Cawley v Lillis

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 06 December 2011
• Neutral Citation: [2011] IEHC 515
• Date: 06 December 2011
• Court: High Court
• Docket Number: [2010 No. 410 SP]

Cawley v Lillis

IN THE MATTER OF THE ESTATE OF CELINE CAWLEY LATE OF ROWAN HILL, WINDGATE ROAD, HOWTH IN THE COUNTY OF DUBLIN DECEASED

AND

IN THE MATTER OF QUESTIONS ARISING IN THE COURSE OF THE ADMINISTRATION OF THE SAID ESTATE

BETWEEN

CHRISTOPHER CAWLEY AND SUSANNA CAWLEY

AND

BY ORDER GEORGIA LILLIS

PLAINTIFFS

AND

EAMON LILLIS

DEFENDANT

[2011] IEHC 515

[No. 410 SP/2010]

THE HIGH COURT

SUCCESSION LAW

Point tenancy

Death of deceased joint tenant caused by second joint tenant - Right of survivorship - Constructive trust - Severance - Applicable law - Principles to be applied - Whether right of survivorship operates - Whether joint tenancy severed - Whether legal title vested in second joint tenant - Whether legal title impressed with constructive trust - Terms of trust - Re Pechar (Decd) [1969] NZLR 574 considered - Trustee Act 1893 (56 & 57 Vict, c 53), s 26 - Succession Act 1965 (No 27), ss 24 and 120 - Land and Conveyancing Law Reform Act 2009 (No 27), s 31 - Declaration in favour of defendant (2010/410SP - Laffoy J - 6/12/2011) [2011] IEHC 515

Cawley v Lillis

Facts: The Deceased was survived by her husband and daughter and had died testate. The defendant, her husband, was convicted of her manslaughter and was precluded by s. 120 Succession Act 1965 from succeeding to any interest in the estate of the Deceased and had expressly enounced his right to probate. The proceedings related to assets held in the joint names of the Deceased and the defendant, held as joint tenants and not tenants in common. The Court had to consider inter alia rights of survivorship, severance and the interest of the defendant.

Held by Laffoy J. that in the absence of legislation empowering the Court to interfere with the defendant's existing rights at the date of the Deceased death, the Court had no power or jurisdiction to so. The entirety of the joint assets did not form part of the estate of the Deceased to the exclusion of the defendant. While severance did not occur on the death of the Deceased, the joint assets had accrued to the defendant solely but as to one half-share thereof they were held by him on a constructive trust for the estate of the Deceased. On the death of the Deceased, the joint assets became vested in the defendant upon a constructive trust as to one half share thereof for the defendant in his own right and as to the other one half share thereof upon the trusts applicable thereto as part of the estate of the Deceased. Ideally, legislation was required to be enacted prescribing the destination of co-owned property in the event of the unlawful killing of one of the co-owners by another co-owner.

Reporter: E.F.

SUCCESSION ACT 1965 S120

SUCCESSION ACT 1965 S120(1)

SUCCESSION ACT 1965 S120(5)

SUCCESSION ACT 1965 S27(4)

DELANY EQUITY & THE LAW OF TRUSTS IN IRELAND 5ED 2011 172

AMICABLE SOCIETY FOR A PERPETUAL ASSURANCE OFFICE v BOLLAND 6 ER 630 1830 2 DOW & CL 1

CLEAVER & ORS v MUTUAL RESERVE FUND LIFE ASSOCIATION 1892 1 QB 147

ESTATE OF CRIPPEN (DECEASED), IN RE 1911 P 108

CONSTITUTION ART 40

JUDGE MAHON & ORS v LAWLOR 2011 1 IR 311 2010/33/8157 2010 IESC 58

MEGARRY & WADE THE LAW OF REAL PROPERTY 4ED 1975

CHALLIS LAW OF REAL PROPERTY: CHIEFLY IN RELATION TO CONVEYANCING 3ED 1911

MEGARRY & ORS THE LAW OF REAL PROPERTY 7ED 2008 PARA 13.049

RASMANIS v JUREWITSCH 1970 1 NSWR 650 70 SRNSW 407

FORFEITURE ACT 1982 (UK)

K (DECEASED), IN RE 1985 CH 85 1985 2 WLR 262 1985 1 AER 403

LAW OF PROPERTY ACT 1925 (UK)

WYLIE IRISH LAND LAW 4ED 2010 462

DUNBAR v PLANT 1998 CH 412 1997 3 WLR 1261 1997 4 AER 289

SCHOBELT v BARBER 60 DLR (2D) 519

PUPKOWSKI, IN RE 6 DLR (2D) 427

SCOTT THE LAW OF TRUSTS 1ED 1939 VOL 3 2383

PECHAR (DECEASED), IN RE 1969 NZLR 574

SCOTT THE LAW OF TRUSTS 2ED 1956 PARA 493.2

THORP & THE REAL PROPERTY ACT 1900 1962 NSWR 889

LAND & CONVEYANCING LAW REFORM ACT 2009 S30

LAND & CONVEYANCING LAW REFORM ACT 2009 S31

TRUSTEE ACT 1893 S26

1 Judgment of Miss Justice Laffoy delivered on 6th day of December, 2011.

1. Factual background

2 2 1.1 Celine Cawley (the Deceased) died on 15 ^th December, 2008. She was survived by her husband, the defendant, and her daughter, the third plaintiff (the Beneficiary), who was her only issue. When these proceedings were initiated by special summons which issued on 15 ^th June, 2010, the Beneficiary was a minor, having been born on 24 ^th November, 1992. By order of the Court (Laffoy J.) made on 27 ^th June, 2011, it was ordered that the Beneficiary, who had attained her majority, be joined as a co-plaintiff in these proceedings.

3 3 1.2 The Deceased died testate, having executed her last will and testament on 7 ^th June, 1993. By her said will the Deceased appointed the defendant to be sole executor thereof. She devised and bequeathed all of her property to the defendant for his own use and benefit absolutely and appointed him sole residuary legatee. However, the Deceased made alternative provision in her will, which was to apply should the defendant predecease her or should he not survive her by thirty days. Should either of those events occur, the Deceased appointed the first and second plaintiffs (the Personal Representatives) to be executors and trustees of her will and she directed that they should hold the whole of her estate upon the trusts set out.

4 4 1.3 On 29 ^th January, 2010 the defendant was convicted after a trial by a Judge sitting with a jury at the Central Criminal Court of the manslaughter of the Deceased. On 5 ^th February, 2010 he was sentenced to a period of six years and eleven months imprisonment having been so found guilty, the said sentence to commence on 4 ^th February, 2010. Not having appealed against conviction or sentence, the defendant is currently serving the term of imprisonment.

5 5 1.4 The conviction of the defendant for the manslaughter of the Deceased has certain implications in relation to the distribution of the estate of the Deceased by virtue of the application of s. 120 of the Succession Act 1965 (the Act of 1965). Subsection (1) of s. 120 provides:

"A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under section 117."

6 After, in the succeeding sub-sections, providing for other circumstances in which persons are excluded from succeeding to the estate of a deceased person, sub-section (5) of s. 120 provides:

"Any share which a person is precluded from taking under this section shall be distributed as if that person had died before the deceased."

7 By application of those provisions, the defendant is precluded from succeeding to any interest in the estate of the Deceased. Accordingly, the Beneficiary, being the only issue of the Deceased and having reached the age of eighteen years, is solely beneficially entitled to the residuary estate of the Deceased under the trusts declared in her will.

8 6 1.5 Subsequent to his conviction, the defendant executed a renunciation whereby he expressly renounced his right to probate of the will of the Deceased. On 24 ^th March, 2010 letters of administration with the said will annexed of the estate of the Deceased were granted by the Court to the Personal Representatives, being the persons appointed by the Court pursuant to an order of the Court (O'Neill J.) dated 1 ^st March, 2010 made pursuant to s. 27(4) of the Act of 1965. The defendant acknowledged that he had no entitlement to the assets of the Deceased, that is to say, assets that were held by the Deceased in her sole name.

9 7 1.6 The issues raised in these proceedings relate to assets which were not held in the sole name of the Deceased but were held in the joint names of the Deceased and the defendant, which will be referred to collectively as "the joint assets". In summary those joint assets are the following:

10 (a) The former family home of the Deceased and the defendant known as Rowan Hill, at Windgate Road, Howth in the County of Dublin, which is registered on Folio 31534F of the Register of Freeholders, County Dublin (Rowan Hill). On 16 ^th February, 2000 the Deceased and the defendant were registered as full owners with absolute title on the said Folio. The most recent valuation of Rowan Hill which has been put before the Court was carried out by Sherry Fitzgerald on 1 ^st November, 2011. The value ascribed to the property at that date was €750,000. However, the opinion was expressed by the valuer that, "if the house had no unfortunate history", the value would be in the region of €1m to €1,100,000. From the submissions made at the hearing of the proceedings on 16 ^th November, 2011, it is clear that both sides are ad idem that the current value of Rowan Hill is in the region of €750,000 to €800,000. I note from the correspondence put in evidence, and in particular from the letter of 17 ^th May, 2011 from the plaintiffs' solicitors to the defendant's solicitors, and also from the written submissions of counsel for the plaintiffs, that, while a charge is still registered against Folio 31534F, it was discharged before the death of the Deceased.

11 (b) A dwelling house, 32, Tramway Court, Sutton, County Dublin (32, Tramway Court). The title to 32, Tramway Court is an unregistered title and the property was acquired by the Deceased and the defendant as joint tenants in fee simple by virtue of a conveyance dated 25 ^th January, 2002. Sherry Fitzgerald put a value of €220,000 on that property as at 1 ^st November, 2011. Once again, it appears that both sides are ad idem as to the current market value of that property (in the region of €190,000 to €220,000), which is let to tenants. I note that a mortgage raised...