Grant of Probate
Cases
Hegarty and Another v King
17 April 1880
[1880] 14 I.L.T.R 35
Warren J.
Warren, J.
In the case of Panton v. Williams, 2nd N. C. Supp., Lord Brougham says:—“The course of administration directed by the law is to prevail against him who cannot satisfy the court that he has established a will. There is no duty cast upon the Court to strain after probate. The burden of proof eminently lies upon him who sets up a will.” I have to deal in this case with a will signed in due form by a competent testator, who lived for seven years after its execution. By this will he gave £800 to one of his sisters, £300 to another sister, £300 to his brother John, £50 to an illegitimate son ; and the residue of his property, including his lands, which, upon the evidence before me, I take to be worth at least £1,000, he gave to his brother James, the plaintiff.
The testator appears to have had no wish to make any will, but James pressed it upon him to make a will, and at James’s house, upon James’s invitation, this will was prepared by James himself, no other person being present. Some memoranda of instructions were made and destroyed. Two witnesses were brought in, both of whom were friends of James, but entire strangers to the testator, and it appears that they did not even know, nor was it stated in their presence, that the document was a will.
There is no evidence that the testator knew anything about the contents of the document, except the statement of the plaintiff himself, who says that he took down what the testator told him, read it for him, and afterwards gave it to him to read. The testator directed the document to be shown to Mr. Hinds, a solicitor of eminence and character, who is the solicitor for the plaintiffs in this case. This direction was not complied with; instead of that, the witness says he went to show it to another solicitor, who was not named by the testator, not referred to by him, but selected by the plaintiff himself; and when he did not find that solicitor at his house, he made himself easy about the matter, locked up the will in his desk, and it remained in his custody, without any communication whatever on the subject between him and the deceased, or any member of the deceased’s family, until shortly before the testator’s death.
Some time subsequent to the execution of the will, one of the legatees died, which threw £800 into the residue. The plaintiff says he was apprehensive the effect of it might be to destroy the will altogether, and accordingly, a very short time before the death of the testator, he got his consent—as he says (for there is no other evidence of it)—to make a new will, cutting down the legacy to John, but making no disposition of the £800 which had been given to Mary, except to let it fall into the residue which was given to the plaintiff. This document was drawn by the plaintiff himself; and it was, without the intervention of any other person, marked by the testator, and witnessed by a ploughman and by the mark of some other uneducated person. That document was, after the testator’s death, produced by the plaintiff to his solicitor, as a valid will, but he was advised not to propound it; and it is the same person who wrote out that will, so much in his own favour, and got it executed in the manner I have described, and who was dissuaded by the solicitor from incurring the danger and hazard of propounding it in a court of justice, who asks the court to rely implicitly upon his evidence to sustain the former will, which depends, as I have said, altogether upon his testimony. The only circumstance of corroboration to show that the deceased knew he was making a will at all, is the evidence of Mr. Hegarty, who says that on one occasion, when the deceased and he were smoking together, the deceased told him he had made a will, that he (Hegarty) was appointed executor, and that he had left him nothing. That is no doubt corroboration of the fact which requires no corroboration—that the deceased made a will, and appointed Mr. Hegarty executor; but it is no corroboration of the plaintiff’s evidence that the deceased read the will, or understood and appreciated the gift of the lands and residue to the plaintiff.
Now, what is the rule of law on this subject? Fulton v. Andrews (L. R. 7 H. L. 448) shows that, under such circumstances, it lies upon the party who drew the will in his own favour, to satisfy the court of the righteousness of the transaction, that the clause was explained to the testator, and that he knew what he was doing. The clause in the present case is a simple one; and the testator being proved to have been an intelligent man, if it be true (as stated by plaintiff) that he directed the clause to be put into the will, that it was read for him, and that he expressed himself satisfied with it, the evidence would be sufficient proof that he knew and approved of it. But the question is, whether that evidence is true—evidence on which the court ought to act. Cases have subsequently occurred, explaining the case of Fulton v. Andrews, and throwing fresh light upon the question, and although the cases to which I am about to refer have not appeared in the Law Reports, I have reason to believe that the reports are accurate.
In Gardiner v. Palmer, decided in 1877 in England, Sir James Hannen, in his charge to the jury, says, after referring to the fact that there were difficulties on both sides of the case:—“There was one circumstance which they should steadfastly bear in mind—namely, that the will was written entirely in the handwriting of the man in whose favour it was, that the instructions upon which he alleged he wrote out the paper were taken by him, and by him alone, and that there was no other person whatever who was alleged by him to have had any knowledge of the intentions of the testatrix, so that it rested entirely upon his evidence whether or not he did receive instructions from the testatrix to prepare the will, which substantially gave him and his family the whole of her property. Now when a man put himself in that position—when he drew himself, without the assistance or knowledge of any other person, a will in his own favour, he invited suspicion, and it lay upon him to establish, by the clearest evidence, that should bring home to the minds of the jury, conviction beyond a doubt that the will was not his will, but the will of the deceased person.” Clear evidence was given by the witness in that case in favour of the will, but the jury did not believe him. The judge said:—“I entirely concur with the verdict you have given,” and the will was condemned.
The present case is one of greatly increased suspicion, in consequence of the subsequent conduct of the plaintiff in reference to the document of 1879, which he has not ventured to bring forward. I ask myself, how, being bound to require clear and convincing evidence that the testator knew and approved of this clause, can I rely upon the testimony of this interested witness, who prepared that will, without assistance, and did not comply with the directions of the testator, by showing the document to the solicitor selected by him, and who prepared another will, which he has not dared to propound in this court, strongly in his own favour, increasing the benefits given to him by the former will.
There is another case—Cooper v. Penrose—which came recently before the Court of Probate in England. The judge said at the close of the case:—“He could not allow the case to terminate without making some observations on it in the interests of the public. It was very important that the will made by a testator should be upheld, but it was of equal—he should say even of more—importance that cases of a suspicious character should be thoroughly investigated, and if the suspicions were not removed, that a will which did not truly represent the intentions of the testator should not be upheld. *37 The law on the subject was very clear. It had been laid down by many eminent judges—lastly and lately by the present very distinguished head of the law, the Lord Chancellor—that where a will was made in favour of a particular person, and that will was drawn up by that person himself, nobody else communicating with the testator on the subject, it rested upon him to show that it truly represented the intentions of the testator, and to remove the suspicion which attached to it. There was the strongest presumption against such wills, and it was the duty of the tribunals which had to inquire into them to watch closely and see that the suspicions attaching to them were thoroughly removed.”
I have reason to know that the case to which Sir J. Hannen referred as decided by the Lord Chancellor was Fulton v. Andrews. Applying those observations to the present case as regards the gift to the plaintiff. I cannot safely rely upon the evidence of the plaintiff in this case, and the case altogether depends upon his evidence. Deficit probatio.
Probate will therefore he granted of this will, excluding the gift to the plaintiff. I will not give costs against the plaintiffs. The defendant will get his costs out of the assets.
Lyons and Blennerhasset v Chalmers
[1929] IR 674
HENRY CECIL LYONS and JAMES BLENNERHASSETT Plaintiffs v. ELLEN CHALMERS Defendant.
28. Feb. 1929
23. July. 1929
TRIAL OF ACTION.
William Greer died on the 27th day of July, 1928, leaving assets in both England and the Irish Free State. By his will, dated the 27th day of November, 1927, he appointed the plaintiffs executors. A grant of probate was issued to them in the Principal Probate Registry of the High Court of Justice, London, on the 12th day of September, 1928, and the original will was lodged with the affidavit of scripts. On the 5th day of August, 1928, a caveat was lodged in the Probate Registry, Dublin, on behalf of the defendant. The plaintiffs instituted proceedings to prove the said will in solemn form.
Leonard K.C. and P. M’Carthy, for the plaintiffs:
The original will has been lodged in the Principal Probate Registry in London, but a photographic copy of it, sealed and certified by that Court, is available and is offered in evidence.
Binchy , for the defendant:
Secondary evidence ought not to be admitted if it is possible to produce the original will.
O’BYRNE J., holding that secondary evidence should not be allowed unless the original was not available, directed that an application should be made to the Principal Probate Registry, London, asking that the original might be sent over for use at the trial, and adjourned the proceedings.
Leonard K.C. and P. M’Carthy, for the plaintiffs, at the adjourned hearing, produced the order of Lord Merrivale, refusing to allow the will to go out of the jurisdiction on the ground that there was no power to allow it to be done [reported sub nom. In re Greer, Deceased(1)], and proved a photographic copy of the original paper writing, certified by the English Probate Registrar, and also an exemplification of the will.
Lynch K.C. and Binchy , for the defendant.
O’BYRNE J. gave judgment establishing the will as set forth in the sealed and certified photographic copy, marked and initialed by the Registrar and attached to plaintiff’s affidavit of scripts.
In the Matter of the Estate of Mary Eastwood
Late of “Lyttleton”, Coolock Lane, In the City of Dublin, Deceased and In the Matter the Succession Act, 1965 and In the Matter of an Application by Robert Eastwood of “Lyttleton”, Coolock Lane, In the City of Dublin
20/6796
High Court [Approved]
4 June 2021
unreported
[2021] IEHC 387
Mr. Justice Allen
June 04, 2021
JUDGMENT
Introduction
1. Mary Eastwood, late of “Lyttleton ”, Coolock Lane, Dublin, died on 12th December, 2018, aged 85 years. She was survived by her five children, Robert Eastwood, who is the applicant, Jimmy Eastwood, Dolores Eastwood, Annette Richards and Jennifer Eastwood. The deceased’s husband, Jimmy Eastwood, Pre-deceased her on 8th July, 2016.
2. On 29th November, 2016 the deceased made a will by which she appointed Robert and Jennifer to be her executors but following her death the will was not to be found. This is an application by Robert, with the support of Jennifer, for permission to prove the will in terms of a copy. The application is opposed by Annette, Dolores and Jimmy.
The evidence
3. There is no issue as to the formal validity of the will. It was engrossed by the deceased’s solicitor Mr. Fintan Lawlor and executed in his office in his presence and in the presence of a trainee solicitor. Neither is there any issue but that after it was executed the original will was for some time retained by Mr. Lawlor.
4. On 29th January, 2019, about six weeks or so after his mother’s death, Robert had a letter from Mr. Lawlor. Mr. Lawlor extended his condolences and advised Robert that he had been contacted by Annette and Dolores who were looking for information in relation to their mother’s estate. He said that from his records the original will had been sent to the deceased at her home in or about January, 2018 and enclosed a copy letter dated 18th January, 2018.
5. The enclosed copy letter was marked “By POST” and read:-
“Our ref: FL/LL/EAS0002/1
Re: Letter dated 10th January, 2018
Dear Mrs. Eastwood,
Previous correspondence in this matter refers, resting with your letter dated 10th January 2018.
We enclose herewith original Will and Power of Attorney relating to you. These are the only documents we have relating to you.
We note that you collected title deeds to 6 properties in November 2016.
We trust that this is satisfactory.”
6. Robert was very surprised to receive the letter of 29th January, 2019. He knew about his mother’s letter to her solicitor of 10th January, 2018 because he had typed it and posted it for her after she had signed it. That letter, addressed to Mr. Lawlor, had said:-
“To whom it may concern
I wish to get a copy of all documents you have in your possession relating to me please. I can arrange for my son Robert, he lives with me at the above address, to collect these for me from your office when they are ready.
You can either send me a letter letting me know that they are ready for collection or alternatively you can call Robert on [mobile telephone number] and he will collect them for me.” [Emphasis original.]
7. Robert has deposed that when, some days later, he collected the post in what he described as the normal way that he did every morning it included an A4 envelope from Mr. Lawlor’s office which he opened and which he found contained a copy of his mother’s will of 29th November, 2016, a copy of an enduring power of attorney dated 23rd April, 2015, and a compliment slip from the firm. The deceased’s and Robert’s object in asking for the copy documents had been to regularise the management of a number of what he refers to as his father’s rental properties. The copy documents received in reply were of no value for that purpose and Robert filed them away in an accordion folder.
8. Robert has deposed that following receipt of Mr. Lawlor’s letter of 29th January, 2019 he searched the house high and low but could not find the will or any other document concerning it: save the copy will, copy enduring power of attorney, and compliment slip, which were in the accordion folder where he had put them.
9. Robert was very unhappy that his mother’s will had gone missing, not least, as he said, because he was at risk of losing the house at “Lyttleton” which had been devised to him. In correspondence with Mr. Lawlor, Robert made the point that the solicitor had not been asked for the original will, or to post it (or anything else) out to his mother. It is not necessary to dwell on all of the detail of the exchange of correspondence but it finished with a letter from Mr. Lawlor to Robert of 13th May, 2019 by which Mr. Lawlor confirmed that he had conducted a thorough search of his office and off site files and by which he said that:- “… I can confirm that from my records, it would appear that the original Will was sent to your Mother in January 2018 further to her request for her Will. ” I pause here to say that there was no suggestion that Mr. Lawlor had ever had an instruction or request from the deceased other than the letter of 10th January, 2018 which in my view could not fairly be said to have been a request by the deceased for her will.
10. Several questions as to the practices and procedures in the solicitor’s office as to the safekeeping, storage and release of original wills went unanswered.
11. There was some conflict in the evidence as to how post delivered to “Lyttleton ” was managed.
12. The deceased’s husband, to whom I will refer as Mr. Eastwood, was seriously injured in an accident on 10th March, 1997. Following the accident Mr. Eastwood lived at home until his death on 8th July, 2016 but needed full-time care. That care was provided by the deceased and the children generally and Robert in particular who remained at home or returned home to help his parents. As I will come to, there was talk in 2005 of the sale of the family home to a developer, which, if it was to happen (which in the event it did not) would have required an application to take Mr. Eastwood into wardship. As the deceased grew older her health declined and Robert’s role as carer expanded to caring for his mother.
13. In his affidavit grounding this application Robert deposed that one of his daily tasks was to look after all of the post to and from the family home. He said that he checked the post box every morning at about 8:00 a.m. and brought the post into the house, opened it, and inspected it all. He said that he would pass on any private post unopened but otherwise would deal with any “non-private/administrative” post on behalf of his parents.
14. Robert’s account of the post routine was contested by Annette and Dolores. Annette deposed that her mother was generally concerned to receive and manage her own post. Both Annette and Dolores deposed that on their regular visits they often saw their mother receiving her post and speaking to the postman. Annette recalled that there was no post box (I think that she may have meant letter box) at her parents’ house until about three years before her mother’s death and that the post would be left in the porch or on an outside post box. Annette’s firm recollection and belief is that her mother would be awake before Robert most mornings and that she would leave Robert’s post unopened on a radiator in the hall. Dolores recalled that Christmas cards and the like addressed to her at her mother’s address were passed on to her by her mother. In a second affidavit Annette deposed that she visited her mother in January, 2018 (as she had for some time previously) every Monday and Thursday morning, arriving at about 9:30 a.m. Her evidence was that her mother would usually be awake and up and would have received the post, but that Robert would not usually be awake. Annette says that it was her mother’s practice to open anything addressed to her or to Mr. Eastwood but to leave anything addressed to anyone else on the radiator in the hall.
15. In a supplemental affidavit Robert explained that he had not, in his grounding affidavit, intended to indicate that he had operated a rigid system in respect of the post for many years. He agreed with what his sisters had said about the collection and distribution of the post by his mother but that, he said, was years ago. Robert reiterated what he had said about the envelope which had arrived from the solicitor’s office in response to his mother’s letter of 19th January, 2018 and its contents.
16. As all of the Eastwood siblings put it – adopting the customary euphemism – there have been unhappy differences between them for some years. Those differences extend to the terms of the will made by their mother on 29th November, 2016 and the circumstances in which it was made. I emphasise that the only issue now before the court is whether that will may be admitted to probate in terms of the copy but its terms and the circumstances in which it was made are relevant to the core issue on this application, which is whether it was later revoked.
17. The deceased’s death certificate shows that at the time of her death on 12th December, 2018 she was suffering from advanced dementia. Soon after her death, Annette, Dolores and Jimmy, by their solicitors, challenged the deceased’s capacity at the time she made her will and raised the possibility of an application under s. 117 of the Succession Act, 1965. Robert, in his grounding affidavit, deposed that his mother’s dependence on him accelerated towards the end of her life as she gradually began to develop dementia.
18. In her affidavit in answer to this application Annette has expressed the belief that over the years following their father’s accident Robert adopted an aggressive and possessive approach to their parents and their property.
19. Over the years prior to Mr. Eastwood’s accident he acquired a number of investment properties. Robert refers to them as his father’s properties. Annette refers to them as her parents’ properties. While the evidence was uncertain, it was agreed at the hearing before me that at the time the deceased made her will she owned one property only. The others were held in the name of Mr. Eastwood who had by then died, intestate. The deceased in her will devised or purported to devise the investment properties as if they were hers. These investments properties – there are six of them – are described as having been in various states of repair and they were each managed by one or two of the children who collected the rents and commissioned repairs from time to time.
20. Annette recalls that in late January, 2013 Robert began applying pressure on the deceased to recover the title deeds to the investment properties from Dolores, who had them for safekeeping. Robert, she recalls, was unhappy that he was not in full control of the lettings and this was the cause of frequent arguments. Annette recalls that her mother spoke in February, 2013 of making a will. She was not then sure what she wanted to do, except that she wanted to be fair. Annette has deposed – without saying why – that she believes that at the time her mother was being pressured to make a will. If the court is asked to infer that it was Robert who was applying the pressure, Annette does not say so. As I understand the evidence, this belief is a present belief. It is not said that Annette believed at the time in 2013 that her mother was being pressured.
21. One late afternoon in March, 2013 Annette had a telephone call from her mother who said that she was going to the solicitors in the morning to make a will with Jennifer but was unsure as to what she should do. Annette went over to her mother’s house and from there spoke on the telephone to Dolores and Jennifer. Annette found her mother’s passport and a utility bill and prepared a list of names of possible executors, a list of the names of the siblings, and a list of the properties.
22. On the following morning Annette arrived at “Lyttleton” to accompany her mother and Jennifer to the solicitor’s office and after an initial disagreement it was agreed that all three sisters would attend. While the meeting with the solicitor took place, is not said that the deceased then made a will. Instead, on 1st April, 2013 there was a family meeting attended by Mr. and Mrs. Eastwood and their five children at which, Annette recalls, there was a heated discussion and decisions were made, but none of them by the deceased. The deceased is said to have said at the meeting with the solicitor in late March, 2013 that she wanted to be fair and to divide her estate equally between her children. Robert denies that he put pressure on his mother in 2013 to make a will but does not deny there was some attempt at that time to regularise the management of the investment properties.
23. It is common case among the deceased’s children that the deceased attended Mr. Lawlor twice in 2016 for the purpose of making her will: firstly to give her instructions and later to execute her will. Robert recalls that he attended on the first occasion with Annette and Jennifer and that on the second occasion she was taken by Annette and Jennifer. Annette recalls that on or about 16th August, 2016 she was told by Robert that he had brought their mother to make a will but that nothing had been finalised, which suggests that she did not attend, or does not recall attending at the solicitor’s office. In her first affidavit Annette deposed that subsequently – she did not say when – she understood – she did not say how – that her mother was diagnosed with congenital dementia in 2015. In her second affidavit Annette deposed – from a review of her records – that it was on 16th August, 2016 (the same day on which Robert had told her that he had brought the deceased to a solicitor) that Dolores and Jennifer brought their mother to a clinic in Swords, at which appointment “the deceased was diagnosed with some form of cognitive impairment as far as I am aware.”
24. Dolores, as I have said, supports Annette’s evidence as to the collection and distribution of post in the house. Dolores recalled that at one of a number of meetings in 2005 or so – the immediate purpose of which was to discuss a possible sale of “Lyttleton” – the deceased discussed making a will. The deceased was then advised by another solicitor. Dolores has deposed that she believed at the time – although she does not say that her mother said so – that her mother did not want to take the responsibility of the decision but that she wanted to be fair and to treat all of her children the same. Dolores has deposed that she was not aware that her mother was brought to see a solicitor in November, 2016 and that she believed that her mother’s mental health and strength had been declining for many years by that time.
25. Annette and Dolores both say that they do not believe that the copy will reflects what the deceased communicated to them as her wishes and can only presume that she later caused the will to be destroyed.
26. Jimmy swore a short affidavit to say that he never discussed with his mother her intentions in relation to her estate or her will, but he is with Annette and Dolores in their opposition to this application.
27. In about June, 2019 Robert instructed his present solicitors who, by letter dated 28th June, 2019 embarked upon what turned out to be a very protracted – and in the event not terribly fruitful – quest to get to the bottom of the question as to what had happened to the original will. In particular Mr. Lawlor was repeatedly asked, but persistently failed, to provide details of his office procedures in relation to releasing original wills to clients.
28. Eventually, about eighteen months after he was first asked, and four months after the application now before the court was issued, Mr. Lawlor swore a short affidavit by which he deposed that “Correspondence from this office shows that the original will was posted by ordinary pre-paid post to the deceased at her home under cover of a letter dated 18th January, 2018.” He said that it was unusual for someone to request an original will and that his office procedure was that anyone making such a request would be asked to attend in person to collect it. In the event that that the requester could not attend in person, the procedure was that the original will would be sent out by registered post. Those procedures, he says, were not followed in this case. Mr. Lawlor has deposed that following the death of the deceased he was contacted by the applicant and caused searches to be carried out in his offices and of his off-site files but the original will was not to be found.
29. Mr. Lawlor does not say whether he has a will safe or a wills register, or whether he had any record of posting, or by whom the searches which he caused to be carried out were carried out, or where – whether in his offices or elsewhere – whoever it was who carried out the searches looked, or what it was that whoever was searching was looking for. Mr. Lawlor does not say whether it was he or someone else in his office who wrote the letter of 18th January, 2018. The letter, as will have been seen, carries Mr. Lawlor’s reference and that, presumably, of his secretary, but Mr. Lawlor does not personally avow it but refers to it as “ correspondence from this office .” It will be recalled that in his letter of 29th January, 2019 Mr. Lawlor did not say that he had posted out the original will but that “ from [his] records” it had been “sent ” to her. Most of all, Mr. Lawlor did not engage with the question as to how it might have happened that the original will and original power of attorney could have been sent to his client following a request for copy documents, or how – by reference to Robert’s correspondence, and by the time Mr. Lawlor swore his affidavit Robert’s evidence – it might have come to pass that copies as well as the originals might have been posted out.
30. I observed earlier that it appears to be common case among the Eastwood siblings that the deceased attended with Mr. Lawlor in August, 2016 to give her instructions and again on 29th November, 2016 to execute it. Mr. Lawlor’s evidence is that she attended to give her instructions on 28th November, 2016 and returned the following day to execute it.
31. Incidentally, Mr. Lawlor has deposed that:-
“Before the Testatrix executed her said Will, in the manner aforesaid, same was truly, audibly and distinctly read over to her and she fully understood same and was at the time of execution thereof of sound mind, memory and understanding.”
The issues
32. The first question I need to decide is whether I can decide this case on the evidence which is before the court.
33. The application comes before the court by motion on notice, grounded on the affidavit of Robert, with the support of Jennifer, to which Annette, Dolores and Jimmy have replied. It came into the so-called non-contentious Monday probate list and following a number of adjournments to facilitate the filing of further affidavits and written legal submissions I heard it in the afternoon of 15th March, 2021. At the time the written submissions were filed counsel were agreed that the application was one which could be dealt with – or at least decided in their favour – on the basis of the affidavit evidence and without cross-examination: but having heard the exchange between the court and counsel for the applicant, counsel for the respondent submitted that the “appropriate and responsible thing ” was that the court should hear oral evidence.
34. In Estate of Mary Ann (otherwise Maureen) Horan, deceased[2020] IEHC 21McDonald J. cited with approval the decision in Re: Estate of Charles Gillespie[2015] 3 I.R. 46 in which Baker J. explained the purpose and limitations of the Monday probate list. Starting at para 17, under the heading The Monday motion list, Baker J. said:-
“[17] This matter comes before me as a motion on the Monday probate list. That list is intended to deal with so called ‘non-contentious’ probate motions, and although that description is clearly a misnomer in that many applications are contested, the purpose of the list is administrative and it operates to adjudicate on disputes which may be resolved on affidavit, or determined on matters of law. It is possible, although unusual, that a motion in this list would throw up contested facts that would require to be resolved following cross-examination of the deponent of an affidavit. The Monday probate list is not a substitute for a full probate action, or an action with regard to the validity of a will, nor can an application in that list normally resolve a contested question of testamentary capacity, or an assertion that a deceased had executed a purported testamentary document as a result of undue influence or duress which resulted in a lack of true understanding of the will or intention to execute a will in that form.
[18] Section 36(3) of the Succession Act 1965 allows the court to adjudicate with regard to doubts or questions that arise in the administration of an estate and the Monday probate list is primarily a list by which the High Court exercising its probate jurisdiction may give directions to the probate registrar with regard to certain matters in the probate jurisdiction.
[19] While the distinction between the class of matters which is suitable for the Monday probate list is not one in respect of which I wish in this judgment to make a definitive statement, I consider that a good starting point for the purposes of determining the issue in dispute in this case, is whether the issue is one that may be resolved on affidavit, or is properly speaking a matter in respect of which a full plenary hearing is required.”
35. The application in Re: Estate of Charles Gillespie was an application to set aside a caveat which the respondent resisted by introducing affidavit evidence which sought to raise suspicions as to the legitimacy of the will. Having explained the purpose of entering a caveat is to ensure that no grant issues unknown to the caveator, Baker J. found on the facts that the legitimate purpose for which the caveat had been entered had become spent. While the substantive challenge to the will presaged in the respondent’s affidavit was not something that could be determined in the Monday probate list, the applicant’s application to set aside the caveat was.
36. The application in Estate of Mary Ann (otherwise Maureen) Horan, deceased was an application under s. 27(4) of the Succession Act, 1965 to pass over an executor, which was brought by motion on notice in the Monday list. Counsel for the respondent contested the procedure which had been adopted, arguing that the applicant should have moved by special summons under O. 3 of the Rules of the Superior Courts. McDonald J. in his written judgment recalled that he had made an ex tempore ruling on the respondent’s preliminary objection in which he had identified a number of written judgments in cases in which the court had dealt with contested s. 27(4) applications in the Monday probate list and had concluded that he could only determine the issue as to the appropriate procedure after a full consideration of the affidavits and the arguments of counsel. Having done so, McDonald J. concluded that:-
“39. Notwithstanding the case made by counsel for the executor, it seems to me that the present application can, quite properly, be determined on the basis of the affidavit evidence before the court. In my view, a plenary hearing is not necessary. While there is some level of conflict, on the affidavits, between the parties, it seems to me to be possible to resolve this application by reference to those aspects of the evidence which are not seriously in dispute. Insofar as these (largely uncontested) aspects of the evidence are concerned, I do not believe that there is any basis to suggest that any of these matters are of a speculative kind. As noted above, I have excluded any consideration of matters which have no proper evidential basis.”
37. The test, in a nutshell, is whether it is possible to determine the application by reference to those aspects of the evidence that are not seriously in dispute.
The presumption of revocation
38. It has been settled law for hundreds of years that where a testator makes a will and retains the original or subsequently comes into possession of it and it cannot be found after his death and there is no evidence as to what became of it, there is a presumption in law that the will was destroyed by the testator with the intention of revoking it.
39. In Re the Goods of Coster Deceased (Unreported, Supreme Court, 19th January,1979) 1981 WJSC-SC 151Kenny J. cited as the classic statement of the rule that given by Parke B. in Welch v. Phillips(1836) 1 Moore’s P.C. 299:-
“Now the rule of the law of evidence on this subject, as established by a course of decisions in the Ecclesiastical Court is this: that if a will traced to the possession of the deceased and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect unless there is sufficient evidence to repel it. The onus of proof of such circumstances is undoubtedly on the party propounding the will.”
40. That is as far as Kenny J. quoted from the advice of the Privy Council, but Parke B. immediately went on to say:-
“It is a presumption founded on good sense, for it is highly reasonable to suppose that an instrument of such importance would be carefully preserved, by a person of ordinary caution, in some place of safety and would not be either lost or stolen, and if, on the death of the maker, is not found in his usual repositories or else where he resides, it is in a high degree of probable that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others, which raises a higher degree of probability to the contrary.”
41. It is accepted on behalf of the applicant that there is a conflict in the evidence as to the deceased’s access to the morning post and it is acknowledged to be highly unlikely that the court could decide in favour of either party on that issue. However, it is said, a resolution of that issue is not essential to the overall determination of the matter. Counsel for the applicant, citing Thierman Estate v. Thurman2013 BCSC 503, submits that the presumption of revocation does not apply where the will cannot be traced into the possession of the testator. I accept that. He submits that the absence of the original will and possession by the testator are “ dual, conjunctive requirements ” which must be demonstrated before the presumption arises. I accept that. Where I respectfully part company with counsel is in his submission that the onus of demonstrating possession by the deceased is on the party setting up the presumption of destruction with the intention to revoke.
42. In In Re the Goods of CosterKenny J. citing Parke B. in Welch v. Phillips was clear that the onus of proof of circumstances sufficient to rebut the presumption of revocation is undoubtedly on the party propounding the will, but I do not understand that to mean that the onus of proof is on the respondent to establish what happened to a lost will. In Thierman Estate v. Thurman2013 BCSC 503Ehrcke J. applied the principles laid down by the Supreme Court of British Columbia in Haider v. Kalugin2008 BCSC 930, which approved what had been said by Davis J. in the Supreme Court of CanadaSigurdson v. Sigurdson[1935] 2 D.L.R. 445:-
“It needs very clear and convincing evidence to establish what is alleged to be a lost will. … The person propounding such a will has a burden of proof that persists throughout the whole trial to satisfy the court at its conclusion that the will is in fact lost and was not destroyed by the testator with the intention of putting an end to it. Every case of course turns upon its own facts but the principles respecting the well-settled presumption against the will must be applied to the facts.”
43. The authorities are all clear that the presumption of revocation is an evidential presumption, that is to say a presumption of fact. If it might be said that the tracing of the will into the hands of the testator raises the bar for the applicant, the onus is always on the applicant to establish what became of the will. This is illustrated most Monday mornings in the probate list by applications to admit copies of wills which have been lost by solicitors, the object of which is to show that the original did not come into the possession of the deceased.
44. In Re the Goods of Coster, as counsel points out, was a case in which the testatrix, having left her will with her solicitors after she executed it, called to the solicitors office about two years later, asked for the original, and took it away with her. McDermott v. Kennedy[2015] 3 I.R. 255, as counsel points out, was a case in which it was shown that the deceased had retained custody of her will after executing it. To the cases referenced by counsel I would add Estate of Curtin, Deceased[2015] IEHC 623 a case in which the will was a home-made will, retained by the deceased; Thierman Estate v. Thurman2013 BCSC 503 in which the will, by arrangement between the testator and his lawyer, had been posted by the lawyer to the testator and put into (and later taken out of) a safety deposit box in a bank; and Allan v. Morrison[1900] A.C. 604 in which the will was kept by the testator in an iron safe in his dining room, to which he held the keys.
45. I have not been referred to a case, such as this might be said to be, where the suggestion is that the will, entrusted to a solicitor for safekeeping, was returned unsolicited and for all practical purposes without explanation. When I finally had time to settle down to consider my judgment this case I was inclined to wonder whether, if that was what happened, the presumption might arise at all. However, on reflection, I think that the circumstances are provided for by the observation of Cockburn C.J. in Sugden v. Lord St. Leonards(1876) 1 P.D. 154 (referred to by Kenny J. in Coster and quoted with approval by Baker J. in McDermott v. Kennedy) that the presumption will be more or less strong according to the character of the custody which the testator had over the will. Or, perhaps, looking at a case the other way around, it seems to me that it must be an important consideration in deciding whether a testator who willy nilly came into possession of his original will destroyed it animo revocandi that his last clear intention was to leave it with his solicitor for safekeeping and that he never later expressed any contrary intention.
Decision
46. The cornerstone of the applicant’s case is that the onus is on the notice parties to show that it is more likely than not that the deceased came into possession of her original will, which, it is said, they have not. For the reasons given I am not satisfied that this is a correct proposition of law. While the presumption of revocation arises on the will being traced into the possession of the testator, the onus of proof is always on the party propounding a copy will to show that it was not destroyed by the testator with the intention of revoking it.
47. The letter of 18th January, 2018, it is said, was a serious error on the part of Lawlor Partners. I do not think that that can be gainsaid. It is said that the letter represents evidence of such extraordinary incompetence that it is to be doubted that its contents should be accepted at face value at all. I am not prepared to go quite that far but it does appear to me that the letter has not been sufficiently explained. The copy letter was first said to be a record which shows that the original will was sent to the deceased at her home “in or about January, 2018”. Later the copy letter was said to be a record that the will was sent to the deceased “ further to her request for her Will”, which plainly it was not. Finally it was said to be “ correspondence from this office [which] shows that the original will was posted by ordinary pre-paid post to the deceased at her home under cover of a letter dated 18th January, 2018.” I am not satisfied that it is. It is a record that someone typed a letter of that date but inasmuch as the writing and sending of such a letter would have been inconsistent with the request which apparently prompted it as well as with the protocols in the solicitor’s office I would not be confident to assume or infer that it was posted. That said, I do not believe that it would be fair to the notice parties to find that it was not sent without affording them the opportunity which they seek to cross-examine Mr. Lawlor.
48. I was earlier rather critical of Mr. Lawlor’s evidence as to his practices and protocols, his records, and his engagement – or perhaps I should say his failure to fully engage beyond pointing to the copy letter – with how or by whom the letter of 18th January, 2018 was or might have been posted, and in any meaningful way with the question of what searches were later carried out and by whom. I think the same may be said, although to a much lesser extent, of Robert’s evidence of his search of “Lyttleton ” after he was told that Mr. Lawlor did not have the will. Robert, as I have said, has deposed that he “searched the house high and low” for the will. If it might be confidently expected that Robert would have conducted a thorough search for the will on which his expectation to inherit the family home might have depended, nevertheless he did not say where he looked or where, if anywhere, he thought that his mother might have put the will if it had arrived in the post. Robert’s evidence was that even before his father died he had been dealing with all administrative correspondence. He did not say what private papers his mother kept, or where, or how they were stored.
49. All the appearances are that the last will of Mary Eastwood dated 29th November, 2016 has been lost or destroyed but it seems to me that there is a contest of fact as to how and when it was either lost or destroyed. In the first place, although it was on his behalf that the affidavit of Mr. Lawlor was filed, the applicant’s case is that it is not reliable. I have come to the conclusion that there is an issue to be tried as to whether what Mr. Lawlor has suggested happened to the will in fact happened: not, as the applicant contends, because it was or would have been at variance with good practice, but because the evidence is vague. Secondly, I have come to the conclusion that there is a contest of fact as to how and by whom the post arriving at “Lyttleton” was dealt with in January, 2018. If that factual issue is resolved in favour of the applicant and against the notice parties, the original will might not be traced into the possession of the deceased so that the presumption of revocation would not arise. However, if that factual issue were to be resolved the other way, the presumption of revocation would arise. I accept that there is considerable force in the submission that the uncontested fact that the deceased never sought or said that she was seeking her original will must on any view of the case be of very considerable significance, but the first step is to find the facts.
50. For these reasons I have concluded that this is not an application which can be decided by reference to those aspects of the evidence that are not seriously in dispute and that it will be necessary to hear oral evidence.
51. The evidence on this application skirted around and the arguments of counsel pointedly did not address the portended challenge to the testamentary capacity of the deceased. When, at the conclusion of the argument, I asked counsel whether the possibility of such a challenge was something which I should take into account in deciding this application or put entirely from my mind, counsel were agreed that I should put it from my mind: which I did. It occurs to me, however, that it may be a matter to which counsel should direct their minds when considering how all issues between the parties as to the administration of this estate should be most efficiently and economically dealt with.
52. I will list the case for mention in two weeks’ time for submissions as to what directions are required for the further consideration of the application.
Rippington v Cox
[2017] IECA 331
JUDGMENT of Ms. Justice Máire Whelan delivered on the 19th day of December 2017
1. This is an appeal against the judgment and orders of Noonan J. made in the High Court on 30th July, 2015 in the above-entitled will suit wherein the claims of the appellants impugning the last will and testament of Celine Murphy (hereinafter “the deceased”) dated 8th March, 2011 were dismissed and the said will was ordered to be admitted to probate in solemn form of law as counterclaimed by the respondents. The High Court further ordered that the respondents recover as against the appellants the costs of the proceedings including the counterclaim on a solicitor and own client basis to include all motion costs and reserved costs.
2. A notice of appeal was filed on behalf of all three appellants on 24th August, 2015. The initial notice of appeal was prolix and discursive. Subsequently, the appellants brought a motion before this Court seeking leave to amend the notice of appeal. On 29th February, 2016, this Court reviewed the notice of appeal together with the affidavits sworn by Majella Rippington, Shaun Rippington and Sheila Duffy and made an order confining the appeal to seven specific grounds.
The facts
3. The facts in this case are set out in substantial detail in the judgment of the trial judge and it is not proposed to restate them here save to the extent necessary. The deceased was born on 2nd April, 1960 and died on 15th March, 2011, aged 50. She was unmarried and without children. She resided at the home of her aged mother, Catherine Murphy, “Genazzano”, Kingswood, Clondalkin, Dublin 22. Her mother survived her by 10 days and died a widow on 25th March, 2011 at the age of 93. Majella Rippington and Edel Banahan, the first and third named appellants, are two of the three surviving siblings of the deceased. Shaun Rippington, the second named appellant is a spouse of the first named appellant and executor of the mother’s estate. Had the deceased died intestate, her net estate would have formed part of the estate of her mother and, in accordance with the tenor of the latter’s will, would fall to be distributed amongst the three surviving siblings of the deceased in equal share.
4. In July, 2010, Celine Murphy was diagnosed with cancer. She was initially under the medical care of an oncologist at St. Luke’s Hospital in Dublin and subsequently, from January, 2011, under the care of her consultant oncologist at St. Vincent’s Private Hospital in Dublin who was her treating consultant until the time of her death.
The disputed will
5. The disputed testamentary instrument is dated 8th March, 2011, being the day prior to the deceased’s final admission to St. Vincent’s Private Hospital where she died on 15th March, 2011. A central issue in this case is whether the deceased, on the evening of 8th March, 2011, left the house, Genazzano, Kingswood, Clondalkin, Dublin 22, at any time after 17.24 and drove herself to the home of her friend Mary Butler at Tuckmillstown, Straffan, Co. Kildare. A further issue is whether, whilst there, she come into the presence of Michael Cox, the first named defendant, and Joanne Butler. If so, the question remains whether she then duly and validly executed her last will and testament in accordance with s. 78 of the Succession Act 1965 with the said Michael Cox and Joanne Butler as attesting witnesses. It was also disputed whether these events could have occurred in sufficient time for her to drive back to the house Genazzano, Old Naas Road, Kingswood, arriving in time to take a phone call on the landline at 18.42 on the said evening.
The pleadings
6. A plenary summons which was issued on 16th September, 2011 by the appellants pleaded, inter alia, the following issues:
(a) That the will was not executed by the deceased.
(b) That the document dated 8th March, 2011 was not the last will and testament of the deceased.
(c) That the will was not executed in accordance with the provisions of the Succession Act 1965.
(d) That the deceased was not of sound disposing mind on 8th March, 2011 and did not have the capacity to make a will.
(e) That the transaction purported to be effected by the will constituted an improvident and unconscionable transaction.
(f) That the execution of the will was procured by virtue of undue influence.
(g) That in the circumstances the deceased died intestate.
A statement of claim was delivered on 7th December, 2011 particularising the claim. A defence and counterclaim was delivered on 3rd April, 2012. The counterclaim sought to admit the testamentary document to probate in solemn form of law as the last will and testament of the deceased.
Who are the appellants?
7. The original notice of appeal was filed in the Court of Appeal office on 24th August, 2015. It is clear from this document that all three plaintiffs have appealed and are the appellants. I note in particular that Edel Banahan, the third named plaintiff, is expressly indicated to be one of the appellants. The amended notice of appeal filed on behalf of all three appellants on 24th March, 2016 also expressly identifies all three plaintiffs as appellants. Although neither Edel Banahan nor Shaun Rippington formally addressed the Court during the appeal hearing, I am satisfied that all three are appellants irrespective of whether they attended the hearing of the appeal or addressed the Court at the appeal. Mrs. Rippington confirmed that Edel Banahan was present at the hearing in the High Court.
Litigants in person
8. The appellants are litigants in person. They emphasise this fact, including in their written submissions, in their grounds of appeal and in oral argument before this Court by Mrs. Rippington. In considering litigation involving litigants in person, Clarke J., as he then was, in ACC Bank plc v. Kelly & Anor. [2011] IEHC 7 at para. 2.4 quotes with approval from an article in the 2010 Judicial Studies Institute Journal No. 1 which states as follows:-
“The primary principle applied by judges in cases involving self represented litigants is the principle of fairness. Fairness is the touchstone which enables justice to be done to all parties. A judge in proceedings involving a self represented litigant must balance the duty of fairness to that litigant with the rights of the other party and with the need for a speedy and efficient judicial determination as is feasible. Achieving this balance is one of the most difficult challenges a judge can face. While a trial judge’s overarching responsibility is to ensure that the hearing is fair, it is not unfair to hold a self represented litigant to his choice to represent himself. A litigant who undertakes to do so in matters of complexity must assume the responsibility of being ready to proceed when his case is listed. If he embarks upon the hearing of his case, he is representing to the Court that he understands the subject matter sufficiently to be able to proceed. Although it may later become patently obvious that he is not, litigants who choose to represent themselves must accept the consequence of their choice. While the Court will take into account the litigants’ lack of experience and training, implicit in the decision to represent himself is the willingness to accept the consequences that may flow from that lack. Indeed, to hold to the contrary would mean that any party could derail proceedings by dismissing his representatives.
It is the Court’s duty to minimise the self represented litigant’s disadvantage as far as possible, so as to fulfil its task to do justice between the parties. However, the Court should not confer upon a personal litigant a positive advantage over his represented opponent nor is it the position that the party with the greater expertise must be disadvantaged to the point at which they have the same expertise effectively as the other party. That would be a perversion of what is required, which is a fair and equal opportunity to each party to present its case.”
9. It is clear from the authorities that these principles apply irrespective of whether a litigant in person represents themselves in proceedings by virtue of necessity or as a matter of choice. In the words of Clarke J.:-
“…the overriding requirement that the conduct of the trial must be fair to both sides, and that the fact that a person is, for whatever reason, unrepresented cannot be allowed to operate as an unfairness to the represented party.” (ACC Bank plc. v. Kelly [2011] IEHC 7 at 2.7)
This represents a correct statement of the approach to be adopted in this jurisdiction as regards litigants in person.
Demeanour of the appellants
10. The first named appellant, Majella Rippington, conducted the appeal on behalf of all the appellants. In reviewing all of the affidavits sworn by the appellants, the written submissions advanced in support of their contentions and the submissions made by Mrs. Majella Rippington in court on their behalf, it is clear that the appellants maintain a strong view that they alone are entitled to the estate of the deceased. That the beneficiary named by the deceased is a stranger in blood is demonstrably a cause of dissatisfaction to them. The appellant Majella Rippington characterises the will as “an unnatural disposition”. She describes the deceased as “academically challenged”. She takes grave offence that her late sister “favoured a friend as opposed to relatives” and asserts that the estate should be available to the “blood family”. In reviewing the detailed statements, submissions and affidavits advanced on behalf of the appellants, it is difficult to escape the sense that they amount to a threnody to the loss of the appellants’ testamentary anticipations and their thwarted expectations to benefit from the estate of the deceased. Viewing the submissions filed and the affidavits sworn in chronological order, there appears to be a pervasion over time of antagonism and ever-increasing hostility expressed in particular towards the first named respondent, being the executor named in the disputed will, and the second respondent who is the sole beneficiary.
11. It is apparent from the judgment delivered in the High Court that, at the hearing, Mrs. Rippington gave unbridled vent to her evaluation of both respondents and for instance at para. 40 of the judgment it is recorded that she informed the trial court that the beneficiary was “an untruthful person who was parasitic, always benefitting from her relationships with people.” The written submissions and affidavits advanced by Mrs. Rippington and her husband, Shaun Rippington, appear profoundly hostile and at times almost minatory towards the executor and the beneficiary. By way of illustration, in an affidavit of Majella Rippington sworn 4th January, 2015 she describes the first named respondent as “the purported man of the cloth and of God.” In the same affidavit it is averred that “the deceased Celine Murphy was negligent in her duty of care to her siblings and to her mother.”
The High Court Hearing
12. The matter was heard before Noonan J. in the High Court over four days between 21st and 24th July, 2015. Judgment was reserved. The appellants’ claim was dismissed and the will of the deceased dated 8th March, 2011 was admitted to probate in solemn form of law as sought in the counterclaim. The court ordered that the respondents recover against the appellants costs of the proceedings including the counterclaim on a solicitor and own-client basis to include all motion costs and reserved costs. The written judgment is detailed and reviews with particularity the testimony of the various witnesses called by the parties during the four day hearing. The judgment notes that the first named respondent was unsure about precise times involved when the deceased attended the dwelling house at Tuckmillstown, Straffan, Co. Kildare, where he was at the time a visitor. He believed that the deceased had left the property “sometime between 6 and 7 p.m. but he could not be sure”. (Para. 19 of judgment). The trial judge also recorded that the first named respondent “felt that Ms. Murphy was present in the Butler house for something between half and three quarters of an hour”. The trial judge rejected evidence led by the appellants which attempted to demonstrate that the deceased could not have been present in the Butler household at the time alleged by the respondents on the said evening. The trial judge concluded that the evidence of Mr. Brian Cole, a chartered engineer, served to confirm the possibility that she could have been present in the said household on the evening in question. He was satisfied that there was a period of 52 minutes during which it was at least theoretically possible that the deceased could have been present in the Butler household and returned between 17.38 and 18.30 on 8th March, 2011. With regard to the various issues raised including testamentary capacity, the due execution of the will of the deceased in accordance with s. 78 of the Succession Act and the validity of the execution of the will by the deceased and by the attesting witnesses, the trial judge set out the relevant law in detail and identified the evidence on which he relied in support of his conclusions that the will ought to be admitted to probate in solemn form of law.
The seven grounds of appeal
13. The seven grounds of appeal advanced at the hearing by the appellants are as follows:-
(i) “That the judgment was biased towards the appellants and completely miscalculated the timescales and the expert’s opinion to establish in truthfulness and accuracy of the claim that the deceased made a flying visit to Straffan, Co. Kildare to execute her will by chance.”
The first ground asserts bias ascribed to the trial judge and further claims that the said judge erred in his findings, in his conduct of the case and in the inferences of fact he drew. In support of a claim of bias, the appellants assert that the trial judge miscalculated the time scales and expert opinion in regard to the length of time it would have taken the deceased to make the round trip between her place of residence at “Genazzano”, Old Naas Road, Kingswood, Clondalkin, Dublin 22, and the residence of Mary Butler at Tuckmillstown, Straffan, Co. Kildare, on the evening of 8th March, 2011 and whether it could be achieved between 17.24 and 18.42. The appellants are strongly of the view that the calculations of time do not stand up. The respondents counter that the findings of the trial judge were based on the evidence.
Starting at para. 21 of the judgment, there is the following passage:-
“All of the evidence of journey times and telephone calls was led by the Plaintiffs in an effort to demonstrate that Ms. Murphy could not have been present in the Butler house at the time alleged by the Defendants. If one were to assume that Ms. Murphy left the house immediately after the earlier telephone call and arrived back immediately before the later one, the evidence of Mr. Brian Cole, chartered engineer, was that taking the quickest route between the two houses and adhering to the speed limit, the round trip took him 22 minutes and 48 seconds. Allowing about a minute or a minute and a half for getting in and out of the car and leaving/entering the house, that suggests an overall journey time of in or around 25 minutes. Subtracting that from the available 77 minutes leaves a period of 52 minutes during which it is at least theoretically possible that the deceased could have been present in the Butler house between approximately 17.38 and 18.30.
22. This is entirely consistent with the evidence given by Joanna Butler and Michael Cox, which I accept without reservation. Therefore, far from disproving the [respondents’] evidence with regard to the execution of the will, it merely serves to confirm it.”
The trial judge further noted at para. 23 of his judgment:-
“Mrs. Rippington in evidence said that she had called to see Ms. Murphy around 7 pm that evening and stayed for one hour. Ms. Murphy said that she nearly did not make it home, referring to the collision with the ditch. She parked the car unusually close to the door of the house (…) Apart from that, Mrs. Rippington did not suggest that Ms. Murphy was in any way irrational or incoherent.”
It will be recalled that Mr. Brian Cole, the chartered engineer, was the appellants’ expert witness.
(ii) The second ground of appeal permitted by order of this Court on 29th February, 2016 was as follows:-
“That the judge erred in law in admitting the will in solemn form due to the invalid execution of the will pursuant to statute law”.
An element in the case was the absence of an attestation clause in the last will and testament of the deceased. The respondents adduced evidence at the hearing before the trial judge of due execution and the attesting witnesses both gave evidence and were cross examined.
(iii) The third ground of appeal asserts that the judge was unfair and unjust in fixing the appellants with the costs order which he made. The respondents assert that the order was made within the trial judge’s jurisdiction and at his discretion pursuant to O. 99 of the Rules of the Superior Courts. They also assert that the notice of appeal fails to indicate in what respect the order was unfair or unjust.
(iv) The fourth ground of appeal claims that the trial judge failed to take into account and give consideration to the facts and evidence presented to him by the appellants by way of documentation, records and oral evidence and that the respondents had no documentary evidence. The respondents dispute this ground and assert that both of the deceased’s treating doctors were called and gave evidence at the hearing. In addition, extracts from the deceased’s chart at St. Luke’s Hospital were put in evidence by the appellants without objection. The trial judge had all of the said evidence before him in arriving at his conclusions. The respondents contest the appellants’ claim that they had no documentary evidence and assert that they had before the High Court the will of the deceased, medical records and medical reports.
(v) The fifth ground advanced is that the trial judge erred and was mistaken in allowing the respondents’ contradictory evidence to stand and denied the appellants a just and fair decision on the balance of probabilities which was weighted in the appellants’ favour. The respondents contest this ground asserting that the trial judge’s findings were reasonable having regard to all of the evidence presented at the trial and further that the allegations being advanced by the appellants that they were denied a just and fair decision is not particularised and is misplaced. Further, the respondents assert that the trial judge permitted the appellants to call all of the evidence they wished to and were in a position to call and that the trial judge further considered the said evidence carefully.
(vi) It appears a key witness of the appellants failed to attend the trial.
The sixth ground of appeal advanced is that the trial judge erred in law in refusing to acknowledge the validity of the witness subpoena served at the home of Michael Goonan. The appellants assert that the trial judge failed to require Mr. Goonan to attend at the trial to give his evidence and that the judge permitted the trial to proceed without his evidence being given and that this was an injustice. The respondents assert that this ground is entirely misplaced and does not accord with the events as transpired in court late on the afternoon of the first day of the hearing, being 21st July, 2015 as recorded at the transcript of the hearing pp. 95-98 of day one. The respondents made no submission in relation to the issue and the transcript records that the first named appellant requested the trial judge to compel a Mr. Goonan to attend court. The court enquired as to whether personal service of a subpoena had been effected. The first named appellant confirmed that personal service had not been effected. The court made no formal determination on the matter and simply moved on to establish who was the next available witness. The respondents assert that it was a matter for the appellants to make an application for substituted service or any other order as they deemed appropriate but no such application was ever made to the trial judge.
(vii) The seventh ground of appeal asserts that the judge in his judgment unjustly and unfairly vilified the first named appellant and in the absence of certainty of facts and legal certainty, stated that Mrs. Rippington was an unreliable and untruthful person. The respondents contest this ground and contend that the statements of the trial judge were reasonable having regard to the evidence at the trial and the appellants’ conduct of the proceedings. They further assert that it is not established by the appellants how such comments could impugn the validity of the judgment delivered or the orders made.
14. The respondents oppose the entirety of the appeal and assert that the findings of the trial judge constitute findings of fact which this Court should not interfere with having due regard to the appellate function of this Court as determined in Hay v. O’Grady [1992] 1 I.R. 210. They further assert that the findings of the trial judge were in each case supported by credible evidence.
The hearing of the appeal in this Court on 13th October, 2017
15. The first named appellant conducted the appeal on behalf of all the appellants. She asserted that the trial judge was biased against her and accepted everything which the respondents had said without reservation. She asserted that the trial judge was “very vicious” in his attacks upon her and her family. She described the first named respondent as “a pretender”. She emphasised her strenuous disagreement to the trial judge’s determination as regards the length of time it would have taken the deceased to make the round trip on the evening of 8th March, 2011 to the premises at Tuckmillstown, Straffan, Co. Kildare, where the instrument was executed. She asserted, in particular, that the calculations with regard to time “did not stand up”. A primary ground for the claim of bias being relied upon by the appellants was that the trial judge accepted all the evidence of the respondents in regard to the key issues in the trial. Generalised allegations of perjury, dishonesty and fraud against both respondents were liberally referenced throughout the hearing of the appeal.
16. The appellant Mrs. Rippington asserted that the respondents’ case was “utterly contrived” and that the respondents had “fabricated a document without any shred of truth in it”. She asserted that the trial judge gave no reason why he “preferred one witness over another”. She claimed that the trial judge “should not have made her out to be a liar”.
17. The respondents contested each ground of appeal, asserting that there was evidence before the Court to support each of the trial judge’s findings and further that each of the grounds in question were matters of judicial assessment. The respondents asserted that if it is accepted that the evidence before the trial judge was credible then this Court should not interfere with the findings of the trial judge in any way. With regard to the issue of costs, the respondents asserted that, in the unusual circumstances of this case, the Court should not interfere with the findings of the judge and in particular they relied on the decision of the Supreme Court in Elliott v. Stamp [2008] 3 IR 387.
Testamentary freedom
18. Freedom of testation is recognised as a core societal value. A person of full age and capacity in this jurisdiction has complete testamentary freedom to dispose of their property in whatever manner they deem fit subject in general only to the clear statutory limitations to be found principally in Parts IX and X of the Succession Act 1965 as amended.
The approach to be adopted on appeal
19. The principles to be applied by the appellate courts in considering the argument that a trial judge was incorrect in making a finding of fact based on oral evidence are set out in the oft cited judgment of McCarthy J in Hay v. O’Grady [1992] 1 I.R. 210 at p. 217;-
“1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and apparently weighty the testimony against them. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact (…) I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.”
20. In a lengthy case such as this will suit where evidence was heard over four days, the trial judge was uniquely placed to consider and evaluate the demeanour and disposition of the witnesses. In fact, as the Supreme Court outlines in O’Connor v. Dublin Bus [2003] 4 IR 459 at p. 466:-
“It is quintessentially a matter for the jury (or a trial judge acting in place of a jury) to hear and consider the evidence of a plaintiff or witness and to determine the credibility and reliability of that person and to determine the consequent facts of a case. It is only in exceptional circumstances that an appellate court would intervene in such a determination.” [per Denham J.]
21. In its decision in Doyle v. Banville [2012] IESC 25, the Supreme Court in a judgment delivered by Clarke J. had this to say regarding the approach of an appellate court where a judge’s conclusions were largely based on his findings of credibility:-
“2.1 The starting point for any consideration of the law in this area has to be the decision of this Court in Hay v. O’Grady [1992] 1 I.R. 210, where the judgment of the Court was given by McCarthy J. Placing reliance on the fact that an appellate court does not have the benefit of seeing and hearing witnesses or observing the manner in which evidence was given or the demeanour of those giving it, McCarthy J. came to the view that, if findings of fact made by a trial judge were supported by credible evidence, this Court was bound by them however voluminous and weighty any contrary evidence might seem. It is clear, therefore, that it is no function of an appellate court such as this to re-weigh the balancing exercise which any trial judge is required to do when sitting without a jury for the purposes of determining the facts.”
The Supreme Court went on to state at para. 2.2:-
“The position, in respect of a trial by a judge alone, deriving from Hay v. O’Grady, is somewhat different in that it is clear that this Court may, at least in certain circumstances, be in a position to review an inference of fact drawn by a trial judge (at least where such inference does not depend on oral evidence or recollection of fact and where the trial judge had an opportunity to assess the relevant witness(es)). It is also important to note that McCarthy J., at p.218, emphasised the importance of a clear statement by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows.”
The judgment continues at para. 2.4:-
“… it does need to be emphasised that the obligation of the trial judge is to analyse the broad case made on both sides. To borrow a phrase from a different area of jurisprudence it is no function of this Court (…) to engage in a rummaging through the undergrowth of the evidence tendered or arguments made in the trial court to find some tangential piece of evidence or argument which, it might be argued, was not adequately addressed in the court’s ruling. The obligation of the court is simply to address, in whatever terms may be appropriate on the facts and issues of the case in question, the competing arguments of both sides.”
22. Of relevance, also, is the following passage from the judgment at para. 2.7:-
“…it is also important to note that part of the function of an appellate court is to ascertain whether there may have been significant and material error(s) in the way in which the trial judge reached a conclusion as to the facts. It is important to distinguish between a case where there is such an error, on the one hand, and a case where the trial judge simply was called on to prefer one piece of evidence to another and does so for a stated and credible reason. In the latter case it is no function of this Court to seek to second guess the trial judge’s view.”
23. These pronouncements of the Supreme Court represent more recent iterations of the principles adumbrated by that court in Northern Bank v. Charlton [1979] 1 I.R. 149 where O’Higgins C.J. held that:-
“Where findings of fact are challenged on appeal, it is the existence or sufficiency of evidence to support such findings which is considered by this Court and not whether what was accepted or regarded as credible at the trial ought to have been so accepted or regarded – unless, of course, something manifestly wrong has taken place.”
24. Of relevance are the following passages from the said judgment at p. 181:-
“In my view it would be not only contrary to accepted practice but also a manifest injustice if a court, which neither saw nor heard the witness, pronounced on his credibility. There may be circumstances in which the acceptance or rejection of particular evidence by a judge was so obviously and clearly wrong as to be unreasonable and unjust. Such instances have been extremely infrequent and one can say hopefully that they will continue to be so. In the normal case, however, in so far as the judge’s findings of fact are based directly on evidence which he heard and believed, it being open to him to accept such evidence or to reject it, such findings cannot be interfered with by this Court in my view.”
The learned Chief Justice further stated, regarding the role of the appellate court:-
“The task of this Court is not to look at and consider all the evidence for the purpose of deciding whether a judge ought to have accepted the particular evidence which he did accept: rather it is to consider whether such evidence is credible and supports fairly and properly the judge’s findings, and whether such inferences as he drew were fairly and properly drawn. Further than this, in my view, this Court ought not and cannot go in reviewing questions of fact.”
Bias – Ground 1
25. In written submissions dated 10th June, 2016 the appellants particularised their allegations of bias including in particular at paras. 1 to 23 of the submission, paras. 33 to 36, paras. 37 to 40 and in the submissions made in respect of a claim that the trial judge unjustly and unfairly vilified the first named appellant. The aspects of the written submission dated 10th June, 2016 particularising the allegations of bias include at para. (g):
“The plaintiff/appellants submit that there was unwarrant bias on the part of the presiding judge, given he invited the defendants/respondents to counterclaim against the plaintiff/appellants and that he had shown by his remarks a total bias against the first named plaintiff/appellant for the entire loss, costs and damages in the said estate. The remarks recited by the judge aforementioned are akin to fraud on the court.”
They further submit:
“The judgment of Judge Noonan was biased towards the plaintiff/appellants and miscalculated the timescale and expert opinion to establish in truthfulness and accuracy that the deceased made a per chance visit to Straffan, Co. Kildare, to execute her will by chance.”
The appellants thereafter set out with great particularity their claim surrounding “the miscalculation of the times at chapters 20 and 21” of the judgment. The appellants assert that they had established in court that the deceased was not present at the house in Straffan for the Angelus bell on 8th March, 2011. In addition, they reference paras. 15, 16, 18 and 19 of the judgment in support of their contention that the trial judge miscalculated the times and further that he failed to refer to Mrs. Rippington’s cross examination of Michael Cox which, she contends, established that the deceased had departed the house at Straffan prior to the Angelus bell at 6 pm on the evening in question. Para. 12 of the submissions states:-
“It is not about the conduct of the judge, but his judgment. The judge has uttered words in a manner which exhibited an obviously prejudicial attitude that may impose an even harder justice from the judge against Majella Rippington, the first named plaintiff/appellant.”
At para. 23 of the appellants’ submissions it states:-
“Judge Noonan has demonstrated serious prejudice in favour of the other party.”
The appellants rely on para. 52 of the judgment and assert that “remarks made by the judge in this chapter were of such a number and quality as to go beyond the suggestion of mere irritation and the conduct is sufficient “to dislodge the presumption of impartiality and replace it with a reasonable apprehension of bias.” It is alleged at para. 14 of the submissions that:-
“By inviting a party to bring proceedings by way of counterclaim against the plaintiffs/appellants the judge had stepped into the “arena” and seems was more concerned with “legal niceties”, than with the best interest of justice. Therefore, any reasonable man, would consider the above to be reasonable bias.”
26. The appellants assert that at para. 56 of the judgment, the trial judge erroneously relied on the medical evidence as putting the deceased’s mental state “beyond any doubt”. They assert that the oncologist’s evidence was that the deceased “could not write on 8th March, 2011 and that had she lived her fingers would have had to be amputated.”
27. It is noteworthy that at no time during the hearing of the action did the appellants request that the trial judge recuse himself on grounds of bias. The test for objective bias is whether, in all the circumstances, having due regard to the principles set out in Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412, a reasonable person in the position of the appellants would have had a reasonable apprehension that they would not have had a fair trial at their hearing.
28. At its height, the appellants’ contentions of bias appear to rest on the fact that the trial judge made a number of findings of fact based on evidence adduced by both parties at the hearing in circumstances where there was evidence before him which clearly entitled him to reach the determinations which he did in each case. That the trial judge reached conclusions which supported the respondents’ defence and in particular their counterclaim on the basis of probative evidence, far from demonstrating bias, points to the impartiality of the adjudication process he embarked upon.
29. In Bank of Ireland v. O’Donnell [2015] IECA 73 the Court stated at para. 69 that:-
“…the hypothetical reasonable person, an independent observer who is not over-sensitive and who has full knowledge of all such facts would not have had a reasonable apprehension that the appellants would not have had a fair hearing from an impartial judge…”
30. Applying the test in Bula Limited v. Tara Mines Limited (No. 6) as further adumbrated by this Court in Bank of Ireland v. O’Donnell [2015] IECA 73 at para. 69 to the facts, I am satisfied that there is no basis for an assertion that there was bias exhibited on the part of the trial judge nor could there have been any reasonable apprehension of bias on the part of a right minded independent observer conversant with all the material facts of the case. There is no evidence to support the claim that the appellants did not receive a fair trial. The trial judge, who heard the evidence and all the witnesses advanced by the parties over four days prior to reserving judgment and making his determination, did not exhibit lack of impartiality. The allegation of bias is wholly misconceived. Merely because a litigant disagrees with the determination of a trial judge based on evidence can never in and of itself constitute a basis for asserting bias. The proposition is simply unstateable.
(i) Journey time
31. On the contentious issue of journey times, there was expert evidence before the trial judge adduced on behalf of the appellants themselves from Mr. Brian Cole, a chartered engineer. His testimony was to the effect that taking the quickest route between the two houses and adhering to the speed limit, the round trip took him 22 minutes and 48 seconds. Accordingly it was perfectly open to the trial judge to conclude, as he did, that it was theoretically possible for the deceased to have travelled from her place of residence to the Butler household between approximately 17.38 pm and 18.30 on the evening of the 8th March, 2011. It would appear that the appellants called the chartered engineer, Mr. Cole, for the purposes of demonstrating that the deceased could not have been present at the premises in Straffan, Co. Kildare, between 5 pm and 6 pm on the 8th March, 2011. The trial judge heard extensive evidence of journey times and considered telephone bills to identify the times of various calls made to and from the residence of the deceased at Kingswood, Clondalkin on the evening in question. The trial judge was perfectly entitled to conclude that the evidence of the appellants’ own witness, Mr. Cole, supported the respondents’ case that the deceased could have been present in the Butler household at Straffan prior to 6 pm on the evening in question. His conclusion was arrived at in accordance with the evidence and there is no basis whatsoever for interfering with it. The ad hominem attack on the trial judge’s integrity is hence entirely baseless and unwarranted.
32. In the course of the hearing of this appeal, Mrs. Rippington accepted that it was possible the deceased had left the Kingswood premises at around 17.24 and that she returned there shortly before 18.42 on the 8th March, 2011. She went to great lengths to suggest that the deceased was not present at Tuckmilltown, Straffan, at the time of the Angelus prayer, being 6 pm, on the said evening. Ultimately she informed the Court that Michael Cox, one of the attesting witnesses and the first named respondent, had stated in the High Court under cross examination, “Sure I can’t remember anyway”. This accords with the trial judge’s conclusion at paras. 18 and 19 of the judgment. Accordingly, there was no evidence before the trial judge to suggest that the deceased was not at the premises in Straffan at 6 pm on the evening in question. I am satisfied that although Mrs. Rippington at all times disputed the evidence that the deceased attended at the house in Tuckmilltown, Straffan, Co. Kildare, on the evening of 8th March, 2011 for a period of time somewhere between 17.38 and 18.30 she at no time managed to contradict the evidence of the witnesses, including her own expert witness.
(ii) Interrogatories
33. The appellants contend that the oral evidence to the High Court by the first named respondent, Michael Cox, was to the effect that the deceased was not present in the house at Tuckmillstown, Straffan, Co. Kildare, “for the Angelus bell” on 8th March, 2011. The appellants contend that when this evidence is taken together with replies to interrogatories it demonstrates that the deceased was not present at the said property in Straffan at or after 6 p.m. on 8th March, 2011. Twice in an affidavit dated 4th January, 2016, Majella Rippington describes Michael Cox as “a man of the cloth and of God”. She emphasised to this Court at the hearing of the appeal that he was a person who in her view would , apparently, be expected to say the Angelus prayer at 6 p.m. each evening. However, the appellants are mistaken in their contention that the evidence established that the deceased was not present in the house at Tuckmillstown, Straffan, at 6 pm, the time scheduled for the Angelus prayer. Interrogatory 2, dated 10th April, 2014, asks:-
“Did Celine Murphy arrive at the second named defendant’s residence at Tuckmillstown, Straffan, Co. Kildare, on 8th March, 2011 after 6 p.m.? If not, what time did she arrive?”
The reply sworn on 20th June, 2014 by the first named respondent, Michael Cox, states:-
“2. No. The second question is not a proper interrogatory.”
By letter of 17th July, 2014 a further reply was requested and the further reply was delivered, sworn on 30th July, 2014 as follows:-
“2. No.”
Therefore, all that the interrogatory in question establishes is that the deceased did not arrive at the Straffan premises after 6 p.m. on the day in question. Likewise correspondence and other documents relied on by the appellants do not support the claim that the deceased had departed Straffan prior to 6 p.m. The appellants’ approach of repeatedly asserting that the deceased departed the second defendant’s home prior to 6 p.m. on the date in question does not operate to corroborate the bare erroneous assertion that the deceased was not present in that house at 6 p.m. or at any time thereafter. In fact, the second attesting witness, Joanna Butler, gave evidence that the deceased left between 6 p.m. and 7 p.m. though she could not be exact about the time. I am satisfied accordingly that there was ample evidence before the trial judge, reliable in nature and which was not meaningfully contradicted, upon which he was entitled to rely for the proposition that the deceased was present in Tuckmillstown, Straffan, at 6 p.m. and thereafter departed the property after 6 p.m. such that she arrived at her place of residence, “Genazzano”, Old Naas Road, Clondalkin, at some point prior to or around 6.42 p.m. It must be borne in mind that the attesting witnesses were giving their evidence almost four and a half years after the events in question. I am satisfied that there was no material inconsistency between the evidence of the attesting witnesses as to the approximate times during which the deceased was present and the sequence of events that occurred during the presence of the deceased at the premises Tuckmillstown, Straffan, Co. Kildare, on the evening of 8th March, 2011.
34. Further, I am satisfied that the trial judge analysed the competing contentions regarding the sequence of events on the evening in question and came to a reasoned conclusion based on probative evidence in accordance with the jurisprudence including the decision in Doyle v. Banville [2012] IESC 25.
(iii) Counterclaim
35. The appellants further allege that the trial judge invited the respondents to bring proceedings by way of counterclaim. However, this is not so. The respondents delivered their counterclaim on 3rd April, 2012, over three years prior to the hearing.
36. It does not appear that the appellants and in particular, Mrs. Rippington put to any of the witnesses at the hearing and including Michael Cox or Joanna Butler the proposition that the deceased did not sign the will at Straffan on the night in question or that the document is a forgery. This appears to be an extraordinary omission in light of the manner in which the statement of claim is pleaded and the tenor of the notice of appeal and the allegations made during the conduct of the appeal hearing herein.
(iv) Medical evidence
37. The appellants raised issues around the evidence of the treating oncologist as supporting their claim of objective bias. It would appear that a medical report was supplied to the appellants on 2nd July, 2013 which suggested that the deceased required high doses of pain medication and significant sedation to manage the severity of her symptoms. The appellants drew the following from that report:-
“these clearly impacted on her general condition both from a mental and physical perspective. However they were required due to the extensive nature of her disease. It is extremely difficult to testify as to her testamentary capacity at the time of her making of her will. However it was undoubtedly influenced by the extensive nature of her disease and the extent of medication that she was taking at that time.”
This certainly appeared inconsistent with a report furnished by the same oncologist on 30th June, 2011 to the respondents which stated:-
“There is no indication Celine was, at the time of her admission to hospital, incompetent of making a will, clearly I was not present at the time she was making her will. However, based on knowledge of her medical illness that would not have any obvious reasons for mental impairment at the time of making her will.”
The trial judge does directly confront the apparent inconsistencies between the views expressed in the reports of 30th June, 2011 and 2nd July, 2013. This is set out at paras. 32, 33 and 34 of the judgment. It was noted in the judgment that the witness admitted that he was unfamiliar with the requirements at law for testamentary capacity. Ultimately, he conceded that the type of medication the deceased was taking before admission to hospital on 9th March 2011 ought not to have affected her mental capacity and the trial judge was entitled to rely on that concession and did so rely as is evident from para. 56 of the judgment.
(v) Costs
38. At para. 13 of their submissions, the appellants contend that the order for costs on a solicitor and own client basis demonstrates bias against the appellants. The appellants contend that the order is erroneous and is “entirely unjust and unfair” at para. 34 of their submission. At para. 36 they submit that the trial judge unfairly penalised the appellants for the entire litigation, asserting that there were reasonable grounds for the litigation and it was conducted bona fide and hence the order should not have been made against them.
39. In the circumstances, the appellants were the unsuccessful parties to the litigation. A Calderbank letter was written to the appellants on 25th July, 2014, two years prior to the hearing, offering to compromise the litigation. The offer was made on the basis it was without prejudice but with the reservation of the right to refer to it in relation to the issue of costs in the event that the appellants obtained a less favourable outcome in the proceedings in the High Court. It is clear from O. 99, r. 1A of the Rules of the Superior Courts as amended by the Rules of the Superior Courts (Costs) 2008 S.I. No. 12 of 2008 that the trial judge was entitled to have regard to the Calderbank letter in exercising his discretion in relation to costs. There is no evidence to support a claim that the order for costs was made on the basis of bias on the part of the trial judge.
40. Accordingly, the claim in bias is not made out.
Due execution – Ground 2
41. The rules governing the due execution of a will are to be found in s. 78 of the Succession Act 1965. That section embodies well-established principles and rules which have been enshrined in legislation since the coming into force of the Wills Act 1837 as subsequently amended by the Wills Act (Amendment) Act 1852. It is clear from s. 78(2) that no particular form of attestation is necessary. The signature of the testator is required to be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness is required to attest by their signature the signature of the testator in their presence. Without an attestation clause to prove an intention on the part of a deceased to enter into the formality of executing a will, the Court requires other evidence.
42. The trial judge had ample evidence before him as both attesting witnesses gave evidence that clearly demonstrated due and valid execution in accordance with s. 78 of the Succession Act 1965. It is noteworthy that allegations that the will was procured by acts of duress and undue influence by the respondents were not pursued or established at the hearing and it would appear that the appellants adduced no evidence in support of such claims at the hearing. Neither did they cross examine any witness to that effect. It is demonstrable that the determination of the trial judge upon the issue of due execution was based on probative evidence before him. Insofar as the appellants object to the will being admitted to probate in solemn form, such an objection is unsound. At the determination of a probate suit, the general practice is that the court pronounces for or against the validity of the will in accordance with the evidence. Where a will is upheld admission to probate is invariably decreed in solemn form of law. Where the will is pronounced for, the executor is thereafter entitled to proceed to extract a grant of probate.
43. The appellants seek to rely on the decision in Clarke v. Early [1980] 1 I.R. 223. I am satisfied that that decision of the Supreme Court is distinguishable upon the following material respects:
a) Both attesting witnesses were deceased. In the instant case, by contrast, both are alive and gave evidence of due execution.
b) There was no executor named in the will. In the instant case, Michael Cox is named as executor.
c) There was some evidence before the High Court in Clarke v. Early that the alleged signature of the deceased was not his true signature. In the instant case, both attesting witnesses gave evidence of the deceased executing the will in their presence.
In the instant case, the trial judge heard the evidence of the attesting witnesses and they were subjected to comprehensive and extensive cross examination by Mrs. Rippington. Hence he had an opportunity to evaluate their testimony and assess its veracity. It is clear from the evidence that was available to the judge that the deceased knew and approved the contents of the will. This is apparent also from her instructions to the named executor to retain the will for three weeks in the event of her demise and also her request to Joanna Butler, the second attesting witness, not to divulge the existence of the will to her mother, who was the sole beneficiary. The decision of Perrins v. Holland [2010] EWCA Civ 1398 which the appellants seek to rely upon does not assist them in any material respect. In the latter case, the Court of Appeal dismissed the appellants’ appeal against an order for costs made in his unsuccessful claim challenging the validity of his late father’s will. The appellants in their legal submission dated 10th June, 2016 assert that the Court inter alia should have regard to the “larger pattern of manipulative behaviour by the main beneficiary” but also purport to rely on Albert Keating, Succession Law in Ireland (Dublin, 2015) in relation to fraud and in particular the decision of Banco Ambrosiano Spa v. Ansbacher & Co. Ltd. [1987] I.L.R.M. 669. That judgment is authority for the proposition that the burden of proof rests on any party who alleges fraud to prove it. The appellants failed to prove any fraud at the hearing of the action nor did they in any meaningful way put specific allegations of fraud or manipulative behaviour, undue influence or duress to the beneficiary Mary Butler or either attesting witness in the course cross examination.
44. In these proceedings in addition to detailed replies to particulars dated 29th June, 2012 and 13th March, 2013, interrogatories were raised on behalf of the appellants on 10th April, 2014 which were replied to under oath by the first named respondent on 20th June, 2014. On 4th April, 2012, the attesting witnesses, Michael Cox, swore an affidavit of due execution in the within proceedings clearly deposing to the valid execution of the will and a similar affidavit of attesting witness Joanna Butler was executed on 18th April, 2012. Copies of the said affidavits were in the possession of the appellants for many years prior to the hearing. Hence they had advance knowledge of the evidence of due execution.
Ground 3 – Costs “It was unfair and unjust to fix the appellants with the costs order”
45. The issue of costs will be dealt with hereinafter.
Grounds 4 and 5
46. Ground 4 states:-
“The judge erred in law in failing to take account and due consideration of the facts and evidence presented to him. In those circumstances the matter has to be referred to an Appeal or Supreme Court.”
Ground 5 states:-
“The judge erred in allowing the respondents/respondents contradictory evidence to stand, and denied us a just and fair decision on the balance of probabilities.”
These grounds assert that the trial judge’s judgment is weighted in favour of the respondents “who provided not a scintilla of documentary evidence outside of the purported will”. The appellants assert:-
“Under sworn interrogatories dated 20th June, 2014 [Michael Cox] averred that the deceased was not present for the six p.m. Angelus bell.”
However, this is not correct. As stated above, the interrogatory they raised was whether the deceased arrived at the Straffan property after 6 p.m. on the 8th March, 2011. The interrogatories make no reference whatsoever to an Angelus bell. Neither do they appear to enquire as to whether the deceased was actually present in the house at 6 p.m. Mrs Rippington’s forensic approach appears to be premised in the specious proposition that if the deceased did not arrive after 6pm therefore she must have departed before 6pm . The appellants seek to selectively pick elements and strands from the evidence and replies to interrogatories disregarding aspects that do not favour their position. Such a confused distortion of elements of the evidence generates a misleading clarity which dissipates when set against the established facts. The totality of their contentions when referenced against the actual statements and documents which they rely on do not support the contentions advanced. For instance, it is not material to the central conclusions in the trial judge’s judgment whether the deceased met the beneficiary in 1989 or, as the second named appellant asserts in an affidavit sworn on 19th February, 2016, in 2004. Neither is it material as to the exact date when the deceased experienced an accident whilst on a trip to Russia, be it the year 2009 or an earlier date. The mere fact that the second named appellant was in a position to confirm that the deceased and the beneficiary were acquainted in 2004 does not exclude the possibility that their acquaintanceship predated that date.
47. In an additional submission filed by the appellants on 18th August, 2017, it is asserted that the judge had his mind made up against Majella Rippington.
It is also asserted that he likened the appellant Majella Rippington “to a liar and psychopath.”
48. Ground 5 is redolent of an allegation of bias or lack of impartiality on the part of the trial judge. I am satisfied having carefully reviewed the judgment and the relevant evidence that there was ample evidence before the trial judge on which to base his determinations. Neither grounds 4 nor 5 of the appeal are made out.
Ground 6
49. Ground 6 asserts that the judge was informed that a key witness, Michael Goonan, failed to attend the trial and that the appellants were prejudiced in the hearing as they relied on this witness to give oral evidence. It would appear that by a submission dated 10th June, 2016 the appellants are now withdrawing this ground of appeal. I note it states:-
“On this ground, I say that I erred in my claim that the judge had erred in law and I unreservedly apologise to the Court and to Judge Noonan.”
It is clear that a subpoena was not validly served upon the proposed witness. It appears the trial judge enquired who the next witness was and the appellant, not being in a position to call the witness in question, proceeded to call another witness. The trial judge was entirely blameless with regard to the management of the appellants’ litigation and the conduct of the appellants’ case. In particular, there is no evidence to suggest that the appellants sought any directions with regard to the witness in question and accordingly this purported ground of appeal is not stateable.
Ground 7 “The judge unjustly and unfairly vilified the first plaintiff”
50. The appellants appear to have been content throughout the conduct of these proceedings to level allegations of the most serious nature against all parties, including the beneficiary, the executor, the attesting witness and even the deceased. Likewise, allegations are levelled against legal representatives of all parties including the lawyers who advised the appellants themselves from time to time throughout the years of these proceedings. Allegations such as fraud, fraudulent misrepresentation, deception, concealment of documents, deceit, intent to deceive, the bringing of “rogue motions”, wilfully and deceitfully misleading, character assassination, evasiveness, vilification, are each in their turn levelled against any individual who purports to stand in the path of the appellants’ claim.
51. The appellants in their written submissions of 18th August, 2017 state:-
“Throughout the judgment the judge clearly had his mind made up against Majella Rippington ridiculing her at every opportunity in her efforts to present sound evidence that will stand up to the rigorous testing. He likened her to Sherlock Holmes and simply refused to believe a single word. This was unjust and unfair particularly as Majella Rippington was unable to deal with the aggression of counsel whose only defence was to attack Majella Rippington.”
The appellants submit that the hearing was “not a balanced process”. The appellants offer as evidence of the trial judge’s alleged bias the fact that he clearly stated that he “accepted without reservation the entire evidence of our opponents” which creates a “reasonable apprehension of trial unfairness that requires a new trial”. The appellants go on to state:-
“The judgment is very flawed with errors, factually incorrect and it was noted that the trial judge declined the need for the transcript when offered by counsel as he had made up his mind before leaving the bench, producing the judgment in haste.”
The appellants appear to contend that a hospital admission form wherein the deceased named her mother as her next of kin could have a relevance to the issue of the validity of the last will and testament which the court determined was validly executed. Elsewhere, the appellants contend that the trial judge “on occasions adds his own evidence/opinion in relation to the will in the defendant’s favour.” The appellants contend in their written submissions that “following investigations by Gardaí, they cannot place the deceased at the venue and have stated to the appellants regarding any attendance was “highly unlikely”, and that the respondents have given contradictory evidence in this regard. However, it does not appear that the appellants called Garda witnesses at the hearing to support their contention that the deceased was never present in Tuckmillstown on the evening of 8th March, 2011. The appellants also assert that “the conclusion of the trial was no different to having it decided on the toss of a coin.”
52. The trial judge had the opportunity over the duration of four days of hearing conducted by the first named appellant and litigant in person on behalf of all the appellants to see and hear the first named appellant as well as each of the witnesses and to have due regard to the stance and demeanour of each and to evaluate the credibility of the testimony adduced. Thus the trial judge was exceptionally well placed to draw the appropriate inferences which this Court is not in a position to draw. I am satisfied on balance that there was cogent evidence before the trial judge which entitled him to come to the conclusions he arrived at including his evaluation of the respective credibility of the witnesses, their motivation and demeanour.
Costs – Ground 3
53. In this case the trial judge made an order for costs against the appellants on an indemnity basis. The appellants rely on O. 99. The first named appellant appears to claim that allegations made against her by the trial judge are akin to fraud. It is asserted that the fixing of costs was unjust, that the executor failed to discharge his duties prior to the institution of the proceedings. It is claimed that the proceedings were issued in December, 2011, however the plenary summons issued on 16th September, 2011. It is asserted that it is entirely unjust and unfair to fix the appellants with the costs “which stand at approximately €56,000”. The appellants claim that they were unfairly penalised. They rely on the decision of Burke v. Moore (1875) I.R. 9 Equity 609 where an unsuccessful plaintiff was awarded costs out of the estate and the issue involved the due execution of a will. They also cite a later decision of Gillic v. Smyth [1915] 49 I.L.T.R. 36 which involved a question of due execution of a will and where an unsuccessful defendant was allowed his costs out of the estate. They also rely on the decision in Vella v. Morelli [1968] 1 I.R. 11.
The law
54. The principles governing costs in will suits developed in Ireland over a number of centuries in a manner reflecting the central societal importance of testamentary dispositions and the paramountcy attached to ensuring that the circumstances surrounding the execution of a testamentary document should be open to scrutiny for the purposes of allaying genuine suspicion and ensuring that documents admitted to probate are valid. These principles developed within the domestic jurisprudence from the late 1700s and have not been subjected to alignment with the differing jurisprudence in the neighbouring jurisdiction to any extent post independence. Appeals pertaining to costs in probate suits have been entertained by the Supreme Court more flexibly in the light of Art. 34.4.3 of the Constitution. A majority in the Supreme Court in Vella v. Morelli [1968] 1 I.R. 11 concluded that any measure which would impose a restriction on the exercise by the Supreme Court of its appellate jurisdiction in regard to the issue of costs was inconsistent with the provisions of the Constitution and did not continue in force after the Constitution came into operation. The Supreme Court also made clear in Vella v. Morelli that although it had an extensive power to substitute its own discretion in place of the discretion of the trial judge, that power should be exercised in accordance with principles which it considered were appropriate to the facts of the case.
Costs in a will suit
55. From the case law, the following principles appear to inform the exercise of discretion and the general rule that costs are in the discretion of the trial judge where there is a dispute concerning the validity of a will in this jurisdiction:
(i) Whenever a party is satisfied that issues arise which make it proper to bring a will suit before the court for its opinion, costs may generally be given out of the estate to both parties. The decision of Fairtlough v. Fairtlough (1839) 1 Milw. 36.
(ii) The Court should enquire whether there were reasonable grounds for bringing the litigation and whether it was conducted bona fide. Since at least the beginning of the nineteenth century the general principle has been that where both these questions can be answered in the affirmative it is the normal practice of the court irrespective of the value of the estate or the ownership of the property to direct that the general costs be paid out of the estate. The cases of O’Kelly v. Browne (1874) I.R. 9 Eq. 353, Burke v. Moore (1875) IR. 9. Eq. 609 and Derinzy v. Turner (1851) 1 Ir. Ch. R. 341 are generally cited in support of this proposition. (See Miller’s Irish Probate Practice, 1900, Chapter XXXIX)
(iii) The court should consider whether and to what extent the cause of the litigation takes its origin in any default or error of a testator. If so, costs could generally be directed to be borne by the estate. An example given is Byrne v. Hogan 6 IR. Jur. N.S. 114 where a testator concealed the contents of the paper so that it appeared that the witnesses were unaware that it constituted a will. Likewise, the manner in which a testator executes his will may give reasonable grounds for concern (Williams v. Coker 67 L.T. 626).
(iv) Issues surrounding a testator’s mental or physical condition at the time of execution of a will may be such as to entitle an unsuccessful party to costs out of the estate; Daly v. Burke 8 IR. Jur. N.S. 73, Prinsep v. Sombre 10 M.P.C. 232. Likewise, where a testator is profoundly immobilised or circumscribed as to the manner in which they gave instructions whether by illness, paralysis or otherwise or where issues subsisted around the time of execution of a document as to mental capacity are relevant, an example being Fairtlough v. Fairtlough (1839) Milw. 36 where Dr Radcliff the judge of the Prerogative Court stated:-
“The principle of awarding costs out of the fund in testamentary cases, is not confined merely to cases where the question arises upon the state in which the deceased has left his testamentary papers. The rule should be taken in a wider view, and wherever it is proper to specially bring the matter before the court for its opinion, the costs may be given out of the estate.”
The court has discretion in a will suit where ultimately, at the conclusion of the trial, a will is established and admitted to proof in solemn form of law to grant costs to the next of kin out of the estate notwithstanding the individual unsuccessfully pleaded lack of capacity, undue influence and fraud, provided there was a reasonable basis for the claim and the next of kin acted reasonably. (Williams v. Coker 67 L.T. 626).
(v) Where a plaintiff can demonstrate that a will was executed in circumstances which give rise to serious suspicions or concern even if ultimately, having heard all the witnesses, the court is satisfied as to its validity and the capacity of the testator nonetheless, a trial judge has discretion to award costs if satisfied that the appellants were acting reasonably. (Orton v. Smith L.R. 3.P. 23). Where next of kin have a reasonable ground of suspicion, traditionally the Irish courts have been careful to evaluate their conduct and if a trial judge is satisfied as to the reasonableness of their concerns and their bona fides an order for costs can be made out of the estate of the deceased notwithstanding that the claim has not succeeded at trial. (Emberley v. Trevanion 29 L.J.P. 143). In the case of Smith v. McCashin 1898 82 I.L.T.R. 55 Palles C.B. stated that the trial judge was bound to have regard to the considerations which weighed with the old prerogative court in awarding or refusing costs. The prerogative court was abolished by the Court of Probate Act, (Ireland) 1857.
(vi) The position is succinctly stated in Miller’s Irish Probate Practice 1900 at p. 445:
“But failure to establish pleas of undue influence and fraud will, as a rule, though not invariably, be followed by condemnation in costs, a fortiori where no evidence is offered in support of these pleas; and if there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question either the execution of the will or the capacity of the testator or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent; and so where the parties propounding the will had acted so as to excite the suspicion of the next of kin. Wherefrom the great age of the testator and the peculiar position of the principle legatee, who had been the testator’s housekeeper, the Court considered that the next of kin were justified in pleading as they did.”
The cases cited in support of these propositions include: Keogh v. Wall 9 IR. Jur.NS 418 and the case of Broadbent v. Hughes 29 L.J.P. 134. In the case of Armstrong v. Huddleston (1837) 1 Moo.P.C. 478 the decision of the lower court as to costs was reversed on appeal. Lord Broughan stated at 491:-
“There was doubt, there was difficulty, and there was much suspicion; there were doubts of a nature which further inquiry has cleared up; difficulties which much attention enabled him to overcome; suspicion which required a thorough sifting of the facts which did not ultimately leave a taint to touch the case, but quite enough to make it impossible to come to a right decision without that inquiry, sifting, and thorough examination which the case has undergone.”
An example is Tippett v Tippett L.R. 1 P 54 ,in that case, one of the attesting witnesses informed the next of kin that he was unable to swear as to the full competency of the testator. The witness in question was a medical expert. Although the will in question was ultimately admitted to probate, the Court of Appeal reversed the order as to costs that was made against the applicant.
56. Litigants in their pleadings and in the conduct of proceedings before the Courts are accorded the protection of privilege of the court. The abuse of that privilege has historically been deprecated by the probate courts. So where next of kin who are claimants either by pleadings, in cross examination or otherwise vexatiously make unfounded imputations particularly as to forgery, fraud, dishonesty or conspiracy or engage in baseless attacks upon the good name, reputation and character of a party seeking to establish a will or gratuitously engage in conduct which unnecessarily increases the expense and burden of litigation but elect not to make due and measured enquiry as to the actual facts and failed to adduce evidence to support lurid allegations at trial , the courts have generally condemned such individuals to orders for costs: Kenny v. Kenny 3 IR. Jur.NS 352, Symons v. Tozer 3 N.C. 41. The principle was set out in Bird v. Bird, (1828) 2 Hag. 142 by Sir John Nicholl:-
“As the charges of fraudulent conspiracy, set up and founded on misrepresentation of the state of the deceased’s affections and of his incapacity, and those of control and custody, have each of them so failed in proof, and as the whole cause has been conducted with so much litigious acrimony and with attempts to introduce such irrelevant matter, justice requires that the sentence, pronouncing for the will, should be accompanied by a condemnation of the opposer, in all the costs occasioned by his giving in his allegation.”
This principle has been upheld in the Irish courts including in Campbell v. Campbell 9 Ir. Jur. n.s. 95. Likewise, where allegations of lack of capacity, insanity or the like are made without due cause or any adequate evidence, the courts in this jurisdiction have signified their disapprobation historically by making orders for costs against such a litigant.
57. The Supreme Court in its judgment in Vella v. Morelli [1968] 1 I.R. 11 recognised the special and distinct jurisprudence in relation to costs in probate and will suits that had developed in this country over the prior centuries. The underlying principle is set out in the judgment of Budd J. at pp. 34-35:-
“In our country the results arising from the testamentary disposition of property are of fundamental importance to most members of the community and it is vital that the circumstances surrounding the execution of testamentary documents should be open to scrutiny and be above suspicion. Accordingly, it would seem right and proper to me that persons, having real and genuine grounds for believing, or even having genuine suspicions, that a purported will is not valid, should be able to have the circumstances surrounding the execution of that will investigated by the court without being completely deterred from taking that course by reason of a fear that, however genuine their case may be, they will have to bear the burden of what may be heavy costs.”
58. More recently, in Elliott v. Stamp & Anor. [2008] IESC 10, Kearns J. reviewed the jurisprudence in regard to costs orders in probate suits, reiterating that the two questions to be considered were:
a) Was there reasonable ground for litigation? and
b) Was it conducted bona fide?
In reversing the costs order made in the High Court which awarded the plaintiff one third of her costs from the estate, Kearns J. observed:-
“It is beyond doubt that small estates can be entirely dissipated by legal proceedings brought by disappointed parties whose intention may be to force the executor into some form of settlement or to vindictively waste the assets in legal proceedings which, even if capable of being seen as properly brought at the outset, can no longer be seen as such once the full picture has been made available by those defending the proceedings.”
He noted that the respondents in the case before him were entirely correct to set out by means of statements and reports the evidence which they proposed to rely on at trial.
(a) Was there a reasonable basis for the appellants instituting the above entitled proceedings?
59. In this regard the following factors are relevant:
1. The will document is most unusual having been written on the back of an ICS Building Society letter.
2. It is written in the format of a letter addressed to “Una”.
3. No legal advice was obtained by the deceased prior to executing the will document.
4. It was executed in the home of the beneficiary.
5. The signature of the testatrix is incomplete.
6. The daughter of the beneficiary is one of the attesting witnesses.
7. The deceased was absent from her home on the evening in question for a maximum of 77 minutes and at the very most the deceased could have been present in the house at Straffan for about 50 minutes or so. The deceased had spoken to the first named appellant by phone from her home “Genazanno” at 17.24 and again at 18.42.
8. Dr David Fennelly furnished a medical report to the appellants dated 2nd July, 2013 which was capable of exciting concern in the mind of a reasonable person as to the capacity of the deceased, the suggestion being made that medications being used in high dosages by the deceased at the time impacted on her general condition, both from a medical and a physical perspective. Further, the report appeared to be definitive that her testamentary capacity was influenced by the extensive nature of her disease and the extent of medication that she was taking at the time.
9. Had the deceased died intestate, her mother was her sole next of kin and ultimately in the events that transpired her estate would come to be shared equally amongst her three surviving siblings.
(b) Was the litigation conducted bona fide?
60. The degree of personal invective directed towards the respondents that accompanied the prosecution of the within proceedings is worthy of note. It was unusual in its intensity and for the manner in which it sought to traduce the good name and reputation of the respondents and persons associated with them. Had the appellants not enjoyed the benefit of privilege, many of the allegations and statements made would be prima facie defamatory. It is not appropriate for litigants to use probate proceedings or harness court processes and applications for the dominant motive of perpetuating vendettas or exhibiting gratuitous ill-will towards others who have an interest in the estate of a deceased person.
61. From the time of death of the deceased, the respondents have taken steps to ensure that the appellants had information available to them concerning the estate of the deceased and her testamentary capacity. It would appear that on 12th May, 2011 a copy of the will was made available to the second named appellant, Shaun Rippington who is the legal personal representative of the deceased’s mother who had died 10 days following the death of the deceased in March, 2011. In April, 2012 the appellants were provided with copies of the affidavits of the attesting witnesses and copies of medical reports from the deceased’s treating oncologist dated June, 2011.
62. On 25th July, 2013 the respondents wrote to the appellants “without prejudice save as to costs” calling upon the appellants to withdraw their opposition to the will of the deceased being proved and to agree to remove the caveat and to discontinue the litigation. The letter sets out the various information, affidavits and medical reports that had previously been furnished to the appellants’ solicitors. Furthermore, the said letter contains an offer “that of the net balance in the estate after such payments 50 per cent be paid to your clients (to be divided as they may choose), and 50 per cent to our client, Mary Butler.” The appellants ignored the said correspondence and failed to engage with it. The appellants have pursued prodigiously expensive litigation in a thoroughly unproductive manner in respect of a relatively small estate.
63. Elements in the conduct of the appellants which influenced the trial judge in making an order for costs against the appellants on a solicitor and own-client basis are set out primarily at paras. 45-52 of his judgment. The trial judge’s dissatisfaction with the conduct of the appellants is wholly understandable.
64. The fact that in a Calderbank letter on 25th July, 2013, two years prior to the hearing, at a point before a substantial bulk of the estate was committed to dissipation in litigation costs, an offer that the net balance of the estate after discharge of certain payments to the extent of 50 per cent was made by the respondents is a material factor in determining whether an order for costs should have been made against the appellants at the conclusion of the High Court proceedings. However,the exercise of discretion by a High Court judge must remain reviewable in any circumstance where it is incorrectly premised. This is particularly so in the context of a will suit. The jurisprudence established by the Supreme Court in Vella v. Morrelli provides that an appellate court has an extensive power to substitute its own discretion in place of the discretion of a trial judge although the court on appeal ought to “give great weight to the views of the trial judge per Budd J. at p. 29.
65. By the time of the trial the only vestige of doubt remaining with regard to the validity of the will centred on the medical evidence and in particular the apparently inconsistent medical reports of 30th June, 2011 and 2nd July, 2013 furnished to the respondents and the appellants respectively by Dr. Fennelly. It is clear that the trial judge probed in detail these apparent inconsistencies and paras. 29-34 of the judgment reflect that assessment. Ultimately, at the hearing, Dr. Fennelly clarified the apparent inconsistencies:-
“I asked Dr. Fennelly about what appeared to be some inconsistency between the views expressed in the report of 30th June, 2011 and that of 2nd July, 2013. In response to that, he said that it was difficult for him to comment in detail about her testamentary capacity as from a legal perspective he was somewhat unfamiliar with what the requirements of the law were. He did however appear to be of the view that whilst the deceased’s post-admission medication was very strong and opiate based, the type of medication she was taking before admission ought not have affected her mental capacity.”
66. Whilst the respondents seek to rely on Gainey v. Elan Corporation [2005] IEHC 111 and Shell E & P Ireland Limited v. McGrath (No. 3) [2007] 4 I.R. 277 as justifying the order for costs on a solicitor and client basis I am satisfied in all the circumstances having due regard to the jurisprudence on probate costs that has developed over the past two centuries as analysed in Vella v. Morrelli [1968] 1 I.R. 11 in the context of the Constitution Article 34 and as later reviewed by the Supreme Court in Elliott v. Stamp [2008] IESC 10 that this is a case where it is appropriate to set aside the order for costs as made by the trial judge and substitute in its place an order that the appellants pay the respondents costs, including all reserved costs, on a party and party basis. Otherwise the appellants’ appeal stands dismissed on all grounds.
In the Goods of Patrick Hennessy, Deceased
King’s Bench Division (Probate).
2 November 1923
[1924] 58 I.L.T.R 12
Dodd J.
Motion for Probate. Patrick Hennessy, of Killaree, Three Castles, County Kilkenny, died on 15th August, 1916, leaving a will dated 20th December, 1913, in which the clause appointing executors was in these words: “I appoint as executors Edward Shanaghan, Killaree, Three Castles, and Thomas Lisdowney, Ballyragget.” The District Probate Registrar having, on instructions from the Principal Registry, declined to issue a grant on an application made on behalf of Edward Shanaghan as “sole executor,” the present motion was instituted for the purpose of ascertaining to whom the grant should be made. From an affidavit sworn by Edward Shanaghan (named as an executor in the will) and John Hennessy, a son of the testator, it appeared that there was no person living in the neighbourhood of the testator’s residence bearing the surname “Lisdowney.” There was, however, a townland called Lisdowney near Ballyragget, and this townland was the residence of a man named Thomas Maher, a close personal friend of the testator. One of the testator’s sons was named Thomas, but he lived at Killaree with the testator, and not at Lisdowney. The testator after making his will told his son, John Hennessy, that he had appointed Edward Shanaghan and Thomas Maher as his executors.
Bacon moved for an order declaring that Thomas Maher, of Lisdowney, Ballyragget, was the person referred to by the testator and described in his will as “Thomas Lisdowney, Ballyragget,” and that the said Edward Shanaghan and Thomas Maher be at liberty to apply for a grant of Probate. Such an order was made In the Goods of De Rosaz, [1877] 2 P. D. 66, where the original will omitted the surname of the intended executor, and contained only his Christian name and the town in which he resided. Boardman v. Stanley, Irish Reports 6 Equity 590, is a still stronger example of the extent to which the Court will go in order to give effect to what it believes, from the context of the will, to have been the intention of the testator. In the Goods of Cooper, [1899] Probate 193, the Court struck out a surname which had been inserted by a clerical error, and granted probate to the person whom the testator had evidently intended to appoint.
Dodd, J., after referring to In the Goods of Wrenn, [1908] 2 I. R. 370, said—I have no power to add any words to a will. I can strike out words which appear to have been inserted in error. In the present case it is not necessary to strike anything out; I have only to decide who it was whom the testator intended to appoint as executor when he wrote the words “Thomas Lisdowney.” To ascertain the intention I am entitled to look into the circumstances of the testator and his family and surroundings. Plainly the testator did not intend to appoint his son Thomas. The latter does not answer to the description, as he lives at Lissaree and not at Lisdowney. Thomas Maher, however, answers to the description in the will, and so far as the evidence before me goes, no one else does. I am satisfied, therefore, that it was his friend, Thomas Maher, of Lisdowney, whom the testator intended to appoint as one of his executors, and that he is the person described in the will as Thomas Lisdowney.
The order of the Court was as follows:—“It appearing to the Court that there is no such person as ‘Thomas Lisdowney,’ named as an executor in the will of the said deceased bearing date the 20th day of December, 1913, and that the words ‘Thomas Lisdowney’ in said will were meant to designate Thomas Maher, of Lisdowney. It is ordered by the Court that the said Edward Shanaghan and the said Thomas Maher, of Lisdowney, be at liberty to apply for a grant of probate of said will as the executors therein named.”
In the Goods of William Henry Dixon, Deceased
King’s Bench Division (Probate).
1 December 1922
[1923] 57 I.L.T.R 70
Dodd J.
December 1, 1922
William Henry Dixon, late of Dublin, made his last will, dated 17th day of January, 1916, as follows:—“I bequeath all my furniture and household effects (except such articles as belonged to my late wife Alice as my son may desire to have) unto my dear wife Jamesina absolutely. I bequeath all the residue of my estate whatsoever and wheresoever unto my executor hereinafter named upon trust to realise same, and out of the proceeds thereof to pay my debts, funeral and testamentary expenses, and to divide the balance into the following shares, viz.: One-third to my son Harry absolutely; and two-thirds thereof to be invested by my executor upon trust, to pay the income and dividends thereof unto my wife during her life, and after her decease to pay said two-third share and the investment thereof unto my said son for his absolute use and benefit; and I appoint my brother-in-law my sole executor. In witness, etc.” The said William Henry Dixon died on the 14th day of November, 1922. The application to appoint St. John A. Reginald Craig, a brother-in-law of deceased, executor of the said will was grounded upon the affidavit of his solicitor seeking a grant of probate, which set out, inter alia, that “since the death of the testator I have ascertained that the said Reginald Craig has two brothers, namely, Joseph Manifold Craig and Richard J. C. Knaggs Craig. I am informed that the said Joseph Manifold Craig was not known to the testator, and has been resident abroad for 20 years. I beg to refer to a letter to me from the said Richard J. C. Knaggs Craig, dated the 24th day of November, 1922, from *70 which it appears the said Richard J. C. Knaggs Craig has no personal knowledge of the affairs of the testator, was never asked to act as executor, and does not wish to act as executor. I am personally aware that the said Reginald Craig was a close personal friend of the testator, and during his spare time assisted the testator in his business, and that it was the intention of the testator that the said Reginald Craig should act as his executor. I am informed by the said Reginald Craig and believe that the testator discussed with him the terms of his intended will, and asked him to act as executor, and that he informed the said Reginald Craig as to the contents of his will, and that he had appointed him sole executor.” Exhibit was made of a letter from the widow to the solicitor to the testator as follows:—“My husband consulted me when drawing up his will and distinctly stated he had appointed my brother Reginald his sole executor. For more than the past twenty years my husband always consulted him in all matters, both private and business, and he is thoroughly conversant with all my husband’s affairs, and I know no one more suitable to act as his executor.” Further exhibit was made of a letter of the same date from R. H. C. Knaggs Craig afo esaid that “the deceased did not consult me with reference to his private affairs or his will, and did not at any time approach me to act as his executor, nor do I wish to act in any such capacity.”
Charles Murphy appeared for the applicant.
Dodd, J., made an order appointing St. John A. Reginald Craig executor of the said will