Carroll v Carroll
|Mr. Justice Peter Shanley.
|05 March 1998
| IEHC 42
|05 March 1998
 IEHC 42
THE HIGH COURT
O'FLANAGAN V RAY-JER LTD UNREP COSTELLO 28.4.1983 1983/11/3316
ALLCARD V SKINNER 36 CH 145
GREGG V KIDD
NORIAH V BIN OMAR
HANBURY & MARTIN MODERN EQUITY 4ED 821
GREALISH V MURPHY
KEANE EQUITY & THE LAW OF TRUSTS IN IRELAND PARA 17.16
Deed of conveyance; undue influence; improvident transaction; conveyance of public house and residential accommodation to son; applicants seek to have transaction set aside on grounds of undue influence and improvidence; whether there was a presumption of undue influence; whether this presumption was rebutted by evidence of the free exercise of the father's will; whether there was independent legal advice; whether the plaintiffs were guilty of laches Held: Transaction should be set aside on the grounds of undue influence and improvidence
Carroll v. Carroll - High Court: Shanley J. - 05/03/1998 -
JUDGMENT delivered the 5th day of March 1998 by Mr. Justice Peter Shanley.
In these proceedings the Plaintiffs seek to set aside a conveyance made on the 3rd of May 1990 on the grounds that that conveyance was procured by undue influence and was in itself an improvident transaction. The property which was the subject matter of the conveyance of the 3rd of May 1990 was a public house together with residential accommodation situated at Burke Street, Fethard, County Tipperary and which was owned in fee simple by one Thomas Carroll Snr. By the conveyance of the 3rd of May 1990, Thomas Carroll Snr, conveyed his interest in the premises to his son Thomas Carroll Jnr.
"In consideration of the natural love and affection which Thomas Carroll bears for his son, Thomas Carroll"
subject only to a right of Thomas Carroll Snr. to reside in the dwelling house attached to the public house for the remainder of his lifetime. The Plaintiffs are the legal personal representatives of Thomas Carroll Snr. now deceased and the Defendant is the legal personal representative of Thomas Carroll Jnr. who is also deceased.
Thomas Carroll Snr. married in 1959. Upon his marriage he decided that he would purchase a public house which he did by a conveyance dated the 31st of December 1960, whereby one Angela Kennedy conveyed to Thomas Carroll Snr. and his wife Sarah the premises at Burke Street, Fethard, County Tipperary. It appears that at the time he got married and at the time the public house was purchased, Mr. Carroll was in his late 40's and suffering from arthritis. The business of the public house was thereafter run by Mr. Carroll's wife Sarah (known as Sadie). She it was who assumed responsibility for the day-to-day management of all aspects of the business. While Mr. Carroll helped occasionally in relation to the business, he did not in any way interfere with the overall management of the business by his wife. By all accounts the marriage of Mr. Carroll and his wife was an extremely happy one, and there were three children borne of their union. Winifred was born on the 20th of February 1962; Thomas was born on the 11th of August 1964 and Mary Jane was born on the 8th of January 1968. As the children grew up in Fethard the family was known locally as a very close knit and happy family.
The first two of the children, Winifred and Thomas, started out at local schools. Winifred spent the last two years of her schooling as a boarder. Thomas went to a local school in Fethard. He was not particularly interested in academic studies and his main preoccupation and interest was in farming. A number of his uncles (brothers of his father) had farms near Fethard in County Tipperary. In particular, the Carrolls relations had a farm at Milltown, County Tipperary and at Killusty, County Tipperary. Young Thomas devoted all his free time to working on the farms and helping his uncles with the farm work. Mary Jane, the youngest of the three children, started her schooling in Fethard but the last five years of her school going years were spent as a boarder in Loretto Convent in Rathfarnhman in Dublin. Thereafter she attended Alexandra College for a further year doing a course in Commercial Studies. Throughout their childhood, when they were not away in Dublin, the children lived with their parents in the residential accommodation attached to the public house. The turnover and resulting profit from the business of the public house was such as to be able to finance the schooling of the three children and the maintenance of the entire family during these years. As soon as they were able to assist in the running of the public house the children did so, but from 1974 onwards Sadie Carroll had engaged the services of a full time barman (Noel Sharpe) in the public house.
Winifred, after her last two years in boarding school in Dublin, took a job as a secretary and lived in Dublin travelling home to Fethard every weekend. Eventually she got engaged to be married and got married in September of 1986. Unfortunately, her husband became unwell and was hospitalised and ultimately in February 1988 her marriage was annulled. Winifred purchased a house in Ballyboden in County Dublin with the assistance of a loan from a building society. She currently resides in that house with her sister Mary Jane Carroll. Mary Jane after she had left Alexandra College obtained a job in Dublin and commenced to reside with her sister after the break-up of her sisters marriage. Both of the sisters gave evidence in this case that every weekend they would travel down to Fethard County Tipperary and help out in the running of the public house. When Thomas Jnr. finished his schooling he spent a short time working in Dublin, but his real love was farming and he soon returned to Fethard County Tipperary so that he could help uncles in the running of their farms. As I have indicated, one of those farms was at Milltown, County Tipperary. It was owned by Patrick and Philip Carroll who were brothers of Thomas junior's father. Sadie Carroll in 1988 arranged for Thomas Jnr. to acquire a one-third interest in the farmlands at Milltown, County Tipperary in consideration for Thomas Jnr. looking after his uncles Patrick and Philip, and agreeing to come and reside on the premises should he be required to do so, and in consideration of him helping in the management of the farm. On the 22nd of April 1988, Thomas Carroll Jnr. was registered as full owner, as tenant in common of one undivided third share of the property which was a farm containing approximately 185 acres. Apart from his interest in the Milltown farm, Thomas Jnr. also helped another uncle (Gus) at a farm at Killusty, County Tipperary. When his uncle Gus eventually died, in the early 1990's, Thomas Jnr. was left one half of the farm at Killusty, County Tipperary which amounted to about 45.2 acres.
Sadie Carroll died of cancer on the 13th of June 1989. The family had known for some time that she had cancer and that she was dying. Both of her daughters came home as often as they could before the time she died, and both of them in any event came home every weekend to help and comfort both her and their father. During the time of her illness and when she became unable to run the public house business, Thomas Jnr. assumed control of the business during weekdays. At weekends both Mary Jane and Winifred helped in the running of the public house. The death of Sadie Carroll affected every member of the family deeply. Her husband was devastated. At the time of her death, he was in his late 70's and suffered from a number of health complaints; he had severe arthritis which caused him a huge amount of pain and limited his mobility to a great extent. He had a heart complaint which had necessitated two minor operations for the implant of a pace-maker for his heart. He was suffering from a hearing deficit and also suffering from poor sight. Whilst all of these elements meant that he was, to a large extent, dependant upon his children to do things on his behalf, there was no evidence to suggest that his mind was in anyway impaired at that stage. He was, of course, extremely depressed at the passing of his wife and the phrase "devastated" was used by a number of witnesses to describe the impact his wife's death had upon him.
After the death of Sadie Carroll, Mary Jane stayed at Burke Street for a period of six months and during that time helped in the running of the public house and assisted her father in relation to day-to-day chores. Although Thomas had obligations in relation to his uncles at the Milltown farm, he nonetheless helped out in the running of the public house business and eventually he assumed responsibility for that business on a day-to-day basis. After the girls returned to Dublin, they came home to Fethard every weekend and when they were there at the weekends they also helped out in the public house. The business of the public house was "in the name of" Thomas Carroll Snr., it had never been in the name of Sadie Carroll or any other member of the family. There was a liability of the business to the Revenue Commissioners in the respect of Valued Added Tax of some £20,000. Thomas Carroll Jnr. was concerned to raise money to pay off and discharge this liability to the Revenue Commissioners. He spoke to his sister Winifred about the possibility of the business being transferred from his father's name into his name. Winifred Carroll recalls explicitly her brother asking her to ask her father to agree to sign over the running of the business to Thomas Carroll Jnr. Initially she said no, but eventually she did ask her father to let her brother run the business for the time being. Mary Jane Carroll recalls her brother mentioning the need to transfer the business to him for certain tax...
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