Kelly v Cahill

JurisdictionIreland
JudgeMr. Justice Barr
Judgment Date18 January 2001
Neutral Citation[2001] IEHC 2
Date18 January 2001
CourtHigh Court
Docket Number[1998
KELLY v. CAHILL
(PROBATE)
IN THE MATTER OF THE ESTATE OF MICHAEL CAHILL, DECEASED

and

IN THE MATTER OF THE SUCCESSION ACT, 1965

and

IN THE MATTER OF QUESTIONS ARISING IN RESPECT OF THE ADMINISTRATION OF THE ESTATE OF MICHAEL CAHILL, DECEASED

BETWEEN

JOHN KELLY
PLAINTIFF

AND

NELLIE (OTHERWISE ELLEN) CAHILL AND MICHAEL CAHILL JUNIOR
DEFENDANTS

[2001] IEHC 2

Barr

THE HIGH COURT

Synopsis

Succession

Probate; new model constructive trusts; unjust enrichment; plaintiff, sole surviving executor of will, seeks directions from Court in relation to administration of deceased's estate; testator, since deceased, by last operative will, devised all property to first named defendant (his wife) and brother (also now deceased) as joint tenants for life with remainder to trustees in trust for second named defendant (his nephew); testator subsequently decided that entire estate should be inherited absolutely by first named defendant without any remainder provision; testator decided, on advise of solicitor, to transfer all lands into the joint names of himself and first named defendant; through inadvertence of solicitor and unknown to testator certain lands were not included in Deed of Transfer contrary to testator's express intention; whether new model constructive trust could be established in favour of first named defendant to give effect to testator's clear intention, thereby preventing unjust enrichment of second named defendant.

Held: Court established new model constructive trust for benefit of first named defendant.

Kelly v. Cahill - High Court: Barr J. - 18/01/2001 - [2001] 1 IR 56 - [2001] 2 ILRM 205

The deceased, a farmer died without issue. In his will he left all his property to his wife and brother as joint tenants for life with remainder to trustees in trust for his nephew, the second defendant. The deceased brother predeceased the testator. Several years prior to his death he instructed his solicitor to change the will to leave everything to his wife and drop his nephew. His solicitor believed there would be tax issues and advised transfering his land into the joint names of himself and his wife so the property would then pass to her as sole owner if she survived him. The testator agreed and the solicitor drew up a deed of transfer. Unfortunately in so doing some property was inadvertedly ommited. The issue before the court was whether in light of the error regarding the property did a constructive trust arise in regard to the land not transferred into the joint ownership. In reviewing the law and adopting Lord Denning's "justice and good conscience" the court held that the testator had changed his mind regarding the disposal of his estate after death and took steps to give effect to his revised intention accordingly the court ruled that the nephew does not benefit from the lands excluded in the Deed of Transfer and that he is a constructive trustee of the remainder interest for the benefit of the widow..

Citations:

SUCCESSION ACT 1965 PART IX

FINANCE ACT 1993

KEANE EQUITY & LAW OF TRUSTS IN IRELAND 196–197

HUSSEY V PALMER 1972 3 AER 744

BEATLEY V GUGGENAGEIM EXPLORATION CO 225 NY 380

HKN INVEST OY V INCOTRADE PVT LTD 1993 3 IR 152

1

JUDGMENT delivered by Mr. Justice Barr on the 18th day of January, 2001.

2

The facts relating to this matter are not in dispute and are as follows:-

3

The plaintiff is the sole surviving executor named in the last will and testament of Michael Cahill Senior (the deceased) made on the 23rd October, 1969 who died on 20th March, 1996 without having revoked or altered the will. The other executor appointed by the deceased predeceased him and was not replaced. The plaintiff applied for and obtained probate of the deceased's will on 22nd January, 1998 and pursuant thereto entered into the administration of the estate.

4

The first defendant (the widow) is the widow of the deceased. The second defendant is a nephew of the testator. The deceased was a farmer and the owner of substantial holdings of registered land. He died without issue. By his last will the deceased devised all of his property to his widow and his brother, Martin Cahill, as joint tenants for life with remainder to trustees in trust for his nephew, the second defendant. Martin Cahill, the deceased's brother, died on 16th March, 1998.

5

In course of administration of the deceased's estate certain facts have come to light relating to the ownership of part of the lands comprised in the estate which have caused the plaintiff as administrator to seek directions from the Court, thus giving rise to this action. The matters raised by him include -

6

2 " 1. The answers to the following questions arising in relation to the administration of the estate of the said Michael Cahill Senior, deceased:

7

(a) Whether the lands contained in Folio GY043846F of the Register County of Galway pass under the terms of the will of Michael Cahill deceased dated 23rd October, 1969 to the first named defendant for life and thereafter in remainder to the second named defendant, subject to the widow's right to one half of the lands pursuant to the provisions of part (IX) of the Succession Act, 1965.

8

(b) Whether in the events which have happened, the second named defendant is a constructive trustee of the remainder interest in the lands comprised in Folio GY043846F for the benefit of the first named defendant.

9

2. Such directions as may appear to this Honourable Court to be proper on foot of the answers to the questions at paragraph 1 (a) and (b) above.

10

3. In the event that the Court holds that the second named defendant is a trustee of the lands comprised in Folio GY043846F as a constructive trustee for the first named defendant, an Order directing the second named defendant to execute such assurance as may be necessary to vest the said lands in the first named defendant."

11

The facts which have posed the foregoing questions are deposed to by Mr. Joseph O'Hara who was the deceased's solicitor at all material times and are summarised as follows:-

12

In or about the month of January, 1994 Mr. Michael Cahill, the testator since deceased, and his wife, the first defendant, called upon Mr. O'Hara and he obtained instructions from Mr. Cahill that he wished to alter the will which he had made on 23rd October, 1969. He informed his solicitor that he no longer wished to benefit his nephew Michael...

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  • Comcast International Holdings Incorporated, Declan Ganley, Ganley International Ltd and GCI Ltd v The Minister for Public Enterprise
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    ...citing Barron J. in NAD v. TD (1985) ILRM 153, at 160, HKN Invest Oy v. Incotrade Pvt. Ltd (1993) 3 IR 152 at 162, and Kelly v Cahill (2001) 1 IR 56 as examples of the willingness of Irish judges to impose a resulting trust to satisfy the demands of justice and good 45 As to unjust enrichme......
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1 books & journal articles
  • Restitution, Rectification, and Mitigation: Negligent Solicitors and Wills, Again
    • United Kingdom
    • Wiley The Modern Law Review No. 65-3, May 2002
    • 1 May 2002
    ...Minerals vChevron Mineral Corporationof Ireland and Ivernia [1995] 1 ILRM 161 (Ir HC; Murphy J) (rectification; trust); Kelly vCahill[2001] 2 ILRM 205 (Ir HC; Barr J) (remedial constructive trust).23 High Court, unreported, 21 June 1994, Carroll J; on which see E. O’Dell, ‘Insurance Payment......

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