McCormack and Another v Duff and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 08 June 2012
• Neutral Citation: [2012] IEHC 285
• Court: High Court
• Docket Number: [No. 1603 P./2010]
• Date: 08 June 2012

McCormack & Paolozzi v Duff (nee Senezio) & Rabbitte

No Redaction Needed

BETWEEN

PAUL McCORMACK AND RINALDO PAOLOZZI

PLAINTIFFS

AND

GINA DUFF (NÉE SENEZIO) AND SILVIO RABBITTE

DEFENDANTS

[2012] IEHC 285

[No. 1603 P./2010]

THE HIGH COURT

Wills & Probate - Will - Executors appointed by deceased - Executors seeking number of reliefs in relation to deceased and estate following dispute as to distribution of estate

Facts: The deceased, born in Ireland but of Italian descent, had made a will in 2005, in which he had appointed the plaintiffs as his executors. The deceased had assets both in Ireland and in Italy, and had made wills in both jurisdictions detailing his instructions as to the distribution of these assets after his death.

The deceased died in 2007, and a family dispute arose as to the distribution of these assets. The plaintiffs alleged the defendants had intermeddled in the assets of the deceased, and sought a number of reliefs. The defendants in turn sought to defend this claim but also counter claim, inter alia, on the basis expenses had been incurred in the management of certain assets.

Held by Herbert J, that the deceased was domiciled in Ireland at the time of making his Italian will. The Court could not ignore the instructions laid out therein, but found that the existence of the Irish and Italian wills did not render them inconsistent. The Court found that there was sufficient evidence to conclude the deceased did not intend to revoke his Irish will by making the Italian will.

The Court reviewed the evidence and found the first defendant had deliberately intermeddled in the assets of the deceased in Italy. The first plaintiff's actions in seeking to protect the estate could not be impugned, and the defendants and/or their lawyers in Italy were fully apprised of the facts in the matter. The defendants had not made full or proper disclosure to the plaintiffs in allow them to discharge their duties as executors.

Such behaviour, together with their evidence in the instant case, suggested intermeddling in the assets would continue and an order to restrain the defendants would be appropriate. The Court ordered certain sums to be repaid by the first defendant and dismissed her counterclaim.

SUCCESSION ACT 1965 PART VIII

SUCCESSION ACT 1965 S78

SUCCESSION ACT 1965 S102(1)(A)

SUCCESSION ACT 1965 S102(1)(E)

SUCCESSION ACT 1965 S85

BARKER, IN RE 1995 2 VR 439

ADAMS (DECEASED), IN RE; BANK OF IRELAND TRUSTEE CO LTD v ADAMS & ORS 1967 IR 424

ROWAN (DECEASED), IN RE; ROWAN v ROWAN & ORS 1988 ILRM 65 1987/4/1107

LESLIE v LESLIE & ORS 1872 6 IR EQ 332

GOODS OF MARTIN (DECEASED), IN RE 1968 IR 1

SUCCESSION ACT 1965 S90

WAYLAND'S ESTATE, IN RE 1951 2 AER 1041

TAXES CONSOLIDATION ACT 1997 S1048(2)

TAXES CONSOLIDATION ACT 1997 S1047

TAXES CONSOLIDATION ACT 1997 S1048(1)

SUCCESSION ACT 1965 S45

COURTS ACT 1981 S22(1)

RSC O.55 r42

Mr. Justice Herbert

2 "1. A Declaratory Order that Antonio Senezio was a citizen of Ireland and was domiciled and ordinarily resident therein on the 13^th day of February, 2007 and that his movable estate wheresoever situate outside Ireland at the time of his death devolved inter alia under Part VIII of the Succession Act 1965.

6 An Order pursuant to the inherent jurisdiction of this Honourable Court directing the defendants and each of them forthwith to disclose to the Plaintiffs to the extent known or otherwise available to the defendants and each of them and/or their respective servants or agents all such material information as identifies or assists in identifying all or any movable and immovable property legally and/or beneficially owned by the late Antonio Senezio at the date of his death or in which he had a legal or beneficial interest wheresoever located and in particular outside Ireland.

7 An Order pursuant to the inherent jurisdiction of this Honourable Court directing the defendants and each of them their respective servants or agents forthwith to make full disclosure of all information which identifies or assists in identifying the true market value of all or any such movable or immovable assets of the late Antonio Senezio at the date of his death.

9 An Injunction restraining the defendants and each of them from intermeddling in the assets of the estate of the late Antonio Senezio wheresoever located in the course of the Administration of the estate.

10 An Injunction to restrain the Defendants and each of them from executing any document or agreement affecting any movable of immovable assets wheresoever located of the estate of the late Antonio Senezio up and until his estate is administered in accordance with the Laws of Ireland.

11 An Order directing the first Defendant to repay the sum of €163,581.07 (with interest thereon from the 28^th day of July, 2008, until payment) being movable assets of the late Antonio Senezio at the date of his death and held at the Cassino branch of Banca Carige SpA.

12 Damages for wrongful interference in and with the movable and immovable assets of the deceased.

13 All necessary accounts, inquiries and directions.

14 Interest pursuant to the Courts Act1981.

15 Such further and other reliefs as to this Honourable Court shall seem fit.

16 Costs."

Gina Duff (née Senezio), (hereinafter referred to as "first defendant"), now a litigant in person, but then acting through Vincent and Beatty, Solicitors, delivered an extensive Defence and Counterclaim, (46 paragraphs), on the 30^th June, 2010. By her defence, clarified on the 24^th November, 2010, by Replies to a Notice for Particulars, the first defendant claims that the late Antonio Senezio did not make or execute his last will and testament on the 29^th July, 2005 in Ireland. It is pleaded that the testamentary disposition of that date was revoked in whole or in part by a subsequent testamentary disposition made by him at Cassino in the Republic of Italy on the 29^th September, 2006, if that testamentary disposition is valid in accordance with the Laws of the Republic of Italy.

The first defendant in her Defence admits that the late Antonio Senezio was a citizen of Ireland and was domiciled and ordinarily resident here at the date of his death. The first defendant admits that the plaintiffs, acting on foot of a Grant of Probate issued to both of them out of the Principal Probate Registry in Ireland on the 10^th June, 2008, were in due course of administration seeking to identify all the assets of the late Antonio Senezio which formed part of his estate at the date of his death and, were legally obliged to account for the same to the Irish Revenue Authorities. The first defendant denies that she has not cooperated with the plaintiffs or has frustrated them in their inquiries in this regard. The first defendant claims that she has fully cooperated with the plaintiffs and, by herself and though her servants and agents has furnished all information, documentation, valuations and records in her possession or power which would or might assist the plaintiffs in identifying the movable and immovable assets legally or beneficially owned by the late Antonio Senezio at the date of his death. The first defendant denies that she has intermeddled with the estate of the late Antonio Senezio or with any part of that estate. As elucidated during the course of the hearing of this action, the first defendant claims that the second plaintiff was aware at all material times and, therefore both plaintiffs should be deemed to have been aware, that the late Antonio Senezio at the date of his death owned movable and immovable property in Cassino, in the Republic of Italy.

The first defendant claims that by reason of negligence, and breach of duty, including fiduciary duty on the part of the second plaintiff, she was encouraged to assume, and the second plaintiff acquiesced in that assumption and expressly and impliedly represented that the plaintiffs had no role or interest in the preservation, collection or administration of the movable or immovable assets of the late Antonio Senezio in the Republic of Italy. The first defendant claims that by reason of the foregoing she was compelled to intervene and to protect those movable and immovable assets. Acting on legal advice obtained from Avv. Ricardo Ernesto Di Vizio, she took steps to preserve these assets for the benefit of the estate of the late Antonio Senezio by having transferred to her, the real estate property at Via Casilina Sud, Cassino, another real estate property at Via Monte Maggio, Cassino, a sum of €159,700.45 from account No 2357/CAT.80 at Banca Carige, Cassino, (and a Safe Custody of Securities Policy No. 626071/11) which contained 10,481.217 Units in Carige Liquid Euro Fund, 1,250 shares in Capitalia (now Unicreditio) and, 4,000 shares in Banca Carige SpA. The first defendant claims that from the sale of these Units and Shares she partially recouped a sum of €72,657.61, which she claims she paid in Inheritance Tax in Italy on her succession to the movable and immovable assets of the late Antonio Senezio in the Republic of Italy and, a sum of €7,500 which she claims she paid to Franco Citro who claimed that this money was due to him by the late Antonio Senezio as caretaker of Via Casilina Sud, Cassino.

The first defendant claims that save for these sums, she now holds any movable or immovable property of the late Antonio Senezio in trust for the persons or persons entitled to his estate. The first defendant claims that if the plaintiffs have suffered any loss or damage or are liable to any legal criminal sanctions this was caused by the negligence, breach of duty, including breach of fiduciary duty on the part of the second plaintiff. Alternatively, she claims that it was caused by a failure on the part of the second defendant to notify her or the plaintiffs of the nature and extent of the movable...