On the application of Hamilton and Williams

• Jurisdiction: Ireland
• Judge: The Hon. Mr. Justice Frederick Morris
• Judgment Date: 20 May 1999
• Neutral Citation: 1999 WJSC-HC 3354
• Date: 20 May 1999
• Docket Number: [1998 No. 688 S.P.]
• Court: High Court

1999 WJSC-HC 3354

THE HIGH COURT

688SP/1998

HAMILTON (APPLICATION OF)

IN THE MATTER OF THE POWERS OF ATTORNEY ACT 1996

AND

IN THE MATTER OF AN INSTRUMENT CREATING AN ENDURING POWER OF ATTORNEY EXECUTED BY EILEEN CONSTANCE BOOTH ON THE 20TH OCTOBER 1998

ON THE APPLICATION OF STEPHEN CHRISTOPHER HAMILTON

AND

JANE WILLIAMS

Citations:

POWERS OF ATTORNEY ACT 1996 S10(3)

ARNOTT V ARNOTT 1924 58 ILTR 145

LETTERSTEDT V BROEN 9 AC 391

POWERS OF ATTORNEY ACT 1996 S9(1)

POWERS OF ATTORNEY ACT 1996 S12(2)(b)(ii)

Synopsis

- [1999] 3 IR 310 - [1999] 2 ILRM 509

While the son of the donor claimed that the proposed attorneys were unsuitable to act as attorneys because of the manner in which he believed they had mismanaged his mother's affairs to date, the criticisms put forward by the donor's son in challenging the registration of an instrument purporting to create an enduring power of attorney even if the criticisms were valid were not validly made of and concerning the two persons proposed as attorneys but would relate to the donor's own management of her affairs. Lack of business skill was not a valid objection to the registration under section 10 of the Power of Attorney Act 1996. The word "unsuitable in section 10 had no connection with the proposed attorney's skill at managing the donor's property. To constitute a ground for refusing to register an instrument a criticism made on a proposed attorney must far exceed the corresponding test applied by the courts in applications for the removal of a trustee. The objector had not made out a case that either of the proposed donors was unsuitable to be the donor's attorney. The High Court so held in making an order for the registration of the instrument.

1 Judgment delivered by The Hon. Mr. Justice Frederick Morris on the 20th day of May 1999

2 This matter comes before the Court as the hearing of an objection to the registration of an Instrument said to have been executed on the 20th October, 1997 purporting to create an Enduring Power of Attorney. The application for registration is made by way of special Summons issued on the 5th November 1998 based on the grounding Affidavit of Stephen Christopher Hamilton.

3 The objection to registration has been lodged by Mr. Timothy Booth.

4 The objection is dated the 23rd October 1998.

5 While the objection raised a variety of issues, Mr. Booth has informed the Court that the reason why he has lodged his objection to the Registration is that he does not believe that Stephen Christopher Hamilton and Jane Williams are suitable to be the donor's Attorneys. This is a valid ground upon which to make an objection as Section 10 of the 1996 Act provides as follows: Section 10(3) For the purposes of this Act a notice of objection to registration of an Instrument is valid if the objection is made on one or more of the following grounds, namely,

6 (a) ...............

7 (b) ...............

8 (c) .............

9 (d) That, having regard to all the circumstances, the Attorney is unsuitable to be the donor's Attorney.

10 Accordingly it becomes necessary for the Court to consider the facts of the case and the basis upon which Mr. Booth makes his case.

11 I am satisfied that the facts of the case can be summarised as follows:

12 Mrs Eileen Constance Booth (Mrs Booth) is the widow of the late Mr. Cyril Booth. They lived in Teach Ban, Ballymore Eustace, Co. Kildare. Mr. Booth died on the 3rd January 1995 survived by Mrs Booth and three children namely Mrs Jane Williams, one of the proposed Attorneys, Mr. Booth, (the Objector), and Mrs Susan Walther now married and living in Germany. Mrs Walther is a notice party to this application and supports the application for registration.

13 Mrs Booth was born on the 1lth March 1908.

14 After her husband's death Mrs Booth continued to reside at Teach Ban. In 1995 she sought the advice of her Solicitor, Mr. Christopher Hamilton, one of the proposed Attorneys in relation to the possible sale of her house. I am satisfied that she was, at that time, unable to drive and considered her residence remote and isolated. She had spoken to representatives of the Sue Ryder Foundation in Dalkey and was considering moving there. In late 1995 she instructed Mr. Hamilton to arrange for the sale of her house and in January of 1996 she moved into the Sue Ryder Foundation. Formal instructions were given to Mr. Hamilton on the 31st January 1996 and a contract for the sale of the house was entered into on the 30th May 1996 for the sum of £107,000. I am satisfied on Mrs Booth's instructions the proceeds of the sale were invested on her behalf in accordance with the advice of her Stockbroker, Mr. Denman Kessler of Goodbody Stockbrokers with whom she had had a business relationship for many years. I am also satisfied that Mrs Booth had retained Messrs A & L Goodbody, Solicitors since in or about the year 1943 and that Mr. Hamilton, of that firm, had acted for her for upwards often years. I am satisfied that Mr. Kessler, the Stockbroker had acted for Mrs Booth for approximately 14 years and that Mr. Doyle of J.P. & M. Doyle, Auctioneers and Valuers who acted in the sale...