Q v Minister for Health & Children
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy |
| Judgment Date | 28 March 2007 |
| Neutral Citation | [2007] IEHC 120 |
| Court | High Court |
| Docket Number | Record No. 2001/364 SP |
| Date | 28 March 2007 |
[2007] IEHC 120
THE HIGH COURT
AND
SUCCESSION ACT 1965 S117
M, IN RE 1970 106 ILTR 82
SUCCESSION ACT 1965 S119
SUCCESSION ACT 1965 S115
SUCCESSION ACT 1965 S117 (1)
SUCCESSION ACT 1965 S117(2)
C (X) & C (Y) & C (Z) v T (R) & ORS; C (AB) (DECEASED), IN RE 2003 2 IR 250 2003 2 ILRM 340 2003 8 1591
SPIERIN SUCCESSION ACT 1965 & RELATED LEGISLATION: A COMMENTARY 3ED 2003 PARA 700
CC & CH F v WC & TC 1990 2 IR 143
D (MP) & ORS v D (M) 1981 ILRM 179
SUCCESSION ACT 1965 S117(3)
KELLY v HENNESSY 1995 3 IR 253
WILKINSON v DOWNTON 1897 2 QB 57
MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 PARAS 22.28 TO 22.34
FLETCHER v COMMISSIONER OF PUBLIC WORKS IN IRELAND 2003 1 IR 465 2003 2 ILRM 94 2003 ELR 117 2003 22 4936
STATUTE OF LIMITATIONS 1957 S13(2)
STATUTE OF LIMITATIONS 1957 S51
STATUTE OF LIMITATIONS 1957 S58
STATUTE OF LIMITATIONS 1957 S18
MURPHY v MURPHY 1980 IR 183
SEAMUS DURACK MANUFACTURING LTD v CONSIDINE 1987 IR 677
DOYLE v O'NEILL UNREP O'HANLON 13.1.1995 1995/2/421
DELANY EQUITY & THE LAW OF TRUSTS IN IRELAND 3ED 2003 637
LAND LAW
Title action
Adverse possession - Use and occupation of land - Permission of owner - Proprietary estoppel - Statute of Limitations 1957 (No 6), ss 13, 18, 51 and 58 - Murphy v Murphy [1980] IR 183, Seamus Durack Manufacturing Ltd v Considine [1987] IR 677 and Doyle v O'Neill (Unrep, O'Hanlon J, 13/1/1995) - Claim dismissed (2001/364SP - Laffoy J - 28/3/2007) [2007] IEHC 120
A v C
TORT LAW
Personal injuries
Psychiatric injury - Nervous shock - Criteria - Reasonable foreseeability - Medical evidence - Kelly v Hennessy [1995] 3 IR 253, Wilkinson v Downton [1897] 2 QB 57 and Fletcher v Commissioners of Public Works [2003] 1 IR 465 considered - Damages awarded (2001/364SP - Laffoy J - 28/3/2007) [2007] IEHC 120
A v C
PROBATE
Wills
Child - Failure to provide - Assets at date of death - Circumstances of applicant - Provision made for applicant - Circumstances of siblings - Failure in moral duty to make proper provision - Just provision - Succession Act 1965 (No 27), s 117 - XC v RT [2003] 2 IR 250, Re IAC [1990] 2 IR 143 and MPD v MD [1981] ILRM 179 considered - Declaration granted and substitution of sum (2001/364SP - Laffoy J - 28/3/2007) [2007] IEHC 120
A v C
Three actions were heard together. The first action was a claim brought by the plaintiff A pursuant to s. 117 of the Succession Act 1965 seeking a declaration that his late father failed in his moral duty to make proper provision for A in accordance with his means. In the second action, the plaintiffs alleged that the demolition of a wall amounted to trespass and it was claimed that W had suffered psychiatric injury. The third action concerned the plaintiffs’ claim that they had been in sole and exclusive occupation of a property without acknowledging the title of the testator and accordingly they had barred the title of the testator.
Held by Laffoy J. that the testator failed in his moral duty to make proper provision for A and the sum of €750,000 should be substituted for the IR£40,000 in the will of the testator. The defendants were liable in damages for the psychiatric injury which their actions in demolishing the wall caused to W. The plaintiffs’ claim to have established title by adverse possession had to fail.
Reporter: RW
This judgment is circulated in redacted form to avoid identification of the parties
In this judgment I deal with the following three actions which were heard together:
(1) the proceedings which were initiated by special summons under the above title on 14th August, 2001 (the s. 117 application);
(2) a plenary action initiated on 15th October, 2001 between A and W, as plaintiffs, and C and D, in their personal capacities, as defendants (the trespass/personal injuries action); and
(3) a plenary action initiated on 15th August, 2002 between A and W, as plaintiffs, and C and D, as personal representatives of T deceased, as defendants (the title action).
By agreement of the parties, the s. 117 application was heard on oral evidence and the three actions were heard togetherin camera, because of the requirement of s. 119 of the Succession Act, 1965 (the Act of 1965).
The claim in these proceedings is brought by the plaintiff (A) pursuant to s. 117 of the Act of 1965 seeking a declaration that his late father, T (the Testator), who died on 24th October, 1999, failed in his moral duty to make proper provision for A in accordance with his means and that the court make such provision for him as the court thinks just. The defendants are the personal representatives of the Testator on foot of a grant of probate of his last will dated 8th May, 1998, which issued to them on 19th February, 2001. The Testator died unexpectedly, following a stroke, at the age of 70 years.
The Testator devised and bequeathed the property he described as "my dwelling house and lands with the contents thereof" (Blackacre) to his son, the first defendant (C), together with his livestock, his Fiat tractor and his machinery at Blackacre, subject to and charged with the following:
(1) payment of the sum of IR£40,000 to his son, A, within five years from the date of his death;
(2) payment of sufficient sums for their maintenance and support for their lifetimes and the life of the survivor of them for his wife, (the widow), and his daughter, E; and
(3) payment of the sum of IR£40,000 to his son, B, within a period of five years from the date of his death.
The Testator added a proviso to deal with an eventuality, which did not happen, that C should predecease him, in which case the Blackacre was to pass to the second defendant (D), and, in the event that he should predecease the Testator, the devise and bequest of the Blackacre was to pass to E.
The Testator devised and bequeathed his dwelling house and the contents thereof and his lands at Whiteacre to the widow for her lifetime and as and from her death for his son D and his daughter E as tenants in common in equal shares. He added a proviso that, should D predecease him, which did not happen, or predecease the widow, his tenancy in common interest should pass to E.
The Testator bequeathed certain plant and equipment to A (a tarrup silerator, a five-sod plough, a small dung spreader, a slurry tank and a tipping trailer) and he gave his sand screener and "all plant and machinery in the sand pit" and a loader to B.
The Testator devised and bequeathed the residue of his estate to the widow.
The Testator was the owner in fee simple of the Blackacre at the date of his death. The farm was registered on two Land Registry folios, Folio -- County -- and Folio -- County --. According to the folios the lands aggregated 85.641 hectares or 211.62 acres. The Testator had acquired the lands under a marriage settlement from his father, G F (the grandfather), dated 13th June, 1957 and he had become registered owner on the folios on 30th August, 1957. Contemporaneously with the marriage settlement, the Testator signed an agreement with the grandfather, his mother, G M (the grandmother) and his sister, S, under which,inter alia, he agreed that whenever called upon by the grandfather or the grandmother he would execute the charges necessary to charge the lands with certain rights and payments, including the right of the grandfather to reside in the dwelling house on the lands registered on Folio --, that is to say, Blackacre House, and to be therein supported and maintained during his life and a similar right in favour of the grandmother for her life and also a right of residence in favour of S during her life, such right to cease on her marriage. The grandfather lived in Blackacre House until his death in 1973 or 1974. The grandmother died in 1987. The right of residence of S ceased on her marriage in the early 1960s.
Blackacre House comprises a three-storey period residence, most of which has been occupied by A and his wife (W), since their marriage in late 1983, although one room has been used for the purposes of the farm enterprise carried on by the Testator during his lifetime and by C since his death, a farm yard and farm buildings and agricultural land, to which there was attached a 60,000 gallon milk quota. In the title action, A and his wife (W) claim to have acquired a possessory title to Blackacre House and part of the farmland comprising about 30 acres. For the reasons set out in section D of this judgment, I find that A and his wife have not established their claim to a possessory title. The value of the Blackacre was given as IR£1 million as at the date of the Testator's death on the Inland Revenue affidavit filed with the Revenue Commissioners in relation to his estate.
Whiteacre, according to the Inland Revenue affidavit, is registered on Folio -- County -- and Folio -- County -- and comprises 31 acres, 2 roods and 32 perches. It was valued on the Inland Revenue affidavit as at the Testator's death at IR£280,000. The Testator bought Whiteacre in the mid-1960s and he built a dwelling house on the lands. He occupied the dwelling house with his family, including the grandmother, after it was constructed in the early 1970s. Since his death, the widow has resided there with C and E.
The machinery and equipment bequeathed to A was valued on the Inland Revenue affidavit at IR£12,600 and the plant and machinery bequeathed to B was valued at IR£6,500. The livestock and machinery which passed to C was valued at IR£86,535. The net value...
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