Reidy v The Governor and Company of the Bank of Ireland

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 08 August 2023
• Neutral Citation: [2023] IECA 212
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2020/110

Between/

Gerard Reidy (Next Friend of Eithne Ryan)

Plaintiff/Appellant

and

The Governor and Company of the Bank of Ireland

Defendant/Respondent

And Between:

The Governor and Company of the Bank of Ireland

Counter Claimant

and

Eithne Ryan

First Defendant to Counterclaim

and

Bryan Ryan

Second Defendant to the Counterclaim

[2023] IECA 212

Woulfe J.

Murray J.

Whelan J.

Appeal Number: 2020/110

COURT OF APPEAL

UNAPPROVED

JUDGMENT of Ms. Justice Máire Whelan delivered on the 8th day of August 2023

Introduction

1 . This is an appeal against a High Court judgment delivered on the 17 ^th January, 2020 and consequential order of the 5 ^th February, 2020, perfected on the 1 ^st May. The appellant (hereinafter the widow), being the plaintiff and the first defendant to the counterclaim at first instance, is the widowed mother of the second defendant to the counterclaim (hereinafter the registered owner). The registered owner was so registered as owner of the lands in Folio … in 2006 under the terms of his late father's will, the latter having died in 2003. Registration was effected subject to rights of residence, maintenance and support in favour of the widow. The registered owner created a charge in favour of the respondent, Bank of Ireland, (hereinafter the Bank), the defendant and counterclaimant at first instance, over the said lands in 2010.

2 . The widow, through her next friend, seeks to set aside part only of the said order declaring that a judgment obtained by the widow on 19 October 2016 does not attach to or form part of a burden for maintenance and support in favour of the widow registered at entry number 4 in Part 3 of the Folio, declaring that the entire burden binds only part of the said Folio as comprises the dwelling house and ordering costs against the widow. In lieu thereof the widow seeks declaratory relief in her favour of in the terms of a statement of claim delivered in the within proceedings.

3 . In particular, the widow seeks to set aside the following orders:

• (i) A declaration that a judgment obtained by the widow in proceedings, record no. 2015/3781P, on 19 ^th October, 2016, in the sum of €779,225 does not attach to or form part of the burden in favour of the widow at Number 4 in Part 3 of the Folio.

• (ii) As against the widow and the registered owner, defendants to the counterclaim before the High Court, a declaration that the burden registered at Number 4 in Part 3 of Folio … in respect of the widow's right of residence, support and maintenance pertains to and binds only that part of the land comprised of the dwelling house in the Folio.

• (iii) An order refusing the reliefs sought by the widow.

• (iv) An order striking out the widow's claim as against the respondent Bank.

• (v) An order for the costs of the Bank as defendant and counterclaimant in respect of defending the claim and maintaining the counterclaim to include any reserved and discovery costs, and the costs of a stenographer, to be adjudicated in default of agreement.

Background

4 . The widow is now of advanced years, aged circa 98 years. Her late husband died testate on the 29 ^th July, 2003 and a grant of probate issued forth of the Probate Registry in November, 2004 to the executor, her son, the only child of the deceased and the widow, being the registered owner to whom I have earlier referred. The net value of the estate of the deceased was expressed on the face of the grant to be €2,843,353.69.

5 . There was a specific devise and bequest within the Will in favour of the widow:

“Devise and bequest to widow

I give, devise and bequeath my dwelling house at Bunker Hill, Cratloe, County Clare to my son the said Bryan Ryan for his own use and benefit absolutely subject to a right of residence, support and maintenance in favour of my wife Eithne Ryan for the duration of her life. It is my express wish that Eithne Ryan would be maintained and supported to the standard which she has been used to.”

Otherwise there was a pecuniary bequest in the sum of €20,000 to the widow “for her own use and benefit absolutely”.

6 . In light of same there accrued to the widow the right of election pursuant to s. 115(1) of the Succession Act, 1965 as amended entitling her to choose as between her legal right share pursuant to s. 111(2) of the Succession Act, 1965 to take an absolute share of one third of the net estate of her late husband and a potential entitlement to appropriate the dwelling house in and towards satisfaction of her legal right under s.56 or in the alternative, to take the devise or bequest provided for under the terms of the Will.

7 . It appears to be contended that in electing to take the gift pursuant to the terms of her late husband's Will, mainly a right of residence, support and maintenance for her life and €20,000 rather than her legal right share, the widow relied on advice from a solicitor. The contents and representations in a letter of 22 August 2003 from the executor's solicitor to the widow are relied on as the basis for the widow electing not to take her legal right share. Thereby the widow gave up her rights to a valuable right worth one third of the entire estate which vested instead in her son the executor, who came thereby to be registered as full owner of the entire Folio. Valuable consideration was given by the widow for the burdens registered in her favour.

Letter of the 22nd August, 2003

8 . Of note is a letter written to the widow following the death of her spouse by the solicitor who appears to have acted for the executor in the due administration of the estate of the deceased. The deceased had died in July, 2003. The letter therefore was written less than four weeks following the death of the testator. The widow was aged about 78 years at the date of the said letter. In the context of advising with regard to her legal right share the letter stated (p.2):-

“It is the duty of the personal representative or the executor, …, to advise you of these rights and we are writing to you on his behalf to advise you of the rights.” (emphasis added)

This is a communication and a representation on behalf of the executor and the estate in the context of informing the widow with regard to her right to elect and the consequences of election pursuant to the Succession Act, 1965. It refers to “ our recent meeting in this regard.”

The letter states:-

“ You will note that pursuant to the will your son … is the beneficiary of all of your husband's assets but a right of residence, maintenance and support has been retained in favour of you for the duration of your life. These rights will be registered as a burden on the title and therefore the property cannot be sold with (sic) your consent. In addition the sum of €20,000 has been bequeathed to you for your own use and benefit absolutely and it may comprise of such savings, investments and personal as may be chosen by you.” (emphasis in original)

9 . The letter continues:-

“ I note from our recent meeting that you have indicated that you intend to accept the terms of the will and that it is not your intention to exercise your legal right share or to appropriate the family home. In this regard, however, we will need to have you independently advised and in due course you will need to have you sign a form whereby you are acknowledging that you were advised of your entitlements and that you decided to waive your entitlement to the legal right share.”

10 . No assent has been found relating to registration of the widow's burden, it having apparently been lost in the Land Registry. The letter of the 22 ^nd of August, 2003, written on behalf of the executor to the widow embodies a clear representation that if she elected to take under the terms of the Will rather than exercise her legal right share pursuant to s. 111(2), her rights would be registered on the Folio and the land couldn't be sold without her prior consent.

11 . On the 3 ^rd February, 2006 the right of residence and the right of the widow to “be suitably supported and maintained” were registered as a burden on Part 3 of the Folio. The Folio comprises 53.3834 hectares which approximates to circa 132 acres statute measure, and includes a dwelling house. Parties dealing with the said Folio thereafter from and after registration of same were fixed with notice of the burden.

12 . Almost four years after registration of the widow's burden on Part 3 of the Folio, a charge for present and future advances in favour of the Bank was registered on the 6 ^th January, 2010.

13 . On the 6 ^th January, 2010 when the Bank registered a charge over the subject Folio it was fixed with notice of the prior registered burden in favour of the widow. Any search effected on or after the 3 ^rd February, 2006 against the Folio would have disclosed the burdens.

14 . Fixed with notice of the burden in favour of the widow, standard options available to the Bank in January 2010 included seeking that the widow would execute deed of postponement subordinating the benefit of her burden to that of the Bank's and thereby altering the priorities inter se. An alternative option available was a partial deed of postponement, such that the distinctive rights of the widow in respect of:

(a) her right of residence, and

(b) her right to be “suitably supported and maintained”

could be registered over some part of the Folio rendering the balance unaffected and thereby enabling priority for the Bank's charge over that part. Neither step was taken prior to registration of the Bank's charge. The consequences of same are central to this appeal. The evidence before the High Court on 3 April 2019 (p.34 line 6–9) indicate that the Bank first received a copy of the Will of the deceased under cover of a letter dated 29 April 2012, some years after it had registered its charge as a burden on the Folio.

The Bank's subsequent efforts to secure postponement of the widow's burden...