Rippington v Cox

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 30 July 2015
• Neutral Citation: [2015] IEHC 516
• Docket Number: [2011 No. 8319 P]
• Court: High Court
• Date: 30 July 2015

IN THE MATTER OF CELINE MURPHY DECEASED WHO DIED ON THE 15TH DAY OF MARCH 2011

BETWEEN

MAGELLA RIPPINGTON, SHAUN RIPPINGTON AND EDEL BANAHAN

PLAINTIFFS

AND

MICHAEL COX AND MARY BUTLER

DEFENDANTS

[2015] IEHC 516

[2011 No. 8319 P]

THE HIGH COURT

Wills & Probate – Division of estate – Capacity to make a will – Execution of will – Requirements of s. 78 of the Succession Act 1965.

Facts: The plaintiffs sought an order striking the will made by the deceased, who died intestate. The plaintiffs claimed that the deceased lacked the capacity to make a will, the will constituted an improvident and unconscionable transaction, and that the will was procured by the undue influence of both defendants. The defendants presented evidence with regard to the execution of the will and filed a counter claim for an order admitting the said will to probate in solemn form.

Mr. Justice Noonan held that the plaintiffs' claim seeking an order striking the will made by the deceased would be dismissed. The Court held that the counterclaim to admit the will in solemn form would be granted. The Court observed that the plaintiffs failed to provide evidence at the trial in support of the allegations. The Court observed that the evidence of the attesting witnesses conclusively established the proper execution of the will in accordance with the requirements of s. 78 of the Succession Act 1965. The evidence suggested that the deceased was completely lucid, rational and coherent at all times during the day.

JUDGMENT of Mr. Justice Noonan delivered the 30th day of July, 2015.

The Testatrix

1 Celine Murphy was born on the 2nd of April, 1960 and died on the 15th of March, 2011 at the age of 50. She was unmarried and had no children. Ms. Murphy resided with her elderly mother, Mrs. Catherine Murphy at 'Genazzano', Old Naas Road, Kingswood, Clondalkin, Dublin 22. She predeceased her mother by ten days, the latter having died on the 25th of March, 2011. Mrs. Catherine Murphy was admitted to a nursing home in 2010 and thereafter Ms. Murphy resided alone. She had three siblings, Majella Rippington, the first named plaintiff (Mrs. Rippington), Edel Banahan, the third named plaintiff (Mrs. Banahan) and Andrew Murphy. The second named plaintiff (Mr. Rippington) is the husband of Mrs. Rippington and the executor of the estate of Mrs. Catherine Murphy. Ms Murphy was a hairdresser and was employed for over 30 years at the David Marshall hair salon in Dublin. She also had private clients she visited in their homes.

2 In the event of Ms. Murphy having died intestate, Mrs. Catherine Murphy would have succeeded to her estate as her daughter's sole next of kin. Under the terms of Mrs. Catherine Murphy's will, her estate falls to be divided equally between her four children.

3 In mid 2010, Ms. Murphy was diagnosed with cervical cancer and she initially came under the care of Dr. Osama Salib, consultant radiation oncologist, at St. Luke's Hospital in Dublin in July, 2010. In early August, 2010, Ms. Murphy was electively admitted to St. Luke's for a course of radiotherapy treatment lasting for some six to seven weeks. Thereafter she was discharged but kept under regular review by Dr. Salib. Ms. Murphy underwent a PET scan on the 22nd of December, 2010 which unfortunately revealed that her cancer had spread and metastasised to her liver, rendering it untreatable. Dr. Salib advised Ms. Murphy of these findings and that he could do nothing further for her as she was now a candidate for palliative care. Although his evidence was that he did not explicitly use the word 'terminal' in discussing Ms. Murphy's diagnosis with her, he had no doubt that she fully understood its import.

4 Accordingly, on the 12th of January, 2011, Dr. Salib transferred Ms. Murphy's care to Dr. David Fennelly, consultant medical oncologist at St. Vincent's Private Hospital in Dublin. Dr. Fennelly had previously been involved in Ms. Murphy's care when she was a patient at St. Luke's and underwent a course of chemotherapy at his direction concomitant with the radiotherapy treatment.

5 In February, 2011, Ms. Murphy commenced a course of palliative chemotherapy to which she responded poorly. She became sufficiently symptomatic to require admission on the 8th of February, 2011 and a blood transfusion. This improved her symptoms and she was discharged. However, she again developed fatigue, generalised weakness and very severe diarrhoea leading to her final admission to St. Vincent's Private on the 9th of March, 2011 where she remained until her death six days later.

The Defendants

6 The second named defendant (Mrs. Butler) lives at Tuckmilltown, Straffin, County Kildare. This is a relatively short distance away from Ms. Murphy's home in Kingswood and the travel time by car between the two has been established by the engineering evidence to be approximately twelve to thirteen minutes when traffic conditions are favourable and speed limits observed.

7 Mrs. Butler's evidence, which I accept entirely, was that she first met the late Ms. Murphy in 1989. She was able to recall this date because it was not long after the birth of her daughter Michaela in January, 1989. Her sister, Mrs. Ramsayer, was a private client of Ms. Murphy's and introduced Mrs. Butler to Ms. Murphy. I am satisfied from the evidence that Mrs. Butler and Ms. Murphy became close personal friends and saw each other on a very regular, sometimes daily, basis. They were frequent visitors to each other's houses and enjoyed many social outings together.

8 The first defendant, who styles himself a Tridentine Bishop, is also a close personal friend of Mrs. Butler. His evidence was that he was first introduced to Ms. Murphy by Mrs. Butler around the year 2000. He met her on a number of subsequent occasions socially with Mrs. Butler and Ms. Murphy cut his hair on a few occasions. He thought of her as a friend although she was not involved with his church or religious beliefs.

The Events of the 8th of March, 2011

9 The 8th of March, 2011 was Shrove or 'Pancake' Tuesday. Tuesday was Ms. Murphy's day off work at the hair salon and she used her day off to visit private clients. On that morning, Ms. Murphy had an appointment to visit the Smith family in Dunboyne, County Meath. Ms. Barbara Smith who was present in the family home on that date had particular reason to remember it because unfortunately it was the day her father died. On that day, Ms. Smith travelled with her husband Walter to visit her parents at the family home in Dunboyne. It was intended that Ms. Murphy would cut everyone's hair. Ms. Murphy's sister, Aileen, had been a client in the David Marshall salon and introduced Ms. Murphy to Ms. Smith. Ms. Smith had known Ms. Murphy for some twelve or thirteen years not only on a professional basis but as a friend. They played golf together on occasion and attended social events. Ms. Murphy often stayed for dinner when she visited. She was a guest at Ms. Smith's wedding. Ms. Murphy routinely attended at the Smith house in Dunboyne to cut hair every six to eight weeks.

10 Ms. Smith said that Ms. Murphy frequently spoke about Mrs. Butler whom she described as a great friend and a very nice person.

11 Ms. Smith's evidence was that Ms. Murphy arrived at the Smith house between 9.30 and 10 am. Ms. Smith's father was in bed and was feeling unwell but came down briefly to the kitchen before returning to bed. Ms. Murphy then proceeded to provide haircuts first to Ms. Smith's mother, then her husband Walter and finally Ms. Smith herself. Mr. Smith senior was due to have a haircut but was not well enough on the day.

12 Ms. Smith said that Ms. Murphy was in good form and there was great banter and 'craic' particularly with her husband Walter. Ms. Smith was aware that Ms. Murphy had cancer and that her illness had affected the circulation in her fingers particularly badly. Her hands were bandaged. While Ms. Murphy was present, Ms. Smith's mother brought her father to hospital. She said that Ms. Murphy left the house around 2 to 2.15 pm. She arrived and left driving her own car. Ms. Smith was fairly certain about the times involved because her mother returned from the hospital at 2.30 pm and they received news that Mr. Smith senior died at 2.45 pm.

13 Thereafter, it would appear that Ms. Murphy travelled home to Kingswood as the telephone records admitted in evidence show that a call was made from the landline in Kingswood at 17.24 to Mrs. Rippington and the call lasted 53 seconds. Mrs. Rippington claimed that the deceased told her that her car collided with the ditch on the drive home.

14 Evidence was given by Ms. Joanna Butler, Mrs. Butler's daughter. She said that she knew Ms. Murphy all her life and she was a very frequent visitor to their house. Ms. Joanna Butler was herself diagnosed with cervical cancer in April, 2010 and she said that Ms. Murphy, who had the same diagnosis, was extremely supportive to her through a very difficult time in her life. Ms. Joanna Butler was present in the Butler home in Straffan on the 8th of March, 2011 where she was recovering after her recent discharge from hospital following a bout of illness. Her mother had left with her uncle Michael Goonan to travel to Dublin while Joanna Butler was still in bed. Sometime between 2 and 3 pm, the first defendant arrived at the house for a social visit. He was not expected but it was not at all unusual for him to appear unannounced. Joanna Butler made tea and she sat and chatted with the first defendant at the kitchen table.

15 Her evidence was that sometime later, probably between 5 and 6 pm, Ms. Murphy arrived unannounced at the house. She came into the kitchen and all three sat at the kitchen table. Joanna Butler put the kettle on to make some more tea. Ms. Murphy asked her how she was. She said that Ms. Murphy was somewhat tired from her own illness and treatment but otherwise...