G. R v Regan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 25 February 2020 |
| Neutral Citation | [2020] IEHC 89 |
| Date | 25 February 2020 |
| Docket Number | [2019 No. 17 Sp.] |
| Court | High Court |
IN THE MATTER OF THE CIVIL PARTNERSHIP AND CERTAIN RIGHTS AND OBLIGATIONS OF COHABITANTS ACT 2010
[2020] IEHC 89
Allen J.
[2019 No. 17 Sp.]
THE HIGH COURT
COHABITATION
Provision – Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 s. 194 – Evidence – Plaintiff seeking an order for provision out of the net estate of the plaintiff’s deceased alleged cohabitant – Whether the plaintiff was in an intimate and committed relationship with the deceased
Facts: The plaintiff applied to the High Court pursuant to s. 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 for an order for provision for the plaintiff out of the net estate of the plaintiff’s deceased alleged cohabitant. The plaintiff’s case was that she was in an intimate and committed relationship with the deceased for 40 years and that they lived together for 32 years until his death on 5th December, 2013.
Held by Allen J that he was satisfied on the evidence that the relationship between the plaintiff and the deceased was intimate and committed. He had no great difficulty in coming to the conclusion that some provision ought to be made for the plaintiff from the net estate of her deceased partner.
Allen J held that, after careful consideration, proper provision would be that the plaintiff should have the house in South Dublin where she and the deceased lived together for fifteen years. He held that this would provide the plaintiff with security and would keep her in what, from the time the deceased purchased it, was intended to be her home. Allen J was mindful of the fact that the house accounted for the great majority of the value of the estate and that the costs of this application would account for a good deal of the money, but that was what he believed the justice of the case required. He held that there would be an order for the costs of the plaintiff and the defendant out of the estate, limited to Circuit Court costs. He noted that the usual order on the application by an intended plaintiff under s. 27(4) of the Succession Act 1965 to appoint an administrator to substantiate proceedings is to reserve the costs to the trial judge. Allen J held that if that was the order made, the parties must have the costs of that application as well. He held that the deceased’s brother would have his expenses of attending court.
Application granted.
This is an application pursuant to s. 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 for an order for provision for the plaintiff out of the net estate of the plaintiff's deceased alleged cohabitant.
As required by O. 70B of the Rules of the Superior Courts, the application was made by special summons. The summons was not, as by O. 70B, r. 16 it ought to have been, marked as a cohabitation summons. Neither the special endorsement of claim nor the grounding affidavit set out all of the particulars which, by O. 70B, r. 17, ought to have been included but a supplemental affidavit of the plaintiff eventually disclosed sufficient evidence to allow the court to adjudicate on the application. The relief claimed in the summons was a claim to a beneficial interest in the deceased's immovable property and bank accounts rather than for provision from his net estate, but no objection was made as to the form of relief claimed and the application was moved and answered on the basis that it was an application under section 194.
The deceased died intestate, unmarried and without issue. He had four siblings, three of whom survived him. The deceased's siblings declined to take out a grant of administration and on 27th November, 2017, on the application of the plaintiff pursuant to s. 27(4) of the Succession Act, 1965, Ms. Niamh Regan, solicitor, was appointed administrator.
Following her appointment as administrator, Ms. Regan wrote to the deceased's three brothers and sister notifying them of the proceedings. She suggested that they might instruct their own solicitors.
The first to reply was the deceased's brother, Mr. E.D., who introduced himself as the spokesman of the siblings of the deceased. He informed Ms. Regan that one of his siblings, K.D., had died. E.D. acknowledged that the plaintiff had been his brother's friend for many years and had given up her job to care for him when he had been taken ill. E.D. reminded Ms. Regan that he had agreed to her appointment as administrator strictly subject to Ms. Regan presenting to the court an accountant's letter of 19th July, 2006, and a letter from St. James's Hospital of 28th March, 2007 - to which I shall come. E.D. took the position that it was a matter for the plaintiff's solicitor to establish the required five years cohabitation, and for Ms. Regan to “defend the status quo of the 1965 Act”.
Mrs. W.D., the widow of the deceased's brother K.D. who had died in 2018, replied to Ms. Regan by e-mail, questioning the plaintiff's claimed status and asserting that she had been the deceased's housekeeper.
The deceased's sister, Mrs. C.B., responded to Ms. Regan by telephone. Mrs. B. expressed concern about the application and the status of the plaintiff - specifically the plaintiff's claim to have been in a committed relationship with the deceased. Mrs. B. informed Ms. Regan that another of the deceased's brothers, J.D., was in a nursing home in England, suffering from vascular dementia.
After the proceedings issued, the deceased's siblings declined an invitation to retain their own solicitors, but E.D. swore a short affidavit and attended court for the hearing of the application.
The application came before the court in the Monday afternoon list, which is ordinarily an administrative list. By O. 70B, r. 10 (as applied to cohabitation proceedings by r. 16(5)) the hearing of the substantive application is to be on the oral evidence of the parties, save where the court otherwise directs.
Mr. Ó Dúlacháin S.C., for the plaintiff, submitted that it was an appropriate case to be dealt with on affidavit evidence because the evidence was uncontradicted. Mr. D'Arcy, for the defendant, acquiesced. He said that Ms. Regan had had little in the way of communication from the beneficiaries of the estate and that he had no instructions which would have justified him in contesting the plaintiff's evidence.
Absent opposition, it seemed appropriate to hear the application on affidavit evidence.
The plaintiff's case is that she was in an intimate and committed relationship with the deceased for 40 years and that they lived together for 32 years until his death on 5th December, 2013.
The deceased's death certificate shows that he was 62 years' old when he died. The plaintiff did not state her age, but she must be in or about the same age.
The plaintiff and the deceased met in 1981 (she does not say in what month) in a city in the United Kingdom where they were both then working. The plaintiff's case is that they more or less immediately formed an intimate relationship. At the end of 1981 the plaintiff returned to Ireland. She says that she returned for Christmas, but I understand her to mean that she returned at Christmas because she immediately goes on to say that in January, 1982 the deceased gave up his job in the United Kingdom and moved to Ireland. For about a year, the plaintiff and the deceased lived together in a rented house in the west of Ireland and, following a transfer of his employment, in a house which the deceased owned in the city in the United Kingdom where they had met. The city in the U.K. to which the deceased's employment had been transferred was about 140 miles from his house and for a time the deceased commuted on a weekly basis.
In due course (the plaintiff does not say when) the deceased found suitable rented accommodation in the city where he worked, and he and the plaintiff moved to there. Subsequently (the plaintiff does not say when) the deceased bought a house in the city where he worked, or at least where he was based. The deceased's work required a lot of travel and he was sometimes away for weeks at a time. The plaintiff was lonely when the deceased was away for long stretches.
The evidence is sometimes rather vague and sometimes patchy, but it is not inconsistent and was not challenged. In 1987 the plaintiff's father was terminally ill and the plaintiff returned to Dublin to be with him and near to her own family. The plaintiff's father died later that year. The deceased came to Dublin at weekends and for holidays. In 1991 or 1992 the deceased was made redundant by his U.K. employer. He tried, but failed, to find work in Ireland and in the following 13 or 14 years found work in Scotland and Germany.
In July, 1998 the deceased bought a house in South Dublin where he and the plaintiff lived until his death and where the plaintiff has continued to live since.
In about 2006 the deceased began to suffer from vascular dementia. His health deteriorated rapidly. In 2007 the plaintiff gave up her job as a cook to care for the deceased and did so for the remainder of his life. Initially the plaintiff cared for the deceased alone and later with the assistance of carers provided by the Health Service Executive and the Alzheimer's Society of Ireland. On the day before he died, the deceased was moved to Our Lady's Hospice, Harold's Cross, Dublin.
The plaintiff and the deceased had no children together or individually.
The deceased's death certificate shows the plaintiff to have been the informant and it was she who made the arrangements for his funeral and paid the funeral expenses - which appear not to have been reimbursed to her until towards the end of 2018.
The estate is not very...
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C.D. v B.B.
...of the necessary intimate and committed relationship was put in issue. In both cases, D.C. v. D.R. [2015] IEHC 309 and G.R. v. Regan [2020] IEHC 89, part of the requisite period of cohabitation took place prior to the commencement of the 2010 Act. However, this issue was not raised, and con......