Anastasia Elliott, suing by her attorney David Elliott v Robert Stamp and Bridie Stamp

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 07 November 2006
• Neutral Citation: [2006] IEHC 336
• Docket Number: [No. 10691 P/2004]
• Court: High Court
• Date: 07 November 2006

[2006] IEHC 336

The high court

[No. 10691 P/2004]

ELLIOT v STAMP

between

ANASTASIA elliot and david Elliot

plaintiffs

and

robert stamp and bridie stamp

defendants

SUCCESSION ACT 1965

REGISTRATION OF TITLE ACT 1964 S49

MITCHELL v GARD 33 LJ 7

JARMAN ON WILLS 8ED 31

BRADY SUCCESSION LAW IN IRELAND 2ED PARA 2.91

MORELLI, IN RE 1968 IR 11

POTTER v POTTER UNREP GILLEN 5.2.2003 (NI)

WINGROVE v WINGROVE 1885 1 PD 81

PROBATE: wills

The plaintiff claimed an order inter alia refusing probate of a will as being a “pretended will”, invalidly procured by

way of undue influence. A trial was directed as to whether the will had been executed in accordance with the provisions of

the Succession Act 1965, whether the testator was of sound mind and whether the will was procured by the duress or undue influence of the defendants. The Court heard extensive witness evidence as to all of the points directed for hearing.

Held by Murphy J. that any alleged discrepancies in the actions of the testator did not invalidate the will. The testator was

capable and did know the contents of the will which he had approved of. The testator was not a man susceptible to pressure or dominion and had received independent advice from an experienced legal executive. The will was not procured by duress or undue influence.

Reporter: E.F.

Mr. Justice Roderick Murphy

1 The plaintiffs are the sister and nephew of Nicholas Roche, deceased (the Deceased). The second named plaintiff, the son of the first named plaintiff, pursuant to a power of attorney granted on 6th April 2004, acts on her behalf. The court acceded to an application amending the pleadings to reflect the position of the second named plaintiff.

2 Proceedings began by way of summons dated 13th July 2004, wherein the plaintiff claimed an order refusing probate of "the pretended will" purportedly executed on or about 20th February 2003; a declaration that the said will was not validly executed; that the testator was not of sound disposing mind and, in the alternative, a declaration that the will was procured by acts of undue influence brought to bear upon the Deceased by the defendants.

3 The first named defendant is the principal beneficiary and was appointed sole executor under the purported will. The second named defendant is his mother and the sister of the Deceased.

4 The Deceased, late of Ballyvalden, Blackwater, Co. Wexford, died a bachelor without issue on or about 3rd May, 2003. His assets include a residential farm, credit union deposits and cash.

5 Certain particulars were given in the statement of claim regarding alleged dominion and control, and the involvement of the defendants, and in particular the first named defendant in the procuring of a solicitor for the purposes of preparing and executing the will which, the particulars continued, was not the product of the free and voluntary act of the Deceased but rather was the result of requests and/or demands made of the Deceased by the defendants and either of them. It was further stated that the Deceased was in fear of not complying with the said requests.

6 The undated Defence denied that the will was a pretended will, was void. The act was a free act of the testator who made the will with full capacity, competence and understanding. The Deceased testator independently drew up his will over a two day period between 19th and 20th February with the advice and assistance of a solicitor, and without any interference, duress, or influence, undue or otherwise. The Deceased was of sound disposing mind at the date of the execution of the will which was drawn up in accordance with the provisions of the Succession Act1965(the Act). The will contained many and numerous legacies and bequests in accordance with the testator's detailed instructions to his solicitor.

7 By Reply delivered 31st May 2005, issue was joined. It was denied that the pretended will was the free act of the testator or that he made the will with full capacity, competence and understanding. It was further denied that he drew up his pretended will independently with the advice and assurance of a solicitor and without any interference, duress or influence. Particulars were given that the first named defendant (inadvertently referred to as the second named defendant in the reply) was actively involved in the procuring of the execution of the said will and repeatedly liaised with the solicitor drafting same, both in relation to its drafting up and its execution. He gave information to the instructing solicitor in relation to the tax advantage of the disposition of the Deceased's farm.

8 By way of special reply the plaintiffs put the defendants on strict proof that the Deceased was of sound disposing mind on the date of the execution of the will and that the will was drawn up in accordance with the provisions of the Act. It was denied that the will contained many and/or numerous legacies and bequests in accordance with the testator's detailed instructions.

9 Notice for particulars were raised and replied to but do not appear to have furthered the matter significantly.

10 By notice of motion dated 30th January 2006, the defendants applied for an order striking out the plaintiffs” claim for failure to comply with a request for further particulars and on the grounds that the plaintiffs” claim disclosed no reasonable cause of action etc., there being no evidence to support the plaintiffs” claim of undue influence on the testator and the plaintiffs” having failed to provide same in the replies to particulars. The motion was grounded on the affidavit of the first named defendant exhibiting medical reports. The second named plaintiff, referring to his appointment as attorney of the first named plaintiff, denied responding to the particulars and said that the pretended will was prepared by a non-legally qualified person, was procured in haste and that the statement of claim and reply raised the following issues as valid grounds for challenging the will -

11 Issues of:

the due execution of the will;

lack of capacity; and

12 undue influence.

13 There were further affidavits from Dick Parle, a beneficiary under the will and neighbour and friend of the Deceased; of Mrs. Bridie Stamp, the second named defendant and of Tom Murphy, legal executive in the firm of M.J. O'Connor & Company as to his role in taking instructions, drafting and witnessing the will when executed.

14 By consent order made by Quirke J. on 23rd June 2006, it was ordered that the application be refused and that the costs of the motion be reserved to the hearing of the action.

15 The court directed that the issues to be determined were as follows:

16 1. Whether will was executed in accordance with provisions of the Succession Act1965;

17 2. Whether testator Nicholas Roche was of sound disposing mind; and

18 3. Whether will was procured by duress or influence of the defendants or either of them.

19 The court has carefully considered the oral evidence of the following nine witnesses:

20 The plaintiff gave evidence and commission before Mr. Hugh Byrne, B.L. on 26th September 2006, in the Royal Hospital in Donnybrook. Mrs. Elliot, the plaintiff, is aged eighty one, a widow with six boys. The Deceased was the youngest and was her only brother. He stayed on the family farm. She had been, on occasions, in the 1970s at the farm tidying, cooking and paying bills. The testator was not good at school and could not read. She did not see him when he was with her sister Bridie, the second named defendant.

21 When she was in the Royal Hospital in Donnybrook, she could not go down but she knew he had made a will when he died. He did not like anything about wills and was thinking of getting married.

22 Her boys used to go down in summer and were always there helping. There were others there, but not as much as her boys. Her brother was very quiet and simple. She doubted he would have understood. He could be bullied, if afraid and was not strong willed. While he was slow on the uptake she imagined that he was all right in his head.

23 She said the last time she had been down on the farm was in the 1970s when she used to go down once a week but she had not seen him for a long time.

24 Her brother rang her not long before he died, he was in good form and never complained about his health.

25 She said that she wanted to start this case.

26 David Elliot, the attorney of the plaintiff and nephew of the testator, had visited his uncle in September 2002, and noted that he had deteriorated from his visits from two years previously. He had severe arthritis and looked as if he were dying. He was shocked that he would have made a will. He was aware that his uncle had sold a site and used a solicitor but did not know who it was at some time previously. He was of the opinion that he would be vulnerable and believed that the first named defendant had influenced him while he lived with the second named defendant from Christmas 2002, until he went into hospital on 21st February, the day after he made the will. It was not the will his uncle would have made — he would not have known the Folio number of his farm.

27 In cross-examination he agreed that the first named defendant resided close to his uncle. He did not know the extent to which the defendants had assisted the Deceased. He agreed that his mother, the first named plaintiff had gone to live with the second named defendant for twelve to fourteen months after her husband died and before she got a stroke and then stayed for two weeks with him, before she eventually went into the Royal Hospital in Donnybrook, Dublin.

28 He agreed that his uncle went to Wexford Hospital on 21st of February 2003, and thereafter to St. John's Nursing Home. He returned to his own house on 7th April 2003, expecting home...