Naylor v Maher

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Keeffe
• Judgment Date: 14 September 2012
• Neutral Citation: [2012] IEHC 408
• Court: High Court
• Date: 14 September 2012

[2012] IEHC 408

THE HIGH COURT

[No. 11089 P/2008]

Naylor v Maher

BETWEEN

WILLIAM NAYLOR

PLAINTIFF

AND

JEAN MAHER

DEFENDANTS

SUCCESSION ACT 1965 S117

THORNER v MAJOR 2009 1 WLR 776

MCCARRON v MCCARRON SUPREME UNREP SUPREME 13.2.1997 1997/4/1414

FULTON v ANDREW 1875 LR 7HL 448

BEGLEY v MCHUGH 1939 IR 479

LEAHY v CORBOY 1969 IR 148

JR IN RE 1993 ILRM 657

GILLETTE v HOLT 2000 AER (D) 299 2001 CH 210 2000 2 AER 289

FULLER v STRUM 2002 1 WLR 1097

CRAIG v LAOUREUX 1920 AC 349

SCAMMELL v FARMER 2008 EWHC 1100 (CH)

KEATING ON PROBATE 3ED 2007 PAR 11-20-11-23

SHERRIN WILLIAMS ON WILLS 9ED 2007 5.9

CARROLL v CARROLL 1999 4 IR 241 2000 1 ILRM 210

LAMBERT v LYONS UNREP MURPHY 26.1.2010 2010/28/6827 2010 IEHC 29

CORBOY, IN RE 1969 IR 148

SMYTH v HALPIN 1997 2 ILRM 38R

GILLETT v HOLT 201 CH 2010

ALLCARD v SKINNER 1887 36 CH D 145

GREALISH v MURPHY 1946 IR 35

PROBATE

Wills

Real property - Proprietary estoppel - Assurances as to bequest of land - Oral agreement - Validity of will - Undue influence - Righteousness of transaction - Unconscionability - Whether plaintiff worked on deceased's agricultural land in expection of bequest in will - Whether assurances given to plaintiff - Whether lands ought to be transferred to plaintiff - Whether will invalid - Whether will made due to undue influence of defendant - Whether bequest to plaintiff ought to be invalidated - Thorner v Major [2009] 1 WLR 776; McCarron v McCarron (Unrep, SC, 13/2/1997); Gillette v Holt [2001] Ch 210; Smyth v Halpin [1997] 2 ILRM 38 and Lambert v Lyons [2010] IEHC 29, (Unrep, Murphy J, 26/1/2010) approved - Fulton v Andrew (1875) LR 7 HL 448; In re Corboy; Leahy v Corboy [1969] IR 148; Carroll v Carroll [1999] 4 IR 241 and Grealish v Murphy [1946] IR 35 distinguished - Begley v McHugh [1939] IR 479; In re JR [1993] ILRM 657; Fuller v Strum [2002] 1 WLR 1097; Craig v Laoureux [1920] AC 349; Scammell v Farmer [2008] EWHC 1100 (Ch) and Allcard v Skinner (1887) 36 Ch D 145 considered - Succession Act 1965 (No 27), s 117 - Relief granted in part (2008/11089P - O'Keeffe J - 14/9/2012) [2012] IEHC 408

Naylor v Maher

Facts: The plaintiff brought proceedings challenging the will of his deceased father who it was claimed had promised to devise lands to the plaintiff. An earlier will had in fact devised the lands to the plaintiff (the 2005 will) but a subsequent will (the 2006 will) had not contained this bequest. It was submitted that the plaintiff had agreed to work the lands for minimal remuneration over a thirty-year period and as a consequence, a proprietary estoppel arose in his favour. It was contended that based on the representations made to him, the plaintiff was induced to act to his detriment. It was also asserted that the 2006 will should be struck down on the basis that it was extracted by duress and undue influence exerted by the defendant. The defendant denied the claims of the plaintiff, sought an order that the 2006 will be proved in solemn form and sought orders for vacant possession of the deceased's lands which were occupied by the plaintiff. Under the 2006 will, the lands in question had been devised to the defendant. Both parties were the natural children of the deceased although this had been somewhat unclear during the lifetime of the deceased and the deceased had referred to the plaintiff as his 'stepson'. The first husband of the mother of both parties was listed as their father on their birth certificates. It was submitted that there was ample evidence both from the plaintiff and his neighbouring witnesses as to the representations or assurances given by the deceased to the plaintiff in relation to his succession to the lands of the deceased.

Held by O'Keeffe J in making the following order: On various occasions the deceased had represented to the plaintiff that the lands would be his upon the deceased's death. These promises/representations were intended by the deceased to be relied upon by the plaintiff and were in fact relied upon by the plaintiff and constituted a serious and substantial detriment for him. A method of compensating the plaintiff was inappropriate and would not do justice to him. The balance of the lands owned by the deceased would be transferred to the plaintiff as a result of the promises and commitments made. The court was not satisfied that at the date of execution of the 2006 will that the deceased was under the dominion and control of the defendant. The evidence of the defendant to the court as a whole was uncooperative and calculated to confuse the court. The defendant had knowingly sought to misinform the true character of her relationship with the deceased and ought to have informed the solicitor when she was instructing her in relation to the administration of estate of the deceased. The plaintiff's claim to the lands had been established while the plaintiff had failed to establish that the 2006 will should be declared invalid on grounds of duress and undue influence.

1 1. This case is concerned with the ownership of the lands of the late Michael Hoare ('the deceased') and specifically those lands described in Folio 21455 and 18131 of the Register of Freeholders for the County of Tipperary ('the lands'). The plaintiff, William Naylor, asserts his entitlement to the lands on two main grounds: firstly, that, in consideration of the plaintiff's work on the lands for minimal remuneration over a period of more than 30 years, it was agreed that the deceased would devise the lands to the plaintiff and that, in consequence, a proprietary estoppel arises in his favour as against the estate of the deceased; secondly, that the will of the deceased of 9 ^th day of November, 2006, ('the 2006 Will') should be struck down on the basis that it was extracted by duress and undue influence exerted by Jean Maher, the defendant, and that the deceased's will of 30 ^th day of September, 2005, ('the 2005 Will'), under which the lands were devised to the plaintiff, should be admitted to probate as the deceased's valid last will and testament.

2 2. The defendant denies that the plaintiff is entitled to the reliefs sought in the Plenary Summons and Statement of Claim. The defendant, in her capacity as the personal representative of the deceased, also seeks an order that the 2006 Will be proved in solemn form and makes a counterclaim which seeks, inter alia, the payment of fees allegedly due from the plaintiff under a Licence Agreement dated 1 ^st January, 2005, as well as orders for vacant possession of the deceased's lands which are occupied by the plaintiff. The deceased under the 2006 will devised the lands to the defendant.

Background

3 3. The deceased, who was one of sixteen children of Mr. William Hoare and his wife, Elizabeth, was born on the 21 ^st August, 1925. The background to this case can be traced to the acquisition by Mr. William Hoare of the lands at Derrylahan. The lands were registered in the deceased's name in 1952. Although they initially comprised 310 acres, the lands consisted of approximately 122 acres at the time of the deceased's death on 7 ^th April, 2007. Mr. Liam Rigney, auctioneer and valuer, gave evidence to the Court as to the current value of the lands as at February 2011, in the amount of €525,000. He confirmed that this value had not changed much by the time he was giving evidence on the 15 ^th December, 2011 and that it represented a more than 50% reduction from the April 2007 value of €1.2m.

4 4. Mrs. Eileen Naylor, the mother of the parties to this action, was originally a tenant of the deceased's father in Moorpark Street, Birr, in the 1950s. Mrs. Naylor's first husband, Oliver Naylor, emigrated to England in the 1950s. During the 1950s, Mrs. Naylor had five children: Alan (born on 21 ^st August 1950); Michael (born on 24 ^th July 1952); Jean, the defendant (born on 15 ^th March 1954); William, the plaintiff in this action (born on 9 ^th July 1955); and Terry (born on 2 ^nd September 1957). Although Mr. Naylor was recorded as the father of all five children on their birth certificates, it now appears that he was not in fact the father of some of these children, and in particular the three younger children. Mr. Naylor, who remained in England until his death in 1977, did not play any active role in the family's life.

5 5. From the evidence before the Court, it appears the parties' mother, Mrs. Eileen Naylor (later Hoare), had a longstanding relationship with Michael Hoare, the deceased, which began during her time as a tenant at Moorpark St. This relationship led to the Naylor's' move to a house on the lands at Derrylahan sometime around 1959 or 1960. While he did not stay overnight, the deceased spent his days at Derrylahan. Eventually, after Mr. Naylor's death, he married Mrs. Naylor on 16 ^th July 1981 and, after spending a few years in Derrylahan, the couple moved to a house on Military Road in Birr in 1983. Mrs. Eileen Hoare (as she then was) died in 2001.

6 6. The relationship between the deceased and Mrs. Naylor and the question of the Naylor children's parentage form an important part of the backdrop to the present case. In the course of the defendant's evidence, it became clear that, although she always described herself as a stepdaughter of the deceased (including in the Inland Revenue Affidavit sworn following his death), the defendant had in fact learned from her mother and the deceased in their lifetime that she was the natural daughter of Mrs. Eileen Naylor (later Hoare) and the deceased.

7 7. Notwithstanding this knowledge on the defendant's part, the defendant, in pretrial correspondence and also at paragraph 1 of the Defence, did not admit that the plaintiff was the lawful son of the deceased and placed the plaintiff on full proof thereof. In the course of the hearing, counsel for the defendant...