Noonan v O'Connell
| Jurisdiction | Ireland |
| Judge | Mr. Justice Lynch |
| Judgment Date | 10 April 1987 |
| Neutral Citation | 1987 WJSC-HC 2062 |
| Docket Number | No. 2135p 1986 |
| Court | High Court |
| Date | 10 April 1987 |
1987 WJSC-HC 2062
THE HIGH COURT
AND
Citations:
KERR ON FRAUD & MISTAKE 7ED
PROCTOR, R V HUTTON 1978 NI 138
ALLCARD V SKINNER 36 CH 471
JARVIS, IN RE 1958 1 WLR 815
NATIONAL WESTMINSTER BANK V MORGAN 1985 1 AER 821
MEAGHER GUMMOW & LEHANE 2ED
ALEC LOBB GARAGES LTD V TOTAL OIL CO 1985 1 AER 303
MAXWELL PROBATE
CHESHIRE & FIFOOT CONTRACT 11ED
GREALISH V MURPHY 1946 IR 35
GREGG V KIDD 1956 IR 183
GOLDSWORTHY V BRICKELL 1987 1 AER 853
Synopsis:
REAL PROPERTY
Conveyance
Validity - Cancellation - Improvidence - Legal advice - Undue influence - Plaintiff grantor, aged 79 years, conveyed a moiety of his estate in his 108 acre farm to the defendant - The defendant was a nephew of the plaintiff and farmed land which was 14 miles from the plaintiff's farm - The understanding was that the defendant would help the plaintiff to manage his farm as the plaintiff was finding it difficult to do so - The plaintiff had suggested the idea of a conveyance; the defendant had engaged the solicitor who had prepared the conveyance - The plaintiff had conveyed the moiety in consideration of 50p which had been paid by the defendant - The defendant did not covenant to perform any service for the plaintiff, and the conveyance did not contain a revocation clause - The plaintiff was made a ward of court six years after the date of the conveyance - Held that the plaintiff had not received any independent legal advice, and that the transaction was an improvident one - Held that the conveyance must be set aside - (1986/2135 P - Lynch J. - 10/4/87)
|Noonan v. O'Connell|
EQUITY
Conveyance
Validity - Cancellation - Improvidence - Legal advice - Undue influence - ~See~ Real Property, conveyance - (1986/2135 P - Lynch J. - 10/4/87)
|Noonan v. O'Connell|
DOCUMENTS
Execution
Conveyance - Improvidence - Cancellation - Legal advice - Undue influence - ~See~ Real Property, conveyance - (1986/2135 P - Lynch J. - 10/4/87)
|Noonan v. O'Connell|
Judgment of Mr. Justice Lynchdelivered the 10th day of April 1987.
This is an Action brought by the Plaintiff to set aside a transfer dated the 9th of July 1979 whereby the Plaintiff transferred to the Defendant one undivided half share in the lands the subject matter of Folio 40640 of the Register of Freeholders County Cork comprising 108 acres approximately of the lands of Rossacon in the Barony of Duhallow and County of Cork.
The Plaintiff was made a Ward of Court by Order dated the 14th of October 1985 and he sues by the Committee of his estate Matthew Murphy appointed and authorised to bring these proceedings by Order in the wardship matter made the 20th of November 1985. Matthew Murphy is a nephew of the Plaintiff being a son of the Plaintiff's sister Catherine Murphy nee Noonan who died in 1974.
The Defendant is the transferee of the said undivided half share in the said lands and pursuant to the said transfer the Plaintiff and the Defendant became registered jointly asfull owners of the said lands on the 5th day of August 1980. Prior to that date the Plaintiff had been registered as sole full owner of the said lands.
The Defendant is another nephew of the Plaintiff being a son of another sister of the Plaintiff namely, Helen O'Connell nee Noonan who died in March 1983.
The Plaintiff was born on the 27th October 1906. He is a bachelor and he has lived all his life on the said lands of Rossacon until the 20th December 1978. The Plaintiff had three sisters, namely, the said Catherine, the said Helen and Elizabeth Noonan who is still living and unmarried. Elizabeth Noonan's mother died when she was only one and a half years old and she was reared by an aunt and uncle so that the said lands were never her home. The said Catherine and the said Helen left the said lands on marriage in the 1940's since when the Plaintiff lived alone on the said lands and catered for himself.
The Plaintiff engaged in mixed farming. He would have anything between 30 and 50 cattle of which some would be cows and some young cattle and others store cattle. In December 1978 the Plaintiff's cattle which then comprised 14 cows, 12 bullocks and four heifers were sold. The Plaintiff also did some tillage usually about 25 to 35 acres of barley but employed contractors for the ploughing, sewing and harvesting.
The Plaintiff's farming was on a modest scale and for a farm of 108 acres even though approximately half the farm was of poor land fit for grazing only the profits were also modest. They were however adequate to support the Plaintiff who lived very frugally and who was of an independent nature not seeking help without paying for it in cash or kind prior to 1978.
The Committee of the Plaintiff's estate, Matthew Murphy,is a married man with two sons and he lives at Clarina, County Limerick. Matthew Murphy farms some 115 acres at Clarina which is about 45 miles away from the Plaintiff's residence at Rossacon which is about two miles from Kanturk, County Cork. Matthew Murphy was on good terms with the Plaintiff but rarely visited him owing to the distance. He could be of no assistance to the Plaintiff in the running of the Plaintiff'sfarm.
The Defendant is a bachelor who lives at Lisleigh, Ballyclough, Mallow, County Cork about 14 miles from the Plaintiff's residence. The Defendant farms about 84 acres of land at Lisleigh which is the remainder of a farm of about 184 acres which was left equally between the Defendant, his brother and his sister, the balance of which was sold to provide for the share of the Defendant's brother and sister. The Defendant has lived all his life at Lisleigh which is a few miles from Mallow and about 14 miles from the Plaintiff's lands at Rossacon. The Defendant is abusinessman.
The Plaintiff found it increasingly difficult to cope with his farming operations as he entered his seventies. His sister Helen O'Connell, the mother of the Defendant, was at that time still alive and living in Lisleigh with her son the Defendant. The Plaintiff suggested that the Defendant should assist in the running of the Plaintiff's lands. This suggestion was made sometime in the summer of 1978 and the initiative regarding any such suggestion came not from the Defendant in the first instance but from the Plaintiff.
The Plaintiff suffered at least one weakness at his local creamery in the year 1978 but had recovered by the timehe was brought home. On the 20th of December 1978 the Defendant and some neighbours were helping the Plaintiff to get his cattle tested for T.B. by a veterinary surgeon with a view to selling all the cattle as the Plaintiff by then felt unable to manage the cattle especially in winter time. On the occasion of this cattle testing the Plaintiff became very weak and was unable to give any assistance to the extent that the Defendant persuaded the Plaintiff, who was very reluctant, to visit a doctor in Kanturk. As a result of this visit the Plaintiff was admitted to Kanturk Hospital on that day where he was detained overnight and transferred to St. Stephen's Hospital, Glanmire, where he was detained until the 21st of February 1979. He was then transferred to St. Martin's Hospital, Cork, where he was detained until the 15th of March 1979 and was then transferred to Nazareth House, Mallow, where he has lived eversince.
The Plaintiff did not want his lands to be sold or let. He wanted his lands retained and worked as a farm. His sisters, Helen O'Connell and Elizabeth Noonan were in favour of having the lands let and applying the rent to the support of the Plaintiff in Nazareth House but the burden of selling off the cattle and arranging any such lettings or managing the lands was assumed by all the relatives of the Plaintiff to fall on theDefendant.
The Plaintiff at one stage suggested that he might transfer outright his lands to the Defendant who very properly dissuaded the Plaintiff from doing so. Ultimately the Plaintiff suggested that there should be a partnership between himself and the Defendant whereby the Defendant would manageand work the lands or have them worked and would become owner of a half share in them. The Plaintiff suggested that Mr. O'Meara of Mallow should be engaged as Solicitor to carry out the legal formalities to effect such partnership.
In April 1979 Mr. O'Meara was informed by the Defendant of this request by the Plaintiff and requested Doctor O'Grady to examine the Plaintiff to see whether he was fit to do business. Doctor O'Grady carried out such examination and reported that the Plaintiff "owing to physical and mental infirmity is incapable of making a Will and is incapable of managing his own affairs". On the occasion of that examination on the 6th of April 1979 the Plaintiff was only recovering from the semi-collapse which he suffered on the 20th of December 1976 and from malnutrition due to the frugality of his way of life. The Plaintiff greatly improved between April and July 1979 and on the 9th of July the transfer the subject matter of these proceedings was executed. The transfer was drawn by Mr. O'Meara, Solicitor of Mallow who had got the medical report of the 6th of April 1979 and I infer that Mr. O'Meara satisfied himself that the Plaintiff was so much improved with the good care that he had received in Nazareth House that the disabilities mentioned in the medical report of April 1979 no longer applied. Obviously Mr. O'Meara formed the view that the Plaintiff was fit to transact business and accordingly had the transfer executed which was witnessed by Mr. O'Meara.
The Plaintiff now claims through the Committee of his estate to set aside the transfer of the 9th of July 1979 on the grounds:
(1) That the Plaintiff was incapable of entering into a valid transaction of that nature owing to mental incapacity:
(2)...
To continue reading
Request your trial