are before the Court and there is no conflict as to those facts.
1.9 Finally, the Court was informed that the Deceased and the defendant jointly owned real property in France, which is the subject of proceedings in that jurisdiction. Those proceedings have no bearing on the issues before the Court.
2. The questions to be determined by the Court
2.1 The questions which the plaintiffs have requested the Court to answer, arising out of the administration of the estate of the Deceased, in the events which have happened, are as follows:
(A) In circumstances where one joint tenant causes the death of the other joint tenant, does the right of survivorship operate?
(B) If the answer to question (A) above is in the negative, is the estate, right, title and interest of the surviving joint tenant forfeit?
(C) If the answer to question (B) above is in the affirmative, does the interest that is forfeit pass to the estate of the Deceased joint tenant?
(D) If the answer to question (A) is in the negative and the answer to question (C) is in the negative, is a severance of the joint tenancy effected in all the circumstances?
(E) If the answer to question (D) above is in the affirmative, is it necessary to conduct an inquiry into the contributions made by the joint tenants in relation to the beneficial entitlement of each co-owner?
(F) What is the interest of the defendant (if any) in the properties held jointly in all the circumstances?
2.2 In addition to the foregoing questions, the reliefs sought by the plaintiffs on the special summons include the following:
(a) the determination of any other question arising in relation to the matters in the proceedings as to the Court may seem proper;
(b) an order directing all necessary accounts, directions and inquiries; and
(c) if necessary, an order directing an inquiry and account in relation to the contributions to the acquisition of the properties owned jointly by the Deceased and the defendant and the funds standing to the credit of the joint accounts (i.e., the joint assets).
Further or other consequential orders and reliefs are sought, together with an order providing for the costs of the proceedings.
2.3 Apropos of question (E) and the necessity or otherwise to direct an inquiry or account in relation to the contributions to the acquisition of the joint assets, my understanding of the position adopted by both sides at the hearing was that, not only was it accepted that Rowan Hill and 32, Tramway Court were held as joint tenants by the Deceased and the defendant at the date of the death of the Deceased, but it was also common case that, in the event of a finding of severance, the estate of the Deceased and the defendant would each become entitled to an undivided moiety of the properties and funds. Accordingly, at this juncture, I do not propose addressing question (E) or the necessity for an account or inquiry as sought in the terms set out at paragraph (c). If my understanding as to the position of the plaintiffs is incorrect, subject to the observations at the end of this judgment, if necessary, I will hear further submissions on this aspect of the matter. However, as it was not alluded to at the hearing, I would remind the parties that the Deceased and the defendant were husband and wife when the properties were acquired and the bonds and the bank accounts were put in place. That being the case, the equitable doctrine of advancement may come into play, although, having regard to the evidence as to the respective financial strengths of the Deceased and the defendant, the caveat issued by Professor Delany in Equity and the Law of Trusts in Ireland (5th Ed.) at p. 172 may be relevant.
3. The respective positions of the parties in outline
3.1 Counsel for the plaintiffs submitted that the principle to which there was given statutory force in s. 120(1) of the Act of 1965 had been recognised at common law before that statutory provision was enacted. The rationale underlying the principle embodied in the provision is that to allow a person who causes the death of another to benefit from the assets of the deceased would mean that that person would benefit from his or her crime, which is contrary to public policy. Counsel cited a number of authorities in support of that proposition (Amicable Society for a Perpetual Assurance Office v. Bolland & Ors. [1830] II Dow & Clark 630; Cleaver v. Mutual Reserve Fund Life Association [1892] 1 QB 147; and In the Estate of Crippen [1911] P 108). On the basis of the public policy imperative, counsel for the plaintiffs submitted that, by analogy to s. 120(5) of the Act of 1965, the defendant should be deemed to have predeceased the Deceased and that, in consequence, the joint assets, which had been formerly jointly owned by the Deceased and the defendant, should pass to the estate of the Deceased. It was submitted that the approach advocated fits the factual matrix, in that the Deceased was approximately five years younger than the defendant and, as a woman, as a matter of probability, she would have survived the defendant and become solely entitled to the joint assets by right of survivorship. Therefore, it was argued, if the defendant were to acquire any interest in the joint assets, he would, in effect, be benefiting from his crime.
3.2 Counsel for the plaintiffs did, however, recognise that there are authorities from other common law jurisdictions under which it has been held that, when the death of one joint tenant was caused by the other joint tenant, the joint tenancy was severed. An alternative approach, which has been adopted in other common law jurisdictions, was to treat the person who caused the death as holding the property on a constructive trust for himself or herself and the estate of the deceased person. It was urged on behalf of the plaintiffs that, if the Court were to find that the estate of the Deceased is not solely entitled to the joint assets, the Court should favour the severance approach rather than the constructive trust approach. Further, it was submitted that, in appropriating the properties and funds to the estate of the Deceased and the defendant, the Court should have regard to the fact that, because of the act of the defendant, the value of Rowan Hill has diminished. However, it was recognised that that argument may be for another day.
3.3 Counsel for the defendant did not contest the fundamental public policy principle that a person should not benefit from his own crime. However, he departed from the thrust of the case which had been made in the affidavits filed on behalf of the defendant, which was that the defendant became solely beneficially entitled to the joint assets and that the estate of the Deceased had acquired no interest in them. In effect, for the first time, at the hearing it was conceded on behalf of the defendant that he was not solely beneficially entitled to the joint assets. That concession was made late in the day, notwithstanding that a proposal was made on behalf of the plaintiffs in an open letter dated 17th May, 2011 to the defendant’s solicitors that, notwithstanding their belief that there was legal argument to the effect that in all the circumstances the estate of the Deceased should be entitled to one hundred per cent of the joint assets, in an effort to resolve the matter, the plaintiffs would agree to the question raised on the special summons being answered on the basis that there was a severance of the joint tenancy. Accordingly, the position adopted on behalf of the defendant at the hearing was that the joint tenancy terminated on the death of the Deceased caused by the defendant’s wrong, in consequence of which either –
(a) the defendant holds the joint assets on a constructive trust for the estate of the Deceased and himself, or
(b) the joint tenancy in the joint assets has been severed, so that the estate of the Deceased is entitled to one half share thereof and the defendant is entitled to the other one half share.
In support of that argument counsel for the defendant submitted that the defendant had vested rights in the joint assets subject to the operation of the jus accrescendi, which depended on which of the joint tenants died first. Those rights were property rights which enjoyed the protection of Article 40 of the Constitution. The defendant cannot be penalised further by being excluded from his property rights, which he enjoyed for eight to nine years, by being forced to forfeit them, it was submitted.
3.4 On the issue of whether the Court should adopt the severance approach or the constructive trust approach, counsel for the defendant submitted that it would be more convenient if the share of the estate was arrogated to the estate, so that the Personal Representatives may administer it. However, he stressed that the defendant is entitled to an undivided moiety or half share of the joint assets. He also submitted that to make an adjustment on the basis of the alleged diminution in value of Rowan Hill would constitute a penalty on the defendant, and he made the point that, in any event, property valuations fluctuate from day to day.
4. The issues
4.1 Having regard to the submissions made at the hearing, in my view, the primary issues for determination by the Court are:
(a) whether, as contended on behalf of the plaintiffs, the entirety of the joint assets form part of the estate of the Deceased and the defendant has no interest in, or entitlement to, them or any part thereof; or
(b) whether –
(i) severance occurred on the death of the Deceased, so that the estate of the Deceased and the defendant are equally entitled to the joint assets, or,
(ii) alternatively, the joint assets have accrued to the defendant solely but, as to a moiety thereof, are held by him on a constructive trust for the estate of the Deceased.
4.2 The resolution of those issues primarily turns on the application of established principles of law and equity in the area of real property law, which is highly technical, rather than the exercise of discretion by the Court.
5. The law: general observations
5.1 Apart from a newspaper report of a Circuit Court action in 1998, counsel for the plaintiffs was unable to point to any case in this jurisdiction in which the issues which arise in this case were considered and adjudicated on. The newspaper report (a report by Mr. Ray Managh in the Cork Examiner on 9th October, 1998) concerned the estate of Mrs. Esther McCann and the ownership of a house in Dublin which had been jointly owned by Mrs. McCann and her husband, Frank McCann. At the time of the application to the Circuit Court, Mr. McCann was serving a life sentence for the murder of Mrs. McCann and a foster child. It is recorded in the report that counsel for Mr. McCann accepted that his client could not benefit from his crime and that the normal rules relating to survivorship could not be applied. Her Honour Judge Dunne decided that, although there was no specific decided case on the point, the effect of the murder was to sever the joint tenancy. Mr. McCann could not inherit or succeed to the interest of Mrs. McCann in the property, which, apparently, would devolve on her mother.
5.2 Counsel for the plaintiffs also pointed out that there is an obiter dictum in the judgment of the Supreme Court delivered by Finnegan J., with whom the other two Judges of the Supreme Court agreed, in Mahon v. Lawlor [2010] IESC 58 to the effect that a joint tenancy is severed “by homicide”, referring to Megarry & Wade on The Law of Real Property (4th Ed.) and Challis on Law of Real Property (3rd Ed.).
5.3 The Court has been referred to authorities from other common law jurisdictions which are germane to the issue the Court has to decide, namely, from the United Kingdom, Canada and New Zealand.
6. United Kingdom authorities
6.1 There is a useful summary of the current state of the law in the United Kingdom in Megarry & Wade on The Law of Real Property (7th Ed., 2008) where it is stated at para. 13 – 049:
“One consequence of the rule that no one may benefit in law from his own crime, is that, in general, if one joint tenant criminally kills another, the killer cannot take any beneficial interest by survivorship. This rule of public policy, commonly known as the ‘forfeiture rule’, applies to cases of deliberate and intentional homicide, where the killing is murder, manslaughter or aiding and abetting a suicide. It has not been conclusively settled in England whether the application of the rule causes the automatic severance of the joint tenancy or whether a constructive trust is imposed to prevent the killer from obtaining any benefit from his crime. Where there are just two joint tenants, the answer will be the same on either view.”
In a footnote, the editors point out that in Australia the courts impose a constructive trust and that there are persuasive reasons for preferring that approach, citing, inter alia, Rasmanis v. Jurewitsch (1979) 70 S.R. (N.S.W.) 407.
6.2 As the editors of Megarry point out in the same paragraph, the Court in the United Kingdom now has a statutory power, under the Forfeiture Act 1982 (the Act of 1982), to modify the application of the forfeiture rule in cases where a person has unlawfully killed another, save where he or she has been convicted of murder. The Court may do so only if it is satisfied that, having regard to the conduct of the offender and of the deceased and to such other circumstances as may appear material to it, the justice of the case so requires. In the exercise of the statutory power, the Court may hold that the right of survivorship applies, notwithstanding that one joint tenant killed another. As I have recorded, counsel for the defendant acknowledged that he could not urge the Court that the right of survivorship applies in this case. However, in considering recent English authorities referred to below, it is necessary to keep those statutory provisions in mind.
6.3 The decision of the Chancery Division of the English High Court in Re K. Deceased [1985] 1 Ch. 85 post-dated the Act of 1982. The only passage from the judgment of Vinelott J. which I consider to be of assistance for present purposes is the following passage (at p. 100):
“As I have mentioned the matrimonial home (which is registered land) was vested in the deceased and the widow as joint tenants at law and in equity. Mr. Barlow on behalf of the widow accepts that the forfeiture rule unless modified by the Act of 1982 applies in effect to sever the joint tenancy in the proceeds of sale and in the rents and profits until sale. I think that concession is rightly made. There is curiously no reported case on the point in England but it has been held in other jurisdictions where the law was similar to English law before 1925 that where one of two joint tenants murders the other while the entire interest vests in the survivor the law imports a constructive trust of an undivided one-half share for the benefit of the next of kin of the deceased other than the offender: see Schobelt v. Barber . . . , and In re Pechar, decd. . . . . Under English law since 1925 the result is more simply reached by treating the beneficial interest as vesting in the deceased and the survivor as tenants in common.”
To put that passage into its factual context, the widow, with the intention of frightening the deceased, her husband, and deterring him from following her out of the room, picked up a loaded shotgun and released the safety catch. The gun went off killing the deceased. The widow was charged with murder, but the Court accepted a plea of guilty to manslaughter and she was placed on probation. In opting for the automatic severance approach, Vinelott J. seems to have attached considerable weight to the changes in relation to joint tenancies introduced in England in the Law of Property Act 1925 (in relation to which, cf. Wylie on Irish Land Law, 4th Ed. fn. 24 at p. 462).
6.4 The passage from the judgment of Vinelott J. quoted above was approved by Mummery L.J. in the Court of Appeal of England and Wales in Dunbar v. Plant [1998] Ch 412. In his judgment, Mummery L.J., in the context of considering the ownership of a house and other assets jointly owned by the deceased and the defendant, Ms. Plant, in circumstances where it had been found that Ms. Plant had criminally aided and abetted the suicide of the deceased, who was her fiancée, stated (at p. 418):
“The house has been sold for £35,000. It is not in dispute that the forfeiture rule, unless modified under the Act of 1982, applied to effect a severance of the beneficial joint tenancy in the house and that Miss Plant was therefore entitled to an equal half share in the proceeds as tenant in common. (This concession was correctly made: see In re K. Deceased. . . . ).
7. Canadian authority
7.1 The headnote in the report of the judgment of the Ontario High Court in Schobelt v. Barber 60 D.L.R. (2d) 519, which dates from 1966 and was referred to in the passage of the judgment of Vinelott J. quoted at para. 6.3 above, summarises the effect of the judgment as follows:
“Where one of two joint tenants murders the other the usual rule of survivorship applies and the full interest in the property accrues to the survivor. However the court will then impose a constructive trust so that the survivor holds the property as to an undivided interest share for the benefit of the deceased joint tenant’s next of kin.”
The essential facts under consideration by the Ontario High Court were that Mr. Barber and Mrs. Barber had owned real estate in Ontario, the subject of the proceedings, for six or seven years as joint tenants before the death of Mrs. Barber in 1965. Mr. Barber was charged with the murder of Mrs. Barber and in May 1966 he was convicted of non-capital murder. Mrs. Barber’s sister brought the proceedings, on behalf of herself and all of the next of kin of Mrs. Barber, claiming that it was contrary to public policy that Mr. Barber should be able to deal with the real estate as his own because of the death of his wife at his own hands. In my view, the reasoning of Moorhouse J. in his judgment is particularly instructive and persuasive. He said at the outset that he was informed by counsel that they had been unable to find a Canadian precedent.
7.2 In addressing the question he posed as to what was the destination of the rights in the real estate, Moorhouse J. distinguished between changes of ownership of property held on joint tenancy and of other forms of property as a consequence of a death, stating (at p. 522):
“The problem of those who hold as joint tenants and not as tenants in common differs from that of a beneficiary under an insurance contract, the devisee under a will or an heir upon intestacy in that the survivor’s right previously in existence is enlarged by the death while in the other situations mentioned the right is brought into being by the death. In the joint estate the survivor does not take the moiety of the other or as his successor but takes by right under the instrument creating the joint tenancy.”
In answering the next questions he posed, whether the Court should interfere in the destination of the property and, if it should, how that could best be done, Moorhouse J. analysed several courses open to the Court by reference to academic commentary on an earlier Canadian authority (Re Pupkowski 6 D.L.R. (2d) 427, a decision of the Supreme Court of British Columbia) by Prof. R. St. J. MacDonald in 35 Can. Bar Rev. (1957). The options considered by Moorhouse J., and his views on them, may be summarised as follows:
(1) The normal rule might apply whereby the whole estate accrues to the survivor. Moorhouse J. rejected that option on the basis that it not only violates the rule that a man cannot benefit directly from his own wrongful act but it is contrary to public policy that he should be permitted to do so. He pointed out that the law of joint tenancies had developed in a manner that one joint tenant might either voluntarily (or involuntarily) determine the joint tenancy and to that extent the jus accrescendi might be thus defeated, though the remaining joint tenant would still have his undivided interest as a tenant in common. The logic underlying the rejection of that option, in my view, is irrefutable. In any event, as I have made clear, contrary to the position adopted by the defendant in his replying affidavits, it was acknowledged at the hearing by his counsel that he cannot take the entire interest in all of the joint assets by right of survivorship.
(2) The jus accrescendi could be held to be inoperative because of the crime, in which event the survivor would take nothing. As regards that option, Moorhouse J. stated:
“To give effect to this view would in my opinion be imposing a further penalty on the survivor who has been sentenced for the crime of which he has already been convicted. It would be a return to the principle of forfeiture which has been abolished by the Criminal Code . . . .”
(3) The full interest might vest in the survivor and then it might be held that the victim can be deemed to have died after the wrongdoer. As I understand how this option would operate, it would mean that the wrongdoer would take a life interest in the whole property and on his death the entire property would pass to the estate of the victim. As regards that option, Moorhouse J. stated:
“In my respectful opinion this solution could only be accomplished by much legislation. That is something which in my opinion is beyond the function of the Court.”
(4) The Court might apply the normal rule, namely, that the full interest accrues to the survivor, but with the Court impressing it with a trust and declaring that the survivor holds an interest, meaning, as I understand it, an undivided share, as constructive trustee for the victim’s heirs or devisees. Moorhouse J. stated that, in view of the claim made in the case before him, i.e., to an undivided half, that option more closely met the demands of justice on the facts than any other avenue open to him.”
7.3 On the facts before him, Moorhouse J. declared that the defendant in his personal capacity was a constructive trustee of the whole property for himself as to an undivided one-half and as to the remaining undivided one-half for the next of kin of the deceased, Mrs. Barber. Earlier in his judgment, having quoted a passage from a text published in the USA, Scott on Trusts (1st ed., vol. 3, p. 2383), to the effect that, in the absence of a statute otherwise providing, it would seem that the legal title should pass to the murderer and that he is chargeable as a constructive trustee and that, by imposing a constructive trust upon the murderer, the Court is merely compelling the murderer to surrender the profits of his crime and thus preventing his unjust enrichment, Moorhouse J. explained his preference for that solution as follows (at p. 525):
“This I know is but a feeble attempt to undo the advantage gained by the wrongdoer. It is true it takes away a right previously possessed, i.e., the jus accrescendi, and to that extent it is a forfeiture, but he could have terminated that incident lawfully – by his own act he could have converted the estate into a tenancy in common. It seems to me the method I adopt interferes less with the rights acquired by the joint tenants under the original document than any other method apparent to me and yet conforms to the established rule of public policy. It does not I think add murder to the approved methods by which one joint tenant may convert a joint tenancy into a different estate whereby he acquires an estate he could not himself have acquired but for the crime.”
The declaration made in that case was that Mr. Barber, in his personal capacity, held the property upon trust, one-half for himself and the other one-half for the next of kin of Mrs. Barber.
8. New Zealand authority
8.1 The decision in Schobelt v. Barber was cited in the decision of the Supreme Court of Auckland, New Zealand in Re Pechar, decd. [1969] NZLR 574, which was also cited in the passage from the judgment of Vinelott J. quoted at para. 6.3 above. It is unnecessary for present purposes to consider the complicated facts of, and issues in, that case save to say that Hardie Boys J. had to consider whether Ante Grbic, who had been found not fit to plead on charges in connection with the death of his wife whom he had stabbed to death and who had been detained in a mental institution, was entitled to succeed to property held by him and his wife as joint tenants.
8.2 Having referred to various authorities, including Cleaver v. Mutual Reserve Fund Life Association (referred to at para. 3.1 above), Hardie Boys J. stated (at p. 585):
“These citations from authority . . . satisfy me that precisely the same principles should be applied to a joint tenancy and that, at least, Ante Grbic cannot claim the whole estate as having survived his wife whom he murdered.
But what happens to his own co-extensive and co-existing right? I see force in the argument that, forfeiture and escheat having been abolished, for as long as he himself lived his crime would not deprive him of that right; it was a right in law which he enjoyed prior to the crime and, whilst he cannot enlarge that interest and promote his survivorship to beneficial ownership of the whole estate by murdering his joint tenant, there is nothing in the authorities which I have read which deprives him of the whole of what he already has.
If, however, one stopped there, it would be ignoring the fact that his crime has got rid of the joint tenant who throughout his natural lifetime had a co-existing and co-extensive right the same as his own. He has indeed enlarged his rights during his lifetime to the extent of having removed the joint tenant whose interest was equal with his own.”
In addressing the question he posed at the beginning of the second paragraph in the above quotation, Hardie Boys J. resorted to the second edition of Scott on Trusts (2nd Ed., 3203, para. 493.2) and the author’s analysis of the various solutions adopted by the American courts in husband and wife cases. He opted for the fifth of Scott’s alternatives, which he summarised (at p. 586) as that “the murderer is chargeable as a constructive trustee of his victim’s estate of one half of the property”.
8.3 The manner in which Hardie Boys J. gave effect to that option was more complex than one would have anticipated. He answered the question whether Ante Grbic was entitled to succeed as surviving joint tenant to any property held by himself and his late wife as joint tenants as follows (at p. 588):
“The legal title to any property held by Ante Grbic and Marina Kathleen Grbic as joint tenants passes by survivorship to the said Ante Grbic but that such property is held by the said Ante Grbic as to one-half thereof as a constructive trustee for the estate of Marina Kathleen Grbic so that throughout the natural life of Ante Grbic one-half of the income arising from such property is held in trust for the estate of Marina Kathleen Grbic and upon the death of said Ante Grbic one-half of such property is held in trust for the estate of Marina Kathleen Grbic.”
On the basis of his subsequent comments, it would seem that, in answering the question thus, Hardie Boys J. intended that the trust under which the survivor held his own share should be framed in such a way that he would not be in a position to legally dispose of his interest as tenant in common. I can understand the objection of counsel for the plaintiffs to the imposition of that type of constructive trust in this case. I cannot see how it would be fair to the beneficiaries of the estate of the victim to declare the constructive trust in a manner which would effectively postpone their obtaining control of, or the realisation of, the estate’s share of the property formerly jointly held, whether by partition, sale in lieu of partition and a division of the proceeds, or otherwise, until after the death of the criminal.
8.4 Some observations made by Hardie Boys J. earlier in his judgment in relation to the technical issue of the passing of title are of relevance. He referred to an earlier decision of an Australian Court, Re Thorp and the Real Property Act 1900 [1962] NSWR 889, in which Scott’s propositions and the necessity of finding some means of giving effect to the rule laid down in the Cleaver case had been discussed. In that case, Jacobs J., having pointed out that forfeiture and escheat had been abolished in Australia, stated that the legal title had to pass to the surviving joint tenant and what the Court was concerned with was whether a trust should be engrafted on the legal title. Hardie Boys J. (at p. 587) quoted the following observations of Jacobs J.:
“This is not altogether a satisfactory or logical conclusion because it relegates the enforcement of the principle of public policy to the realm of equity and does not introduce it into the common law from which it sprang. However, there is no way, it seems to me, consonant with the preservation of the principles of real property, in which effect could be given to the modern doctrine. I therefore think that it is best to leave the legal devolution of title untouched and to hold that the principle of public policy should be enforced by the medium of the trust.”
As noted by Hardie Boys J., Jacobs J. was only concerned with the devolution of the legal title and he did not address the beneficial provisions under the constructive trust.
8.5 Finally, I think it is worth recording that Hardie Boys J. considered that his judgment had the same effect as the judgment of Moorhouse J. in Schobelt v. Barber, and the judgment of Street J. in Rasmanis v. Jurewitsch referred to at para. 6.1 above. He quoted the effect of the decision of Street J. from the headnote of the report as follows (at p. 588):
“Where A. and B. are registered proprietors of an estate in fee simple as joint tenants of land under the Real Property Act 1900, as amended, and A. murders B., the legal estate in the land becomes vested in A., but in equity he holds it in trust for himself and the legal personal representative of B. as equitable tenants in common in equal shares.”
On the facts, Street J. also had to address the situation, which does not arise in this case, where there had been a third joint tenant, holding with A. and B.
9. Conclusions on the current ownership of the joint assets
9.1 I have two preliminary observations to make in relation to the approach I propose adopting to determining the issues outlined at para. 4.1 above. First, I consider that, in determining how, and to whom, the joint assets passed on the death of the Deceased, the relevant law is that which applied at the date of the death of the Deceased. Secondly, I consider that the proper approach is to apply the law to the facts as they were immediately before the death of the Deceased, that is to say, that the joint assets were jointly owned by two joint tenants. I make that point because it is clear from what follows the passage from Megarry & Wade, which I have quoted at para. at 6.1 above, and the decision in Rasmanis v. Jurewitsch referred to earlier, that, where property has been jointly held by three or more joint tenants, answering the question whether, in the event of a homicide of one joint tenant by another, there is an automatic severance or a constructive trust is imposed gives rise to different results depending on the answer. In a case involving three or more joint tenants it would be necessary to assess the implications of those differences. However, in the context of the facts of this case, such implications are merely academic.
9.2 The Deceased died before the coming into operation of the Land and Conveyancing Law Reform Act 2009 (the Act of 2009), which came into operation on 1st December, 2009. Accordingly, the devolution of the legal title to the properties at Rowan Hill and 32, Tramway Court on the death of the Deceased falls to be determined in accordance with the common law principles applicable at the date of her death. In my view, applying those principles, on the death of the Deceased the legal estate in those properties accrued to the defendant solely by right of survivorship. In particular, having regard to the relevant common law principles, in my view, it is not possible to conclude that the legal estate in the joint tenancy was automatically severed on the death of the Deceased. While those conclusions resolve the question in relation to the devolution of the legal title, the crucial questions which have to be determined are whether, on the death of the Deceased, the legal title to those properties became impressed with a constructive trust and, if it did, what are the terms of the trust.
9.3 As I have stated at para. 3.3 above, the defendant conceded at the hearing that on the death of the Deceased he did not become solely beneficially entitled to the joint assets. Rather he acknowledged that the joint assets are beneficially owned in equal shares by the defendant and the estate of the Deceased. In making that concession, the defendant, through his counsel, properly, if belatedly, acknowledged that the law, as a matter of public policy, will not permit him to obtain a benefit or enforce a right resulting from the crime he committed against the Deceased. That concession also narrowed the issues which the Court has to determine.
9.4 The issue which remains for the determination of the Court is whether, as was contended by counsel for the plaintiffs, public policy considerations necessitate that the estate of the Deceased should become solely beneficially entitled to the joint assets to the exclusion of the defendant. In addressing that issue, it seems to me that the proper approach is to identify the nature of the interest which each of the joint tenants enjoyed in the properties at Rowan Hill and 32, Tramway Court immediately prior to the death of the Deceased. They had concurrent rights to possession in those properties and each had the hope of his or her interest being enlarged into sole ownership by the operation of the jus accrescendi, if he or she survived the other. Under the law in force at the time, each had power to prevent the jus accrescendi ultimately applying by unilaterally severing the joint tenancy at any time prior to the death of the first of the joint tenants to die. It is true that, if the Court were to hold that the defendant now has a beneficial interest to the extent of one-half share in those properties, his entitlement to a specific share therein will have been accelerated by reason of the death of his co-owner. However, the reality of the situation is that, prior to the coming into force of ss. 30 (which voids unilateral severance of a joint tenancy) and 31 of the Act of 2009, during their joint lives either the defendant or the Deceased could have achieved the same result by taking steps to unilaterally sever the joint tenancy. It is also true that, if the tragic events of 15th December, 2008 had not occurred, the Deceased might have survived the defendant and become solely legally and beneficially entitled to those properties. However, as Hardie Boys J. stated in Re Pechar (at p. 587), referring to the third edition of Megarry & Wade, “any joint tenancy involves a chance and the chance is an ‘all or nothing chance’”. It follows that at the material time, that is to say, immediately before the death of the Deceased, there were a number of possibilities as to the ultimate destination of the joint assets, which would have turned on a number of imponderables, for example, whether one or other of the joint tenants would sever the joint tenancy and which of the joint tenants would die first. In my view, it is not possible to form a view, even as a matter of probability, as to where the ownership of those properties would have ultimately vested, if those tragic events had not occurred.
9.5 Accordingly, if the Court were to hold that on the date of the death of the Deceased the joint assets accrued to the defendant solely and were held by him on a constructive trust for himself and the estate of the Deceased in equal shares, that outcome, viewed objectively at that time, could not be regarded as conferring a benefit on the defendant as a result of the crime he committed. On the other hand, if the Court were to hold that the defendant on that day held, and continues to hold, the entire interest in the joint assets on trust for the estate of the Deceased solely, the Court would effectively be interfering with the defendant’s existing rights in the joint assets. In the absence of legislation empowering the Court to so interfere with the defendant’s existing rights at the date of the Deceased’s death, in my view, the Court has no power or jurisdiction to do so. In particular, I do not consider that it would be proper to determine, by analogy to s. 120(5), that the ownership of the joint assets following the death of the Deceased should be determined on the basis that the defendant should be deemed to have pre-deceased the Deceased. Section 120 deals with the distribution of property owned by the deceased person, not with the distribution of property in which an unworthy potential successor has rights. Whether legislation, which would have the effect which counsel for the plaintiffs urged the Court to bring about in relation to the joint assets would be justified having regard to social justice and the exigencies of the common good so as to be able to withstand attack on the grounds of repugnancy to the Constitution, is not a matter on which it would be appropriate for the Court to express a view. However, I am satisfied that, in the absence of legislation conferring express power on the Court to interfere with the defendant’s existing rights to the joint assets, the Court has no such power or jurisdiction.
9.6 Accordingly, the answer to the questions raised at para. 4.1 above are as follows:
(a) the entirety of the joint assets do not form part of the estate of the Deceased to the exclusion of the defendant; and
(b) while severance did not occur on the death of the Deceased, the joint assets have accrued to the defendant solely but as to one half share thereof they are held by him on a constructive trust for the estate of the Deceased.
To put it in another way, I find that on the death of the Deceased the joint assets became vested in the defendant upon a constructive trust as to one-half share thereof for the defendant in his own right and as to the other one-half share thereof upon the trusts applicable thereto as part of the estate of the Deceased.
10. Consequential considerations
10.1 Counsel for the plaintiffs emphasised that the Beneficiary, understandably, wants finality to be brought to the issues which have arisen in relation to the joint assets. The finding I have made at para. 9.6 above has determined the ownership of the joint assets following the death of the Deceased. As was recognised by counsel for the plaintiffs, it may be necessary for the Court to consider further, having heard further submissions, how the Beneficiary’s objective of bringing finality to this matter can be achieved. However, Court intervention will only be necessary if agreement cannot be reached between the parties to achieve that end. With a view to assisting the parties, but without prejudging any issue which remains to be determined, I would make the following observations.
10.2 There can be no doubt that the optimum solution would be for agreement to be reached between the plaintiffs and the defendant as to the mode of division of the joint assets between them to satisfy their respective shares therein and for the defendant, as trustee, to transfer (by conveyance or otherwise) the assets to be appropriated to the estate of the Deceased in satisfaction of the share to which the estate is entitled, or, alternatively, to participate in the realisation of the assets and a division of the proceeds of sale thereof, if that is the agreed solution. That would enable the Personal Representatives to complete the administration of the estate of the Deceased. Adopting that approach would avoid further litigation of these proceedings and the legal and other costs which litigation would entail. However, if agreement cannot be reached between the parties, then the plaintiffs will have to give consideration to seeking relief in these proceedings under s. 31 of the Act of 2009. The Personal Representatives and the defendant being co-owners in equity of the joint assets, as regards Rowan Hill and 32, Tramway Court, it is open to the Court, on the application of the Personal Representatives, to make orders granting various reliefs under s. 31, including an order for partition of land amongst co-owners, an order for the sale of land and distribution of the proceeds of sale, or such other order relating to land as appears to the Court to be just and equitable in the circumstances of the case. Further, as regards the legal estate, in the event of lack of co-operation by the defendant qua trustee, it would be open to the Court to make a vesting declaration pursuant to s. 26 of the Trustee Act 1893.
10.3 Prima facie, the defendant must account to the plaintiffs for his dealing with the joint assets since the death of the Deceased, for example, for the rent which he received out of No. 32, Tramway Court. Again, the optimum solution would be for the plaintiffs and the defendant to reach agreement in relation to such accounting and, as appropriate, to factor in the result in the division of the joint assets. However, if agreement cannot be achieved, this aspect of the proceedings will have to be dealt with either by the Court or referred to the office of the Examiner of the High Court to conduct necessary inquiries and accounts. If either process is necessary, the final resolution of the issues between the parties will be delayed and further costs will accrue.
10.4 I propose adjourning the proceedings for a sufficient period to allow the parties to attempt to reach agreement in relation to the outstanding matters.
11. Legislation
11.1 The issues raised in these proceedings demonstrate that, ideally, there should be legislation in place which prescribes the destination of co-owned property in the event of the unlawful killing of one of the co-owners by another co-owner. Such legislation would have to have regard to the changes in relation to co-ownership of real property affected by the Act of 2009. It would also have to address from a policy perspective the complications which arise in a situation where there are three or more co-owners.
Nevin v Nevin [2017] IECA 63
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 7th day of March 2017
1. These are two appeals against orders made by the High Court (Kearns P.) on the 14th February 2013, in the defendant’s motion and on the 1st March 2013, on the plaintiff’s motion. The single judgment was given by the High Court on the 1st March 2013, which includes the reasons for which the order refusing the defendant’s application was made and also for its determination on the plaintiffs motion that “the conviction of the defendant for her husband’s murder is admissible in the within proceedings as prima facie evidence of the fact that she committed such murder”.
2. The order of 1st March 2013 was made on a motion brought by the plaintiffs on the 11th April 2012, seeking the preliminary trial of an issue of law on “the admissibility of the evidence of the defendant’s trial and subsequent conviction for the murder of her husband, Thomas Nevin”.
3. The background to the proceedings is that the defendant’s husband, Thomas Nevin, was killed on the 19th March 1996. The defendant was subsequently charged with the murder, and also soliciting the murder, of her husband. On the 11th April 2000, following a trial of 42 days before a judge and jury in the Central Criminal Court, the defendant was found guilty of:-
“(i) Murder, contrary to common law and s. 4 of the Criminal Justice Act 1964 and s. 2 of the Criminal Justice Act 1990 of Thomas Nevin at Jack White’s Inn aforesaid;
(ii) soliciting to murder, contrary to s. 4 of the Offences Against the Person Act 1861, one John Jones to murder Thomas Nevin;
(iii) soliciting to murder contrary to s. 4 of the Offences against the Person Act 1861, one Jerry Heapes, to murder Thomas Nevin;
(iv) soliciting to murder, contrary to s. 4 of the Offences against the Person Act 1861, one William McClean to murder Thomas Nevin.”
4. These plenary proceedings were commenced initially by the mother of the deceased, and subsequent to her death have been continued by two siblings of the deceased. The proceedings seek, primarily, declarations at common law and pursuant to s. 120 of the Succession Act 1965, (“the 1965 Act”) that the defendant is disinherited or precluded from taking any share either as a legal right or otherwise in the estate of the deceased.
5. The plenary proceedings have had a protracted history. This was primarily caused by the criminal proceedings, appeals against the conviction, an application for a miscarriage of justice, an application for a certificate under s. 29 of the Courts of Justice Act 1924, and an application to the European Court of Human Rights, all of which had been dismissed or struck out by February 2013. The defendant has filed a full defence denying any involvement in the murder of the deceased.
6. These two appeals were initially made to the Supreme Court, and, in October 2014, transferred to this Court pursuant to Article 64 of the Constitution.
7. The appeal against the order of the 14th February 2013 was moot at the time of the hearing before the Court of Appeal. That order refused the defendant’s application for a stay on the hearing of the plaintiffs’ motion. The basis of the application was that there was an outstanding application to the Court of Criminal Appeal for leave to re-enter to apply for a certificate pursuant to s. 29 of the 1924 Act. That has since been refused. Notwithstanding that it is now moot, the defendant/appellant contended that it had a costs implication. Insofar as that is relevant, I would dismiss that appeal and uphold the decision of Kearns P. to refuse the application for a stay on the plaintiffs’ motion for the reasons he set out in his judgment of 1st March, 2015.
8. The appeal to this Court was principally focused on the determination as a preliminary issue that the conviction of the defendant for her husband’s murder is admissible in the plenary proceedings as prima facie evidence of the fact that she committed such murder.
The Issue in the High Court and on Appeal
9. Kearns P. in his judgment expressed the view that the issue “in the present proceedings”, by which I think he meant the application on the motion before him, was “a simple one”. I respectfully disagree. He identified the issue in the following terms:
“The issue in the present proceedings is a simple one. Is a criminal conviction for murder admissible in a later civil proceeding brought against a person convicted of that murder? If not admissible, then it would follow that a defendant in a civil case would be in precisely the same position as a person who was acquitted or never charged with the offence in question. The conviction could not be used in any way whatsoever in the civil case.
If, on the other hand, the conviction is admissible, is it conclusive of the fact that the defendant murdered her husband or is it simply prima facie evidence of that fact, leaving to the defendant the right to argue that she should not have been convicted? In this regard, it is important to state at the outset that the plaintiffs do not contend that the conviction, if admitted, is conclusive against the defendant, nor do they any longer contend that evidence given at the criminal trial is in some way admissible in the civil proceedings.”
10. The reason for which the issue is complex, and for which it appears to me extremely important that this Court make clear the very limited issues with which it was dealing on appeal, is first, the fact that the plaintiffs indicated that the claim is being pursued both at common law and pursuant to s. 120(1) of the 1965 Act, which perhaps explains the general formulation of the issue as relating to the admissibility of the conviction “in civil proceedings” as distinct from its admissibility in a claim pursuant to s. 120(1) of the 1965 Act. Second, is the approach taken by Counsel for the plaintiffs of only seeking an order of admissibility of the conviction as prima facie evidence, even in relation to the claim pursuant to s. 120(1) of the 1965 Act, which is likely to be the central issue in the full hearing of the proceedings.
11. The proper construction of s. 120(1) of the 1965 Act was not in issue before this Court. It is unclear to what extent it was argued in submissions before the High Court. Notwithstanding this, views were expressed by the trial judge in the course of his judgment and I am concerned that we might be taken to agree with them if they were left without comment. I therefore propose briefly considering them.
12. Kearns P. set out s. 120 of the 1965 Act, of which ss. (1) and (4) are principally relevant. These provide:-
“(1) A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under s. 117.
. . .
(4) A person who has been found guilty of an offence against the deceased, or against the spouse or any child of the deceased (including a child adopted under the Adoption Acts 1952 and 1964, and a person to whom the deceased was loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, shall be precluded from taking any share in the estate as a legal right or from making an application under section 117.”
13. He then said:
“In making his submissions to the effect that the criminal conviction was admissible as prima facie evidence in this case, Mr. Brady on behalf of the plaintiffs accepted that a significant difference in wording appears in subsection (4) of s. 120 from that contained in subsection (1). The former contains the words ‘found guilty’, whereas the wording of subsection (1) states only that the person be ‘guilty of the murder’.
It is far from easy to see why the legislature, when inserting the words ‘found guilty’ in subsection (4), omitted the same term from subsection (1), given that the overall thrust of the section is to provide that certain forms of conduct should have particular consequences in terms of succession rights. In McGuire’s commentary on the Succession Act, 1965 (2nd Ed., at 291) the author does not address this particular difficulty, noting merely that:-
‘It was a rule of public policy at common law that a person should not be permitted to benefit from a crime. For that reason, where a sane person was guilty of murder or manslaughter, he was precluded from taking any benefit from the will or intestacy of his victim.’
A similar statement appears in Spierin’s Succession Act 1965 (3rd Ed. at par 757) who in addition notes: –
‘In the previous edition of this book it was suggested that the wording of the section, referring as it does to a person ‘who has been guilty’ rather than to a person ‘who has been found guilty’ (as in sub-s (4) does not appear to require a conviction before the disqualification on benefit applies. However the terms ‘murder’, ‘attempted murder’ and ‘manslaughter’ are terms of art in the criminal law and it is perhaps difficult to imagine that a court would apply the disqualification if there is no conviction.’
It is an extraordinary omission from s. 120 (1) for which it is difficult to find any rational explanation, given that a ‘finding of guilt’ is required under s.120 (4) for lesser offences and having regard further to the fact that ‘guilt’ is a finding appropriate to the criminal rather than the civil process. One is left not knowing what the section is to mean, unless one supplies the word ‘found’ to subsection (1) where in the text it does not appear. In those circumstances of uncertainty, and given that the section is undoubtedly punitive and conclusive in both nature and effect, its terms must clearly be subject to rules of strict construction in favour of the person against whom it is sought to enforce it.
It seems to me the defendant must be the beneficiary of this ambiguity so I am satisfied that the issue before the Court cannot be resolved by reference to the specific provisions of section 120 (1). I am satisfied that, as presently worded, the section cannot be invoked in aid by the plaintiffs to determine the issue in the conclusive way provided for by its terms. Indeed counsel for the plaintiffs, in arguing only that the criminal conviction is admissible as prima facie evidence in the civil case, implicitly accepts that this is the correct approach. It seems to me that s.120 (1) only goes so far as to be declaratory of a public policy which is that the perpetrator of the crime of murder should not be its beneficiary.”
14. As appears, the persons precluded from taking a share in an estate pursuant to s. 120(4) include a person “who has been found guilty of an offence [emphasis added]” whereas the exclusion under subs. (1) is of a person “who has been guilty of the murder”. As pointed out by Kearns P. it is far from easy to see why the Oireachtas used this different form of wording. Nevertheless in so far as the above passages may indicate that Kearns P. concluded that proof of a conviction for murder (with all appeals exhausted) does not of itself meet the proofs required by s.120(1), I respectfully disagree.
15. The interpretation of section 120(1) may not be considered obvious by reason of the difference in wording with s. 120(4). However, one potential interpretation is that a court asked to make a declaration that a person is precluded from taking a share in the estate may be satisfied that the person “has been guilty of the murder . . .” by proof that such person has been convicted or found guilty of the crime of murder of the deceased and any appeal has been dismissed or time for appeal expired. If this is the true construction (and I am not so holding), then proof in the plenary proceedings that the defendant was convicted of the murder of her husband would be sufficient to meet the requirements of section 120(1). If, however, it is determined at the full hearing this is the true construction then the only question on admissibility would be whether the order of the Central Criminal Court recording the conviction of the defendant is admissible in the plenary proceedings as proof of the conviction. Such admissibility is not in dispute. It is expressly accepted in the written submission on behalf of the defendant that this is the position. Such order or certificate is a public document and as such admissible as prima facie evidence of the facts stated therein i.e. of the conviction or finding of guilt of the murder.
16. It is only if some other construction is the proper interpretation of s. 120(1) that the question of the admissibility or otherwise of the conviction as prima facie evidence of the fact that the defendant was guilty of the murder of her husband becomes relevant.
17. I wish to make very clear that I am not expressing any concluded view on the proper interpretation of s. 120(1). It remains to be fully considered by the High Court following submissions from both parties at or prior to the full hearing of the plenary proceedings. It is not an issue which should be considered as already determined either by the judgment of Kearns P. or this Court.
18. I have drawn attention to this by reason of the views expressed on s. 120(1) by Kearns P. in his judgment which if left without comment might have lead to an implication that this Court agreed with same. It is also appropriate to draw attention to the phrase used “guilty of the murder” and to recall that, as noted in the extract from Spieren referred to by Kearns P., murder is a term of art defined by s. 4(1) of the Criminal Justice Act 1964. Further there appears to have been no consideration in the High Court of the judgment in Cawley v. Lillis [2011] IEHC 515 [2012] I.R. 281 where a conviction for manslaughter was received in evidence (albeit it would appear without objection) and Laffoy J., having referred to it and the absence of an appeal, stated at p.284:
“[4] The conviction of the defendant for the manslaughter of the deceased has certain implications in relation to the distribution of the estate of the deceased by virtue of the application of s. 120 of the Succession Act 1965.”
Having referred to s.120(1) and (5) she continued:
“[6] By application of those provisions, the defendant is precluded from succeeding to any interest in the estate of the deceased. . . .”
19. In Cawley v Lillis it does not appear that there was any dispute in relation to the above interpretation of s. 120 of the 1965 Act. If, however, the approach in Cawley v. Lillis is followed at the full hearing of these proceedings, the admissibility issues on this appeal do not arise.
20. If, however, on a proper construction of s. 120(1) it is decided that proof of the conviction of the appellant for the murder of her husband does not satisfy the requirements of s. 120(1) of the 1965 Act, then the question as to whether or not Kearns P. was correct in deciding that the conviction is admissible as prima facie evidence of the fact that the defendant, committed or was guilty of the murder of the deceased may become relevant.
21. For my part, it appears to me unfortunate that this Court is now in the position of being asked to determine, as a preliminary issue, the admissibility of evidence in proceedings which seek as a primary relief a declaration or order pursuant to s. 120(1) of the 1965 Act, in advance of the proper construction of that section being determined by the trial court. If, as might well have been done, a hearing on a preliminary issue was sought as to the proper construction of s. 120(1), it might be that the more general issue which Kearns P. was asked to decide, and which this Court is now being asked to review on appeal, might not fall for decision. This Court is being asked to review the correctness of a decision of the High Court upon an assumption (but without in any way determining) that the admissibility of such evidence might become relevant at the hearing of the proceedings.
22. However, as no ground of appeal was advanced against the determination of this issue as a preliminary issue, and in advance of the determination of what the court requires in order to be satisfied on the proper construction of s. 120(1), this Court is now required to consider whether or not it should uphold the determination made by Kearns P.
23. The trial judge reached his decision for a number of reasons. First, he considered that the permissible starting point was what he perceived to be the law as enunciated in Crippen (In the estate of Cunigunda (otherwise Cora) Crippen deceased) [1911] P. 108. Second, he was persuaded by the reasoning of the Court of Appeal of New Zealand in Jorgensen v. News Media (Auckland) Limited [1969] NZLR 961, that the conviction should be admissible as an exception to the hearsay rule. As such an exception he considered that it should be admissible as prima facie evidence only of guilt. He also added the following at pp. 59-60 of his judgment:-
“To rule out the conviction as completely inadmissible would, in my view, be contrary to logic and common sense and offend any reasonable person’s sense of justice and fairness. An alternative interpretation whereby it is admitted as prima facie evidence is clearly open on the authorities in this jurisdiction. There is the clearest public policy consideration for so holding and it is set out starkly and unambiguously in s. 120 of the Succession Act 1965. That policy consideration may be characterised as being no more and no less than that the perpetrator of the crime of murder should not be the beneficiary of it.”
Submission on Appeal
24. Ms. Fitzgibbon, the solicitor who appeared for the appellant, primarily focused her submissions on the incorrect reliance placed by Kearns P. on the decision in Crippen’s case. She submitted that the matters relied upon therein by the trial judge were in fact obiter and did not form part of the ratio of the case. Second, she submitted that in accordance with the Supreme Court judgment in Eastern Health Board v. M.K. [1999] 2 I.R. 99, Kearns P., prior to admitting the conviction as an exception to the hearsay rule, ought to have considered and conducted an inquiry as to whether it was necessary to adduce such hearsay evidence and also as to the reliability of the proposed hearsay evidence.
Discussion and Decision
25. At the outset, I repeat again that it is unsatisfactory that this Court has to decide only upon the admissibility of the conviction as prima facie proof of the guilt of the defendant of the murder of her husband. I deliberately put the issue in that way as whilst the actual order made pursuant to the judgment of Kearns P. is that it is admissible “as prima facie evidence of the fact that she committed such murder” nevertheless as the issue which will require to be determined by the trial judge on any construction of s. 120 is whether or not the trial judge is satisfied that she “has been guilty of the murder” and having regard to the judgment of the trial judge the intent appears to have been that it be admitted “as prima facie evidence of the fact that [the defendant] is or has been guilty of such murder”.
26. I accept the submission made on behalf of the appellant that insofar as Kearns P. considered the law in this jurisdiction to be that as stated by Sir Samuel Evans in his judgment in Crippen’s case, where he said:-
“In my opinion, where a convicted felon, or the personal representative of a convicted murderer who has been executed, brings any civil proceeding to establish claims, or to enforce rights, which result to the felon, or to the convicted testator from his own crime, the conviction is admissible in evidence, not merely as proof of the conviction, but also as presumptive proof of the commission of the crime.”
that Kearns P. was in error. Ms. Fitzgibbon is in my view correct in her submission that upon a full reading of the judgment in Crippen’s case, this observation should properly be considered as obiter as distinct from part of the ratio of the case. I would add however, that it was cited with apparent approval by McCarthy J. in the Supreme Court in Ireland v Kelly and Concannon [1992] ILRM 582, a case concerning an application for an order for administration with will annexed to the Chief State Solicitor pursuant to s.27(4) of the 1965 Act, where the executor had been convicted of the murder of the testator’s sister. That judgment refers to the conviction of the executor (without any issue relating to the admissibility of such evidence) and also contains observations on the policy behind s. 120 of the 1965 Act.
27. Notwithstanding, I am of the view that the decision of the trial judge should be upheld and insofar as it may be considered that the admission of the conviction in the present proceedings involves an extension of the exceptions to the rule against hearsay it is justified both upon grounds of necessity and relevance. I am in agreement with the trial judge that the reasoning in Jorgensen v. News Media (Auckland) Limited [1969] NZLR 961 is compelling against following Hollington v. F Hewthorn & Company Ltd [1943] K.B. 587 which is not binding on the courts in this jurisdiction.
28. The evidence of the conviction is of one following a trial before judge and jury in due course of law with all appeals exhausted. Its reliability is undeniable, as is its relevance to the claim where the issue is whether the defendant is “guilty of the murder of . . .” It is also necessary as to exclude admission of the conviction as evidence would, as put by Kearns P., “be contrary to logic and common sense and offend any reasonable person’s sense of justice and fairness”.
Conclusion
29. I would dismiss both appeals.
JUDGMENT of Mr. Justice Hedigan delivered on the 7th day of March 2016
The factual background
1. Two appeals are brought before the court. The first deals with the substantive issue of admissibility of a certificate of conviction. It is brought on behalf of the defendant against the order of Kearns P. of the 1st March, 2013, directing that the conviction of the appellant for her husband’s murder is admissible in the within proceedings as prima facie evidence of the fact that she committed such murder. The appellant was convicted on the 11th April, 2000, in the Central Criminal Court of the murder and soliciting the murder of her husband, Thomas Nevin in 1996. The second appeal is brought by the defendant against the order of Kearns P of the 14th of February 2013 which refused the defendant’s application for a stay on the hearing of the plaintiff’s motion. This second appeal has become moot. I agree with the decision of Ms Justice Finlay Geoghegan that it should be dismissed.
2. Dealing with the first appeal, the proceedings herein were instituted by plenary summons on the 4th November, 1997, and were brought by the deceased’s mother and following her death have been maintained by the administrators of her estate, who are the brother and sister of Thomas Nevin. These proceedings seek various declarations in relation to the appellant’s right to inherit from her husband’s estate and damages for wrongful death. In particular the plaintiffs claim;-
“A Declaration that by virtue of Section 120 of the Succession Act, 1965 the Defendant is precluded from taking any share either as legal right or otherwise in the Estate of the said Deceased”
3. The relevant provisions of the Succession Act 1965 are as follows:
s. 120(1) A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under section 117.
(4) A person who has been found guilty of an offence against the deceased, or against the spouse or any child of the deceased (including a child adopted under the Adoption Acts, 1952 and 1964, and a person to whom the deceased was in loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, shall be precluded from taking any share in the estate as a legal right or from making an application under section 117.
4. The High Court on the 23rd January, 1998, ordered that no further steps be taken in these proceedings until the final determination of the criminal proceedings. These have now concluded. The appellant’s defence and counterclaim was delivered in 2005. She denies therein that she murdered Thomas Nevin. A notice to admit facts was served dated 21st December 2011. Admissions were sought in relation to the following matters:
(1) That the defendant was guilty of the murder of Thomas Nevin. To this the reply was that she denied any involvement in his death.
(2) That she was found guilty on 11th April, 2000, by a jury in the Central Criminal Court, of the murder of Thomas Nevin. The reply to this was that the defendant had and continues to challenge the verdict.
(3) That she was found guilty on three counts, under s. 4 of the offences against the Person Act, 1861, of soliciting persons to murder Thomas Nevin. To this she replied that she has always denied soliciting the murder.
(4) That the transcripts of the evidence adduced at trial before the Central Criminal Court contain evidence proving that on the balance of probabilities she was guilty of murdering and soliciting three persons to murder Thomas Nevin. This was not admitted.
(5) That the transcripts of the evidence adduced at trial in the Central Criminal Court contain evidence that she was guilty of murdering and soliciting three persons to murder Thomas Nevin. This was not admitted.
(6) That the Court of Criminal Appeal rejected her appeal on 14th March 2003, in a judgment delivered on that date by Mr. Justice Geoghegan and refused leave to appeal to the Supreme Court. The defendant replied that this was correct but referred to answers 1,2 and 3.
(7) That the Court of Criminal Appeal rejected her application, pursuant to s. 2 of the Criminal Procedure Act, 1993, on 22nd November, 2010, in a judgment delivered by Mr. Justice Hardiman. She rreplied that this was correct but also referred to the replies to (1). (2) and (3).
5. Kearns P. in his judgment of 1st March 2013 on the substantive matter before him at paragraph 59 stated as follows;
“I prefer to base my view ultimately on the proposition that the admissibility of the murder conviction is either authorised on foot of the decision in Crippen’s case or comes within an exception to the hearsay rule as suggested and found by the Court of Appeal of New Zealand in Jorgensen’s case”
Later at paragraph 60 he continued;
“However, having concluded that evidence of the conviction of Catherine Nevin for murder is admissible in the plaintiff’s various civil claims against her, I would go no further than did the Court of Appeal in New Zealand to say that the conviction is prima facie evidence only that Catherine Nevin murdered her husband”
Submissions of the parties
6. The Court has had the benefit of helpful written and oral submissions from the appellant and the respondents. Ms. Fitzgibbon, on behalf of the appellant, submitted that there were no cases on hearsay opened before Kearns P. No case was made, she argued, that any witnesses who could prove the respondents’ case were unavailable or incompetent. She submitted that the trial judge relied primarily on two things. First, the decision in Crippen’s case – In the Estate of Cunigunda (otherwise Cora) Crippen, Deceased [1911] P. 108. This judgment did not in fact decide the core issue in this case, but only considered ‘special circumstances’ under the Court of Probate Act 1857. It did not decide that the conviction was admissible as proof of guilt. The judge however did express such an opinion but as such it did not form part of the ratio decidendi but was obiter dictum. Ms. Fitzgibbon also noted that this case was not referred to in later cases dealing with this issue. The second case relied upon by Kearns P. was the New Zealand Court of Appeal decision in Jorgensen v. News Media (Auckland) Limited [1969] NZLR 961. It rejected the English decision in Hollington v. F Hewthorn & Company Ltd [1943] K.B. 587, in which the Court of Appeal for England and Wales held that the defendant’s conviction for careless driving was not admissible in the civil action brought against him for negligence. In Jorgensen the evidence was admitted as an exception to the rule against hearsay.
7. Ms. Fitzgibbon submitted that once it was decided that the certificate of conviction was a hearsay matter, then the court must go through the appropriate test to decide whether or not it could be admitted as an exception to the rule against hearsay. She argued that Kearns P. could not create an exception or classify it as such where he did not conduct inquiries regarded as essential according to Irish case law notably by Denham J. in Eastern Health Board v. M.K. [1999] 2 I.R. 99. She further submitted that the certificate of conviction does not fall into the public document exception to the rule against hearsay.
8. Ms. Fitzgibbon further noted that the trial judge did not base his decision on issue estoppel or abuse of process. It was submitted that it could not be either of these things as there was no privity between the parties and the appellant is the defendant not the plaintiff in these proceedings.
9. Ms. Fitzgibbon also submitted that these proceedings issued before the criminal proceedings and that the respondents were presumably in a position to prove their case at that point. She added that if the certificate of conviction was deemed admissible, it would be virtually impossible to defend the case.
10. Mr. Brady S.C., on behalf of the respondents, submitted that the appellant’s criminal trial lasted 42 days, during which she gave evidence over the course of six days. He also noted that she had one of the foremost criminal defence counsel acting on her behalf. He referred to the judgment of Kearns P. and noted the criticism of Hollington in the United Kingdom and throughout the world. Particular reference was made to the New Zealand Court of Appeal decision in Jorgensen. He relied upon the statement therein of North P. that there must be exceptions to the hearsay rule and that it is for judges dealing with procedural matters to make exceptions and it does not really matter what it is called as it is a matter of procedure to ensure that justice is done. He referred this Court extensively to the judgment of Turner J. and to the remarks of McCarthy J. in Jorgensen. Mr. Brady submitted that these views were quite properly adopted by Kearns P. in his judgment.
11. Mr. Brady submitted that the core issue in the High Court was whether the conviction of the appellant for the murder of her husband was admissible as prima facie evidence of her guilt of that murder in the civil proceedings. He also submitted that he was arguing on general principles as opposed to an exception to hearsay. He noted further that the respondents’ pleadings cover both common law and s. 120 of the Succession Act 1965.
12. Mr. Brady submitted that the trial judge was correct in deciding the matter as he did either as an exception to the hearsay rule or on the basis that the certificate of conviction is a public document.
Decision
13. The core issue for this Court is whether Kearns P. was correct in his finding that the conviction of the appellant was admissible “as prima facie evidence that Catherine Nevin murdered her husband”. The plaintiff seeks to admit it as prima facie evidence that the defendant murdered her husband. In his judgment at p. 59, he stated that:-
“I prefer to base my view ultimately on the proposition that the admissibility of the murder conviction is either authorised on foot of the decision in Crippen’s case or comes within an exception to the hearsay rule as suggested and found by the Court of Appeal in New Zealand in Jorgensen’s case.”
14. In Crippen’s case the Court was dealing with an application for a grant of administration of the estate of Crippen’s wife. Mrs. Crippen was survived by her husband who had been convicted and executed for her murder. Prior to his execution, he appointed his mistress as his sole executrix and universal legatee of his will. Mrs. Crippen’s sister sought a grant of letters of administration for her estate and to pass over the legal representative of the husband. The Court held that the murder conviction was a special circumstance under s. 73 of the Court of Probate Act 1857, so that the husband’s legal personal representative could be passed over. It was held by Evans P. at pp. 111 to 112 that:-
“In the present case a man who has been convicted of the wilful murder of his wife has, after his conviction, made a will appointing a person his executrix and universal legatee, who claims, as such executrix, to administer the murdered wife’s estate, and as legatee to be entitled to the murdered wife’s property.
These are, surely, ‘special circumstances’.
I therefore pass over and decline to appoint the executrix; and I appoint the applicant as attorney of the deceased woman’s sister to be administrator of the deceased woman’s estate on the sister’s behalf.”
15. Evans P. stated that he believed there was nothing else necessary for him to decide before using his discretion to determine the motion. However, he went on to say that in case he was wrong in this regard, he would state his views on the points raised in argument. At p. 115 of his judgment Evans P. stated that:-
“In my opinion, where a convicted felon, or the personal representative of a convicted murderer who has been executed, brings any civil proceeding to establish claims, or to enforce rights, which result to the felon, or to the convicted testator from his own crime, the conviction is admissible in evidence, not merely as proof of the conviction, but also as presumptive proof of the commission of the crime.”
16. Thus it is clear that as submitted to the Court by Ms. Fitzgibbon, insofar as the issue of admissibility of the conviction for murder goes, the statement of Evans P. was obiter dictum.
17. Over 40 years later, in Hollington, the Court of Appeal for England and Wales held that the defendant’s conviction for careless driving was not admissible in the civil action brought against him for negligence. This decision was subsequently subject to severe criticism. The very Court of Appeal where the decision was given expressed subsequently its regret at being bound by it. Law reform bodies charged with inquiring into it have reported adversely and the writing of jurists throughout the Common Law world have nearly all condemned its reasoning and its conclusion.
18. In 1969, the New Zealand Court of Appeal in Jorgensen departed from the line of authority which had developed in England following the Hollington decision. It held that the certificate of conviction was admissible evidence. In that particular case, Jorgensen had brought a libel claim based on a statement published in the defendant’s newspaper in 1967 to the effect that Jorgensen along with another man had, in 1963, machine gunned one Kevin Speight, whose body was found in a house with another gunshot victim. Both men were convicted of the murder of Kevin Speight in 1964 and their appeals against their convictions were dismissed. During the trial of the libel action the judge followed the decision in Hollington and subsequent English Court of Appeal decisions. He held that the conviction was not admissible as evidence that Jorgensen had murdered Speight, but was admissible in relation to the mitigation of damages. The jury was unable to agree and were discharged. Before the commencement of the second trial, a case was stated seeking clarity on this issue. Thus it was that the case came before the New Zealand Court of Appeal. In its judgment at p. 979, North P. stated that:-
“In the present case, on the other hand, there is already a body of judicial opinion that would justify the conclusion that a certificate of conviction is not merely conclusive evidence that Jorgensen had been found guilty of the murder of Speight but was admissible evidence as well in proof of the fact of guilt and that is as far as I feel obliged to go.”
19. In relation to the decision in Hollington, Turner J. at p. 990 as to the certificate of conviction being hearsay evidence stated as follows:-
“It is true that to admit a certificate of conviction as proof of guilt is to admit hearsay, but the objection to the admission of hearsay is fundamentally this and no more: (a) the version of the facts given in the Court may not be an accurate transcription of what the original witness said at all; (b) even if correctly recorded, the content of what is said may be unsatisfactory – i.e. false, unreliable, biased, prejudiced, etc. — and there is no opportunity to demonstrate this by cross-examination of the maker of the statement. Neither of these objections seems to me to apply, or at least to apply in any great degree, to the admissibility of a certificate of conviction. If there is any document whose content must be taken as satisfactorily verified it must be a certificate under the seal of the Court. There can I think be no real doubt that a certificate of conviction under the seal of the Court constitutes unimpeachable evidence not only of the fact that the prisoner was convicted, but also of the fact that the Court did in fact consider him guilty of the crime charged. So much for that objection. As regards the other (viz. that the opinion of the Court might have been wrong) it is perhaps only necessary to say that before a man be convicted in this country the Court must have come to the conclusion beyond all reasonable doubt that he was guilty of the crime charged. It does not seem to me, therefore, that either of the reasons normally operating to exclude hearsay exert any logical force at all in this case, and I would not allow the fact that a certificate of conviction is technically hearsay to deter me from the proposal which I now make, that this Court should abrogate the rule in Hollington v Hewthorn.”
20. In reliance upon this judgment, Kearns P. stated at p. 45 of his judgment as follows:-
“Even if I had not found the reasoning of the New Zealand Court of Appeal as convincing as I do, I would nonetheless start from the position that decisions of English courts constitute persuasive authority only since this State gained its independence. While decisions of the superior courts in the United Kingdom can be highly persuasive, I am satisfied, principally by reference to the reasoning offered by the Court of Appeal in New Zealand, that the decision in Hollington v. Hewthorn is unsatisfactory both for the reasons enumerated in Jorgensen, the writings of distinguished commentators referred to therein and in the citations from later cases in the United Kingdom which were unambiguous in their disapproval of Hollington and which ultimately led to the introduction in that jurisdiction of the Criminal Law Evidence Act 1968.
The law in this jurisdiction in my view may be taken to be that laid down in Harvey v. The King and in Crippen’s case, cases decided in 1901 and 1911 respectively, unless subsequent Irish authority may be shown to have taken a different course.”
21. Like Kearns P. I consider the logic of the Court of Appeal of New Zealand in Jorgensen to be compelling and I gratefully adopt it. Thus, on the core issue before the Court, I agree with the judgment of Kearns P. The certificate of conviction of the appellant for the murder of her husband is admissible even though it is technically hearsay. As to whether it is conclusive or merely prima facie evidence of the guilt of the appellant for the murder of the late Thomas Nevin, or satisfies the burden on an applicant pursuant to s.120(1) of the Succession Act those questions were not argued before this court. The plaintiff’s counsel made it clear in his submissions to this court that he submitted only that the certificate of conviction might be admitted as prima facie evidence of her guilt. He described this as the core issue before the court.
22. As to the admission in evidence of public documents at common law, the requirement for the admission of public documents at common law is set out in Declan McGrath, Evidence 2nd Ed., (Dublin, 2014) at p. 323. The learned author there states that:-
“However, in general terms, to be admissible under this exception, a document must: (i) contain matters of a public nature; (ii) have been compiled by a public official in the exercise of a duty to inquire into and record those matters; and (iii) have been intended to be retained for and be available for public inspection.”
23. I agree with this statement of the law. In this case a certificate of conviction clearly contains matters of a public nature, has been prepared by the trial court’s Registrar who is a public official exercising a duty to record the conviction and was intended to be retained for and be available for public inspection. The certificate is therefore also admissible at common law as a public document.
24. In the light of the above findings, I do not consider it necessary for the Court to address the issue raised concerning the wording of s. 120(1) of the Succession Act 1965 as opposed to section 120(4). I do agree with Kearns P. that it would be desirable that the apparent anomaly therein be dealt with by way of an amendment.]]
25. In summary, I agree with the judgment of Kearns P that the certificate of conviction is admissible at least as prima facie proof that the defendant murdered her husband. I find moreover that the certificate is also admissible at common law as a public document. In the light of these findings, it is not necessary to address the issue raised concerning the wording of section 120(1) of the Succession Act 1965 as opposed to section 120(4) thereof. I would dismiss the two appeals.
Cleaver v Mutual Reserve Fund Life Association
Court of Appeal [1892] 1 Q.B. 147; 61 L.J.Q.B. 128; 66 L.T. 220; 40 W.R. 230; 56 J.P. 180;
8 T.L.R. 139; 36 S.J. 106; [1891-94) All E.R.Rep. 335
Mrs. Maybrick was found guilty of poisoning her husband. The husband had effected a life assurance policy on his own life in favour of his wife, under the Married Women’s Property Act 1882, s. 11. The husband’s executors now sued for the sum assured.
FRY L.J. . . If it be suggested that this view only removes the difficulty a step further off, and that the possible right of the wife under her husband’s will or intestacy forms an objection to the action by the executors, the reply is obvious-that the principle of public policy must be applied as often as any claim is made by the murderess, and will always form an e ectual bar to any benefit which she may seek to acquire as the result of her cnme.
. . . Now, it is to my mind illogical to make the crime of one cestui que trust a bar to the claim of another, or of the trustees for that other cestui que trust; and if the supposed defence were to prevail we should so hold. If Mrs. Maybrick had inflicted a mortal, but not immediately fatal, wound on her husband, had then committed suicide, leaving him surviving, and his executors had claimed on his death, it appears to me that the crime which caused his death would have furnished no defence. In a word, I think that the rule of public policy should be applied so as to exclude from benefit the criminal and all claiming under her, but not so as to exclude alternative or independent rights.
. . . it appears to me that the crime of one person may prevent that person from the assertion of what would otherwise be a right, and may accelerate or beneficially affect the rights of third persons, but can never prejudice or injuriously affect those rights. In my opinion, therefore, public policy prevents Florence Maybrick from asserting any title as cestui que trust of this fund, and thereby brings into operation the resulting trust in favour of the estate of the insured, and so enables the executors to maintain an action as plaintiffs without any taint derived from the crime committed by Florence Maybrick.
Re Callaway
Chancery Division (1956) Ch. 559
VAISEY J.: . . . Under the rule based on public policy, to which I must presently refer, Mrs. Stone was µndoubtedly precluded from taking any benefit under Mrs. Callaway’s will, and on thacassumption the plaintiff, Albert Frank Callaway, who was the only child of Mrs. Callaway other than Mrs. Stone, applied for a grant of letters of administration to her estate. On January 11, 1955, Karminski J. ordered that the grant should be made to him on the footing
that he was beneficially entitled to the net estate of Mrs. Callaway on her intestacy. On March 15, 1955, a grant was made to the plaintiff expressly on the before-mentioned footing. Although it has no direct relevance to the case, I may observe that Mrs. Stone herself had made a will in favour of the plaintiff, which he proved on April 5, 1954. The statutory next-of-kin of Mrs. Callaway were her two children, namely, the plaintiff and Mrs. Stone, taking equally.
Now this rule, based on public policy, is that no person is allowed to take any benefit arising out of a death brought about by the agency of that person acting feloniously, whether it be a case of murder or manslaughter. So much is plain; but there appears to be no satisfactory or complete authority as to the consequences arising from an application of that rule. The best exposition of the problem and of the difficulties which it involves is, I think, to be found in an Australian case; that is to say, in the judgment of Harvey J. in In re Jane Tucker, deed. ( (1921) 21 S.R.(N.S.W.) 175). After calling attention to the pro visions of the civil law and referring also to the French law on the subject, he points out that the effect of the deprivation occasioned by the application of the rule was that in Roman law the property went to the State, while under the French law it went to the person who had a right to succeed next after the ” heir ” who lost his interest. It must be remembered that the civil law was applied in the ecclesiastical courts, and there is some reason to regard it as still governing such a point as the present. But the common law appears to be silent on the matter and to create no such disability except possibly in the case of a traitor. It would seem, surprisingly, that so far as can be found there is little trace of this doctrine in English law until it arose in the case of Mrs. Maybrick Cleaver v. Mutual Reserve Fund Life Association ([ 1892) 1 Q.B. 147; supra,
p. 201). From that authority I infer that the rule in this country is that the
interest of the criminal passes as if there had been a “lapse,” and in other cases it has been said that the name of the wrongdoer must be treated as ” struck out.” There might be cases in which the consequence of such “striking out” would be very uncertain, as, for instance, where the criminal had been entitled under his victim’s will to a life interest with remainder to his own issue, so that the question might at once arise whether subsequently born issue of the struck out wrongdoer would be excluded or not; and, indeed, this difficulty might arise on any possible view of the matter. It is, I think, unfortunate that in none of the cases to which I have been referred was the Crown represented to present the case which has been put forward here by the defendant, who is the Treasury Solicitor sued on behalf of the Crown. His case amounts to this, that the rule, properly understood, does no more than exclude the culprit and, while it may accelerate subsequent existing interests, it cannot create any new interests, with the consequence that the forfeited interest is one to which nobody is entitled and therefore goes to the Crown as bona vacantia.
It has not been argued, but I think that it might be a tenable view of the matter, that the application of the rule merely involved the transfer to the Crown of Mrs. Stone’s interest under Mrs. Callaway’s will, and that such transfer took precedence of and altogether excluded any intestacy or any rights arising under an intestacy. Why should Mrs. Stone’s crime endow the plaintiff even to _the extent of half of Mrs. Callaway’s estate? Seeing that her crime was against the Queen’s peace, why should not the Crown, rather than the plaintiff, get t e benefit from it? I am bound to say that there seems to me to be great force m such an argument, as I will state presently. But, however logical it may be, I can find no authority in English law which justifies me in giving effect to it in such a case as the present. The point did arise in In re Sigsworth ([1935] Ch. 89), where the facts were not dissimilar to those in the present case, and Clauson
J., after deciding that the rule precluded a sane murderer from taking any benefit
under his victim’s intestacy, stated that the further question might arise whether the effect of the decision was that the guilty son should be treated as struck out of the Act, with the result of letting in the persons entitled under the Act, or whether the estate or the interest therein passed as bona vacantia to the Crown. He thought that, in the absence of the Attorney-General, the question could not be decided, but he ordered that the plaintiff might add the Attorney-General as a defendant for the purpose of enabling him to claim the estate on behalf of the Crown. It appears that advantage was not taken of this permission, and the point now falls to me to decide.
The plaintiff and Mrs. Stone being the persons entitled equally under Mrs. Callaway’s intestacy, and Mrs. Stone being disentitled by the rule, I have, I suppose, to choose between two views, which are, first, that the plaintiff is alone qualified to take under the intestacy and, accordingly, is entitled to the whole estate, or whether Mrs. Stone’s half is forfeited and goes to the Crown. In the present state of the authorities, which is far from satisfactory, I feel bound to adopt the former view. I do not consider the metaphorical expression ” struck out” as being particularly happy or helpful, but it is difficult to suggest a more appropriate expression, although in a simple case such as the present it would be sufficient to say that the plaintiff must be treated as being the only qualified member of the class of Mrs. Callaway’s issue, Mrs. Stone being wholly dis qualified and therefore not to be reckoned or counted as a member of the class at all.
I have looked at one or two of the American cases, such as Riggs v. Palmer ( (1889) 12 Am.St.R. 819) and Ellerson v. Westcott ( (1896) 148 N.Y. 149), but I do not think there is any clear guidance to be got from any of them. Other cases may be referred to, such as In re Sangal, deed. ([1921] V.L.R. 355), and, of course, In the estate of Crippen ([1911] P. 108). There is also the case of In re Merrett’s Settlement Trusts (The Times, November 3, 1955). I get no real help either from Beresford v. Royal Insurance Co. ([1938] A.C. 586) or In the estate of Hall ([1914] P. 1).
As this point may hereafter be raised in a higher court, I venture with diffidence to say how, in the absence of authority, I should myself have desired to deal with it. First, as Mrs. Stone was not entitled to take the whole of Mrs. Callaway’s estate according to the intention of Mrs. Callaway as expressed in her will, I would have treated that estate as wholly undisposed of and passing to the Crown as bona vacantia. Secondly, and in the alternative, on the footing that the Administration of Estates Act, 1925, comes into operation, I would have treated Mrs. Stone’s moiety as undisposed of and passing to the Crown as bona vacantia, the plaintiff taking only the other moiety. That the plaintiff should take the whole seems to me both illogical and unmeritorious. For why, as I have already asked, should he be the person to profit by his sister’s crime and the consequent frustration of his mother’s testamentary intentions?
In the result, however, I must declare, in the terms suggested in the sum mons, that on the true construction of the Act and in the events which have happened, the plaintiff is beneficially entitled to the estate of Mrs. Callaway to the exclusion of any beneficial interest of the Crown therein.
Re Peacock
Chancery Division [1957] Ch. 310;
UPJOHN J.: . . . Fortunately for me the Crown has expressly disclaimed any interest in the estate as bona vacantia, and for the purposes of this case I can banish the doubts which recently assailed Vaisey J. in In re Callaway ([1956] Ch. 557; supra, p. 201)….
Apart altogether from the wife’s felony the construction of the will to my mind gives rise to no difficulty. It may not strictly be a class gift, for the wife, stepson and son all respectively stand in a different relation to the testator, but so far as lapse is concerned the testator has made it abundantly clear that this gift is tantamount to a class gift. . . .
That does not solve the problem, however. On the one side it is argued that the case must be treated as a class gift, and as the wife has failed to qualify she is struck out of the will just as though she had predeceased the testator. On the other hand it is argued that you must look at the actual facts; you then find that in fact the widow survived and takes a vested share of residue, but as she is disabled from taking, that share is necessarily undisposed of.
The actual point is apparently free of direct authority, but apart from some persuasive authority which I mention later there would in my judgment be much to be said for the second view. As Fry L.J. said in Cleaver v. Mutual Reserve
Fund Life Association ([1892] I Q.B. 147; supra, p. 201): “the principle of public policy must be applied as often as any claim is made by the murderess,
and will always form an effectual bar to any benefit which she may seek to acquire as the result of her crime.” You must therefore see what claim the felon can establish, and when it is established public folicy steps in as a personal bar; applying that to this case, the felon by reason o survivorship establishes a claim to membership of the class or group and therefore to a vested share of residue; but being debarred from taking that share it is undisposed of.
In In re Coleman and /arrom ( (1876) 4 Ch.D. 165) Jessel M.R. was not con cerned with a witness to a will, but he stated the rule against lapse in the case of class gifts in this way: ” I think that the true rule is that those members of the class who are at the testator’s death capable of taking take, and that those who become incapable of taking-whether by dying in the testator’s lifetime, or by attesting the will, or by some other operation of law-do not take.” That rule is of perfectly general application, and I think I ought to apply it to class gifts where the law of public policy steps in to render a member of the class incapable of taking. It can, in my judgment, be no valid ground of distinction that this is a gift not strictly to a class but to a group. The application of the principle stated by Jessel M.R. merely means that the testator must be taken as having intended that only those of the group of his three named beneficiaries were to take as were capable of taking, with the consequence that, subject to Douglas attaining 21, residue will be divided into moieties, and I must declare accordingly.
Cases Set Aside Transfer
LC (a minor) v HS
[2014] IEHC 32
JUDGMENT OF MS JUSTICE M. H. CLARK, delivered on the 27th day of January, 2014.
1. This appeal from the Circuit Court has a chequered history. In February, 2006, the Appellant/ Plaintiff L.C. who was born on the 7th July, 2000 commenced her action seeking eleven reliefs which can be reduced to three headings;
(i) Declarations pursuant to Section 35 of the Status of Children Act 1987 that she was a child of the deceased W.S. who died on the 18th October, 2005;
(ii) An interim order restraining the Defendant who is the widow of W.S. from intermeddling with the estate of W.S.; and
(iii) Declarations that she was entitled to a share in the estate of W.S. whether under Section 117 of the Succession Act 1965 if he died testate or otherwise if he died intestate.
2. It is possible that on the issue of those proceedings, the Plaintiff was not fully aware whether W.S. had died testate or intestate. The pleadings assert that the Defendant had failed to acknowledge the Plaintiff as a child of the deceased notwithstanding the Defendant’s actual knowledge of the existence of the Plaintiff as the child of the deceased.
3. Letters of administration issued to the Defendant on the 25th May, 2006, some three months after the issue of proceedings. On an unstated day in February, 2006, the Plaintiff issued a motion seeking certain orders and injunctive relief. On the 26th July, 2006 Her Honour Judge Alice Doyle granted orders:-
(i) directing DNA testing of the Plaintiff, her mother and next friend, and the deceased;
(ii) restraining the Defendant from administering or intermeddling with the estate of W.S. until further order. However, if certain specified lands in Wexford were held on joint tenancy and documents were furnished to prove same, the Defendant was permitted to deal with those lands; and
(iii) restraining the Defendant from dealing with or distributing the estate of W.S. until the dispute as to the Plaintiff’s parentage was resolved and/or until the Plaintiff’s entitlement to her share in the estate of W.S. was established and/or until the application pursuant to Section 117 of the Succession Act 1965 was determined; and
(iv) the costs were reserved.
4. In February, 2008 the Plaintiff issued a motion for judgment in default of defence and in her grounding affidavit sworn on the 24th January, 2006,1 the Plaintiff’s mother and next friend averred that she was aware from the Defendant that the putative father of the Plaintiff died intestate and that her daughter was entitled to a share in the estate of her natural father. The affidavit then contradicts this statement as it avers that the Defendant had failed to acknowledge that the infant Plaintiff is the daughter of the deceased or that she has an entitlement to the estate of the diseased “whether on testacy or intestacy”, and further that the Defendant was seeking to develop the lands of the deceased to the exclusion of the infant Plaintiff.
5. It must be inferred that it was clear to the Plaintiff’s mother and next friend from as early as January, 2006 (and if that date was a typographical error then from at least the 26th July, 2006 when Judge Doyle made orders in relation to the case) that W.S. died intestate and that before his death in October, 2005, he and his wife had purchased lands as joint tenants in County Wexford.
6. On the 23rd January, 2008 a Defence was filed wherein the Defendant objected to the form of the pleadings and the Plaintiff’s failure to first lodge a caveat. The Defence otherwise admitted that W.S. died intestate survived by his widow (the Defendant), three marital children and three non-marital children including the infant Plaintiff. It was denied that the Defendant had intermeddled with the estate to the exclusion or disadvantage of the Plaintiff as alleged or at all; that the estate of W.S. had not been distributed at the time of the issue of the proceedings; and that the Defendant had ever denied that the Plaintiff was the child of W.S. as his six children were noted on the Internal Revenue affidavit.2 It was pleaded that the Plaintiff’s entitlement to a share in the estate under the rules of intestacy had never been denied and that this fact had been made known to the Plaintiff and that the Defendant was “at a loss to understand why the Plaintiff brings the within proceedings and why the Plaintiff seeks declarations of the court to parentage.” The Defence then states that the estate of W.S. who died intestate comprises a net estate of €112,143.32 and that under the rules of intestacy each of W.S.’s children was entitled to one-sixth of one-third of the estate making the Plaintiff’s share in or around €6,230.18.
7. Of relevance to this action the Defence delivered in 2008 specifically pleads that “the Defendant is prohibited from administering and distributing the estate of the said late [W.S.] (deceased) by virtue of a court order obtained by the Plaintiff on or about 26th July 2006 and which said court order restrains the defendant from in essence administering or intermeddling in the estate of the late [W.S.] (deceased) until further order of the Honourable Court. The Order sought on the 26th July 2006 was sought without regard for any difficulties, financial or otherwise that may be caused to the Defendant and in circumstances where the Plaintiff had been assured that any entitlements she may have under the rules on intestacy would be granted to her. Until this Order has been vacated the Defendant cannot hand over to the Plaintiff her said share of the estate of the said [W.S.] (deceased) being €6,230.18. The Plaintiff further had the said court order extended at a second sitting on the 26th July 2006 to include property which did not form part of the estate of the said late Mr. [W.S.] (deceased) pending the provision of proof to the Plaintiff that the title to said property was held by the Defendant and the said [W.S.] (deceased) as joint tenants despite assurances by the Plaintiff to the Defendant that such was the case and despite any difficulties that said restriction might place on the Defendant. The said proof was duly furnished by the Defendant and that part of the extended order restraining the Defendant from dealing with the family home and other said property which did not form part of the estate of the said [W.S.] (deceased) ceased forthwith on the furnishing of the said proof and as directed by the Honourable Court when making the extended order on or about 26th July 2006” (the Court’s emphasis).
8. On the 31st of August, 2009, some nineteen months after the Defence was served and a minimum of three years after the Plaintiff became aware that the Defendant was a joint owner with W.S. of lands at locations which will be referred to as “B” and “C”, and almost four years after his death intestate, the Plaintiff issued a second set of proceedings entitled a ‘Succession Law Civil Bill’ claiming inter alia:
(i) That the deceased had at various stages throughout his life acquired certain properties including (a) the family home and lands at a specified location “B” and (b) farmhouse and lands at a separate specified location “C”, which were put in the joint names of deceased and the Defendant hereto.
(ii) That upon the death of the deceased the entire beneficial ownership of the said properties vested in the Defendant and as such was a ‘disposition’ of property within the meaning ascribed by Section 121 of the Succession Act 1965; and
(iii) That the effects and purpose of the said dispositions was an attempt to defeat or diminish the Plaintiff’s share in the said estates.
9. A Defence was delivered in the second set of proceedings on the 29th April, 2010, where the key points pleaded were (once again) that the Defendant did not deny that the Plaintiff was entitled to a share on intestacy in common with the other children of W.S. as already acknowledged by her and that the Defendant was therefore at a loss as why the Plaintiff had recited that the Defendant had, despite request, failed to acknowledge that the Plaintiff’s entitlement to her legal share. The Defence then recites that the Defendant had been unable to pay any sum due to the Plaintiff on intestacy by virtue of the order obtained by the Plaintiff on or about the 26th July, 2006, prohibiting the Defendant administering the estate of W.S. It was specifically denied that the Plaintiff was entitled to any real estate as the estate of W.S. did not comprise any real estate. Details were then provided of the intestate estate of W.S. and it was pleaded that all this had been made known to the Plaintiff in the Defence of the Defendant delivered in respect of the previous Circuit Court proceedings. It was specifically pleaded that the family home and lands of the Defendant and W.S. at location “B” were purchased in 1985 in the joint names of the Defendant and W.S. as joint tenants, more than fifteen years prior to the birth of the Plaintiff, and thus could not have been a disposition within the meaning of Section 121 of the Succession Act 1965. It was also specifically pleaded that the farmhouse and lands at location “C” were purchased in November, 2003 in the joint names of the Defendant and W.S. as joint tenants and could not have been a disposition made for the purpose of defeating and substantially diminishing any share of the Plaintiff on intestacy or otherwise in circumstances where W.S. died suddenly and prematurely and in circumstances where properties purchased by the Defendant and her late husband were always purchased in their joint names and as joint tenants.
10. The matter appears to have been set down for trial on the 6th, 13th, and 14th October, 2011, before His Honour Judge Griffin. It seems that both sets of proceedings were consolidated at that stage and the only live issue was whether the purchase of the farmhouse and lands at location “C” in 2003 was a disposition made to defeat the rights of the infant Plaintiff within the meaning of Section 121 of the Succession Act 1965. The learned Circuit Court Judge made an order declaring that:-
(a) the Plaintiff was entitled to her legal share in the estate of W.S., being of one sixth of a one third share;
(b) the Defendant administer the estate of W.S.; and
(c) That the Plaintiff do recover from the Defendant the sum of €4,004.19 being one sixth of one third share in the estate of W.S.
11. Thus it appears that the Plaintiff essentially lost her claim under Section 121 of the Act of 1965 and was reduced to the intestate share which had been acknowledged by the Defendant some six years previously, shortly after letters of administration issued, and again in the Defence filed in response to the first Civil Bill in 2008 and to the second Civil Bill in 2009.
12. This Court was informed that when the Plaintiff’s appeal to the High Court was set down for hearing before Herbert J., the issue of the Statute of Limitations was raised for the first time by the Defendant. The case was remitted to the Circuit Court for that discrete issue to the determined. The issue was determined in favour of the Plaintiff but no reasons were provided in the order made. The infant Plaintiff’s appeal against the order of the Circuit Court was then set down for hearing before this Court in Kilkenny in December, 2013. The parties agreed that the first issue to be determined was the preliminary limitation point where the Defendant asserted that the Plaintiff was out of time to bring proceedings under Section 121 while the Plaintiff asserted that once her initial proceedings had been commenced under Section 117 of the Succession Act 1965 within the six month statutory period, then her claim under Section 121 could be brought at any time thereafter.
13. Due to time constraints the limitation issue was only part heard in December, 2013. The Court then raised its own concerns as to whether a purchase of lands subject to mortgage could be a ‘disposition’ within the meaning of Section 121 and invited the parties to prepare written submissions on that issue.
The Relevant Provisions
14. Section 117 of the Succession Act 1965 provides:
“(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
(1A) (a) An application made under this section by virtue of Part V of the Status of Children Act, 1987, shall be considered in accordance with subsection (2) irrespective of whether the testator executed his will before or after the commencement of the said Part V.
(b) Nothing in paragraph (a) shall be construed as referring to a right to apply under this section in respect of a testator who dies before the commencement of the said Part V.”
15. Thus it can be seen that applications under Section 117 apply only where the parent died testate. Where the parent died intestate, all children of the deceased are entitled to an equal share of the estate as under the intestacy rules governed by Section 67(2) of the Act of 1965: if an intestate dies leaving a spouse and issue, the spouse takes two thirds of the estate and the remainder shall be distributed among the issue in equal shares.
16. Applications under Section 117 must be brought within six months from the first taking out of representation of the deceased’s estate, pursuant to Section 117(6), as amended, and there is no provision for the extension of that short time limit where the applicant is under a ‘disability’, i.e. a minor of or unsound mind. Section 127 of the Act of 1965 – which extends the ‘disability’ provisions of the Statute of Limitations 1957 to actions in respect of a claim to the estate of the deceased person or a share in the estate – does not apply to applications by children under Section 117. This reflects the principle, identified by the Supreme Court in Moynihan v. Greensmyth [1977] 1 I.R. 55, that there is a public interest in the speedy administration of estates.
17. Section 121 of the Succession Act 1965 applies to a disposition of property (other than a testamentary disposition or a disposition to a purchaser) under which the beneficial ownership of the property vests in the donee within three years before the death of the person who made the disposition or on his death or later. These are sometimes referred to as ‘disinheriting dispositions’. Such a ‘disposition’ is defined to include a donation mortis causa but is not otherwise defined. If the disponee disposes of the property to a purchaser for value, Section 121 ceases to apply to the property and applies instead to the consideration given for the purchase. In other words, the sale itself is unaffected but the proceeds of the sale may be affected. Before any disposition can be made the subject of an order under Section 121 the Court must be satisfied that the disposition was made for the purpose of defeating or substantially diminishing the share of the disponer’s spouse or civil partner or the intestate share of any of his children, or of leaving any of his children insufficiently provided for. If the Court is so satisfied, it may order that the disposition shall be deemed, for the purposes of Parts VI and IX of the Act of 1965, to be a devise or bequest made by him by will and to form part of his estate, and to have no other effect. This may have the consequence that an application made by or on behalf of a child under Section 117 could succeed even if the deceased otherwise died intestate.
18. Of interest in this case, Section 121(5), as amended, provides that an order may be made under Section 121 either (a) in the interests of the spouse or civil partner, on the application of the spouse or civil partner or the personal representative, made within one year of the first taking out of representation, or (b) in the interest of a child, on an application made under Section 117. No time limit is expressly imposed in the case of an application made by a child, but Carroll J. held in MPD v. MD [1981] ILRM 179 that only one set of proceedings is necessary to bring an application under Sections 117 and 121, and that the time limit of six months from the taking out of representation imposed by Section 117(6) applies equally to an application under Section 121. In the second edition of his monograph Keating on Probate, Albert Keating expresses the view at p. 173 that an application made by a child of the deceased under Sections 117 and 121 beyond the statutory limitation period will not be entertained by the court for want of jurisdiction, no matter how serious the injustice caused to that child as a result, unless the defendant consents to the jurisdiction of the court. Keating suggests that legislation would be required to enable children to rely on the extending provisions of Section 127 of the Succession Act 1965
MPD v MD
19. The seminal judgment dealing with the interaction between Sections 117 and 121 is that of Carroll J. in MPD v MD [1981] ILRM 179. This was an appeal to the High Court from the order of the Master dismissing a claim brought by a widow under Section 121 because it was out of time. The case concerned the estate of a man who had two families – (i) his estranged wife and their four marital children who lived in the family home and (ii) his partner and their non-marital two children who lived in a house which he had acquired in their joint names. During his lifetime and within three years of his death, his partner acquired a half interest in his business and was joint tenant of their home. A grant of probate of his will issued on the 25th September, 1978. On the 16th October, 1979 (i.e. more than 12 months later) his widow issued two summonses against his partner seeking a declaration under Section 117 on behalf of the children of his marriage and the other seeking a declaration under Section 121 in the interests of the widow and in the interests of her four children.
20. Carroll J. held that the widow was barred from making an application under Section 121 in her own interest because the Section 121 summons issued outside of the one year time limit set by Section 121(5). She further held at p. 181 of her judgment that the success of the Section 121 application in the interest of the children was dependent on the success of the Section 117 application and accordingly, only one set of proceedings was necessary. The Section 117 time limit cannot be extended in the case of a plaintiff who is under a disability such as infancy as it is not a claim under a will or on intestacy or as a legal right, but rather “a claim made independently of the will and against its provisions” (Carroll J., at p. 183). The Court had no jurisdiction to make an order under Section 117 as the summons issued outside of the then-12 month limitation period. The Section 121 application was, therefore, also statute barred.
Analysis of the Limitation Issue
21. It is clear from MPD v MD that the six month time limit applicable to Section 117 applications applies equally to Section 121 applications, which can only be sought as a relief in Section 117 proceedings in cases where the order is sought in the interest of a child of the deceased. The Plaintiff in these proceedings clearly did not seek relief under Section 121 as part of her Section 117 application and indeed she did not seek relief under Section 121 until the 31st August, 2009 – long after the expiry of the six month time limit applicable under Section 117(6), which occurred in November, 2006. It is of some considerable significance that the Plaintiff (through her next friend) was fully aware since at the latest the 26th July, 2006 that the lands at location “C” had been purchased by the deceased and his spouse as joint tenants in 2004. The finding by Carroll J. in MPD v MD that one set of proceedings is sufficient to mount a claim under Sections 117 and 121 is a recognition of their connection under the Succession Act but is not a licence to use one set of proceedings to stay any statutory time limitations for the other. That is not to say that in an appropriate case, in order to ensure that proper provision has been made for the child of a testator in accordance with Section 117, the Court could not grant an order under Section 121, as part of its inherent jurisdiction to provide just relief, even if no such claim was made. The Court’s discretion would clearly depend on a number of pre-conditions being met; i.e. that (1) the Section 117 proceedings were commenced within the statutory time; (2) it would be unjust to ignore the disinheriting disposition; (3) there would otherwise be little or no estate available to provide just provision for the child; and (4) as soon as reasonably possible after becoming aware of the disputed disposition, the Plaintiff put the Defendant on notice that he / she would be seeking to have the disposition treated as a bequest or devise made by will and treated as part of the estate, in the context of the Section 117 proceedings. An order may only be made under Section 117 “on application by or on behalf of the child of a testator” and cannot generally be made if the deceased died intestate. However, as previously mentioned, Section 121 is not subject to that limitation and where an order is made under Section 121, the deceased is treated as though he made a bequest or devise by will, which potentially brings Section 117 into play even if the deceased otherwise died intestate (see the judgment of Carroll J. in MPD v MD).
22. In contrast to Section 121(5) (a), which provides that an order may be made in the interests of a surviving spouse “on the application of the spouse or personal representative of the deceased”, Section 121(5) (b) simply provides that an order may be made under Section 121 “in the interest of a child, on an application under section 117”. A heading seeking the relief of “Such further or other orders, declarations and reliefs as this Honourable Court shall deem meet and just”, as was included in the Plaintiff’s 2006 proceedings, may in appropriate circumstances be sufficient to provide jurisdiction to grant a Section 121 order in Section 117 proceedings.
23. Nonetheless, while it might be unnecessary to expressly seek a declaration under Section 121 in Section 117 proceedings, this does not equate to what happened in this case where more than three years elapsed between the time when Plaintiff became aware of the disposition and the date on which the Defendant was first put on notice of the Section 121 claim by way of the 2009 proceedings. Although the Section 117 proceedings were brought within time they were not appropriate to an intestacy and they did not include a claim under Section 121 nor was any claim brought to amend the pleadings within a reasonable time after the Plaintiff was aware that W.S. had died intestate and that it had been asserted by the Defendant that his estate did not comprise any real property. In those circumstances it is clear that her claim falls to be dealt with under the intestacy rules under Section 67, and it would be unconscionable for the Court to exercise its inherent jurisdiction to make an order under Section 121. The Court is satisfied that the action is statute barred.
The Second Issue: Was this a Disposition?
24. The second issue is whether, on the facts, the transaction which the Plaintiff / Appellant sought to challenge amounts to a ‘disposition’ within the contemplation of the statute.
25. The facts are that the deceased and his spouse the Defendant, who were married for more than twenty years before he died, were the owners of several parcels of agricultural land. In common with modern custom each purchase of land was registered in both their names as joint tenants. In early 2004 the couple entered into a contract to purchase a parcel of land at location “C”. The purchase was financed by a loan in the sum of €380,000 and a further private loan from the deceased’s brother in the sum of €450,000. Documents support the fact of these loans and the obligations of the deceased and his wife the Defendant under these loans. The charge of €380.000 appears as a burden on the folio when the property was first purchased and when the property was transferred to the Defendant following the death of her husband. The purchase was made within three years of the death of the deceased. W.S. was also obliged to take out an insurance policy indemnifying his repayments under the mortgage in the event that he would become incapacitated and unable to work. That policy was in place and it can be assumed that he had to attend for a medical examination before such policy issued. There was nothing suspect, unusual or uncommon about this purchase in the joint names of the husband and wife. On the death of the husband all the land passed held jointly passed by succession to his spouse subject to any charges by way of mortgage or otherwise.
26. The question is whether the purchase or acquisition of this land in their joint names and subject to a mortgage could be a ‘disposition’ within the meaning of Section 121 which applies to “a disposition of property (other than a testamentary disposition or a disposition to a purchaser) under which the beneficial ownership of the property vests in possession in the donee within three years before the death of the person who made it or on his death or later” (Section 121(1), emphasis added).
27. On the ordinary construction rules, in giving the natural meaning to words, an acquisition or purchase is not a disposition. The two words have opposite meanings and an acquisition of property by purchase / gift / inheritance cannot equate to the divesting of the beneficial ownership of property which involves the sale / transfer / gift by will or a donation mortis causa.
28. The intention of Section 121 of the Succession Act is to prevent the divesting of property in anticipation of death specifically to prevent the surviving spouse and children from enjoying the benefit of the deceased’s estate. While the Act is, as mentioned above, silent as to what amounts to a ‘disposition’, apart from the specific mention of a donation mortis causa, it cannot be inferred that the silence in the Act changes the meaning of what has heretofore been recognised as a disposition which is defined in the Oxford Dictionary of Law as “the transfer of property by some act of its owner, e.g. by sale, gift, will or exchange” and in Halsbury’s Laws of England ( 5th edition, Volume 102 , p. 12 ) as “the term disposition arises a number of times, the most relevant context being in relation to a consideration of the essential characteristics of a will”. It is noted that on death the testator’s will “crystallises and takes effect as an appointment, disposition or otherwise. A will must be distinguished from a disposition made inter vivos, such as a donation mortis causa…or a voluntary settlement with a power of revocation, or an instrument which is final on execution by the maker, although intended to take effect on some future event, or a nomination of a beneficiary under the trust deed and rules of a pension scheme operation by reason of the force of that deed and rules’. A disposition is further defined in Murdoch’s Dictionary of Irish Law (4th edition, p. 348) as ‘the passing of property whether by act of parties or act of law’ and Stroud’s Judicial Dictionary (7th edition, Volume 1, p. 738) quotes Lord Macnaghten in Northumberland v. Att-Gen [1905] A.C. 406, who said that “the terms ‘disposition’ and ‘devolution’ must have been intended to comprehend and exhaust every conceivable mode by which property can pass, whether by act of parties or by act of the law’’. All of these definitions anticipate that the person who engaged in the disposition was the owner of the land being disposed of; none envisage that the person who engaged in the disposition was acquiring property subject to a mortgage. None of those definitions include an acquisition of property by purchase or otherwise.
29. The same is true of Spierin, in ‘The Succession Act 1965 and Related Legislation, A Commentary’ (3rd edition, p. 370) who notes that Section 121 would “include the transfer by way of gift of property already vested in the deceased. It is also to be assumed that it would include more complex transactions under which a gift was made indirectly, for instance where property is purchased in the name of a third party (and where no resulting trust arises)”. In later considering the protection of purchasers at page 373 he notes that, “this section applies only to gifts”.
30. The Court is of the view that as the acquisition of property is not a disposition, it follows that the acquisition of property in joint names from borrowed funds is not a disposition within the meaning of Section 121 of the Succession Act 1965. While it could be envisaged that if, within the three years prior to his or her death, lands held in the sole name of a deceased were sold and the proceeds used to purchase lands in the joint names of the deceased and his spouse or marital children (to the exclusion of any non-marital children), or if the deceased’s available cash deposits were used to purchase land in joint names, in appropriate circumstances, as a gift to the joint tenant arises, the Court might interfere and direct that the disposition should be treated as a devise or bequest by will, bringing Section 117 into play. Similarly, the Court in appropriate circumstances might look with suspicion at a transfer of lands from the deceased’s sole name into the joint ownership of him / herself with another party. In each of those examples there has been a disposition by sale of property in the transferor’s estate to finance the acquisition or the use of cash deposits to purchase and a disposition by gift to the joint owner. Those examples are very far from the purchase in joint names of lands with borrowed funds where, on the death of the deceased, the surviving spouse takes on the sole obligation to discharge the mortgage as occurred in this case.
31. The infant Plaintiff’s mother and next friend claims that the Plaintiff has been insufficiently provided for and that the purchase of the lands in joint names should be treated as a bequest or devise by will and therefore potentially subject to an order under Section 117, because the land was purchased after her birth and within 3 years of the intestate death of her father. She submits that the passing of property into the sole name of the Defendant by virtue of the rule of survivorship is an act of law and under Section 121 the vesting of the beneficial ownership in a donee is when the disposition occurs. The fallacy in this argument is that the spouse was not a donee but a joint purchaser jointly responsible for the mortgage and when her husband died she became solely liable, although her husband’s share of the equity did pass to her by survivorship. While there is no doubt that transfers of land from sole to joint names can be deemed to be a ‘vesting of the beneficial ownership’ of the entire property in the survivor intended to defeat rights defined by the Succession Act, the purchase of property from borrowed money is not such a transfer and the rights of the joint tenant on survivorship do not constitute a disposition. The legal ownership of a mortgaged estate lies with the mortgagee while the equitable interest or mortgage of redemption lies with the mortgagor. Moreover, the potential estate of W.S. was not been interfered with or depleted in any way as a result of the purchase of lands from borrowed money and the sum of money to which the Plaintiff became entitled on intestacy is unaffected.
32. The Court is not called upon to hear evidence on the intention of the deceased intestate at the time of the purchase of the lands as the transaction was not a ‘disposition’ within the meaning of Section 121. However, even if the Court is wrong in this regard it is clear that the transaction was not of the nature envisaged by Section 121 which requires that the Court be satisfied that the disposition in question was made for the purpose of defeating or substantially diminishing the share of the disponer’s spouse or civil partner or the intestate share of any of his children, or of leaving any of his children insufficiently provided for. In this case the deceased died suddenly from a brain haemorrhage while still in his forties. He had not made a will. His death was not anticipated and the purchase of the lands in question could not have been an act designed to defeat the rights of the infant Plaintiff.
33. In the circumstances, the Court is satisfied that the Plaintiff is not entitled to an order under Section 121 of the Act of 1965 and it follows that the Court cannot grant an order under Section 117 as the deceased father of the Plaintiff cannot be construed as a testator in the absence of an order under Section 121.
1.The Court’s emphasis.
2.Filed in May, 2006.
LC (a minor) v HS [2014] IEHC 32
JUDGMENT OF MS JUSTICE M. H. CLARK, delivered on the 27th day of January, 2014.
1. This appeal from the Circuit Court has a chequered history. In February, 2006, the Appellant/ Plaintiff L.C. who was born on the 7th July, 2000 commenced her action seeking eleven reliefs which can be reduced to three headings;
(i) Declarations pursuant to Section 35 of the Status of Children Act 1987 that she was a child of the deceased W.S. who died on the 18th October, 2005;
(ii) An interim order restraining the Defendant who is the widow of W.S. from intermeddling with the estate of W.S.; and
(iii) Declarations that she was entitled to a share in the estate of W.S. whether under Section 117 of the Succession Act 1965 if he died testate or otherwise if he died intestate.
2. It is possible that on the issue of those proceedings, the Plaintiff was not fully aware whether W.S. had died testate or intestate. The pleadings assert that the Defendant had failed to acknowledge the Plaintiff as a child of the deceased notwithstanding the Defendant’s actual knowledge of the existence of the Plaintiff as the child of the deceased.
3. Letters of administration issued to the Defendant on the 25th May, 2006, some three months after the issue of proceedings. On an unstated day in February, 2006, the Plaintiff issued a motion seeking certain orders and injunctive relief. On the 26th July, 2006 Her Honour Judge Alice Doyle granted orders:-
(i) directing DNA testing of the Plaintiff, her mother and next friend, and the deceased;
(ii) restraining the Defendant from administering or intermeddling with the estate of W.S. until further order. However, if certain specified lands in Wexford were held on joint tenancy and documents were furnished to prove same, the Defendant was permitted to deal with those lands; and
(iii) restraining the Defendant from dealing with or distributing the estate of W.S. until the dispute as to the Plaintiff’s parentage was resolved and/or until the Plaintiff’s entitlement to her share in the estate of W.S. was established and/or until the application pursuant to Section 117 of the Succession Act 1965 was determined; and
(iv) the costs were reserved.
4. In February, 2008 the Plaintiff issued a motion for judgment in default of defence and in her grounding affidavit sworn on the 24th January, 2006,1 the Plaintiff’s mother and next friend averred that she was aware from the Defendant that the putative father of the Plaintiff died intestate and that her daughter was entitled to a share in the estate of her natural father. The affidavit then contradicts this statement as it avers that the Defendant had failed to acknowledge that the infant Plaintiff is the daughter of the deceased or that she has an entitlement to the estate of the diseased “whether on testacy or intestacy”, and further that the Defendant was seeking to develop the lands of the deceased to the exclusion of the infant Plaintiff.
5. It must be inferred that it was clear to the Plaintiff’s mother and next friend from as early as January, 2006 (and if that date was a typographical error then from at least the 26th July, 2006 when Judge Doyle made orders in relation to the case) that W.S. died intestate and that before his death in October, 2005, he and his wife had purchased lands as joint tenants in County Wexford.
6. On the 23rd January, 2008 a Defence was filed wherein the Defendant objected to the form of the pleadings and the Plaintiff’s failure to first lodge a caveat. The Defence otherwise admitted that W.S. died intestate survived by his widow (the Defendant), three marital children and three non-marital children including the infant Plaintiff. It was denied that the Defendant had intermeddled with the estate to the exclusion or disadvantage of the Plaintiff as alleged or at all; that the estate of W.S. had not been distributed at the time of the issue of the proceedings; and that the Defendant had ever denied that the Plaintiff was the child of W.S. as his six children were noted on the Internal Revenue affidavit.2 It was pleaded that the Plaintiff’s entitlement to a share in the estate under the rules of intestacy had never been denied and that this fact had been made known to the Plaintiff and that the Defendant was “at a loss to understand why the Plaintiff brings the within proceedings and why the Plaintiff seeks declarations of the court to parentage.” The Defence then states that the estate of W.S. who died intestate comprises a net estate of €112,143.32 and that under the rules of intestacy each of W.S.’s children was entitled to one-sixth of one-third of the estate making the Plaintiff’s share in or around €6,230.18.
7. Of relevance to this action the Defence delivered in 2008 specifically pleads that “the Defendant is prohibited from administering and distributing the estate of the said late [W.S.] (deceased) by virtue of a court order obtained by the Plaintiff on or about 26th July 2006 and which said court order restrains the defendant from in essence administering or intermeddling in the estate of the late [W.S.] (deceased) until further order of the Honourable Court. The Order sought on the 26th July 2006 was sought without regard for any difficulties, financial or otherwise that may be caused to the Defendant and in circumstances where the Plaintiff had been assured that any entitlements she may have under the rules on intestacy would be granted to her. Until this Order has been vacated the Defendant cannot hand over to the Plaintiff her said share of the estate of the said [W.S.] (deceased) being €6,230.18. The Plaintiff further had the said court order extended at a second sitting on the 26th July 2006 to include property which did not form part of the estate of the said late Mr. [W.S.] (deceased) pending the provision of proof to the Plaintiff that the title to said property was held by the Defendant and the said [W.S.] (deceased) as joint tenants despite assurances by the Plaintiff to the Defendant that such was the case and despite any difficulties that said restriction might place on the Defendant. The said proof was duly furnished by the Defendant and that part of the extended order restraining the Defendant from dealing with the family home and other said property which did not form part of the estate of the said [W.S.] (deceased) ceased forthwith on the furnishing of the said proof and as directed by the Honourable Court when making the extended order on or about 26th July 2006” (the Court’s emphasis).
8. On the 31st of August, 2009, some nineteen months after the Defence was served and a minimum of three years after the Plaintiff became aware that the Defendant was a joint owner with W.S. of lands at locations which will be referred to as “B” and “C”, and almost four years after his death intestate, the Plaintiff issued a second set of proceedings entitled a ‘Succession Law Civil Bill’ claiming inter alia:
(i) That the deceased had at various stages throughout his life acquired certain properties including (a) the family home and lands at a specified location “B” and (b) farmhouse and lands at a separate specified location “C”, which were put in the joint names of deceased and the Defendant hereto.
(ii) That upon the death of the deceased the entire beneficial ownership of the said properties vested in the Defendant and as such was a ‘disposition’ of property within the meaning ascribed by Section 121 of the Succession Act 1965; and
(iii) That the effects and purpose of the said dispositions was an attempt to defeat or diminish the Plaintiff’s share in the said estates.
9. A Defence was delivered in the second set of proceedings on the 29th April, 2010, where the key points pleaded were (once again) that the Defendant did not deny that the Plaintiff was entitled to a share on intestacy in common with the other children of W.S. as already acknowledged by her and that the Defendant was therefore at a loss as why the Plaintiff had recited that the Defendant had, despite request, failed to acknowledge that the Plaintiff’s entitlement to her legal share. The Defence then recites that the Defendant had been unable to pay any sum due to the Plaintiff on intestacy by virtue of the order obtained by the Plaintiff on or about the 26th July, 2006, prohibiting the Defendant administering the estate of W.S. It was specifically denied that the Plaintiff was entitled to any real estate as the estate of W.S. did not comprise any real estate. Details were then provided of the intestate estate of W.S. and it was pleaded that all this had been made known to the Plaintiff in the Defence of the Defendant delivered in respect of the previous Circuit Court proceedings. It was specifically pleaded that the family home and lands of the Defendant and W.S. at location “B” were purchased in 1985 in the joint names of the Defendant and W.S. as joint tenants, more than fifteen years prior to the birth of the Plaintiff, and thus could not have been a disposition within the meaning of Section 121 of the Succession Act 1965. It was also specifically pleaded that the farmhouse and lands at location “C” were purchased in November, 2003 in the joint names of the Defendant and W.S. as joint tenants and could not have been a disposition made for the purpose of defeating and substantially diminishing any share of the Plaintiff on intestacy or otherwise in circumstances where W.S. died suddenly and prematurely and in circumstances where properties purchased by the Defendant and her late husband were always purchased in their joint names and as joint tenants.
10. The matter appears to have been set down for trial on the 6th, 13th, and 14th October, 2011, before His Honour Judge Griffin. It seems that both sets of proceedings were consolidated at that stage and the only live issue was whether the purchase of the farmhouse and lands at location “C” in 2003 was a disposition made to defeat the rights of the infant Plaintiff within the meaning of Section 121 of the Succession Act 1965. The learned Circuit Court Judge made an order declaring that:-
(a) the Plaintiff was entitled to her legal share in the estate of W.S., being of one sixth of a one third share;
(b) the Defendant administer the estate of W.S.; and
(c) That the Plaintiff do recover from the Defendant the sum of €4,004.19 being one sixth of one third share in the estate of W.S.
11. Thus it appears that the Plaintiff essentially lost her claim under Section 121 of the Act of 1965 and was reduced to the intestate share which had been acknowledged by the Defendant some six years previously, shortly after letters of administration issued, and again in the Defence filed in response to the first Civil Bill in 2008 and to the second Civil Bill in 2009.
12. This Court was informed that when the Plaintiff’s appeal to the High Court was set down for hearing before Herbert J., the issue of the Statute of Limitations was raised for the first time by the Defendant. The case was remitted to the Circuit Court for that discrete issue to the determined. The issue was determined in favour of the Plaintiff but no reasons were provided in the order made. The infant Plaintiff’s appeal against the order of the Circuit Court was then set down for hearing before this Court in Kilkenny in December, 2013. The parties agreed that the first issue to be determined was the preliminary limitation point where the Defendant asserted that the Plaintiff was out of time to bring proceedings under Section 121 while the Plaintiff asserted that once her initial proceedings had been commenced under Section 117 of the Succession Act 1965 within the six month statutory period, then her claim under Section 121 could be brought at any time thereafter.
13. Due to time constraints the limitation issue was only part heard in December, 2013. The Court then raised its own concerns as to whether a purchase of lands subject to mortgage could be a ‘disposition’ within the meaning of Section 121 and invited the parties to prepare written submissions on that issue.
The Relevant Provisions
14. Section 117 of the Succession Act 1965 provides:
“(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
(1A) (a) An application made under this section by virtue of Part V of the Status of Children Act, 1987, shall be considered in accordance with subsection (2) irrespective of whether the testator executed his will before or after the commencement of the said Part V.
(b) Nothing in paragraph (a) shall be construed as referring to a right to apply under this section in respect of a testator who dies before the commencement of the said Part V.”
15. Thus it can be seen that applications under Section 117 apply only where the parent died testate. Where the parent died intestate, all children of the deceased are entitled to an equal share of the estate as under the intestacy rules governed by Section 67(2) of the Act of 1965: if an intestate dies leaving a spouse and issue, the spouse takes two thirds of the estate and the remainder shall be distributed among the issue in equal shares.
16. Applications under Section 117 must be brought within six months from the first taking out of representation of the deceased’s estate, pursuant to Section 117(6), as amended, and there is no provision for the extension of that short time limit where the applicant is under a ‘disability’, i.e. a minor of or unsound mind. Section 127 of the Act of 1965 – which extends the ‘disability’ provisions of the Statute of Limitations 1957 to actions in respect of a claim to the estate of the deceased person or a share in the estate – does not apply to applications by children under Section 117. This reflects the principle, identified by the Supreme Court in Moynihan v. Greensmyth [1977] 1 I.R. 55, that there is a public interest in the speedy administration of estates.
17. Section 121 of the Succession Act 1965 applies to a disposition of property (other than a testamentary disposition or a disposition to a purchaser) under which the beneficial ownership of the property vests in the donee within three years before the death of the person who made the disposition or on his death or later. These are sometimes referred to as ‘disinheriting dispositions’. Such a ‘disposition’ is defined to include a donation mortis causa but is not otherwise defined. If the disponee disposes of the property to a purchaser for value, Section 121 ceases to apply to the property and applies instead to the consideration given for the purchase. In other words, the sale itself is unaffected but the proceeds of the sale may be affected. Before any disposition can be made the subject of an order under Section 121 the Court must be satisfied that the disposition was made for the purpose of defeating or substantially diminishing the share of the disponer’s spouse or civil partner or the intestate share of any of his children, or of leaving any of his children insufficiently provided for. If the Court is so satisfied, it may order that the disposition shall be deemed, for the purposes of Parts VI and IX of the Act of 1965, to be a devise or bequest made by him by will and to form part of his estate, and to have no other effect. This may have the consequence that an application made by or on behalf of a child under Section 117 could succeed even if the deceased otherwise died intestate.
18. Of interest in this case, Section 121(5), as amended, provides that an order may be made under Section 121 either (a) in the interests of the spouse or civil partner, on the application of the spouse or civil partner or the personal representative, made within one year of the first taking out of representation, or (b) in the interest of a child, on an application made under Section 117. No time limit is expressly imposed in the case of an application made by a child, but Carroll J. held in MPD v. MD [1981] ILRM 179 that only one set of proceedings is necessary to bring an application under Sections 117 and 121, and that the time limit of six months from the taking out of representation imposed by Section 117(6) applies equally to an application under Section 121. In the second edition of his monograph Keating on Probate, Albert Keating expresses the view at p. 173 that an application made by a child of the deceased under Sections 117 and 121 beyond the statutory limitation period will not be entertained by the court for want of jurisdiction, no matter how serious the injustice caused to that child as a result, unless the defendant consents to the jurisdiction of the court. Keating suggests that legislation would be required to enable children to rely on the extending provisions of Section 127 of the Succession Act 1965
MPD v MD
19. The seminal judgment dealing with the interaction between Sections 117 and 121 is that of Carroll J. in MPD v MD [1981] ILRM 179. This was an appeal to the High Court from the order of the Master dismissing a claim brought by a widow under Section 121 because it was out of time. The case concerned the estate of a man who had two families – (i) his estranged wife and their four marital children who lived in the family home and (ii) his partner and their non-marital two children who lived in a house which he had acquired in their joint names. During his lifetime and within three years of his death, his partner acquired a half interest in his business and was joint tenant of their home. A grant of probate of his will issued on the 25th September, 1978. On the 16th October, 1979 (i.e. more than 12 months later) his widow issued two summonses against his partner seeking a declaration under Section 117 on behalf of the children of his marriage and the other seeking a declaration under Section 121 in the interests of the widow and in the interests of her four children.
20. Carroll J. held that the widow was barred from making an application under Section 121 in her own interest because the Section 121 summons issued outside of the one year time limit set by Section 121(5). She further held at p. 181 of her judgment that the success of the Section 121 application in the interest of the children was dependent on the success of the Section 117 application and accordingly, only one set of proceedings was necessary. The Section 117 time limit cannot be extended in the case of a plaintiff who is under a disability such as infancy as it is not a claim under a will or on intestacy or as a legal right, but rather “a claim made independently of the will and against its provisions” (Carroll J., at p. 183). The Court had no jurisdiction to make an order under Section 117 as the summons issued outside of the then-12 month limitation period. The Section 121 application was, therefore, also statute barred.
Analysis of the Limitation Issue
21. It is clear from MPD v MD that the six month time limit applicable to Section 117 applications applies equally to Section 121 applications, which can only be sought as a relief in Section 117 proceedings in cases where the order is sought in the interest of a child of the deceased. The Plaintiff in these proceedings clearly did not seek relief under Section 121 as part of her Section 117 application and indeed she did not seek relief under Section 121 until the 31st August, 2009 – long after the expiry of the six month time limit applicable under Section 117(6), which occurred in November, 2006. It is of some considerable significance that the Plaintiff (through her next friend) was fully aware since at the latest the 26th July, 2006 that the lands at location “C” had been purchased by the deceased and his spouse as joint tenants in 2004. The finding by Carroll J. in MPD v MD that one set of proceedings is sufficient to mount a claim under Sections 117 and 121 is a recognition of their connection under the Succession Act but is not a licence to use one set of proceedings to stay any statutory time limitations for the other. That is not to say that in an appropriate case, in order to ensure that proper provision has been made for the child of a testator in accordance with Section 117, the Court could not grant an order under Section 121, as part of its inherent jurisdiction to provide just relief, even if no such claim was made. The Court’s discretion would clearly depend on a number of pre-conditions being met; i.e. that (1) the Section 117 proceedings were commenced within the statutory time; (2) it would be unjust to ignore the disinheriting disposition; (3) there would otherwise be little or no estate available to provide just provision for the child; and (4) as soon as reasonably possible after becoming aware of the disputed disposition, the Plaintiff put the Defendant on notice that he / she would be seeking to have the disposition treated as a bequest or devise made by will and treated as part of the estate, in the context of the Section 117 proceedings. An order may only be made under Section 117 “on application by or on behalf of the child of a testator” and cannot generally be made if the deceased died intestate. However, as previously mentioned, Section 121 is not subject to that limitation and where an order is made under Section 121, the deceased is treated as though he made a bequest or devise by will, which potentially brings Section 117 into play even if the deceased otherwise died intestate (see the judgment of Carroll J. in MPD v MD).
22. In contrast to Section 121(5) (a), which provides that an order may be made in the interests of a surviving spouse “on the application of the spouse or personal representative of the deceased”, Section 121(5) (b) simply provides that an order may be made under Section 121 “in the interest of a child, on an application under section 117”. A heading seeking the relief of “Such further or other orders, declarations and reliefs as this Honourable Court shall deem meet and just”, as was included in the Plaintiff’s 2006 proceedings, may in appropriate circumstances be sufficient to provide jurisdiction to grant a Section 121 order in Section 117 proceedings.
23. Nonetheless, while it might be unnecessary to expressly seek a declaration under Section 121 in Section 117 proceedings, this does not equate to what happened in this case where more than three years elapsed between the time when Plaintiff became aware of the disposition and the date on which the Defendant was first put on notice of the Section 121 claim by way of the 2009 proceedings. Although the Section 117 proceedings were brought within time they were not appropriate to an intestacy and they did not include a claim under Section 121 nor was any claim brought to amend the pleadings within a reasonable time after the Plaintiff was aware that W.S. had died intestate and that it had been asserted by the Defendant that his estate did not comprise any real property. In those circumstances it is clear that her claim falls to be dealt with under the intestacy rules under Section 67, and it would be unconscionable for the Court to exercise its inherent jurisdiction to make an order under Section 121. The Court is satisfied that the action is statute barred.
The Second Issue: Was this a Disposition?
24. The second issue is whether, on the facts, the transaction which the Plaintiff / Appellant sought to challenge amounts to a ‘disposition’ within the contemplation of the statute.
25. The facts are that the deceased and his spouse the Defendant, who were married for more than twenty years before he died, were the owners of several parcels of agricultural land. In common with modern custom each purchase of land was registered in both their names as joint tenants. In early 2004 the couple entered into a contract to purchase a parcel of land at location “C”. The purchase was financed by a loan in the sum of €380,000 and a further private loan from the deceased’s brother in the sum of €450,000. Documents support the fact of these loans and the obligations of the deceased and his wife the Defendant under these loans. The charge of €380.000 appears as a burden on the folio when the property was first purchased and when the property was transferred to the Defendant following the death of her husband. The purchase was made within three years of the death of the deceased. W.S. was also obliged to take out an insurance policy indemnifying his repayments under the mortgage in the event that he would become incapacitated and unable to work. That policy was in place and it can be assumed that he had to attend for a medical examination before such policy issued. There was nothing suspect, unusual or uncommon about this purchase in the joint names of the husband and wife. On the death of the husband all the land passed held jointly passed by succession to his spouse subject to any charges by way of mortgage or otherwise.
26. The question is whether the purchase or acquisition of this land in their joint names and subject to a mortgage could be a ‘disposition’ within the meaning of Section 121 which applies to “a disposition of property (other than a testamentary disposition or a disposition to a purchaser) under which the beneficial ownership of the property vests in possession in the donee within three years before the death of the person who made it or on his death or later” (Section 121(1), emphasis added).
27. On the ordinary construction rules, in giving the natural meaning to words, an acquisition or purchase is not a disposition. The two words have opposite meanings and an acquisition of property by purchase / gift / inheritance cannot equate to the divesting of the beneficial ownership of property which involves the sale / transfer / gift by will or a donation mortis causa.
28. The intention of Section 121 of the Succession Act is to prevent the divesting of property in anticipation of death specifically to prevent the surviving spouse and children from enjoying the benefit of the deceased’s estate. While the Act is, as mentioned above, silent as to what amounts to a ‘disposition’, apart from the specific mention of a donation mortis causa, it cannot be inferred that the silence in the Act changes the meaning of what has heretofore been recognised as a disposition which is defined in the Oxford Dictionary of Law as “the transfer of property by some act of its owner, e.g. by sale, gift, will or exchange” and in Halsbury’s Laws of England ( 5th edition, Volume 102 , p. 12 ) as “the term disposition arises a number of times, the most relevant context being in relation to a consideration of the essential characteristics of a will”. It is noted that on death the testator’s will “crystallises and takes effect as an appointment, disposition or otherwise. A will must be distinguished from a disposition made inter vivos, such as a donation mortis causa…or a voluntary settlement with a power of revocation, or an instrument which is final on execution by the maker, although intended to take effect on some future event, or a nomination of a beneficiary under the trust deed and rules of a pension scheme operation by reason of the force of that deed and rules’. A disposition is further defined in Murdoch’s Dictionary of Irish Law (4th edition, p. 348) as ‘the passing of property whether by act of parties or act of law’ and Stroud’s Judicial Dictionary (7th edition, Volume 1, p. 738) quotes Lord Macnaghten in Northumberland v. Att-Gen [1905] A.C. 406, who said that “the terms ‘disposition’ and ‘devolution’ must have been intended to comprehend and exhaust every conceivable mode by which property can pass, whether by act of parties or by act of the law’’. All of these definitions anticipate that the person who engaged in the disposition was the owner of the land being disposed of; none envisage that the person who engaged in the disposition was acquiring property subject to a mortgage. None of those definitions include an acquisition of property by purchase or otherwise.
29. The same is true of Spierin, in ‘The Succession Act 1965 and Related Legislation, A Commentary’ (3rd edition, p. 370) who notes that Section 121 would “include the transfer by way of gift of property already vested in the deceased. It is also to be assumed that it would include more complex transactions under which a gift was made indirectly, for instance where property is purchased in the name of a third party (and where no resulting trust arises)”. In later considering the protection of purchasers at page 373 he notes that, “this section applies only to gifts”.
30. The Court is of the view that as the acquisition of property is not a disposition, it follows that the acquisition of property in joint names from borrowed funds is not a disposition within the meaning of Section 121 of the Succession Act 1965. While it could be envisaged that if, within the three years prior to his or her death, lands held in the sole name of a deceased were sold and the proceeds used to purchase lands in the joint names of the deceased and his spouse or marital children (to the exclusion of any non-marital children), or if the deceased’s available cash deposits were used to purchase land in joint names, in appropriate circumstances, as a gift to the joint tenant arises, the Court might interfere and direct that the disposition should be treated as a devise or bequest by will, bringing Section 117 into play. Similarly, the Court in appropriate circumstances might look with suspicion at a transfer of lands from the deceased’s sole name into the joint ownership of him / herself with another party. In each of those examples there has been a disposition by sale of property in the transferor’s estate to finance the acquisition or the use of cash deposits to purchase and a disposition by gift to the joint owner. Those examples are very far from the purchase in joint names of lands with borrowed funds where, on the death of the deceased, the surviving spouse takes on the sole obligation to discharge the mortgage as occurred in this case.
31. The infant Plaintiff’s mother and next friend claims that the Plaintiff has been insufficiently provided for and that the purchase of the lands in joint names should be treated as a bequest or devise by will and therefore potentially subject to an order under Section 117, because the land was purchased after her birth and within 3 years of the intestate death of her father. She submits that the passing of property into the sole name of the Defendant by virtue of the rule of survivorship is an act of law and under Section 121 the vesting of the beneficial ownership in a donee is when the disposition occurs. The fallacy in this argument is that the spouse was not a donee but a joint purchaser jointly responsible for the mortgage and when her husband died she became solely liable, although her husband’s share of the equity did pass to her by survivorship. While there is no doubt that transfers of land from sole to joint names can be deemed to be a ‘vesting of the beneficial ownership’ of the entire property in the survivor intended to defeat rights defined by the Succession Act, the purchase of property from borrowed money is not such a transfer and the rights of the joint tenant on survivorship do not constitute a disposition. The legal ownership of a mortgaged estate lies with the mortgagee while the equitable interest or mortgage of redemption lies with the mortgagor. Moreover, the potential estate of W.S. was not been interfered with or depleted in any way as a result of the purchase of lands from borrowed money and the sum of money to which the Plaintiff became entitled on intestacy is unaffected.
32. The Court is not called upon to hear evidence on the intention of the deceased intestate at the time of the purchase of the lands as the transaction was not a ‘disposition’ within the meaning of Section 121. However, even if the Court is wrong in this regard it is clear that the transaction was not of the nature envisaged by Section 121 which requires that the Court be satisfied that the disposition in question was made for the purpose of defeating or substantially diminishing the share of the disponer’s spouse or civil partner or the intestate share of any of his children, or of leaving any of his children insufficiently provided for. In this case the deceased died suddenly from a brain haemorrhage while still in his forties. He had not made a will. His death was not anticipated and the purchase of the lands in question could not have been an act designed to defeat the rights of the infant Plaintiff.
33. In the circumstances, the Court is satisfied that the Plaintiff is not entitled to an order under Section 121 of the Act of 1965 and it follows that the Court cannot grant an order under Section 117 as the deceased father of the Plaintiff cannot be construed as a testator in the absence of an order under Section 121.
1.The Court’s emphasis.
2.Filed in May, 2006.
McHugh v McHugh
[2012] IEHC 75
JUDGMENT of Mr. Justice Roderick Murphy dated the 10th day of February 2012
1. Pleadings
1.1 First Motion
The first application is that of the defendants to dismiss the plaintiff’s action. The motion was filed on the 9th June, 2011, and heard by the court on Monday the 21st November, 2011. The plaintiff’s claim, inter aliais for an order setting aside a transfer of certain lands on the 5th February 1990 between the deceased and the defendants. The deceased made a Will on 9th July 1987 leaving those lands to the plaintiff and appointing him as executor thereof. On 19th February 1991 the defendants became the registered owners of the subject lands. The deceased died on 12th January 1998.
The defendants applied to the court for an order dismissing the plaintiff action save to the extent that the same comprised a claim to prove the purported last Will and Testament of the late Margaret (otherwise Rita) McHugh dated the 9th July, 1987. The grounds for the application were that the several claims made by the plaintiff were not maintainable against the defendants. They were unsustainable and bound to fail. The plaintiff’s inordinate and inexcusable delay in instituting, prosecuting, and maintaining the claims constituted an abuse of process.
The defendants also applied for a declaration that the Will constituted the valid and duly executed last Will and Testament of the deceased and sought an order granting the plaintiff liberty to prove same in common form.
The defendants also sought judgment in default of defence to the counterclaim together with an order directing that the damages to which the defendants would be entitled on foot thereof be assessed by a judge with a jury.
1.2 Grounding Affidavit in First Motion
The notice of motion dated the 9th June, 2011, seeking to dismiss the plaintiff’s action, was grounded on the affidavit of John Murphy, solicitor for the defendants and filed on the 9th June, 2011.
Mr. Murphy outlined the proceedings brought by the plaintiff on the grounds of capacity and the undue influence or duress of the deceased and alternatively, the plaintiff sought directions pursuant to s. 117 and 121 of the Succession Act 1965.
Following a change of solicitors, Mr. Murphy took instructions and consulted with counsel and formed the view that certain matters ought to have been pleaded. By order of this court on the 17th January, 2001, an amended defence and counterclaim were served on the plaintiff on the 23rd March, 2001.
Mr. Murphy could not understand why it was considered necessary for the plaintiff to seek an order proving the last Will and Testament of the deceased. No caveat had been lodged. There had been no question or issue in relation to the validity of the Will. The claim originally in the defence and counterclaim that the plaintiff had brought the deceased into a firm of solicitors and that the deceased was under duress in making the Will was deleted from the defence and counterclaim on the basis that there would be no evidence to support that assertion. Accordingly, there was no impediment to the Will being proved.
Mr. Murphy averred that at the time of swearing of his affidavit on the 8th June, 2011, that the plaintiff was not the personal representative of the deceased and not entitled to maintain his claim.
The plaintiff was granted representation as executor by probate dated the 26th October 2011.
Mr Murphy averred that he was advised and believed that the lands with which the proceedings were concerned had a value of not more than €90,000. Proceedings commenced on the 4th March, 2004, with a view to setting aside a transfer which had been executed on the 5th February, 1990, some fourteen years earlier, it was then seven years after proceedings commenced, the court was being asked to set aside a transfer executed 21 years earlier.
In the circumstances, Mr. Murphy believed that the plaintiff had been guilty of inordinate and inexcusable delay both in instituting the proceedings and in prosecuting same. The proceedings in their present form were oppressive and constituted an abuse of process.
He asked that the defendants’ counterclaim for damages and trespass be assessed by a judge sitting without a jury.
By supplemental affidavit sworn on the 4th July, 2011, Mr. Murphy said that given that the plaintiff has indicated that he wished to make a claim against the Estate of the deceased. It was not appropriate that he be allowed to prove the Will.
He was not entitled to maintain his claim for any of the reliefs sought. Such reliefs could only be sought as against the personal representative.
A notice of appointment of new solicitors for the defendants was delivered on the 9th February, 2010. The plaintiff’s solicitors came off record on the 13th December, 2010. His new solicitors, Scarry O’Connor, came on record on the 1st July, 2010.
By replying affidavit of 3rd October 2011, Michelle Scarry of Scarry O’Connor, solicitors for the plaintiff, said that she had recently come on record and that the plaintiff had instructed her that he had every intention of prosecuting the proceedings.
In relation to the defendants’ accusation of inordinate and/or inexcusable delay, she outlined the chronology of pleadings from the plenary summons in a statement of claim in March 2004, and appearance by the second named defendant on the 23rd March, 2004, and by the first named defendant on the 5th August, 2004.
Following notice and replies to particulars of each defendant, the joint defence of the first and second named defendants was filed on the 24th March. 2007. The particulars on the defence was raised on the 22nd July, 2008, and replied to on the 26th January, 2009. Further particulars were raised by the plaintiff on the 7th April, 2009, and replied on the 25th May, 2009. On the 23rd November, the plaintiff applied for an order directing the defendants to reply to certain particulars.
The Court made an order on the 17th January, 2011, allowing the defendants to amend their defence and counterclaim and which was delivered on the 23rd March, 2011, outside the period of fourteen days provided for by O. 28, rule 7.
Ms. Scarry said that the amended defence and counterclaim was, ipso facto, void and in default of the rules, unless the time is extended by the court.
She believed that a detailed notice of particulars had been raised and replied to and it did not appear that there was excessive delay in the conduct of the proceedings, by the plaintiffs other than in the time taken for the previous solicitors for the plaintiff to come off record.
Ms. Scarry said that at the heart of the plaintiff’s case was that the deed of the 5th February, 1990 was void by reason of unsoundness of mind of the Testatrix. She referred to a report from the deceased’s general practitioner of the 9th July, 2003, and a report from Dr. Morrow of the Mater Hospital dated the 5th September, 1990, which cast a significant doubt on the veracity of the Deed entered into by the deceased.
Ms. Scarry referred to the “said report” these reports were exhibited at MS1 in the affidavit of Michelle Scarry
The report of Dr. Morrow was dated some seven months subsequent to the deed being executed. The report referred to the deceased having delusions of parasitosis, having rheumatoid arthritis and having developed progressive weakness of the limbs. She was not in good health in 1990.
The deponent was instructed that the plaintiff was first made aware of the defendants’ purported ownership of the lands in or about the month of May 1998, some four months after the death of the deceased when the defendants sought to exclude the plaintiff from the lands which up to then, he had been farming.
The plaintiff’s attempt to register the lands by way of adverse possession failed.
Ms. Scarry believed and was advised by counsel that the plaintiff was the sole beneficiary under the Will which had the requisite locus standi to maintain the action.
Ms. Scarry said that there was some merit in the parties agreeing to both amending their pleadings and that it would be unjust and inequitable for the court to shut the plaintiff out from having the case proceed to trial.
By further affidavit filed on the 28th October, 2011, Ms. Scarry having repeated some of the matters contained in her affidavit of the 3rd October, 2011, referred to the plaintiff’s previous lawyers as not advising him to take out a grant of probate. The deponent said that she had extracted a grant of probate on behalf of the plaintiff and exhibited the grant.
2.1 Second Motion
The plaintiff, in the second motion filed the 28th October, 2011, already referred to above, sought an order to amend his statement of claim to claim certain losses, to plead unjust enrichment to claim for expenses of the deceased. An order was sought directing the Registrar of Titles to register the plaintiff a full owner of the lands.
2.2 Grounding Affidavit
The application was grounded on the affidavit of Michele Scarry a partner in the firm of Scarry O’Connor solicitors for the plaintiff which was sworn the 28th October, 2011. Ms. Scarry referred to the pleadings initiated by plenary summons and statement of claim in March 2004. Appearances were entered by the second named defendant, also in March 2004, and by the first named defendant in August 2004, together with a notice for particulars, which were replied to on the 5th January, 2006. The first named defendant issued a notice for particulars later in January 2006, which was replied to on the 3rd May, 2006.
The defence of the first and second named defendants was dated the 24th January, 2007.
Eighteen months later the plaintiff’s notice for particulars by the plaintiff was served on the defendants dated the 22nd July, 2008. The reply, which seems to have been delivered on the 26th January, 2009, was followed by a further notice for particulars raised by the plaintiff on the 7th April, 2009, and replied to on the 25th May of that year.
Following a further notice of motion the High Court made an order directing the defendants to reply to certain particulars on November 2009.
Notice of change of new solicitors for the defendants was given on the 9th February, 2010.
By order of this Court dated the 17th January 2011, the defendants had been allowed, to amend their defence and counterclaim which was delivered on the 23rd March, 2011.
3. Plaintiff’s legal submissions
Counsel for the plaintiff referred to s. 10(1) of the Succession Act 1965, which provided that the real and personal Estate of the deceased person should devolve and be vested in his personal representatives. It was submitted that an executor who carried out certain acts or functions in relation to an Estate might be deemed to have accepted the office. While the executor ought to have been advised to obtain a grant earlier, his intention from the outset to prove the Will in solemn form was clear. As sole beneficiary he had an interest in the prosecution of the proceedings.
Counsel referred to McGlynn v. Gallagher [2007] IEHC 329 regarding the conferral of locus standi for an administration suit on a party by virtue of their status as beneficiary. In that case the plaintiff extracted a grant of probate 18 months after the death of the deceased. Edwards J. dismissed the first named defendants’ appeal from an order of the Circuit Court. The plaintiff had a grant of probate and the Court was not entitled to look behind it. While the defendants were beneficiaries and the plaintiff was not, the issue of the locus standi of the beneficiary did not arise.
Barry v. Buckley [1981] I.R. 306 at 308, outlined the jurisdiction of the court to strike out or stay proceedings. Costello J held that the jurisdiction existed to ensure that an abuse of process of the court does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s claim must fail.
In relation to “frivolous and vexatious” Costello J. was of the view that the courts were entitled to ensure that access to the courts, would only be used as to the resolution of genuine disputes and not as a forum for lost causes which, no matter how strongly the party concerned may feel about them, nevertheless have no basis for a complaint in law. The second and equally important purpose of the jurisdiction is to ensure that litigants will not be subjected to the time consuming, expensive and worrying process of being asked to defend a claim which cannot succeed.
In McMahon and Another v. W.J. Law and Co. Ltd and Others [2007] IEHC 51, MacMenamin J. referred to 0.19, r. 28 of the RSC and to McCracken J.’s judgment in Fay v. Tegral Pipes Limited [2005] 2 IR 261 and to Barry v. Buckley [1981] I.R. 306 at 308 but declined to make an order at the motion stage but proposed to request the chairman of the Bar Council to nominate a mediator.
The plaintiff freely conceded that the claim under s. 117 of the Succession Act 1965, and the claim in estoppel could not succeed against the defendants. Nevertheless the remainder of the plaintiff’s claim was a serious and significant claim concerning the validity of the deed of transfer. Counsel referred to Carroll v. Carroll (Supreme Court) [1999] 4 I.R. 241 where Denham J. (as she then was) held that once a relationship giving rise to presumption of undue influence was established and it was shown that a “substantial benefit” had been obtained, the onus lay on the donee to establish that the gift or transaction resulted from the “free exercise of the donor’s will”.
It was also submitted that there could be no prejudice as the key witnesses indicated, the solicitor for the deceased, the defendants and two medical practitioners were able to give evidence.
4. Defendants legal submissions
Counsel for the defendants referred to the key dates which have already been summarised by the court and to O. 19, rr. 27 and 28 and s. 27(5) of the Judicature (Ireland) Act 1877.
The defendants’ application was founded on four propositions:
(a) A third party does not have locus standi to seek to set aside a transaction on equitable grounds. Only the original parties to the transaction or their personal representatives can do so.
(b) A claim under s. 117 of the Succession Act 1965 (whether it includes a claim under s. 121 thereof or not) is a claim which can only be made against the personal representative of the deceased Testator or Testatrix; and
(c) A claim to property alleged to constitute part of a deceased’s personal Estate based on promissory estoppel, a testamentary contract, proprietary estoppel or legitimate expectation can only be brought against a deceased person’s personal representative.
(d) The purported claims herein are in any event not maintainable by reason of the efflux of time and the statutory periods allowing for the bringing of same as well as by reason of unconscionable and inexcusable delay
The amended defence and counterclaim was delivered two months after the making of the order, and it was submitted that the court has jurisdiction to extend time in accordance with O. 122, r, 7 which allows the court to enlarge or abridge the time appointed by the rules upon such terms (if any) as the court may direct.
It was submitted that the plaintiff did not, as a potential legatee of land which the deceased had disposed of prior to her death, have any entitlement to the said land per se, but merely has an entitlement to secure proper administration of the deceased’s Estate as provided for by s. 45 of the Succession Act 1965.
Section 48 of the Succession Act provides that personal representatives may be sued in respect of all causes of action which survive for the benefit of or against the Estate of the deceased. The plaintiff, as specific or general legatee or beneficiary does not have any entitlement to sue third parties in respect of a claim alleging a wrong done to a deceased and cannot sue them for an alleged wrong by the deceased against the plaintiff.
While the plaintiff is named as sole executor of the deceased’s Will, he has in the proceedings articulated an intention to make a claim against the deceased’s Estate. He cannot purport to prosecute a claim both on behalf of and against the Estate of the deceased. If the plaintiff sues the Estate of his late mother, as he has purported to do in the proceedings, he would not be in a position to extract a grant of representation to her Estate.
An independent person would be required to extract a grant of representation with Will annexed in order to independently administer the Estate. No such person had been proposed by or on behalf of the plaintiff. Spierin: the Succession Act 1965 and related legislation: A Commentary at p. 56 (para. 97) refers to Re. Flood; Flood v. Flood [1999] 2 IR 234, where an executor was removed from office because he wished to defend a claim in respect of money received from the deceased. The next of kin alleged that the money was a loan and repayable, the executor claimed it was a gift and that if it was a loan, claims to recover it was statute barred. The court held that she could not act because of the conflict of interest.
It was submitted by the defendants that the same principle applies to the present case.
(Spierin, referred to in the defendants’ submissions, cautions against a person appointed executor accepting the office if there is any potential for a conflict of interest, eg. when the executor may wish to bring s. 117 proceedings).
Counsel’s submissions also referred to s. 121 which empowers the court to order that dispositions made within three years of the date of death, for the purpose of disinheriting a spouse or children may be deemed never to have had effect and the donee of the property or any person representing or deriving title under him shall be a debtor of the Estate for such amount as the court may direct accordingly. This was not pleaded – even if it were, the disposition must be made within three years of death.
While the section does not specifically state who should be the appropriate respondent to an application made under this section (and, indeed, under s. 117(6)), the nature of the application would seem to indicate that it is the legal personal representative of the deceased.
It was further submitted that in relation to the claim for promissory estoppel, that the promissor or the promissor’s legal personal legal representative must be a defendant to any action based on promissory estoppel. Such a claim cannot be maintained against defendants who are not the personal representatives of the deceased.
The statement of claim states that an agreement had been made between the plaintiff and the deceased to the effect that she would ensure that the subject lands became vested in him on her death. Such a claim was dismissed by O’Keeffe J. in Prendergast v. McLaughlin [2009] IEHC 250. Such a claim must be brought within two years of the deceased’s death. The proceedings were not commenced for more than four years after the death and are not maintainable by virtue of s. 9(2) of the Civil Liability Act 1961, which defines the relevant period in para. (b) of that subsection, where the relevant period means the period of limitation prescribed by the statute of limitations or any other limitation enactment or within a period of two years after the death, whichever period first expires.
The submissions in relation to inordinate and inexcusable delay stress the claim being sought as one to set aside the transfer executed more than 21 years ago. The plaintiff asserted that he was not aware of the transfer until after the deceased died in 1998.
The defendants submit that the delay in issuing proceedings for more than six years after the deceased’s death was both inordinate and inexcusable. The plaintiff’s failure to progress the same after they were commenced on the 4th March, 2004, was likewise inordinate and inexcusable and, on the balance of justice, the proceedings should be dismissed.
The stated intention of the plaintiff to seek to amend the proceedings at this stage would save the proceedings being brought within a period of time during which proceedings are maintainable against the Estate of the deceased.
Barry v. Buckley [1981] I.R.306, approved by McCarthy J. in Sun Fat Chan v. Osseous (Supreme Court) [1992] 1 I.R. 425, held that the High Court has inherent jurisdiction to dismiss an action on the basis that, on admitted facts, it cannot succeed. McCarthy J. at p. 428, expressed the view that if a statement of claim admits an amendment which might save it and the action founded upon it, then the action should not be dismissed. Generally in the High Court it should be slow to entertain an application of that kind and grant the relief sought.
In the present case the defendants contend that the pleadings themselves fail to disclose a cause of action which is reasonable in relation to all the matters pleaded on behalf of the plaintiff, or necessary (in relation to the admission of Will to form a proof) or which is maintainable or is other than frivolous or vexatious (in the case of all substantial relief claimed therein).
In the circumstances the defendants claims an entitlement to such order as the court deems fit on foot of the counterclaim.
5. Decision of the Court
5.1 Motion to Dismiss
The court has carefully considered the evidence in this matter, the applications for an amendment of the defence and of the statement of claim and of the respective submissions of counsel.
The court is of the view that, at the time of initiation of the action in 2004, the plaintiff was not the legal personal representative of the deceased.
The grant of probate in October 2011, extracted thirteen years after the death and seven years after the issue of proceedings, allowed the plaintiff to prove the Will. Insofar as the plaintiff purported to claim as against the Estate, he is precluded from doing to in his capacity as executor for the reasons given in the defendants submissions. The plaintiff seeks to set aside a transfer of certain lands transferred to the defendants on the 5th February, 1990 and registered on the 19th February, 1991.
This applies, not alone in the case of the s. 117 application, but also in relation to the application under s. 121 of the Succession Act 1965.
It is clear from the provisions of s. 9(2)(b) of the Civil Liability Act that the relevant limitation period is that which first expires, the period of two years after date of death, or, at most, a twelve year period from the 5th February, 1990.
In s. 9 of the Civil Liability Act 1961, provides:-
(1) In this section “the relevant period” means the period of limitation prescribed by the Statute of Limitations or any other limitation enactment.
(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either –
(a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the death of his death, or
(b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.
In Monaghan v. Greensmyth (1977) IR 55, the Supreme Court held, in a personal injuries claim for damages, that some reasonable limitation on actions against the estate was reasonable. The period of two years could not be deemed unreasonable.
The plaintiff wished to proceed with a claim to challenge the validity of a deed entered by the deceased on 5th February 1990, subsequent to the deceased’s last Will and Testament made on 9th July 1987 on the grounds of incapacity and of undue influence.
The Court is satisfied that the plaintiff does not have locus standi and that the purported claims are not maintainable by reason of the efflux of time and the statutory period of time for the bringing of same. There has been undue and inordinate delay. The court is not satisfied that the reason given for the delay, including the application for adverse possession, excuse the plaintiff in delaying issuing and progressing proceedings.
The transfer to the defendants by the deceased was made in 1990 and registered in 1991. The deceased died on the 12th January 1998. Proceedings did not issue until the 4th March 2004.
The question whether such an inordinate delay is excusable has to be further considered in the light of the circumstances of the plaintiff remaining for some time on the land after the deceased’s death on 12th January 1998. Six years passed from that date until proceedings commenced.
The Court is satisfied that such a delay was in the circumstances, also inexcusable.
While the plaintiff submits that he was not aware of the transfer until the defendants sought possession after their mother’s death, no action was taken by the plaintiff for further six years.
The Court is satisfied that s. 9(2) of the Civil Liability Act 1961 precludes the plaintiff from making a claim after two years from the date of the death of the deceased.
Accordingly, the court will grant the defendant’ application and dismiss the plaintiffs claim.
5.2 Motion to Amend Statement of Claim
The plaintiff, in the second motion seeks to amend of the statement of claim subsequent to extracting a grant of probate on the 26th October 2011.
The amendments are substantial. Paragraphs 17 to 25 deal with him not having independent advice, the deed to the defendants not reserving a life interest, his mother’s mental and physical disability, all of which he submits make the transaction improvident.
Furthermore he sought damages particularised largely in terms of loss of aid and grants, and loss of livestock, hay, barley and the costs of re-seeding all of which damages arose in the years 2000 to 2003.
He said he expended time and money and that, while he had the benefit of the income between 1990 and 1998, much of that income was expended on care for the deceased and her funeral expenses.
He sought orders directing the Registrar of Titles to transfer the land to him.
The Court is of the view that even allowing such amendments, they do not cure the inordinate and inexcusable delay and, more specifically do not answer the statutory bar provided for in s. 9(2) of the Civil Liability Act 1961.
In the circumstances the plaintiff’s application for amendment does not arise where the court has granted defendants’ application in terms of the notice of motion.