Maye v Adams
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 05 October 2017 |
| Neutral Citation | [2017] IEHC 560 |
| Date | 05 October 2017 |
| Court | High Court |
| Docket Number | [2011 No. 387 P] [2014 No. 4129 P] |
[2017] IEHC 560
THE HIGH COURT
McDermott J.
[2011 No. 387 P]
[2014 No. 4129 P]
AND
AND
Estate – O.19, r.7 of the Rules of the Superior Courts 1986 – Discovery of documents-Right of survivorship – Valuation of estate.
Facts: The plaintiff sought an order for discovery pursuant to O.19, r.7 of the Rules of the Superior Courts 1986 compelling the defendants to furnish further documents. The plaintiff sought the particulars of the instructionsit gave to the defendants, the legal advice provided by the defendants to the plaintiff and the particulars of the property assets in possession of the plaintiff. The plaintiff contended that the defendants had breached their duty by failing to advise the plaintiff to obtain a valuation of the estate. The defendants denied all the allegations claimed by the plaintiff. The defendants contended that the entire information was within the knowledge of the plaintiff and that the defendants always acted on the instructions of the plaintiff.
Mr. Justice McDermott refused to grant discovery of all the categories of documents except one of the categories. The Court held that the defendants should have given the details of the particulars of the property, which was in joint ownership of the plaintiff and her late husband in relation to that category. The Court was satisfied that the valuations had been furnished to the plaintiff and were in her possession during the entire time.
The plaintiff seeks an order pursuant to O. 19, r. 7 of the Rules of the Superior Courts compelling the first to fortieth named defendants (Byrne Wallace solicitors) to furnish replies to a further notice for further and better particulars dated 10th May, 2016 in the above entitled proceedings.
These proceedings were consolidated by order of the High Court made 11th December, 2014 prior to which an order was made joining Kieran Duggan as a defendant in earlier 2011 proceedings. A comprehensive statement of claim was delivered on the 15th December, 2014. A notice for particulars was delivered to the plaintiff by the defendants and replies were furnished on 2nd April, 2015. This was accompanied by appendices and a schedule of documentation. An extensive defence was delivered on the 14th October, 2015. This was followed by a notice for particulars raised by the plaintiff. Replies were delivered by the defendant on the 18th December, 2015. These were considered to be inadequate. Consequently, a Notice for Further and Better Particulars was delivered on 10th February, 2016. These Particulars, it was said, were sought in order to understand the defence raised against the plaintiff and to instruct expert witnesses properly prior to trial. The replies were furnished on 2nd March, 2016. However, the plaintiff considered that these further replies do not constitute substantive replies but rather reasons as to why replies would not be furnished. The plaintiff claims that at this point rather than making an application to court it would make a ‘constructive and progressive effort’ to isolate the ‘fundamental particulars’ required. A further Notice for Further and Better Particulars was delivered following this exercise on the 10th May, 2016. It is claimed that the further replies furnished on 16th June, 2016 did not provide any additional information. In effect, the further replies, for the most part, referred to the replies previously furnished on the 2nd March, 2016. This motion was then issued on 28th June, 2016.
Background
The plaintiff is the widow of the late Liam Maye who died on the 5th May, 2008. She was appointed as sole executrix and is the sole beneficiary of her late husband's will. On 12th June, 2008 a Grant of Probate in respect of her late husband's estate issued from the Probate Office to the plaintiff. Subsequently, in circumstances which will be outlined below, an order was made by the High Court pursuant to s.26(2) of the Succession Act 1965 revoking that Grant of Probate.
As set out in the statement of claim at the time of his death the late Mr. Maye held a number of assets as joint tenant or otherwise jointly with the plaintiff which did not form part of his estate on his death and passed directly to the plaintiff. At the time of his death cash in the amount of €97,461,475.00 together with real property valued on 5th May, 2008 at approximately €12.5 million passed by right of survivorship to the plaintiff. This cash sum was held between two joint bank accounts at Anglo Irish Bank and a Maye Client Account held with Byrne Wallace.
The plaintiff claims that in the weeks following her late-husband's sudden death a number of meetings took place between her and Byrne Wallace solicitors at a time when she was ‘grieving and vulnerable’. On 12th May, 2008 she was contacted by Mr. Brian Wallace who had previously acted for Mr. Maye seeking an urgent meeting concerning banking and probate matters. She claimed that she was informed that her late husband had provided a number of personal guarantees in relation to borrowings which the banks would seek to enforce against the plaintiff and the estate. Mr. Wallace, solicitor, it is said, emphasised to the plaintiff the importance of taking steps to have the will admitted to probate.
The plaintiff claims that as a result of this meeting she had concerns in relation to her ability to manage her affairs and therefore decided to retain a team of advisors to deal with all issues arising from the late Mr. Maye's death. On 22nd May, 2008 Ms. Carolyn Wallace attended at the plaintiff's home and advised her that it was very important to extract a Grant of Probate as soon as possible in order to safe-guard the plaintiff from any enforcement action by the banks that could arise if the plaintiff was unable to administer the loans pending probate issuing to her as executrix. The plaintiff claims that Byrne Wallace failed to advise her in relation to the requirement to determine the exact net value of the late Mr. Maye's estate and advised that a simple Grant of Probate could be urgently extracted by filing a revenue affidavit which could be corrected at a later date when all relevant information had been gathered.
On 24th May, 2008 the plaintiff claimed that she was advised by Mr. Paul McGennis, Solicitor, that Byrne Wallace who had acted on behalf of the late Mr. Maye and had been intimately involved in his business dealings would look after and advise on all issues arising out of or in connection with his death. Mr. McGennis would act as her primary legal advisor and would designate the appropriate team of advisors to advise her on all issues. It is claimed that Mrs. Maye was still in an emotionally vulnerable state at this time.
The plaintiff claims that by an agreement made orally on 24th and 29th May, 2008, and later confirmed by letter of retainer dated 17th June, 2008 she retained Byrne Wallace solicitors to advise and act for her in relation to all issues arising out of or in connection with the death of her late husband. She executed a power of attorney in favour of Mr. McGennis on the 29th May.
The plaintiff claimed that Byrne Wallace were retained to advise and act for her in her capacity as the executrix of estate of the late Liam Maye, in her capacity as a beneficiary under the will and in her personal capacity as the surviving owner of the jointly held assets.
The statement of claim particularises a series of matters in respect of which it is said the defendants were retained to act and advise her:-
...(i) Her role and duties as an executrix, the consequences of taking on that role and her responsibility as an executrix to discharge the debts of the estate;
(ii) The distinction between her role as executrix and her roles as sole beneficiary under the will and her rights when acting in a personal capacity as the surviving owner of joint assets;
(iii) The distinction between the assets and liabilities of the estate on the one hand and the personal assets and liabilities to the plaintiff on the other;
(iv) The requirement to clearly identify the assets and liabilities of the estate and the value of those assets and liabilities at the time of her late husband's death;
(v) The distinction between assets passing through the estate which ought to be applied to discharge liabilities of the estate and those assets which passed to the plaintiff outside the estate under the right of survivorship which were not required to be made available to discharge liabilities of the estate;
(vi) The consequences of the vesting of estate assets in the beneficiary and the on going liability of those assets for the debts which remained secured on them or otherwise for unsecured debts of the estate;
(vii) Potential conflicts of interest that arose for the plaintiff due to the numerous roles and capacities in which she required advice; and
(viii) The need to fully value and account for all assets and liabilities in the estate.
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