Kennedy v Kennedy & O'Riordan

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 26 January 2007
• Neutral Citation: [2007] IEHC 77
• Docket Number: RECORD NO [No. 446 SP/2005]
• Court: High Court
• Date: 26 January 2007

[2007] IEHC 77

THE HIGH COURT

RECORD NO [No. 446 SP/2005]

KENNEDY v KENNEDY & O'RIORDAN

IN THE MATTER OF THE ESTATE OF DENIS KENNEDY, DECEASED LATE OF ROCKVIEW GRANGE, KILMALLOCK IN THE COUNTY OF LIMERICK, FARMER RETIRED

AND IN THE MATTER OF THE SUCCESSION ACT, 1965

BETWEEN

THOMAS KENNEDY

PLAINTIFF

AND

BREDA KENNEDY AND SEAMUS O'RIORDAN

DEFENDANTS

JUDGMENT of

O'Neill J.

1 delivered the 26th day of January, 2007.

2 The plaintiff in this case is the nephew of Denis Kennedy deceased ("the testator"). The first named defendant is the widow of the testator and the second named defendant is a nephew of the testator. All three parties are the Executors of the Will of the testator made on the 30^th May, 2002.

3 In these proceedings the plaintiff seeks the directions of the court to complete the administration of the estate of the testator and specifically an order prohibiting or restraining the defendants placing the testator's house and lands for sale, a declaration that the plaintiff is entitled to have the house and lands of the testator vested in him as beneficiary under the Will subject to the payment of legacies charged on that property by the Will and codicil of the deceased, appropriately abated, upon payment by the plaintiff of such sum into the estate as is necessary for the purpose of discharging the balance of the legal right share due to the first named defendant. A variety of ancillary reliefs are also claimed.

4 The uncontested facts relevant to the issues in the case as revealed in the several affidavits filed can be summarised as follows;

5 The testator and the first named defendant were married to each other for 43 years until the death of the testator on the 17^th January, 2003. They had no children. In addition to the first named defendant the testator was survived by 34 nieces and nephews, including the plaintiff and second named defendant. The testator was a farmer and farmed 152 acres approx of land in Co. Limerick. On the land there was a dwellinghouse and the normal array of farm buildings.

6 The testator made his will and codicil on the 30^th May, 2002. In it he appointed the plaintiff and two defendants as his Executors. He left his house and lands to the first named defendant for her life with remainder to the plaintiff. He left legacies of €15,000.00 each to 29 of his nieces and nephews and legacies of €19,000.00 each to four of his nieces and nephews and he charged these legacies on the remainder interest of the plaintiff in the lands. He left the first named defendant a legacy of €150,000.00 absolutely to be paid from his cash in the bank. The remainder of his cash in the bank after the payment of his debts and funeral and testamentary expenses was to be divided equally between all of his nephews and nieces alive at the time of his death, save one, and he charged these monies with the payment of two legacies, of €1,000.00 each for masses to be said for the repose of his soul and the souls of his deceased relatives and friends. Finally he left the residue of his estate to the first named defendant absolutely.

7 Probate of the Will of the testator was extracted by all three parties on the 20^th April, 2004.

8 On the 30^th March, 2004 the first named defendant gave notice to the plaintiff and second named defendant of her election pursuant to s. 115 of the Succession Act, 1965, to take her legal right of share of the estate of the testator pursuant to s. 111 of the Succession Act, 1965. No dispute has been raised in these proceedings or at all concerning the right of the first named defendant to exercise a right pursuant to s. 115 of the Succession Act, 1965 nor has any issue been taken with the fact that the discharge of her legal right share pursuant to s. 111 takes priority, pursuant to s. 112 of the Succession Act, 1965 over all other devises, bequests or benefits deriving from the Will of the testator.

9 For some time prior to the election of the first named defendant as aforesaid, she had been a resident in a Nursing Home in Co. Limerick, having suffered a stroke. There had been some correspondence between the first named defendant and the plaintiff through their solicitors, concerning the financial needs of the first named defendant and certain proposals were put forward on behalf of the first named defendant, but no agreement was reached, leading to the exercise by the first named defendant of her election to take her legal right share.

10 The election by the first named defendant to take her legal right share had profound effects insofar as the administration of the estate of the testator was concerned. Firstly, by not taking a life interest in the house and lands of the testator the remainder interest of the plaintiff was accelerated, but in order to discharge the first named defendant's legal right share to one half of the net estate, it was apparent that the house and lands would have to sold or otherwise the plaintiff would have to put in to the estate a sum sufficient to enable the legal right share of the first named defendant to be discharged without the sale of the house and lands. It is apparent that at all times the plaintiff was anxious to take that course. An additional effect of the election of the first named defendant and the consequent diminution in value of the devise to the plaintiff of the land was that there had to be an abatement of the legacies charged on that devise.

11 Initially for the purposes of the Revenue affidavit a valuation of the house and lands was obtained in the sum of €850,000.00. In the light of the clear interest of the plaintiff in avoiding a sale of the house and lands the value of the house and lands became a crucial consideration and a further valuation was obtained from GVM Auctioneers on the 16^th July, 2004. This valued the lands as of the date of death of the testator in the sum of €1,875,000.00.

12 A meeting took place between the plaintiff, the first named defendant and second named defendant on the 10^th August, 2004 for the purposes of progressing the administration of the estate. Unfortunately, there are disputes as to what was agreed at that meeting and it is not possible for me purely on the basis of affidavit evidence to resolve that dispute. On behalf of the defendants it is contended that there was agreement between all three to put the house and lands up for sale by public auction before the end of September, 2004, and to appoint de Courcy Auctioneers to have carriage of the sale. The plaintiff denies any such agreement, but accepts that there was agreement to appoint de Courcy as auctioneers if the land was going to be sold. It was agreed by the defendants that pending the sale that the plaintiff could put any proposal he wished to the first named defendant and that he was free to bid at the auction.

13 In the event the plaintiff refused to consent to a sale at that time and by a letter of the 17^th September, 2004 sent to the solicitor for the estate and the solicitor acting for the first named defendant, the plaintiff put a proposal, essentially to the first named defendant which provided for him paying into the estate a sum, which on his view was sufficient to enable the discharge of the first named defendant's legal rights share without having to sell the house and lands. This proposal was based on the valuation of €1,875,000.00, which was a valuation as of the date of death of the testator.

14 Following this in the absence of a consent from the plaintiff, no sale took place and as the weeks went by there was no response to the proposal put by the plaintiff. In the meantime however other matters relating to the administration of the estate were attended to by the solicitor for the estate including the obtaining of counsel's opinion on a number of topics and in particular the appropriate date for the valuation of the house and lands for the purposes of discharging the legal right share of the first named defendant. The advice received was to the effect that the correct date would be the date of distribution for the proposes of discharging the legal right share.

15 It is clear from the correspondence that the plaintiff was growing very frustrated with what he perceived as lack of progress towards the administration of the estate and the assent to him of the house and lands and he pressed the defendants and the solicitor for the estate vigorously to achieve progress.

16 In due course a meeting of the Executors was arranged for the 22^nd February, 2005, to take place at the Nursing Home where the first named defendant resided. As the primary issue to be discussed and if possible agreed, was the valuation of the house and lands as of the date of distribution it became necessary for up to date valuations to be obtained. Three valuations were produced at the meeting, one from GVM Auctioneers dated the 1^st January, 2005 in the sum of €2,050,000.00, the second dated 21^st February, 2005 from O'Connor Murphy Gibbons, Auctioneers in the sum of €2,200,000.00 and finally, a third one dated the 3^rd February, 2005 from O'Donovan Auctioneers in the sum of €3,500,000.00. The first of these valuations appears to have been obtained by the plaintiff but with the consent and approval of the solicitor for the estate. The second was obtained by the plaintiff on his own behalf and the third was obtained on behalf of the first named defendant.

17 At this meeting there was also in attendance, apart from the three parties hereto, the solicitor for the estate Mr. John Cooke, the solicitor advising the first named defendant in her personal capacity Mr. Philip English, and the solicitor advising the plaintiff Mr. Robert Bourke.

18 There is a considerable conflict in the evidence as to precisely what happened at this meeting. The two defendants in their affidavits and Mr. Cooke in a letter of the 9^th May,...