In the goods of Kavanagh; Healy v MacGillicuddy

• Jurisdiction: Ireland
• Judge: COSTELLO J.
• Judgment Date: 24 October 1978
• Neutral Citation: 1978 WJSC-HC 2724
• Docket Number: No. 4631 P./1978
• Court: High Court
• Date: 24 October 1978

1978 WJSC-HC 2724

THE HIGH COURT

No. 4631 P./1978

HEALY v. LYONS

IN THE GOODS OF PATRICK KAVANAGH DECEASED

BETWEEN:

ANNIE HEALY

Plaintiff

and

CON MAC GILLICUDY AND LAURENCE LYONS

Defendants

1 JUDGMENT OF COSTELLO J. DELIVERED THE 24th OCTOBER 1978 JUDGMENT

2 The late Patrick Kavanagh died on the 14th December 1972 aged 75 years. These proceedings concern a "Will" which he made on the 22nd September 1965 and a later "will" made on the 23rd February 1971. Mr. Kavanagh was a bachelor and had resided at "Greenhills". Tallaght, County Dublin up to the time of his death with a cousin, Miss Healy, the plaintiff in these proceedings. Up to the year 1969 he had carried on a dairy business in County Dublin but in that year, due to advancing years, he retired. He had obviously been successful in his business, as he had been able to save quite a considerable sum of money. In addition, he had owner investment property known as "Greenmount" in Walkinstown which features in this case and to which I will return later in this judgment. He was the owner of 12 acres of valuable land at "Greenhills" and had enjoyed a life interest in an adjoining 15 acres under a sister's Will, an interest which he sold shortly prior to his death. The house in which he had lived with the plaintiff was on this land. Miss Healy had come to live with the deceased and his sister many years before his death. She helped in the dairy business when it was in existence by milking the cows when required and generally helping in the yard and, she acted as housekeeper for Mr. Kavanagh up to the time of his death. The evidence satisfies me that a strong bond of affection existed between Miss Healy and Mr. Kavanagh and that he on more than one occasion had expressed his gratitude for all the help she had given him throughout his life.

3 The defendant, Mr. Lyons, is a cattle dealer and a much younger man that was the late Mr. Kavanagh. He first got to know Mr. Kavanagh well after a business transaction between them in the early 1960's when he sold a house to Mr. Kavanagh. After this their relationship developed until eventually it became a very close one. It will be necessary for me to examine this relationship in greater detail later in this Judgment; for the moment, however, it is sufficient to say that the plaintiff's case is that the influence which Mr. Lyons exercised over Mr. Kavanagh was far from benign; that he led him into habits of excessive drinking; that he bullied him and borrowed considerable sums of money from him which he did not repay; that he led him into other improvident transactions; and that he exercised undue influence over him in relation to the Will of 1971. Under that Will the deceased appointed Mr. Con MacGuillicudy as his executor and under it Mr. Lyons was bequeathed the 12 acres at Tallaght subject to a life interest in the plaintiff. He gave bequests of £2000 to each of the plaintiff's two brothers and left the residue of the estate to the plaintiff. He says that this bequest is of no value as virtually Mr. Kavanagh's only asset was his 12 acre farm, an asset which, in my view of its proximity to the city, was a most valuable one. In these circumstances she claims an Order that the 1971 Will be condemned and a further Order that the 1965 Will be admitted to Probate in solemn form. She is the executor named in this Will and the deceased's universal legatee under it.

4 The plaintiff entered a caveat in respect of the 1971 Will which was warned on the 4th April, 1973. An appearance to the warning was entered on the 9th April, 1973 and there the situation rested until, eventually, on the 25th November, 1975 these present proceedings were instituted by Miss Healy. She named both Mr. KacGuillicudy and Mr. Lyons as defendants in the proceedings but Mr. MacGuillicudy subsequently renounced his executorship and he was dismissed from the action. The attack on the 1971 Will is not limited to a charge of undue influence; the plaintiff also claims that the deceased did not know and approve of its contents. The undue influence issue is, however, obviously the paramount one in the case and I will deal with it first. By agreement I have not yet heard any evidence relating to the 1965 Will and so this Judgment only relates to the later one.

5 At the commencement of the hearing it was accepted that there was an onus on the defendant to establish that the 1971 Will was made in accordance with the provisions of the Succession Act 1965and accordingly, the defendant firstly went into evidence. The evidence called on his behalf consisted of the solicitor who prepared the Will and who gave evidence as to the circumstances in which it was made and witnessed and also the evidence of a Mr. McQuaid who, along with the solicitor who prepared the Will, witnessed it. At the conclusion of this evidence it was urged on me on the Plaintiff's behalf that suspicious circumstances had been established in the course of the cross-examination and that they were such as to have cast on the defendant the burden of establishing that the Will had been properly made and that this burden had not been discharged. I was asked, accordingly, to declare against the Will at the conclusion of this evidence. I declined to do so. The Supreme Court (see; In the Goods of Corboy (1969) I.R. 148) had referred to the heavy burden of proof which arises when a legatee has actually drafted a codicil, but this burden only arises when the evidence shows that the legatee was instrumental in framing the Will which is being impugned. At the conclusion of the evidence adduced on behalf of the defendant at that stage of the case I was not satisfied that facts had been established which gave rise to the presumption claimed and accordingly the application was refused. The plaintiff then went into evidence and when her witnesses had concluded the defendant called rebutting evidence, the principal witness being Mr. Lyons himself.

6 Before reviewing the evidence and giving my conclusions on it I think it would be helpful if I here set out the principles of law which, in the circumstances of this case, I should apply. The authorities, I believe, establish the following principles of law which are relevant to the facts of this case:

7 2 (1)

8 (a) In equity, persons standing in certain relations to one another are subject to certain presumptions in respect of inter vivostransactions. No presumption of undue influence, however, arises in the case of Wills and the burden of proving undue influence in relation to wills always rests on the person alleging it. ( Boyse .v. Rossborough: 6 H.L.C. at p. 49: Parfitt .v. Lawless (1872) I.R. 2 P and D at pp 468, 469).

9 (b) When a person has been instrumental in having a will prepared and takes a benefit under it an onus may be placed on such a person to establish that the testator knew and approved of its contents (In the Goods of Carboy (1969) I.R. 148).

10 (2) The Court may be required to consider whether the testator was a free agent when he made his will. In doing so the Court must be satisfied that the influence alleged amounted to more than mere persuasion. To justify a condemnation of a will the Court must be satisfied that pressure was so exerted so as to overpower the volition, without convincing the judgment of the testator. Force need not be used or threatened. But, "importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or for escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes is overborne, will constitute undue influence". ( Hall .v. Hall (1868) L.R. 1 P and D. at p. 482).

11 (3) The Court may infer undue influence, it cannot however act on mere surmise or suspicion, If the evidence leaves no other rational hypothesis on which the conduct of the testator can be accounted for then it may find that undue influence was exercised. ( Earl of Longford .v. Purden 1 L.R. (I.R.) pp. 80, 81; Craig .v. Lamoureux (1920) A.C. at p. 357).

12 (4) It is not sufficient to establish that a person had power unduly to overbear the Will of the testator; it must be shown that the power was exercised in fact and that it was by means of it that the Will which is being impugned was obtained ( Craig .v. Lamoureux (1920) A.C. at p. 357).

13 Before leaving the legal principles which have been raised in these proceedings I should observe that in one of the earlier cases it was suggested that influence, in order to be "undue" in the context of the law relating to wills, must be influenced or exercised either by "coercion or by fraud" ( see Boyse .v. Rossborough 6 H.L.C. at p. 48). I draw attention to the fact that the Lord Chancelior who made this statement immediately went on to point out that in the interpretation of these words i.e. "coercion" and "fraud", certain latitude must be allowed and be proceeded to give an example of the sort of conduct which could be regarded as amounting to "coercion". It seems to me that by using the word "coercion" the Lord Chancellor was not setting any higher test than that laid down in the authorities to which I have referred.

14 I will now deal with the evidence in this case. This, I think, can be most appropriately done by reviewing firstly the evidence adduced on the plaintiff's behalf and then considering that given by the defendant's witnesses.

15 The first witness called on behalf of the plaintiff was Mr. Hanna. He was a retired builder and had been a close friend of Mr. Kavanagh since about the year 1958. He met him very frequently and had a regular Friday evening appointment with him over many years. He gave his evidence in a careful, balanced, unexaggerated fashion and I accept it in its entirety. The salient facts which he established were as follows. He...