Estate of McPartlan v Application by Dinneen

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 11 September 2020
• Neutral Citation: [2020] IEHC 447
• Court: High Court
• Docket Number: [Record No. 19/10617]
• Date: 11 September 2020

IN THE MATTER OF THE ESTATE OF JOHN MC PARTLAN LATE OF 40 ASCAL RIBH, ARTANE, COUNTY DUBLIN, DECEASED

AND

IN THE MATTER OF SECTION 85(1) OF THE SUCCESSION ACT, 1965

AND

IN THE MATTER OF AN APPLICATION BY LINDA DINNEEN OF 31 LOWER BEECHWOOD AVENUE, RANELAGH, IN THE CITY OF DUBLIN AND PATRICK MC PARTLAN, OF FERNDALE, DUBLIN ROAD, MALAHIDE IN THE COUNTY OF DUBLIN

[2020] IEHC 447

Allen

[Record No. 19/10617]

THE HIGH COURT

PROBATE

JUDGMENT of Mr. Justice Allen delivered on the 11th day of September, 2020

Introduction

1 John McPartlan, late of 40 Ascal Ribh, Artane, County Dublin, died on 12th August, 2019.

He was survived by his wife Carol Graham, the respondent to this application, and seven siblings. The deceased and Ms. Graham married on 8th August, 2019.

2 By a will made on 18th June, 2019 the deceased named his sister Linda Dinneen and his brother Patrick McPartlan as his executors. He devised his house at 31 Ascal Ribh, Artane, County Dublin to his seven siblings in equal shares and bequeathed the residue of his estate to Ms. Graham. The value of the residue is a little more than the value of the house.

3 On the executors’ application to prove the will, the issue now before the court is whether the deceased's will of 18th June, 2019 was revoked by his subsequent marriage, in which case Ms. Graham would be entitled to succeed to the entire estate on intestacy.

The evidence

4 Although there was a protracted exchange of affidavits, there is no real contest as to the essential objective facts. There is, as will appear, a sharp divergence of perspective.

5 The deceased grew up in the house at 31 Ascal Ribh, Artane and continued to live there with his mother until she died in 2014. The deceased inherited No. 31 from his mother. Ms. Graham grew up in the house at 40 Ascal Ribh where she continued to live with her mother until she died in 2015. Ms. Graham inherited No. 40 from her mother.

6 The deceased and Ms. Graham were in a long term relationship from January, 1996 but did not live together because they were caring for their mothers. After Mrs. McPartlan died in 2014 the deceased moved in with Ms. Graham and her mother. After Mrs. Graham died in 2015 the deceased and Ms. Graham continued to live in No. 40 until the deceased's death.

7 Over the years the deceased and Ms. Graham were regular visitors to Jersey and while they were on holiday together there in July, 2011 they became engaged. Both were at that time living with and caring for their mothers and there appears to have been no discussion for at least the following three or four years of setting a date.

8 Very soon after his return from Jersey the deceased instructed Messrs. Powderly, solicitors, in Kilcock to prepare his will. In the file note made by the solicitor at that time Ms. Graham is recorded as the deceased's partner but in written instructions prepared by the deceased for his solicitor and dated 15th July, 2011, the deceased described Ms. Graham as his fiancée. The written instructions were that the deceased's primary intention was to provide for his fiancée, Carol Graham, and his mother, Mrs. Sarah McPartlan. They contemplated that Ms. Graham would have half of what were described as his personal assets and his mother the other half. They contemplated that if the deceased's mother were to predecease him, her 50% would go equally to his siblings. If in that event the deceased should have inherited his mother's house at No. 31 but should not have married Ms. Graham, the house should go to his siblings. If the engagement to Ms. Graham should have been broken, by either, she should have 25% of his personal assets, rather than 50%.

9 Mr. Powderly prepared and on 5th August, 2011 the deceased executed a will by which Ms. Graham – therein referred to as his partner – was to have 50% of his estate, whether real or personal property, and the other 50% was to be held on trust for his mother for her life and thereafter, or in the event of Mrs. McPartlan having predeceased the testator, for his siblings.

10 Ms. Graham has averred that over the years – which I understand to be over the years after at least Mrs. McPartlan's death – at family and friends’ weddings, the deceased would raise with her “the question of getting married” but, she says, “we never reached agreement that we would get married”. There was, says Ms. Graham, some discussion of “what sort of marriage we would want”. The deceased is said to have suggested a big celebration. Ms. Graham says that, by contrast with the deceased who was from a big family, she “was from a small family and would never have wanted a big fuss” but does not unequivocally say that she ever said so.

11 What becomes clear from the evidence is that, whatever about Ms. Graham, the deceased was enthusiastic to set a date.

12 In the weeks before his death, after he had been given a terminal diagnosis and a very short prognosis, the deceased gave his brother Patrick unrestricted access to his e-mails and bank accounts, and shortly after his death Patrick McPartlan found an e-mail which had been sent by the deceased to Ms. Graham on 20th July, 2018.

13 It is convenient at this point to deal with an objection which was raised in the replying affidavit of Ms. Graham and the written submissions filed on her behalf on 25th March, 2020 as to the admissibility of the evidence obtained by Mr. Patrick McPartlan from the deceased's files and records. The affidavit of Linda Dinneen on which the application was grounded, and which was sworn on 2nd December, 2019 referred to and exhibited the e-mail of 20th July, 2018 and some other documents to which I will come which were said to have been retrieved by Mr. Patrick McPartlan from the deceased's computer. Ms. Graham in her replying affidavit protested that the access to the deceased's computer had not been explained and was not justified and in a later affidavit persisted in her objection that Mr. Patrick McPartlan had not filed an affidavit. Eventually, but not until 20th April, 2020, after the written submissions had been exchanged, he did, deposing, as I have outlined, that the deceased had given him unrestricted access to his e-mails and bank accounts. That evidence was unchallenged, and the point was not revisited in oral argument.

14 The posthumous accessing of digital records potentially raised all sorts of issues as to ownership of, and entitlement to access, information but no such issue was raised. If Ms. Graham was not satisfied with the explanation eventually given, I take the view that it was unobjectionable that Mr. Patrick McPartlan, as one of the named executors, if not in the continued exercise of the permission which had been given to him by his brother, should have examined his brother's papers and records.

15 In his e-mail of 20th July, 2018 to Ms. Graham the deceased wrote that he was entitled to a week's marriage leave and asked Ms. Graham to establish whether she was entitled to such special leave from her employment. He suggested that they might decide to get married on the first day of Ms. Graham's summer holiday, and possibly keep the wedding secret. He said, “July 2019 seems to fit”. The deceased indicated that he had been making enquiries into civil marriage at the Dublin Registry Office and had established that at least three months’ notice was required. He continued:-

“But we must try and get a date that suits us (July 2019?) – hence we can get organised if you will agree.

You would need a day off work to meet with the registrar to arrange wedding. We both must attend and bring relevant information/documents with us. We are then issued a marriage licence.

We will keep it simple and get it done.

I hope you are happy to marry me!!!

You are not to panic.”

16 Ms. Graham was cross that Mr. Patrick McPartlan had accessed the deceased's e-mails but confirmed that she did not reply to the e-mail of 20th July, 2018 and said that she “did not agree to the hope or suggestion to actually get married”. Ms. Graham acknowledges that she and the deceased spoke about getting married and discussed a couple of possible dates, perhaps July, 2019 or April, 2020 but says that they never fixed a date or made any arrangements towards a marriage ceremony. The direct evidence as to when the discussions as to these possible dates took place is rather vague. Ms. Graham says that they took place “in 2018 and 2019” but it I infer from the date of the e-mail that the possibility of July, 2019 was discussed in or about or shortly after July, 2018.

17 The deceased retired from his work as a primary school teacher in December, 2018. In February, 2019 he was diagnosed with cancer and in March, 2019 was started on chemotherapy. The treatment was difficult, but the initial prognosis was optimistic.

18 In the Spring of 2019 the deceased turned his mind again to estate planning. In the last week of March, 2019 he consulted a tax specialist who set out or summarised his advice in a letter to the deceased of 29th March, 2019. The essence of the advice was that “If you take only one piece of financial advice from me, it should be to marry your fiancée Carol and to do so soon”. The financial adviser set out a summary estimate of the value of the deceased's assets and set out what were described as two radically different scenarios should he die married or unmarried. The adviser calculated that should the deceased decide to leave his entire estate to Ms. Graham, Ms. Graham, if married, would take it tax free, but if unmarried would incur a tax liability of just short of €250,000, and he set out some other figures in relation to pensions. The letter concluded:-

“John, I look forward to meeting you again later in the year – following the successful conclusion of your treatment – to do some long term retirement planning. I hope I will also be able to shake your hand and congratulate you on your marriage....