Kenny v Kenny
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony O'Connor |
| Judgment Date | 12 February 2019 |
| Neutral Citation | [2019] IEHC 76 |
| Docket Number | [2014 No. 5858 P.] |
| Court | High Court |
| Date | 12 February 2019 |
[2019] IEHC 76
THE HIGH COURT
O'Connor Tony J.
[2014 No. 5858 P.]
Mortgage protection policy – Constructive trust – Annual premium – Plaintiff seeking to bring a claim in respect of the proceeds of a mortgage protection policy – Whether an arrangement enforceable against the estate of the deceased could be implied
Facts: The deceased, Mr K Kenny, died on 14th January, 2013, and was survived by three daughters, including the defendant, Ms Kenny, who was granted letters of administration to the estate of the deceased on 3rd October, 2013. The plaintiff, Mr W Kenny, was the father of the deceased and the grandfather of the defendant. He brought a claim in respect of the proceeds of a mortgage protection policy (amounting to a sum of approximately €95,000) by way of an alleged resulting or constructive trust on account of the discharge of payments made by the plaintiff in respect of the annual premium.
Held by the High Court (O’Connor J) that it was far-fetched to imply an arrangement enforceable against the estate of the deceased arising from the discharge of the premia for a policy covering the life of the deceased discharged from an account jointly held by the plaintiff with his wife. O’Connor J noted that the height of the plaintiff’s case related to the total premia paid in respect of which he may or may not make a claim.
O’Connor J held that he would hear counsel in relation to an application for the estate to repay to the plaintiff and his wife the sum of €5,594.54, being the sum total of the premia payments.
Judgment approved.
This is a claim by the plaintiff in respect of the proceeds of a mortgage protection policy (amounting to a sum of approximately €95,000) by way of an alleged resulting or constructive trust on account of the discharge of payments made by the plaintiff in respect of the annual premium.
Keith Kenny (‘ the deceased’) died on 14th January, 2013, and is survived by three daughters (‘ the daughters’), including the defendant who was granted letters of administration to the estate of the deceased on 3rd October, 2013. The deceased separated from his wife in 1998 and was ultimately divorced. The daughters are now aged over eighteen and the defendant has the responsibility of administering the estate of the deceased including the discharge of any debts and then the distribution of the remaining net assets of the intestate deceased.
The plaintiff is the father of the deceased and the grandfather of the defendant. The plaintiff's wife did not take any part in these proceedings. Unfortunately, since this issue arose the grandparents now have no ongoing personal contact with the daughters. The Court had urged a rapprochement but without success.
In 2000, the plaintiff purchased a one-bedroom apartment known as Apartment 28, Smithfield Gate, Dublin (‘ the apartment’) for IR£160,000 (€203,158.00). The plaintiff and the deceased borrowed IR£130,000 and were jointly and severally liable for the mortgage repayment. The plaintiff paid the difference of IR£30,000 to purchase the apartment. The plaintiff explained that the deposit and all mortgage repayments came from his joint account with his wife (‘ the joint account’) at all times. He also outlined how their then lender, First Active plc, firstly, required that the apartment be bought in both his and the deceased's names, as they wanted someone younger, in addition to the plaintiff, to be responsible for the mortgage repayments, and secondly, required mortgage protection policies to be assigned so that the outstanding mortgage repayments would be met in the event that either of the plaintiff or the deceased died.
The plaintiff admitted that neither he nor the deceased specifically discussed or agreed what would happen on the death of either of them in relation to the apartment or the mortgage protection policies taken out on the life of each of them for the duration of the mortgage. The plaintiff was insistent that he discharged the mortgage repayments and the mortgage protection policy annual premium from the joint account. In his direct examination, the plaintiff stressed that everyone in the family knew of the arrangements that the apartment was bought in joint names at the request of First Active. On cross-examination he accepted that this consensus of the alleged knowledge was actually his assumption that the deceased told the daughters about the plaintiff's interpretation of all arrangements, although the daughters were young at that time of purchase in 2000. The plaintiff tended in evidence to portray matters as he would like them to be in his favour and from the view that he knew and knows best for all family members including for his grandchildren.
In 2007, the plaintiff decided to re-mortgage the apartment with Permanent TSB in order to release the increased equity which had arisen. It took quite a few questions and time in cross-examination for the plaintiff to clarify what he did with the proceeds of the mortgage release arrangements with Permanent TSB. The outstanding mortgage due to First Active was discharged and the plaintiff somewhat hesitantly placed a figure of €100,000 on the sum which he applied to building a mezzanine floor in the factory premises of W&R Kenco Aluminium Windows Limited (‘ the company’).
Both the plaintiff and the deceased, when applying for the re-mortgage facility from Permanent TSB, acknowledged in forms signed by them that they did not wish ‘to take out mortgage protection assurance’ and they also confirmed ‘ 1. The dwelling is not intended for use as my or my dependant's principal residence as my principal and my dependant's principal residence is situated’ elsewhere. In those circumstances, the mortgage protection policies which had been assigned to First Active continued in place after 2007 but remained unassigned.
The company was incorporated in July 1981. The plaintiff gave evidence that he thought that the deceased was a director for only a year but later acknowledged that the entry in the register of the Companies Registration Office of a notice of change of director filed in August 2008, related to the deceased and that the deceased ceased to be a director in or around November 2011. The company has little, if any, relevance to the issues to be determined other than by way of background.
A liquidator was appointed to the company in May 2012. This, according to the plaintiff, followed the economic turmoil in 2008 and the inability of the company to compete with the black economy in fitting aluminium fixtures in houses. The deceased had been employed in the company. The plaintiff and his wife were, at all times, directors and shareholders of the company. The plaintiff repeated that the company did not pay any of the premia for the life assurance policies from 2000 onwards.
A letter from Aviva Life and Pensions Ireland Limited (‘ Aviva’) dated 22nd January, 2014, and produced to the Court, confirmed that a monthly premium of some €36 was paid from April 2000 to January 2013, in respect of the policy for the life of the deceased. A total of €5,594.54 had been paid from a specific account identified by the plaintiff as being the joint account which he had with his wife.
By letter dated 10th October, 2013, having been informed of the death of the deceased by brokers at the request of the plaintiff, Aviva informed O'Donohoe Solicitors, engaged to act in the administration of the estate, that Ulster Bank (the successor to First Active) had confirmed no further interest in the life policy.
By letter dated 24th October, 2013, O'Donohoe Solicitors relayed this information to the solicitors for the plaintiff and further confirmed that Aviva did not have any notice of the plaintiff's interest in the policy covering the life of the deceased.
The plaintiff was understandably preoccupied with the death of the deceased. However, it emerged in cross-examination that neither the plaintiff nor the deceased contemplated death and least of all what would happen to the proceeds...
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...on the property and their other household expenses”. This passage was quoted with apparent approval by O'Connor J. in Kenny v Kenny [2019] IEHC 76. 72 Counsel for the appellant therefore argued that the onus rests on the Executor, as the party agitating for a greater beneficial share, to ad......