Coomey [Legal Personal Representative of John Richard Cox] v Cox

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 03 March 2023
• Neutral Citation: [2023] IEHC 100
• Court: High Court
• Docket Number: [2015 No. 9608 P]

In the Matter of John Richard Cox Deceased

and

In the Matter of the Succession Act 1965

Between

Anthony Coomey (Legal Personal Representative of the Late John Richard Cox, Deceased)

Plaintiff

and

Mary Sally Cox

Defendant

[2023] IEHC 100

[2015 No. 9608 P]

THE HIGH COURT

Deed of transfer – Undue influence – Unconscionable bargain – Plaintiff seeking an order setting aside a deed of transfer – Whether the deed was executed as a consequence of undue influence

Facts: The plaintiff, Mr Coomey, in his capacity as personal representative of Mr Cox, deceased, sought an order setting aside a Deed of Transfer made on 18th March 2005 by which the late Mr Cox transferred his house and lands near Dundalk, County Louth, from his sole name into the joint names of himself and the defendant, his wife. Counsel for the plaintiff confined the challenge to the Deed to issues of undue influence and unconscionable bargain. The case made by the plaintiff was that, at the time of execution of the Deed, the circumstances were such as to give rise to a presumption that the Deed was executed by the plaintiff as a consequence of the undue influence of the defendant. In addition to denying each element of the plaintiff’s claim, the defendant maintained that a will and codicil made by Mr Cox in June and August 2005, respectively, had been procured by reason of duress or undue influence exerted upon him by his daughters.

Held by the High Court (McDonald J) that, in the circumstances of the case, the Deed of Transfer seriously disadvantaged Mr Cox’s interests in that, contrary to his understanding of the transaction, the Deed robbed him of the ability to provide for his children out of his very valuable estate, notwithstanding the evidence that he wished to provide for his children. In McDonald J’s view, this disadvantage, taken together with the relationship of trust and confidence reposed by Mr Cox in the defendant, was sufficient to give rise to a presumption that the Deed was procured through the undue influence of the defendant. McDonald J did not believe that the involvement of Mr Sheehan, solicitor, was sufficient to rebut the presumption of undue influence. McDonald J could not see anything in the defendant’s evidence which demonstrated that the Deed was the result of the free and independent exercise of intention on the part of Mr Cox. McDonald J concluded that the defendant had failed to rebut the presumption that the Deed was procured by the exercise of undue influence of the defendant over her husband. McDonald J did not believe that there was any proper basis on which to find, on the balance of probabilities, that the 2005 will or the subsequent codicil were procured through the undue influence or duress of Mr Cox’s daughters. For similar reasons, McDonald J believed that a similar conclusion must be reached in so far as the defendant contended that the 2005 will and codicil were procured through the undue influence of Mr Callan, a friend of the Cox family, over Mr Cox or as a consequence of duress or dictation on Mr Callan’s part. McDonald J rejected the case made by the defendant that the 2005 will and codicil were procured through the undue influence of Mr Callan or through the undue influence of her daughters.

McDonald J held that: (a) there should be a declaration that the Deed of Transfer was procured through the presumed undue influence of the defendant; (b) there should be an order setting aside the Deed; (c) he would hear counsel and the defendant as to whether it was necessary or appropriate to make an order directing the Property Registration Authority to amend the Register of Freeholders, County Louth to reflect the order to be made at (b) above; (d) there should be an order dismissing the case made by the defendant that the 2005 will and codicil were procured through the undue influence of Mr Callan, or through the undue influence of her daughters; (e) there should be an order dismissing the case made by the defendant that the 2005 will and codicil were executed as a result of duress on the part of any party or on the dictation of any party; and (f) he would hear counsel and the defendant in due course in relation to the issue outlined at (c) above and in relation to costs.

Relief granted.

JUDGMENT of Mr. Justice Denis McDonald delivered on 3 ^rd March 2023

Table of Contents

Introduction	2
Background	5
Relevant legal principles	7
Undue Influence in the context of the plaintiff's challenge to the Deed of Transfer	8
Undue influence in the context of Mrs. Cox's challenge to the 2005 will and codicil	14
Unconscionability	16
The evidence given at the hearing	18
The terms of the 1991 will	21
The lead-up to the execution of the June 2005 will	22
The circumstances leading to the execution of the 2005 codicil	28
The independent evidence of Mr. Barry Lysaght solicitor	43
The evidence of Mr. Sean Sheehan, solicitor	46
The evidence of Mrs. Cox	51
Determination of the issues	59
Does a presumption of undue influence arise?	59
Has the presumption of undue influence been rebutted?	64
The plaintiff's alternative case based on alleged unconscionability	66
Mrs. Cox's challenge to the 2005 will and codicil	66
The orders to be made	69

Introduction

1 . In these proceedings, the plaintiff, in his capacity as personal representative of John Richard Cox, deceased, seeks an order setting aside a Deed of Transfer made on 18 ^th March 2005 by which the late Mr. Cox transferred his house and lands near Dundalk, County Louth, from his sole name into the joint names of himself and the defendant, his wife. The Deed of Transfer records the transfer of the lands comprised in two named folios in the Register of Freeholders, County Louth from John Richard Cox to himself and his wife, the defendant. The transfer is stated to be “in consideration of the natural love and affection which he bears for his wife”. Mr. Sheehan, solicitor, of Aaron Kelly & Co., acted as solicitor for both parties in this transaction. The circumstances in which the Deed of Transfer was executed will be considered in more detail at a later point in this judgment.

2 . As originally framed, the claim made by the plaintiff was advanced on a number of grounds. It was alleged that the Deed was procured by duress and/or undue influence on the part of the defendant. In the alternative, it was alleged that the transaction constituted an unconscionable bargain. In addition, it was alleged that “a forensic documents examiner” had “found there was insufficient handwriting evidence to support the proposition that the first signature of the deceased appearing on the signature page of the said transfer was that of the deceased”. The plaintiff also raised a plea of non est factum to the effect that the deceased understood that he was signing something other than a deed of transfer. However, on Day 1 of the hearing, it was confirmed by counsel for the plaintiff that the plaintiff was no longer pursuing any allegation that the signature of the late Mr. Cox on the Deed of Transfer was a forgery. In opening the case, counsel for the plaintiff confined the challenge to the Deed to the issues of undue influence and unconscionable bargain. The plaintiff did not advance any case based on the plea of non est factum. In addition, the plaintiff did not pursue the allegation of duress. It should also be noted that, insofar as his case on undue influence is concerned, the plaintiff does not go so far as to allege that there is evidence of actual undue influence exerted by the defendant over her late husband. Instead, the case made by the plaintiff is that, at the time of execution of the Deed of Transfer, the circumstances were such as to give rise to a presumption that the Deed was executed by the plaintiff as a consequence of the undue influence of the defendant. The plaintiff contends that, having regard to the principles established in the case law (discussed below), it is not necessary for him to establish actual undue influence on the part of the defendant. The plaintiff contends that the evidence, discussed below, establishes that, at the time of execution of the Deed, the relations between the late Mr. Cox and the defendant were such as to raise a presumption that the defendant had influence over her husband. On that basis, the plaintiff submits that, if the defendant wishes to uphold the validity of the transaction, she bears the onus of rebutting the presumption of undue influence.

3 . In the defence delivered on behalf of the defendant, an objection was taken that the plaintiff was guilty of inordinate and inexcusable delay in pursuing the claim and that the proceedings should be dismissed on that basis. However, in the course of the hearing, counsel then acting for the defendant confirmed that this element of the defence was no longer being pursued. That was the only issue which was abandoned. The balance of the defence (in which the defendant denies each element of the plaintiff's claim) remains in place. In addition to denying each element of the plaintiff's claim, the defence also raised the following issues:-

• (a) In para. 7, the defendant maintained that a will and codicil made by Mr. Cox in June and August 2005, respectively, had been procured by reason of duress or undue influence exerted upon him by his daughters, Jennifer Coleman and Michelle Cox (wrongly described as “Jennifer Cox and Michelle Coleman” in the defence), and that Mr. Cox was not acting freely and voluntarily at that time and that he had “succumbed to the pressure for peace sake”. Curiously, para. 7 of the defence raises this plea expressly “without seeking to impugn the validity of the Will… or the Codicil…”. In addition, it should be noted that, at the resumed hearing in 2022, the defendant (who...