Re Fleming

• Jurisdiction: Ireland
• Judge: Mr. Justice Gannon
• Judgment Date: 16 March 1987
• Neutral Citation: 1987 WJSC-HC 599
• Court: High Court
• Date: 16 March 1987

1987 WJSC-HC 599

THE HIGH COURT

In Re FLEMING

PROBATE

IN THE MATTER OF THE ESTATE OF PATRICK ANDREW FLEMING DECEASED APPLICATION OF MARY REGAN

Citations:

SUCCESSION ACT 1965 S27(4)

SUCCESSION ACT 1965 S85

T V T 1983 IR 29, 1982 ILRM 217

JOYCE, RE: CORBETT V FAGAN 1946 IR 277

SILLAR, RE: HURLEY V WIMBUSH & ORS 1956 IR 344

GAFFNEY V GAFFNEY 1975 IR 133

ROSS SMITH V ROSS SMITH 1963 AC 280

LYONS, IN RE 72 ILTR 87

Synopsis:

ADMINISTRATION

Will

Revocation - Marriage - Validity - Domicil - Testator born in Ireland in 1912 - He joined the British Mercantile Marine in 1928 and thereafter lived in England until 1967 - He was thrice married in England and thrice divorced there - In September, 1967, he married an American in Nevada, U.S.A. but she was granted a decree of annulment in Nevada in January, 1968 - The testator returned to England and executed his will there in May, 1971, and thereby bequeathed his property to his son, his daughter, his brother and his three sisters - Shortly after his 65th birthday in October, 1977, he sold his flat in London and its contents and went to live in the U.S.A. - In November, 1977, he again married the same woman in Nevada but that marriage was dissolved by a decree of a California court - The applicant, a sister of the deceased, applied to the High Court (Probate) by an originating notice of motion for declarations that the will of the testator had been revoked by his second American marriage pursuant to the terms of s.85(1) of the Act of 1965, and that the testator had died intestate; and for an order giving her liberty to apply for a grant of Letters of Administration of his estate - The testator died in Ireland in 1983 - Held that the testator had abandoned his domicil of origin and had acquired a domicil of choice in England at the time of his third marriage in England in November, 1954, and had retained his domicil of choice in England until 1977 - Held that the third marriage had been validly dissolved by a court of the domicil of the parties - Held that the testator was free to contract the first American marriage in 1967 - Held, however, that the court had no evidence which established the jurisdiction of the Nevada court to annul the first American marriage - Held, accordingly, that the court must treat the first American marriage as subsisting, with the result that (a) the second American marriage was a nullity and (b) the testator's will had not been revoked by a subsequent marriage - Application refused - ~Semble~: Procedure by originating notice of motion is not a suitable procedure for determining the issues raised by the applicant - Succession Act, 1965, ss.27, 85 - (Gannon J. - 16/3/87) - [1987] ILRM 638

|In re Fleming, dec'd|

MARRIAGE

Dissolution

Proof - Failure - Jurisdiction - Domicil - Foreign decree - Marriage proved - Subsequent dissolution by foreign court - No evidence that parties were domiciled in jurisdiction of foreign court - Marriage treated as still subsisting - ~See~ Administration, will - (Gannon J. - 16/3/87) - [1987] ILRM 638

|In re Fleming, dec'd|

1 Judgment of Mr. Justice Gannon delivered on the 16th day of March 1987 .

2 The above named deceased was a Ward of Court at the time of his death which occurred on the 8th of March, 1983 at Kilcroney in the County of Wicklow. The Applicant is a sister who was the Committee appointed by the Court on the 18th of May, 1981. Her bond was vacated pursuant to the Order of the President of the High Court on the 14th of February, 1984. Her application to this Court seeks a number of declaratory Orders not appropriate to a motion of this nature. At paragraph 5 of the Notice of Motion it does seek an Order sufficient to include the inquiries and rulings apposite to the other matters referred to in the other parts of the motion paper. That paragraph is as follows:-

"5. For an Order pursuant to Section 27(4) of the Succession Act 1965that the Applicant Mary Regan be at liberty to apply for Letters of Administration (Intestate) of the estate of the deceased."

3 Accordingly having regard to the arguments addressed to me in Court I propose to consider the application as if it had been expressed in the following more amplified form (in which I underline the additional words):

4 For an Order pursuant to Section 27(4) of the Succession Act 1965that the Applicant Mary Regan be at liberty to apply for and obtain Letters of Administration (Intestate) of the estate of the deceased the purported only will of the deceased dated the 19th May, 1971, executed by him in and when resident in England, having been revoked by his subsequent marriage in the State of Nevada U.S.A on the 28th November 1977.

5 One of the executors named in that will namely Kevin Kealy was served with notice of this application but was not represented on the hearing. His co-executor is, I am informed, believed to be deceased. The other parties to whom notice of this application was given are Peter A. Gifford (otherwise Fleming) a son of the deceased resident in South Africa, Jarlath Fleming, a brother living in Dublin and Patricia Blake-Wilson a daughter all of whom would be beneficiaries under the alleged Will. No person who could claim to be a widow or surviving spouse of the deceased has been put on notice of this application. Of the persons on notice Jarlath Fleming the brother of the deceased was represented in Court and opposed the application on the grounds that the Will of the deceased made on the 19th of May, 1971 was not revoked. The surviving executor was not represented in Court and there is no application before the Court to have that Will admitted to Probate.

6 No doubts concerning the validity of the Will, as to its form or execution, were raised on this application, the substantial dispute being whether or not the marriage (the validity of which is challenged) of the deceased at Reno Nevada in the United States on the 28th November, 1977 was in fact a valid marriage for the purposes of the application of Section 85 of the Succession Act 1965.That section reads as follows:

7 2 "85 (1) A Will shall be revoked by the subsequent marriage of the testator, except a Will made in contemplation of that marriage, whether so expressed in the Will or not.

8 (2) Subject to subsection (1), no Will, or any part thereof, shall be revoked except by another will or Codicil duly executed, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it."

9 That marriage in 1977, which was the deceased's second to the one bride, was the latest of five he had contracted. The marriage came to an end with an agreement dated the 4th of August, 1980 pursuant to which an Interlocutory Judgment of dissolution which became final after six months was granted to the wife in the Superior Court of California, County of San Mateo. The agreement recited in that Court Order commences with the following paragraph:

"RECITAL

This agreement entered into on or about the 4th day of August 1980 by and between Virginia Fleming hereinafter called wife and Patrick Fleming hereinafter called husband is intended and shall be considered as the settlement of the property rights of the parties hereto:"

10 The agreement goes on to state that the parties were married on the 28th of November, 1977, that they separated on or about August the 1st 1980, that there were no children of the marriage, no community property of the marriage, neither is employed, the husband is retired and has a pension fund which is received monthly and the wife is self-supporting with private income from separate property. The agreement continues as follows:

"The parties hereto agree that they have reached a point of irreconcilable differences causing an irremediable breakdown of the marriage and that the wife will proceed to obtain a dissolution of marriage in the Superior Court County of San Mateo State of Calfornia.

Wife shall pay to the husband the sum of thirty thousand dollars ($30,000) as and for spousal support. This thirty thousand dollars ($30,000) is in lieu of payments of $500 per month for a period of five years. The prepayment of the spousal support is to allow husband to invest the said thirty thousand dollars ($30,000) in order to give him additional income per month. Said thirty thousand dollars ($30,000) shall be placed in trust with Leonard G. Hardy Esq and shall be deposited on behalf of husband in whatever bank in Dublin he chooses. In the event the husband does not move to Ireland this agreement shall become null and void."

11 There follow covenants and provisions by means of which both parties waive any claims against each other and provide releases accordingly and the agreement also provides that each party waives the right to inherit from the other party. That agreement and the last quoted extract from it are significant matters for consideration for the purpose of finding a basis for resolving the difficult questions of domicile which have arisen on this motion.

12 The deceased was born in Glenamaddy, County Galway on the 23rd of October, 1912. The affidavit of Mary Regan, the Applicant, does not set out the relatives of the deceased who survived him in the manner customary for showing kinship from which priority of claims to represent his estate could be deduced. However she gives in chronological order the following information concerning her brother the deceased named herein.

13 He joined the British Mercantile Marine in the year 1928 as a Radio Operator. On the 12th of January, 1937 he married Phyllis Margaret Jennings in the Church of Our Lady, Grove Road in the Metropolitan Borough of St. Marylebone at which time he was resident at 71 Portsdown Road,...