Crawford v Treacy

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 01 January 1999
• Neutral Citation: [1998] IEHC 158
• Docket Number: [1997 No. 104 Sp.]
• Court: High Court
• Date: 01 January 1999

[1998] IEHC 158

THE HIGH COURT

No. 104 SP/1997

CRAWFORD v. TREACY

IN THE MATTER OF THE ESTATE OF JOHN J. TREACY DECEASED LATE OF SCURLOCK, 2 SUNNYHILL PARK, LOUGHLINSTOWN, CO. DUBLIN

BETWEEN

ALISON J. CRAWFORD AND NIALL HOGAN

PLAINTIFFS

AND

PATRICIA TREACY, RICHARD V. LOVEGROVE AND MICHAEL V. O'MAHONY

DEFENDANTS

Citations:

SUCCESSION ACT 1965 PART IX

RUSSELL V JACKSON 9 HARE 387

FULD (DECEASED), IN RE 1965 OLR 405

SUCCESSION ACT 1965

Synopsis

Practice and Procedure

Privilege; discovery; succession; will; whether there was privilege against discovery of documents relating to the will of the deceased; whether the usual rules governing privilege should be set aside where there is an application by executors for directions and not an action inter partes; whether the documents should be disclosed; whether the discovery of the documents is necessary for the ascertainment of the truth; whether the documents are tainted with moral turpitude

Held: Claim of privilege upheld in respect of some of the documents

(High Court: O'Sullivan J. 04/11/1998) - [1999] 2 IR 171

Crawford v. Treacy

The approach the Court should adopt to a motion of this sort is first to ask whether the documents are privileged under ordinary principles and if privileged under those principles the Court should then ask whether the documents are discoverable as being necessary for the Court to inquire into the truth or whether the court should disallow the claim of privilege over documents as being tainted with moral turpitude. The High Court so held in saying that 6 of the 11 documents in issue should be disclosed and further saying that the remaining documents were not such that the truth could only be found by their disclosure nor were they tainted with moral turpitude.

1 O'Sullivan J. on the 4th November, 1998

2 This is a Motion brought by the first Defendant challenging a claim of privilege made by the Plaintiffs in their Affidavit sworn by the first Plaintiff as executors of the Estate of John J. Treacy (the Deceased) who died on the 5th April, 1996 having made his last Will and Testament on the 25th January, 1995.

3 The first Defendant claims to be the lawful wife of the deceased and is described as his wife in his said Will. To understand the issues arising on this Motion it is necessary to set out briefly the marital history between the first Defendant and the deceased.

4 They were married on the 19th August, 1958 in the Church of Ireland in this country; the following year the first named Defendant left the deceased for England and was divorced from him in that country on the 7th August, 1963. In January of 1959 she had procured a church annulment. On the 27th August, 1963 she married one Mr. Szuch in England from whom she was divorced some eleven years later. In 1975 she returned to Ireland and recommenced to live with the Deceased as his wife. She had maintained contact with him over the years. There is dispute between the parties as to the degree of cohabitation between the first Defendant and the Deceased in the years which followed. It appears that the first Defendant, the Deceased, a previous daughter of the first Defendant with Mr. Szuch and her daughter by the Deceased born on the 31st March, 1976 (Tara and Sarah Jane respectively) resided as a family until the 5th November, 1981 when the first Defendant and the Deceased entered into a separation agreement when they expressly recited that they had received advice that they remained always married and in which they each resigned their legal rights under Part IX of the Succession Act. 1965.

5 Under this agreement a house was purchased the legal interest of which is vested in the second and third named Defendants (who have no direct interest in this particular Motion). For the next nine years or so the first Defendant was in regular contact with the Deceased and in 1990 again resumed cohabitation with him as his wife. They In ed together in a new house bought by the Deceased in 1990 and were living together when he-died in 1996.

6 By his Will dated the 25th January, 1995 the Deceased left a legacy of £50,000 "to my wife". I am told his Estate would be worth somewhere in the order of £9 million so that the first Defendant would be entitled to a vastly greater share of the Deceased's Estate under the Succession Act, 1995 if she was indeed truly his wife.

7 The claim for privilege made by the first Plaintiff in her initial Affidavit of Discovery was made in a form which would suggest that it was based on the ordinary principles relating to litigation as distinct from legal professional advice generally. In a subsequent Affidavit, however, this Deponent said:-

"The documents in respect of which privilege is claimed are documents relating to the preparation of the Deceased's last Will and Testament dated the 25th day of January. 1995. The documents were prepared in contemplation of proceedings being necessary in relation to the Will and Estate of the deceased.

The Deceased envisaged at the time he was making his Will that Patricia Treacy. the first named Defendant herein, would seek to assert entitlements as a spouse pursuant to the provisions of Part IX of the Succession Act, 1965."

8 Counsel for the Plaintiffs have made it clear on the hearing of this Motion, however, that the claim of privilege rests not only upon the basis of documents brought into existence in contemplation of litigation, but also upon the basis that it was legal professional advice obtained not necessarily in contemplation of litigation.

9 Counsel for both parties addressed me on the ordinary principles of discovery which are clearly established. I have been requested to consider the documents in dispute and I have done so.

10 Counsel for the first Defendant has submitted, furthermore, that in the event that I conclude that some (or all) of the disputed documents are entitled to a claim of privilege on either of the two bases submitted, then I should proceed further to consider the following two submissions to the...