Carroll v Carroll

• Jurisdiction: Ireland
• Judge: Justice Denham,BARRON J.
• Judgment Date: 01 January 2000
• Neutral Citation: [1999] IESC 11
• Court: Supreme Court
• Docket Number: [S.C. No. 117 of 1998]
• Date: 01 January 2000

CARROLL v. CARROLL

BETWEEN

WINIFRED CARROLL AND MARY JANE CARROLL

PLAINTIFFS/RESPONDENTS

AND

MICHELLE CARROLL

DEFENDANT/APPELLANT

[1999] IESC 11

Denham j.

Lynch j.

Barron j.

No.1994 7751

117/98

THE SUPREME COURT

Synopsis

Contract Law

Undue influence; conveyance; presumption of undue influence arising from the relationship between the donor and donee; whether on the facts and circumstances of the case the donee has rebutted presumption; issue not whether donor exploited; rather whether care should have been taken not to take advantage of donor's position; whether transfer improvident; whether donor received independent legal advice; whether solicitor who acts for both parties can give independent advice; whether respondents acquiesced.

Held: Conveyance set aside in light of the evidence.

Carroll v. Carroll - Supreme Court: Denham J., Lynch J., Barron J - 21/07/1999 - [1999] 4 IR 241 - [2000] 1 ILRM 210

Where the relationship between the donor and donee of property which has been transferred voluntarily gives rise to a presumption of undue influence, it is for the party taking the benefit of that transaction to rebut the presumption of undue influence. The presumption is based on the public policy of protecting certain classes of persons and operates in circumstances where, although no wrongful action is alleged on the part of the donee, assiduous care is required of that donee to ensure that no unconscious pressure is put on the donor. This requirement is usually discharged by ensuring that independent legal advice is given to the donor. In this case the donor and donee were represented by the same solicitor, who was paid by the donee. No evidence was adduced to show that the transfer document had been read over to the donor. Given that the donor had no other assets and had on a number of occasions represented to his daughters - who did not benefit under the transaction - that he would provide for them, the defendant/appellant had not rebutted the presumption of undue influence. In these circumstances it is not enough for the defendant/appellant to argue that there was no evidence to support any allegation of actual undue influence. Nor was there any merit in the argument tht the plaintiff/respondents had acquiesced in the matter since they were unaware of the transaction, and issued proceedings promptly having learnt of it.

Citations:

PROVINCIAL BANK OF IRELAND V MCKEEVER 1941 IR 471

DELANEY EQUITY & LAW OF TRUSTS IN IRELAND (1996) 482

NORIAH V BIN OMAR 1929 AC 126

GREGG V KIDD 1956 IR 183

PROCTOR, R V HUTTON 1978 NI 139

GREALISH V MURPHY 1946 IR 35

O'RORKE V BOLINGBROKE 1876–1877 2 AC 814

HART V O'CONNOR 1985 AC 1000

ALLCARD V SKINNER 1887 36 CH 145

KEANE EQUITY & LAW OF TRUSTS IN IRELAND

H V H UNREP KEANE 20.12.1979 1981/4/591

MCCAUSLAND V YOUNG 1949 NI 49

O'FLANAGAN V RAY-GER LTD UNREP COSTELLO 28.4.1983 1983/11/3316

JOHNSON V BUTRESS 1936 56 CLR 113

HANBURY MODERN EQUITY 9ED 652

COLREAVY V COLREAVY 1940 IR 71

EVANS V LLEWELLIN 1 COX EQ CAS 333

PRIDEAUX V LONSDALE 1 DE G J & S 433

EVERITT V EVERITT 10 EQ 405

LONGMATE V LEDGER 2 GIFF 157

ANDERSON V ELSWORTH 3 GIFF 154

PHILLIPSON V KERRY 32 BEAV 628

WOLLASTON V TRIBE 9 EQ 44

BROCKLEHURST, IN RE 1978 CH 14

POWELL V POWELL 1900 1 CH 243

1 Justice Denhamdelivered the 21st day of July, 1999.

2 This is an appeal by the Defendant/Appellant (hereinafter referred to as the Appellant) from the decision of Mr. Justice Shanley delivered on 5th day of March, 1998, [1998] 2 ILRM, 218, wherein he held that a Deed of 3rd May, 1990 should be set aside.

3 This action was at hearing before the High Court on 19th, 20th, and 24th February, 1998 when, inter alia, oral evidence was heard. Facts were found by the Learned Trial Judge commencing with the fact that the Respondents brought the action to set aside a conveyance made on the 3rd May, 1990 on the grounds that (a) the conveyance was procured by undue influence, and (b) that it was in itself an improvident transaction. The property in question is a public house together with residential accommodation situated at Burke Street, Fethard, County Tipperary which was owned in fee simple by Thomas Carroll Senior. By the conveyance of the 3rd of May 1990, Thomas Carroll Junior,

" In consideration of the natural love and affection which Thomas Carroll bears for his son, Thomas Carroll"

4 subject only to a right of Thomas Carroll Senior to reside in the dwelling house attached to the public house for the remainder of his lifetime. The Plaintiffs/Respondents (hereinafter referred to as the respondents) are the legal personal representatives of Thomas Carroll Senior, who is deceased and the Appellant is the legal personal representative of Thomas Carroll Junior, who is also deceased.

Family History

5 The Learned Trial Judge made clear findings of fact in relation to the family. This litigation arises as a result of events occurring in the Carroll family. In 1959 Thamos Carroll Senior married. He purchased a public house by conveyance dated 31st December, 1960 wherein the premises at Burke Street, Fethard, County Tipperary were conveyed to Thomas Carroll Senior. Thamos Carroll Senior was then in his late 40's suffering from arthritis. THe public house business was run by his wife Sarah, also known as Sadie. Three children were born to Thomas Carroll Senoir and Sarah being Winifred, born on 20th February, 1962, Thomas born on 11th August, 1964 and Mary Jane born on 8th January, 1968. They were a happy family. The children started at local schools, Winifred spent her last two years of schooling at a boarding school and Mary Jane spent five years as a boarder in Loretto Convent in Rathfarnham and then did a commercial course in Alexandra College. Thomas was not particularly interested in academic studies, his main interest was farming. A number of his uncles had farms near Fethard. Thomas Carroll Junior spent much of his time working on the farms and helping his uncles. The family lived in the accommodation attached to the public house. The profit from the business of the public house maintained the family. The children helped in the running of the public house and from 1974 Sadie Carroll engaged the services of a full time barman. Winifred, after her schooling, obtained a job as a secretary in Dublin where she lived and travelled home to Fethard every weekend. She got married in 1986. Unfortunately her husband was unwell and ultimately in February, 1988 her marriage was annulled. Winifred obtained society and purchased a house in Dublin. She resides there with her sister Mary Jane. Mary Jane obtained a job aftershe left Alexandra College and lived with her sister Winifred. Every weekend they, the Respondents would travel to Fethard and help in running the public house.

6 Thomas Carroll Junior, after finishing his schooling, spent a short time in Dublin and then returned to farming and helped his uncles in the running of their farms. In consideration of Thomas Carroll Junior looking after his uncles, Patrick and Philip, and agreeing to reside with them if required to do so, and in consideration of him helping in the management of the farms, on 22nd April, 1988 Thomas Carroll Junior was registered as full owner of farmlands on Milltown, County Tipperary, as tenant in common of one undivided third share of the property, a farm of 185 acres. Also, Thomas Carroll Junior helped his uncle Gus at his farm and when his uncle died in the early 1990's Thomas Carroll Junior was left one half of the farm at Killustry, County Tipperary which amounted to about 45.2 acres.

7 Sadie Carroll died of cancer on 13th June, 1989. She had been ill for some time prior to her death during which time her daughters went home as often as possible and in any event every weekend. When she became too ill to work Thomas Carroll Junior assumed control of the business during the week. At weekends Winifred and Mary Jane helped in the running of the public house. The Learned Trial Judge at p. 221-223 of the reported judgements found the facts at the time of the death of Sadie Carroll as follows:

"Her husband was devastated. At the time of her death, he was in his late 70s 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 compliant which had necessitated two minor operations for the implant of a pacemaker 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 any way 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' death had upon him. "

8 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 a respect of value added tax of some £20,000. Thomas Carroll Junior was concerned to raise money to pay off and discharge this liability to the Revenue...