O'Connell v O'Connell

• Jurisdiction: Ireland
• Judge: Ms. Justice Nuala Butler
• Judgment Date: 26 February 2021
• Neutral Citation: [2021] IEHC 127
• Docket Number: [2018 No. 383 SP.]
• Year: 2021
• Court: High Court

IN THE MATTER OF THE ESTATE OF JOHN T. CRONIN (DECEASED) AND IN THE MATTER OF THE SUCCESSION ACT, 1965

BETWEEN

PADRAIG O'CONNELL

PLAINTIFF

AND

THOMAS O'CONNELL

AND

BREDA (BRIDIE) MURPHY

DEFENDANTS

[2021] IEHC 127

Nuala Butler

[2018 No. 383 SP.]

THE HIGH COURT

Wills and probate – Assets – Bequests – Plaintiff seeking to obtain the determination of the High Court as to who was entitled to inherit shares held by the testator at the time of his death – Whether an asset held by the testator at the time he made his will was significantly changed in form by the time of his death

Facts: The testator, Mr Cronin, made a will with the assistance of a local solicitor on 12th July, 1990. He died more than 23 years later on 11th October, 2013 without having updated that will. Material changes to the testator’s assets occurred between the date of his will and the date of his death which gave rise to questions as to whether the intentions expressed in the will could be read as applying to his assets as they stood at the time of his death. In particular, the High Court was asked to decide if an asset held by the testator at the time he made his will was significantly changed in form by the time of his death, and whether a bequest of that asset in its original form was effective to entitle the beneficiary to receive the asset in its altered form. The plaintiff, Mr P O’Connell, was the executor of the testator’s will and brought the proceedings by special summons dated 12th July, 2018 to obtain the determination of the court as to who was entitled to inherit some 8,937 shares in Kerry Group plc held by the testator at the time of his death. The questions posed for determination by the court were as follows: (a) whether the gift of Kerry Co-Operative shares to the first defendant, Mr T O’Connell, included the shareholding the deceased held in Kerry Group plc at the date of his death; and (b) whether the deceased’s shareholding in the Kerry Group plc formed part of the residue of the estate.

Held by Butler J that she was unable to conclude that there was a sound legal basis for treating the gift to the first defendant of the testator’s Kerry Co-Operative shares as carrying with it a gift of the testator’s Kerry Group plc shares which the testator did not own at the time he made his will.

Butler J held that she would answer the questions posed in the special summons as follows: (a) the gift of the Kerry Co-Operative shares to Mr T O’Connell did not include the shareholding the deceased held in Kerry Group plc on the date of his death; and (b) the deceased’s shareholding in the Kerry Group plc formed part of the residue of his estate.

Questions determined.

JUDGMENT of Ms. Justice Nuala Butler delivered on the 26th day of February, 2021

Introduction

1 The testator, John T. Cronin, made a will with the assistance of a local solicitor on 12th July, 1990. He died more than 23 years later on 11th October, 2013 without having updated that will. This case arises because of material changes to the testator's assets which occurred between the date of his will and the date of his death and which, in turn, give rise to difficult questions as to whether the intentions expressed in the will can be read as applying to his assets as they stood at the time of his death. In particular, the court is asked to decide if an asset held by the testator at the time he made his will is significantly changed in form by the time of his death, whether a bequest of that asset in its original form is effective to entitle the beneficiary to receive the asset in its altered form.

2 The plaintiff is the executor of the testator's will and brought these proceedings by special summons dated 12th July, 2018 to obtain the determination of the court as to who is entitled to inherit some 8,937 shares in Kerry Group plc held by the testator at the time of his death. The questions posed for determination by the court are as follows: -

(a) Whether the gift of Kerry Co-Operative shares to Thomas O'Connell includes the shareholding the deceased held in Kerry Group plc at the date of his death;

(b) Whether the deceased's shareholding in the Kerry Group plc forms part of the residue of the estate.

As will be seen, these are really different ways of putting the same question because, if the Kerry Group plc shares form part of the gift to Thomas O'Connell, then they do not form part of the residue of the estate and vice versa.

3 The first defendant, Thomas O'Connell, is a nephew of the testator and the principal beneficiary under his will. The gifts to Mr. O'Connell include an express gift of “Kerry Co-Operative shares”. Through a process which is described in more detail below, over a period between 1993 and 2013 shares in Kerry Co-Operative were cancelled and exchanged for shares in Kerry Group plc. The testator held 1,411 shares in Kerry Co-Operative in 1993 and presumably a similar number when he made his will in 1990. By the time of his death, he held only 390 shares in Kerry Co-Operative. The remainder of his Kerry Co-Operative shares had been cancelled and exchanged for Kerry Group plc shares of which he held 8,937. Mr. O'Connell contends that the gift to him of Kerry Co-Operative shares includes the Kerry Group shares received by the testator in exchange for a portion of his Kerry Co-Operative shareholding subsequent to making his will. He contends that this is so legally as the Kerry Group plc shares have been substituted for the Kerry Co-Operative shares but also contends that this reflects the intention of the testator as expressed on many occasions to him.

4 The second defendant, Mrs. Bridie Murphy, is a sister of the testator and was appointed by order of the High Court made under O. 15, r. 9 RSC on 21st January, 2019 to represent her own interests and those of the other residuary legatees and devisees and those entitled to a share in the partial intestacy arising in respect of the testator's estate. Mrs. Murphy is one of eleven persons, all siblings of the testator, who were entitled to share in the residue of his estate under his will. Only four of those named as residuary beneficiaries survived the deceased and as no provision was made in the will for the disposal of the shares of those residuary beneficiaries who pre-deceased the testator, seven-elevenths of the residue of the estate falls to be dealt with by way of partial intestacy. There are an additional 30 persons, nieces and nephews of the testator, entitled to share in this partial intestacy in varying proportions. In addition to her one-eleventh share of the residue, Mrs. Murphy is entitled to a one-tenth share of the intestate portion of the estate. On her behalf, it is contended that there is no ambiguity in the will. The will must be interpreted to speak from the date of the testator's death and consequently operates so as to pass the Kerry Co-Operative shares held by him at his death but not Kerry Co-Operative shares held by him during the course of his life but disposed of prior to his death. Extrinsic evidence as to what the testator's intention might have been as regards assets which are not addressed in the will is irrelevant. The Kerry Co-Operative shares held by the testator at the time of his death pass to the first named defendant in accordance with his will and the Kerry Group plc shares which are not expressly disposed of by the testator in his will fall into the residue of his estate.

5 This, in outline, is the dispute between the parties. In the balance of this judgment, I will set out how the particular circumstances giving rise to this dispute came about and how they fall to be resolved. However, it is worth observing that the Law Society frequently offers sound advice to the public regarding the advisability of seeing a solicitor in order to make a will. The need to re-attend a solicitor from time to time to ensure that a will is kept updated so that it accurately reflects the intentions of a testator in light of changing circumstances is also something of which the public ought to be made aware. The changes to Mr. Cronin's assets and changes in his family circumstances are all matters on which a local solicitor could have readily advised him. This would have ensured that effect was given to his intentions, whatever they might have been, whether by up-dating the will or by a solicitor's attendance recording that, having discussed the matter with him, the testator did not wish to make any changes to his will. Either way, knowledge that the testator had expressly considered and been advised upon the significance of his Kerry Group plc shareholding, would have enabled his surviving family to be confident that effect was being given to his wishes and might have avoided this litigation and the significant costs which the testator's estate will necessarily incur as a result.

Background Facts – Testator

6 In many ways, the life and circumstances of the testator reflect the changes that have taken place in this country in the century since he was born. The testator was born in 1921 and was one of twelve children reared on a small farm at Ballahantouragh in County Kerry. He left school at the age of twelve or thirteen and began farming, ultimately inheriting the family farm which comprises 38 acres, from his parents. Some of his siblings emigrated, at least one joined the religious life and the others settled locally, marrying and having children. Although the testator never married, the evidence the court heard suggested that he was an integral part of a large extended family and was in regular contact with many of his siblings and his nieces and nephews living locally. The 38 acres held by the testator was of mixed quality and, in his active farming days, he was principally a dairy farmer. This is of some significance because as a milk supplier to a local creamery which ultimately became part of Kerry Co-Operative, he was...