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

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 12 March 2008
• Neutral Citation: [2008] IESC 10
• Court: Supreme Court
• Docket Number: [S.C. No. 465 of 2006]
• Date: 12 March 2008

BETWEEN

ANASTASIA ELLIOTT SUING BY HER ATTORNEY DAVID ELLIOTT

PLAINTIFF

AND

ROBERT STAMP AND BRIDIE STAMP

DEFENDANTS

Kearns J.

Macken J.

Finnegan J.

[S.C. No. 465 of 2006]

THE SUPREME COURT

Abstract:

Practice and procedure - Probate law - Costs - Rule in In Bonis Morelli: Vella v. Morelli - Challenge to will - Whether costs awarded to unsuccessful plaintiff insufficient - Whether rule appropriate - Application of rule - Whether was undue influence

: The issue arose in proceedings as to the application of In Bonis Morelli Vella v. Morelli in probate actions. The plaintiffs had brought a challenge to the validity of a will, alleging inter alia undue influence. The High Court held that the will had been validly executed and awarded the plaintiffs one third of their costs from the estate. The plaintiffs alleged that pursuant to In Bonis Morelli that they should have received their full costs.

Held by the Supreme Court per Kearns J. that the appeal would be allowed. The plaintiffs would be allowed their full costs from the estate. The trial judge had not reasoned the award made. The rule in In Bonis Morelli served an important purpose in such litigation so as not to deter litigation.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Kearns delivered the 12th day of March, 2008

2 This case raises an important issue about costs in probate actions and is perhaps the first time this topic has been revisited since the seminal decision of this Court in In bonis Morelli:Vella v. Morelli [1968] I.R.11 (hereafter " Vella v Morelli ).

3 Nicholas Roche, the deceased herein, late of Ballyvalden, Blackwater, Co. Waterford, died a bachelor without issue on 3rd May, 2003. He was seventy years old. His assets, amounting in value to approximately EUR1.5 million, included a residential farm, credit union deposits and cash. The deceased was survived by three sisters, Anastasia Elliott, the first named plaintiff, Bridie Stamp, the second named defendant and Mary Roche, an unmarried sister who gave evidence in the case but was not a party to the proceedings. The second named plaintiff is a son of the first named plaintiff and is acting on her behalf pursuant to a Power of Attorney granted on 6th April, 2004. The first named defendant is a son of the second named defendant and is thus a nephew of the deceased. He is the principal beneficiary and sole executor appointed under the will of the deceased dated 20th February, 2003.

4 In the proceedings brought by the plaintiffs the parties agreed that the issues to be determined at trial were as follows:

• (a) Whether the will was executed in accordance with the provisions of the Succession Act, 1965;

• (b) Whether the testator Nicholas Roche was of sound disposing mind and

• (c) Whether the will was procured by duress or influence of the defendants or either of them

• (d) Such other issue as to the Court might seem proper

5 The proceedings began by way of Plenary Summons dated 13th July, 2004. Certain particulars were given in the Statement of Claim regarding alleged dominion and control and the involvement of the defendants, and in particular the first named defendant, who is an accountant, in the procuring of a solicitor for the purposes of preparing and executing the will which, the particulars continued, was not the product of the free and voluntary act of the deceased but rather was the result of requests and/or demands made of the deceased by the defendants or either of them. It was further claimed that the deceased was in fear of not complying with the said requests.

6 The defence denied that the will was void. It contended that the act of the testator was the free act of a person who made the will with full capacity, competence and understanding. The will had been prepared over a two day period between 19th and 20th February, 2003, with the advice and assistance of a senior legal executive who had special responsibility for conveyancing and wills in a solicitor's firm. It was denied that there had been any interference, duress or influence, undue or otherwise, in and about the making of the will. It was further contended that the will contained numerous legacies and bequests in accordance with the testator's detailed instructions to his solicitor.

7 By Notice of Motion dated 30th January, 2006, the defendants applied for an order striking out the plaintiffs' claim for failure to comply with the requests for further particulars and on the grounds that the plaintiffs' claim disclosed no reasonable cause of action. It was contended that there was no evidence to support the plaintiffs' claim of undue influence on the testator and that no evidence of same had been provided in the plaintiffs' replies to particulars. The motion was grounded on the affidavit of the first named defendant and exhibited medical reports from two medical practitioners as to the state of health of the testator. There were further affidavits of Mr. Dick Parle, a beneficiary under the will and a neighbour and friend of the deceased; of Mrs. Bridie Stamp, the second named defendant, and of Mr. Tom Murphy, legal executive in the firm of M. J. O'Connor & Co., Solicitors, as to his role in taking instructions, drafting and witnessing the execution of the will.

8 On 23rd June, 2006, the High Court (Quirke J.) refused the application to dismiss and directed that the issues recited above be determined in relation to the said purported will.

9 The matter came on for hearing in the High Court between 17th and 18th October, 2006. Prior to the commencement of the case the plaintiffs withdrew their claims in relation to due execution and testamentary capacity and elected to run the case on undue influence alone. A large number of witnesses were heard at the hearing and judgment was thereafter given by Murphy J. on 7th November, 2006.

10 The learned High Court judge resolved all issues in favour of the defendants, holding firstly that the said will had been validly executed, secondly, that the testator was of sound mind, memory and understanding and thirdly, that the making of the will had not been procured by any undue influence or duress of the defendants or either of them.

11 In a separate hearing on the issue of costs which took place on 10th November, 2006, Murphy J. heard oral submissions from both sides before awarding the plaintiffs one-third of their costs from the estate.

12 It is from that latter finding and decision that this appeal is brought, the plaintiffs alleging that, pursuant to the well established authority of Vella v. Morelli ,Murphy J. should have awarded to the plaintiffs their full costs from the estate of the deceased. Mr. Brian Spierin, Senior Counsel for the plaintiffs, contended that, on the facts, it had been reasonable to bring the proceedings and, secondly, that the same were brought bona fide, thus meeting the two requirements of Vella v. Morelli. Ms. Mary Laverty, Senior Counsel for the defendants, invited the court to further develop the jurisprudence within Vella v. Morelli ,by indicating that when an executor makes all relevant information relating to the issues in dispute available to the plaintiffs prior to trial and the court is later satisfied, having evaluated that material objectively, that the plaintiffs should at that point have desisted from further maintaining the proceedings, then the court should not award costs from the estate to an unsuccessful litigant. She argued cogently that many small estates were liable to be dissipated entirely unless some mechanism existed whereby a plaintiff who needlessly or vindictively maintained proceedings beyond a certain point was put on hazard of not recovering costs from an estate in such circumstances.

13 BACKGROUND

14 Nicholas Roche was born on 1st March, 1933, and was thus aged seventy years at the date of his death on 3rd May, 2003. He had made no previous will and was illiterate. He had remained on the family farm while his sisters had married and moved elsewhere. It seems he was a quiet and simple man who was in failing health in 2002. He had severe arthritis and a condition known as polymyalgia rheumatica which caused him a great deal of pain. Such was his condition that he stayed with the second named defendant for a seven week period from before Christmas 2002 until he went to Wexford Hospital on 21st February, 2003. During that time the first named defendant introduced him to a new doctor and made arrangements for Mr. Tom Murphy, legal executive, to come to the house to put his affairs in order.

15 Mr. Murphy attended on Mr. Roche on 19th February and spent some two hours with him. He felt Mr. Roche was clear minded and gave him details of family members, assets and wishes. He took instructions for the purpose of drafting a will, but on the next day, 20th February, 2002, Mr. Stamp rang him to say that Mr. Roche had got a bed in hospital for which he had been waiting and asked if Mr. Murphy would come that day. He arrived out with the draft will. Mr. Stamp was present in the house and, as an issue of tax on the farm bequest arose, Mr. Murphy asked Mr.Roche for permission to discuss this matter with Mr. Stamp. Afterwards Mr. Murphy asked Mr. Stamp to leave the room and continued with Mr. Roche. No changes were made to the will which was then executed by the deceased in the presence of Mr. Murphy and his wife who had been brought in for the purpose of witnessing the will from a car waiting outside.

16 When cross-examined, Mr. Murphy agreed that Mr. Stamp, who is an accountant, had business from time to time with the firm M. J. O'Connor. He further agreed that Mr. Stamp had been told of the bequest and the implications

17 for tax before the will was executed. Mr. Murphy agreed that Mr. Stamp had played a significant role in notifying Mr. Murphy of Mr. Roche's desire to make a will.

18 The court also had evidence from Mrs. Mary Murphy, the other attesting witness, who said...