Gregg v Kidd

• Jurisdiction: Ireland
• Judgment Date: 05 May 1956
• Date: 05 May 1956
• Docket Number: (1954. No. 482 P.)
• Court: High Court

Gregg v. Kidd

MARK GREGG

Plaintiff

and

WILLIAM GREGG KIDD, and JOHN GEORGE KIDD

Defendant.

(1954. No. 482 P.)

Settlement - Action to set aside - Presumption of influence arising from family relationship - Onus of rebutting presumption in case of voluntary gift - Improvident gift - Duty of solicitor advising settlor - Failure of donee to rebut presumption.

By indenture of settlement, dated the 28th September, 1953, G., in purported consideration of the affection he bore for his nephew, the defendant,J. G. K., transferred all his estate and interest in certain registered lands to the defendant, W. G. K., in fee simple for him, the settlor, for life and after his death to the use of the said J. G. K. in fee simple. G. died on the 29th December, 1953, having made his last will, dated the 20th March, 1953. The plaintiff, as the executor of the said will, having instituted proceedings in the High Court claiming to have the said settlement set aside, it was.

Held by Budd J. 1, the relations existing between G., the deceased, on the one hand, and the defendant, J. G. K., and H. K., the mother of J. G. K.and a sister of G., on the other hand, were such as to raise a presumption that H. K. and the defendant, J. G. K., acting through her and with her, had influence over G. at all relevant times;

2, that the settlement was an improvident settlement;

3, in the case of a voluntary gift where the relations between the donor and the donee are such as to raise a presumption that the donee had influence over the donor the onus lies on the donee to establish that the gift was the spontaneous act of the donor, acting in circumstances which enabled him to exercise an independent will, and that the gift was the result of a free exercise of the donor's will;

4, (a) that the presumption of influence may be rebutted, in certain circumstances, when independent legal advice is given to the donor even though he does not act upon such advice, (b) a solicitor is not bound to decline to act further for a client who refuses to accept his advice not to proceed with a transaction. Farwell J. in Powell v. Powell[1900] 1 Ch. 243 not followed. Decision of the Privy Council in Inche Noriah v. Shaik Allie Bin Omar[1929] A.C. 127 approved and followed;

5, that the defendant, J. G. K., had not discharged the onus of rebutting the presumption of influence;

6, that the said indenture should therefore be set aside and cancelled.

Duties of a solicitor to a client when instructed to prepare a voluntary settlement of property considered.

Witness Action.

The plaintiff, Mark Gregg, as executor of the will of George Gregg, deceased, instituted proceedings in the High Court in which he sought an order setting aside an indenture of settlement, dated the 28th September, 1953, made by the said George Gregg, whereby the settlor, in purported consideration of the affection which he bore towards his nephew, John George Kidd, the second-named defendant, transferred all his estate and interest in the lands of Tinryland, in the County of Carlow, described in Folio so. 336 of the register of freeholders for that county, to the first-named defendant, William Gregg Kidd, in trust for him, the settlor, for life and after his death to the use of the said John George Kidd. The grounds upon which the plaintiff sought to have the said indenture set aside were 1, that at the date of the settlement George Gregg was reduced by mental ill-health and by physical and mental debility to a state of helplessness, and was residing in the house of the first-named defendant, and was under the sole care and charge of the first-named defendant, and of that defendant's mother, Hannah Kidd, and the said settlement was an improvident settlement and was executed when the parties were not on equal terms; 2, that the deceased at the time of the making of the settlement was not competent, by reason of mental illness, to comprehend its nature and effect; 3, that the said settlement was obtained by undue influence brought to bear upon the settlor by or on behalf of the defendants or one or other of them; and 4, that by reason of some or one of these matters the said settlement was not binding upon the deceased and was improvident and unjustly obtained.

The facts relevant to this report are fully set out in the judgment of Budd J., post.

Cur. adv. vult.

Budd J. : —

In these proceedings the plaintiff seeks to set aside a deed of the 28th September, 1953, whereby George Gregg, since deceased, in consideration of his affection for his nephew, John George Kidd, transferred his farm, situate at Tinryland in County Carlow, to William Gregg Kidd to hold in trust for the settlor for his life and in remainder in trust for John George Kidd (usually known as Jack Kidd) in fee simple.

Some months prior to the execution of the deed the settlor had made his will, dated the 20th March, 1953, whereby he devised all his property to his brother, Richard, for life and after his death to his nephew, Mark Gregg, the plaintiff. He appointed Richard Gregg and Mark Gregg his executors. He died on the 29th December, 1953, being then about 59 years of age. Richard Gregg pre-deceased him, but Mark Gregg, as sole surviving executor, proved the will on the 2nd April, 1954, and thereafter launched these proceedings.

The defendants are the trustee and beneficiary under the deed, respectively, and are both sons of Mrs. Hannah Kidd, a sister of the settlor. She and her family reside at Bohermore, near Bagenalstown, where they have a farm. John George Kidd is a young man of about 30 years of age.

It is alleged by the plaintiff that at the time of the making of the deed the settlor was reduced by mental ill-health or physical and mental debility to a state of helplessness and was at the time residing in the house of the defendants and their mother, Mrs. Hannah Kidd, and under their care; that the deed was improvident and was thus executed when the parties were not on equal terms. The deceased, it is alleged, was not competent by reason of mental illness to comprehend the nature and effect of the settlement. It is also alleged that the deed was obtained by the undue influence brought to bear upon the deceased by the defendants or on their behalf by Mrs. Hannah Kidd, Mr. Dawson Miller or one or other of them. These allegations the defendants deny and claim that the deed constitutes a valid settlement.

George Gregg acquired the farm by a transfer from his brother, Richard, on the 13th January, 1928, subject to a charge in favour of Richard for £500. He occupied the lands thereafter up to about a year before his death. In January, 1953, he was living at Tinryland, but being in bad health he went to reside with his brother, Richard, in his house at Kilmeany and was also for a time with his sister, Mrs. Miller, at Shamrock Lodge, Carlow. He returned later to Kilmeany, Richard's place, and while there he had a stroke on the 26th February, 1953, which paralysed his left side. From the 26th February to the 13th March, 1953, he was in Carlow Infirmary. From then until the 1st May, 1953, he was in the Meath Hospital in Dublin under the care of Dr. Mayne. While in the Meath Hospital George Gregg made the will I have already referred to. From the Meath Hospital he returned to Carlow and went to reside again with his sister Mrs. Miller. She went to London on holidays at the end of May, 1953, and on the 27th May George Gregg was taken to Mrs. Hannah Kidd's house at Bohermore. While he was there he had two further serious relapses, (probably strokes, but that is uncertain) one in the beginning, and another at the end, of June. He remained in his sister's, Mrs. Kidd's, house until he died on the 29th December, 1953.

During the early part of his illness George Gregg was attended by Dr. Seale who had known him for about thirty years. Dr. Seale, in the course of his evidence, stated that when he had the stroke George Gregg's left side became paralysed and for a time he could not speak. He had improved somewhat in May. Dr. Seale saw the patient for the last time on the 11th August, 1953, and I shall refer later to his evidence as to his condition then. As he did not see him after that date he could not say what his condition was at the date of the execution of the deed.

Dr. Mayne found George Gregg suffering from the result of the stroke and widespread arteriosclerotic disease; his mental capacity was impaired and his reasoning capacities to some extent affected. Dr. Mayne said that the progress of the disease from which he was suffering would as a rule be one of deterioration but there might be improvement. Another stroke would, as one would expect, make deterioration probable.

During the period from June to September certain events took place which throw considerable light on the circumstances leading up to the execution of the deed of the 28th September, 1953, and I wish to refer to certain portions of the evidence which I regard as relevant to the issues which I have to decide. It is apparent that some discussions with regard to the recompense of the Kidd family for looking after George Gregg went on early in June, 1953, between the Kidd family and Mr. Dawson Miller, George Gregg's brother-in-law. These culminated in a visit by Dawson Miller and Jack Kidd to Mr. Jeffers, who had up to then acted as George Gregg's solicitor, on the 15th June. The burden of what they had to say was that George Gregg was living with the Kidds and that some arrangement should be made for the transfer of George Gregg's farm to Mrs. Kidd or one of her sons subject to the payment of £500 to Mark Gregg. It transpired, however, that George Gregg was then very ill and had not himself sent for Mr. Jeffers. In fact George Gregg had not, it appeared, mentioned settling his affairs and the whole idea of the purported transfer had apparently originated with Mr. Miller and the Kidd family. The suggestion was no doubt made because the Kidds...