E.H. v E.P.O'C. and Others
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE HERBERT |
| Judgment Date | 21 December 2006 |
| Neutral Citation | [2007] IEHC 68 |
| Docket Number | Case No: 210SP/2005 |
| Court | High Court |
| Date | 21 December 2006 |
[2007] IEHC 68
THE HIGH COURT
DUBLIN
SUCCESSION ACT 1965 S117
C (X) & C (Y) & C (Z) v T (R) & ORS; C (AB) (DECEASED), IN RE 2003 2 IR 250 2003 2 ILRM 340 2003 8 1591
W (C) v W (L) 2005 4 IR 325 2005 FLJ WINTER 19 2005 57 12082 2005 IEHC 325
SUCCESSION ACT 1965 S117(2)
SUCCESSION ACT 1965 S46(3)
SUCCESSION ACT 1965 SCHED 1 PART 2
Succession law - Whether proper provision was made - Section 117 of the Succession Act, 1965.
The testator had assumed sole possession and ownership of all the assets of Mr DH, her husband. The plaintiff and her brother gave evidence that all of the children had executed waivers in favour of Mrs AH, their mother. The plaintiff was left with a meadow, the testator’s engagement ring and watch, shares and money in the credit union. The plaintiff contended that Mrs AH did not make proper provision for the plaintiff. The plaintiff was a single parent with two minor children.
Held by Mr Justice Herbert that there had been improper provision for the plaintiff as the testator was mistaken as to the value of the land given to the plaintiff.
Reporter: E.C.
This judgment is circulated in redacted form to avoid identification of parties
MR. JUSTICE HERBERT: The late Mrs. AH died testate in 2004. She was predeceased by her husband Mr. DH, who died intestate in 1994. At paragraph 8 of the affidavit of Mr. OC solicitor, the sole executor by the last will and testament of Mrs. AH, sworn in these proceedings, it is stated that after the death of Mr. DH the late Mrs. AH had assumed sole possession and ownership of all the assets of Mr. DH.
The Plaintiff and her brother DH gave evidence that all of the children of Mrs. AH and Mr. DH had executed waivers in favour of their mother, though, the Plaintiff asserted, she had done so under duress from her late mother and without having had any legal advice.
The late Mrs. AH executed her last will and testament on 3rd July, 2003. By it she gave, devised and bequeathed her shop and residential premises, together with all stock in trade, trade fixtures and fittings and household furniture, and also her motor car to her daughter OH. She gave, devised and bequeathed her lands in the townland of K Upper, together with her lands in the townland of MK, but excluding a meadow on the right-hand side of the C to D road as one travels towards D to her son SH. She bequeathed lands in the townland of K lower and in the townland of MN to her son DH. To the Plaintiff she bequeathed the aforementioned meadow, her engagement ring and watch, her telecom shares and the money, if any, in the credit union in C. She appointed her said four children to be her residuary legatees and devisees and devised and bequeathed all the rest, residue and remainder of her estate to them in equal shares. In the events which have occurred there was no residue in the estate.
At the hearing of this case before me it was agreed that the total net value of the estate of the late Mrs. AH was €2, 422, 289, and that her debts and funeral expenses amount to €22, 320.65. At the conclusion of the Plaintiff's evidence-in-chief it was conceded by the Defendants, through their senior counsel, that the late Mrs. AH had failed in her moral duty to make proper provision for the Plaintiff in accordance with her means, either by the terms of her said last will and testament or otherwise.
The Plaintiff EH was born in 1976. She received primary and second level education. She told the Court that she had done well in the Junior Certificate examination but did not achieve a pass level at the Leaving Certificate examination. She told the Court, and I have no reason to doubt her evidence in this regard, that this was because she was distraught following the recent death of her father, with whom she had a close and affectionate relationship.
The Plaintiff stated that her ambition had been to become a nurse, but she had been frustrated in this ambition by her lack of success in the Leaving Certificate examination. She told the Court that she had helped in the family shop from the age of 8 years of age onwards. The Plaintiff has therefore no academic or professional qualifications and no marketable skills, other than as a salesperson in a general convenience store, but with no accounts, stocktaking or ordering skills or experience.
The Plaintiff is, and was on the day before the death of her mother AH, a single parent with two minor children, D born in 1997 and M, born in 1999. Both children have the same father, she told the Court, but he has not acknowledged paternity and makes no financial contribution whatsoever towards her or their maintenance. Both children happily enjoy excellent physical and mental health.
In October 1996 the Plaintiff purchased a modest dwelling house in her native town. She utilised for this purpose savings of £8, 000, former currency, accumulated working in the family shop. Her late mother, Mrs. AH, gave her £34, 000, former currency, and she obtained a mortgage of £30, 000, former currency, from a financial institution. The Plaintiff told the Court that at this time her brother DH and her sister OH were assisting her mother in managing the shop and lands, so that the Plaintiff was obliged to obtain employment in a number of local businesses successively. At this time also she established a small business, which she carried on from her own home.
In the year 2000 her brother DH established his own, now very successful, retail business in another town in Ireland, a very considerable distance from the family base. After he left, the Plaintiff had resumed working in the shop with her sister OH and also continued with her business, working late into the night. The Plaintiff told the Court that up to Christmas 2000 relations between her and her sister OH were very strained, and she had no contact at all with her brothers DH and SH, who offered her no help or support.
The Plaintiff told the Court, and I accept her evidence on this, that in May 2003 her late mother AH gave her €6, 000 to discontinue her business and instead to look after her. In 2003 also her late mother AH had given her £3, 800 sterling to enable the Plaintiff to obtain treatment outside this State for an unpleasant and serious eye problem, which treatment fortunately appears to have been very successful.
The Plaintiff told the Court that in 1997, after the birth of her first son D, she had suffered a nervous breakdown, of which her late mother AH was fully aware. Dr. MC, a general medical practitioner, who had been the Plaintiff's physician for upwards of 17 years, and Professor C, a professor of psychiatry and a consultant attached to a leading teaching hospital, gave evidence that the Plaintiff had in fact suffered a severe reactive type of post natal adjustment disorder. The Plaintiff told the Court, and I have no reason to decline to accept her evidence, that her late mother AH had accepted her first child D, but would have no contact at all with her second child M, and that this had caused her intense hurt and sorrow. Professor C told the Court - and though strongly challenged in cross-examination did not alter her opinion, and no contrary evidence was led by the Defendants - that the Plaintiff's problems continued from 1997 up to 2005.
Dr. MC told the Court that on 6th March, 1997 she had formed the opinion that the Plaintiff was suffering from a severe reactive type of post natal adaption disorder. In her expert opinion, this was due to the birth of the child, to lack of support from the child's father and from her own family, serious financial worries and to a sense of abandonment and isolation. Dr. MC was satisfied that the late Mrs. AH must have been fully aware of the Plaintiff's plight. She told the Court that she had referred the Plaintiff to Dr. S, a psychiatrist, who had seen the Plaintiff on 11th March, 1997.
In cross-examination it was put to Professor C that Dr. S had recorded in 1997, in his disclosed clinical notes, that the Plaintiff:
"…had a difficult relationship with her mother and was not speaking to her siblings…"
Professor C agreed that in 1997 the Plaintiff had received treatment for 18 months, and thereafter had received no further treatment until May 2005, when she had received professional counselling for stress, attributable to the death of her late mother and to this unfortunate litigation. Professor C agreed that the Plaintiff had suffered no acute psychiatric illness after 1999. However, Professor C insisted that the Plaintiff continued to have problems. She described the Plaintiff as a very vulnerable person, naive, seriously lacking in self-confidence, with no social contacts and constantly overwhelmed by constant financial worries, who could be both willful and difficult, while at the same time easily moulded and misled and who demonstrates an unhealthy degree of interest in religion and self-help material.
Professor C told the Court that she was horrified to learn that on the advice of a person described to her by the Plaintiff as a social worker, the Plaintiff had borrowed £15, 000 sterling and had travelled to the Americas for a form of alternative therapy. Professor C stated that in her expert opinion this clearly demonstrated the level of this Plaintiff's desperation. While she accepted that she was not an educationalist, Professor C told the Court that, in her opinion as a psychiatrist, the Plaintiff did not appear to have any particular learning difficulties and, in her expert opinion, had the capacity to pass a Leaving Certificate...
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