Hickey -v- Geary & Anor, [2009] IEHC 118 (2009)

Docket Number:2004 1066 P
Party Name:Hickey, Geary & Anor
Judge:Dunne J.

THE HIGH COURT2004 1066 PBETWEENSINEAD DEVANE HICKEYPLAINTIFFANDMICHAEL GEARY AND PAUL McCARTHY(Practising under the style and title of Breen, Geary, McCarthy and Shee)DEFENDANTSAND NICOLE HICKEYTHIRD PARTYJUDGMENT of Ms. Justice Dunne delivered on the 12th day of March, 2009This is an application to set aside the service of a Third Party notice herein. The Third Party notice was served pursuant to an order of the High Court (Quirke J.) made herein on 18th February, 2008. Originally, four third parties were joined to the proceedings. A notice of discontinuance has been served against the second-named Third Party Brian O'Dwyer, the third named Third Party Grainne O'Dwyer and the fourth named Third Party Breda Ryan.The background to this matter relates to the last will and testament of John Hickey, who took out a policy of assurance on his life in 1993, then aged 28. At that time he executed a declaration of trust in a standard form. He reserved to himself a power of appointment over the proceeds of the policy. It was provided that in default of appointment the fund provided for under the policy of assurance should be held to the absolute benefit of his only daughter, Nicole Hickey, who was born on 5th December, 1990. She is the third party named in these proceedings. Subsequent to taking out the policy of assurance, the said John Hickey married the plaintiff in these proceedings on 5th October 1997. Some time later he executed his last will and testament and the defendant firm of solicitors advised him in that regard.Unfortunately, the said John Hickey died on the 30 January, 1999. He failed to execute any appointment under his last will and testament or during the course of his life in respect of the policy of assurance. Indeed, no reference of any kind was made in his will to the life assurance policy. The third party herein became absolutely beneficially entitled to the proceeds of the life policy with effect from 30th January, 1999, the date of death of the said John Hickey, some ten years ago.In the course of the administration of his estate, an issue arose as to whether the third party was beneficially entitled to a specific pecuniary bequest of £100,000 under the terms of her father's will in addition to the proceeds of the policy of assurance or whether the doctrine of election and the doctrine of satisfaction were engaged requiring her to elect between the legacy under the terms of her late father's will or the proceeds of the policy. Proceedings were instituted by the widow of the late John Hickey, the plaintiff in the present proceedings. In those proceedings, the High Court ruled, inter alia, that the doctrine of satisfaction required that an election had to be made on behalf of the third party in these proceedings between the provision under the trust, that is to say the proceeds of the policy of assurance and the provision under the will. As the amount available under the policy of assurance was greater than the amount available under the provisions of the will, an election was made on behalf of the third party in respect of the provision available under the policy of assurance. It was noted in the course of the judgment in that case (Hickey v. O'Dwyer [2006] 2 I.L.R.M. 81 at p. 89) that:"On the assumption that she will elect to take the proceeds of the policy and, indeed, the proceeds have already been paid to trustees on her behalf, the plaintiff has no interest in the proceeds."Following the ruling in that case, the plaintiff herein, the widow of the late John Hickey, brought proceedings against the solicitors who had advised the late John Hickey in and about the preparation of the said will claiming that as a result of the negligence of the defendants, the plaintiff herein has...

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