Reilly v McEntee

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 01 January 1984
• Neutral Citation: 1984 WJSC-HC 714
• Docket Number: No. 268 Sp./1982
• Court: High Court
• Date: 01 January 1984

REILLY v McENTEE & MURPHY

BETWEEN:

THOMAS REILLY

Plaintiff

and

PATRICK J. McENTEE AND FRANCIS JOSEPH MURPHY

Defendants

1984 WJSC-HC 714

No. 268 Sp./1982

Subject Headings:

SUCCESSION: legal right

1 Judgment of Mr. Justice Murphydelivered the 20th day of December, 1983

2 Patrick Murphy late of Drumgeeney, (or Drumsheeney) Three-Mile-House in the County of Monaghan died on the 21st day of October, 1971 leaving him surviving his wife Margaret Murphy. He was not survived by any children or remoter issue.

3 The said Margaret Murphy herself died intestate and with no issue on the 31st day of December, 1979 and Letters of Administration Intestate to her estate were granted forth of the District Probate Registrar for the District of the Counties of Louth and Monaghan on the 22nd day of December, 1980 to Thomas Reilly who is a brother of the said Margaret Margaret Murphy and is the plaintiff herein.

4 In an affidavit sworn by him in these proceedings Mr. Reilly says that at the date of Patrick Murphy's death it was thought by his widow the said Margaret Murphy that he had died intestate and that the said Margaret Murphyhad duly applied for Letters of Administration Intestate to the estate of the said Patrick Murphy. It is not clear what the source of Mr. Reilly's information was but there is no doubt that Mrs. Murphy applied for and obtained (again from the Registrar for the District of Louth and Monaghan) Letters of Administration Intestate to the estate of the said Patrick Murphy on the 6th day of September, 1973. Furthermore the fact that Mrs. Murphy believed that her husband had died intestate was not disputed in the affidavit sworn by the defendants herein. Perhaps surprisingly, however, the date of death of the said Patrick Murphy is shown in the Letters of Administration granted to his widow as being the 21st day of October, 1972 and this may have been the cause of a regrettable misunderstanding.

5 In fact it appears that Patrick Murphy had some months before his death, that is to say, on the 7th May, 1971 made his last Will whereby he appointed his solicitor Patrick J. McEntee, the firstly-named defendant, to be executor thereof and gave and bequeathed to his wife Margaret all the stock on his lands at the date of his death for her sole use and benefit. In addition he devised and bequeathed his lands at Drumsheeny to his wife Margaret for her life and after her death to his nephew Francis Joseph Murphy, the secondly-named defendant, absolutely. It is not without significance to add that Patrick H. O'Doherty, another solicitor, was oneof the two witnesses to that Will.

6 In his affidavit Mr. Thomas Reilly says that it was subsequent to the death of the said Margaret Murphy that a Will purporting to be the Will of Patrick Murphy deceased was discovered in the offices of McEntee and O'Doherty, Solicitors in Monaghan. Whilst the Statement was not contradicte in the affidavit sworn herein jointly by the defendants, Counsel on their behalf informed the Court that in fact on the 5th July, 1972, that is to say, less than a year after his death, an application was made to have the Will of the late Patrick Murphy admitted to Probate. It appears that no further steps were taken to process that application until the month of March 1980, that is to say, after the death of Margaret Murphy, and that ultimately Probate was granted on the 9th July, 1981. That Probate was not produced in Court but it was clearly conceded in the proceedings that Patrick J. McEntee is the lawful personal representative of Patrick Murphy deceased. Finally it may be noticed in relation to the history of the matter that these proceedings were instituted on the 26th March, 1982, that is to say, within twelve months of the date of the Grant of Probate.

7 The late Margaret Murphy took possession of the assets of her late husband and held possession thereof for some eight years until her death in December, 1979. Her title so to do derived in part from the Lettersof Administration and partly that is to say, to her beneficial occupation, to her right to succeed to all property of her spouse under Section 67 (1) of the Succession Act, 1965. On the 26th September 1973 Mrs. Murphy was registered as full owner of the said lands. It is not suggested that her right to beneficial occupation of the assets was challenged in any way or at any time. On the other hand it is not suggested that the executor Mr. Patrick J. McEntee notified Mrs. Murphy in writing or otherwise of the right of election conferred on her by Section 115 of the Succession Act 1965in accordance with the duty imposed on him by that same section. Whilst an amendment was sought to the Summons herein to raise the issue whether Margaret Murphy should...