Rippington v Cox

• Jurisdiction: Ireland
• Judge: Ms. Justice M�ire Whelan
• Judgment Date: 19 December 2017
• Neutral Citation: [2017] IECA 331
• Date: 19 December 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 331 Appeal number [2015 458] High Court Record No. [2011 No. 8319 P]

[2017] IECA 331

THE COURT OF APPEAL

Whelan J.

Ryan P.

Peart J.

Whelan J.

Neutral Citation Number: [2017] IECA 331

Appeal number [2015 458]

High Court Record No. [2011 No. 8319 P]

BETWEEN

MAJELLA RIPPINGTON, SHAUN RIPPINGTON

AND

EDEL BANAHAN

APPELLANTS

AND

MICHAEL COX

AND

MARY BUTLER

RESPONDENTS

Wills and probate - Costs - Bias - Appellants seeking to appeal against the judgment and orders of the High Court - Whether the judgment was biased

Facts: The appellants, Mrs Rippington, Mr Rippington and Ms Banahan, appealed to the Court of Appeal against the judgment and orders of Noonan J made in the High Court on 30th July, 2015 in a will suit wherein the claims of the appellants impugning the last will and testament of the deceased, Ms Murphy, dated 8th March, 2011 were dismissed and the said will was ordered to be admitted to probate in solemn form of law as counterclaimed by the respondents, Mr Cox and Ms Butler. The High Court further ordered that the respondents recover as against the appellants the costs of the proceedings including the counterclaim on a solicitor and own client basis to include all motion costs and reserved costs. On 29th February, 2016, the Court of Appeal made an order confining the appeal to seven specific grounds: 1) the judgment was biased towards the appellants and completely miscalculated the timescales and the expert's opinion to establish in truthfulness and accuracy of the claim that the deceased made a flying visit to Straffan, Co. Kildare to execute her will by chance; 2) the judge erred in law in admitting the will in solemn form due to the invalid execution of the will pursuant to statute law; 3) the judge was unfair and unjust in fixing the appellants with the costs order which he made; 4) the judge failed to take into account and give consideration to the facts and evidence presented to him by the appellants by way of documentation, records and oral evidence and that the respondents had no documentary evidence; 5) the judge erred and was mistaken in allowing the respondents' contradictory evidence to stand and denied the appellants a just and fair decision on the balance of probabilities which was weighted in the appellants' favour; 6) the judge erred in law in refusing to acknowledge the validity of the witness subpoena served at the home of Mr Goonan; 7) the judge in his judgment unjustly and unfairly vilified the first appellant and in the absence of certainty of facts and legal certainty, stated that Mrs Rippington was an unreliable and untruthful person.

Held by Whelan J that the allegation of bias was wholly misconceived. Insofar as the appellants objected to the will being admitted to probate in solemn form, Whelan J held that such an objection was unsound. Concerning grounds 4 and 5, having carefully reviewed the judgment and the relevant evidence Whelan J held that there was ample evidence before the trial judge on which to base his determinations. Whelan J held that there was no evidence to suggest that the appellants sought any directions with regard to Mr Goonan and accordingly ground 6 was not stateable. Whelan J was satisfied on balance that there was cogent evidence before the trial judge which entitled him to come to the conclusions he arrived at including his evaluation of the respective credibility of the witnesses, their motivation and demeanour.

Whelan J held that, in all the circumstances, having due regard to the jurisprudence on probate costs that has developed over the past two centuries as analysed in Vella v Morrelli [1968] 1 I.R. 11 in the context of the Constitution Article 34 and as later reviewed by the Supreme Court in Elliott v Stamp [2008] IESC 10, this was a case where it was appropriate to set aside the order for costs as made by the trial judge and substitute in its place an order that the appellants pay the respondents costs, including all reserved costs, on a party and party basis. Otherwise, Whelan J held that the appellants' appeal stood dismissed on all grounds.

Appeal dismissed.

JUDGMENT of Ms. Justice M�ire Whelan delivered on the 19th day of December 2017

1 This is an appeal against the judgment and orders of Noonan J. made in the High Court on 30th July, 2015 in the above-entitled will suit wherein the claims of the appellants impugning the last will and testament of Celine Murphy (hereinafter 'the deceased') dated 8th March, 2011 were dismissed and the said will was ordered to be admitted to probate in solemn form of law as counterclaimed by the respondents. The High Court further ordered that the respondents recover as against the appellants the costs of the proceedings including the counterclaim on a solicitor and own client basis to include all motion costs and reserved costs.

2 A notice of appeal was filed on behalf of all three appellants on 24th August, 2015. The initial notice of appeal was prolix and discursive. Subsequently, the appellants brought a motion before this Court seeking leave to amend the notice of appeal. On 29th February, 2016, this Court reviewed the notice of appeal together with the affidavits sworn by Majella Rippington, Shaun Rippington and Sheila Duffy and made an order confining the appeal to seven specific grounds.

The facts

3 The facts in this case are set out in substantial detail in the judgment of the trial judge and it is not proposed to restate them here save to the extent necessary. The deceased was born on 2nd April, 1960 and died on 15th March, 2011, aged 50. She was unmarried and without children. She resided at the home of her aged mother, Catherine Murphy, 'Genazzano', Kingswood, Clondalkin, Dublin 22. Her mother survived her by 10 days and died a widow on 25th March, 2011 at the age of 93. Majella Rippington and Edel Banahan, the first and third named appellants, are two of the three surviving siblings of the deceased. Shaun Rippington, the second named appellant is a spouse of the first named appellant and executor of the mother's estate. Had the deceased died intestate, her net estate would have formed part of the estate of her mother and, in accordance with the tenor of the latter's will, would fall to be distributed amongst the three surviving siblings of the deceased in equal share.

4 In July, 2010, Celine Murphy was diagnosed with cancer. She was initially under the medical care of an oncologist at St. Luke's Hospital in Dublin and subsequently, from January, 2011, under the care of her consultant oncologist at St. Vincent's Private Hospital in Dublin who was her treating consultant until the time of her death.

The disputed will

5 The disputed testamentary instrument is dated 8th March, 2011, being the day prior to the deceased's final admission to St. Vincent's Private Hospital where she died on 15th March, 2011. A central issue in this case is whether the deceased, on the evening of 8th March, 2011, left the house, Genazzano, Kingswood, Clondalkin, Dublin 22, at any time after 17.24 and drove herself to the home of her friend Mary Butler at Tuckmillstown, Straffan, Co. Kildare. A further issue is whether, whilst there, she come into the presence of Michael Cox, the first named defendant, and Joanne Butler. If so, the question remains whether she then duly and validly executed her last will and testament in accordance with s. 78 of the Succession Act 1965 with the said Michael Cox and Joanne Butler as attesting witnesses. It was also disputed whether these events could have occurred in sufficient time for her to drive back to the house Genazzano, Old Naas Road, Kingswood, arriving in time to take a phone call on the landline at 18.42 on the said evening.

The pleadings

6 A plenary summons which was issued on 16th September, 2011 by the appellants pleaded, inter alia, the following issues:

(a) That the will was not executed by the deceased.

(b) That the document dated 8th March, 2011 was not the last will and testament of the deceased.

(c) That the will was not executed in accordance with the provisions of the Succession Act 1965.

(d) That the deceased was not of sound disposing mind on 8th March, 2011 and did not have the capacity to make a will.

(e) That the transaction purported to be effected by the will constituted an improvident and unconscionable transaction.

(f) That the execution of the will was procured by virtue of undue influence.

(g) That in the circumstances the deceased died intestate.

A statement of claim was delivered on 7th December, 2011 particularising the claim. A defence and counterclaim was delivered on 3rd April, 2012. The counterclaim sought to admit the testamentary document to probate in solemn form of law as the last will and testament of the deceased.

Who are the appellants?

7 The original notice of appeal was filed in the Court of Appeal office on 24th August, 2015. It is clear from this document that all three plaintiffs have appealed and are the appellants. I note in particular that Edel Banahan, the third named plaintiff, is expressly indicated to be one of the appellants. The amended notice of appeal filed on behalf of all three appellants on 24th March, 2016 also expressly identifies all three plaintiffs as appellants. Although neither Edel Banahan nor Shaun Rippington formally addressed the Court during the appeal hearing, I am satisfied that all three are appellants irrespective of whether they attended the hearing of the appeal or addressed the Court at the appeal. Mrs. Rippington confirmed that Edel Banahan was present at the hearing in the High Court.

Litigants in person

8 The appellants are litigants in person. They emphasise this fact, including in their written submissions, in their grounds of appeal and in oral argument before this Court by Mrs. Rippington. In considering litigation involving litigants in person, Clarke J., as he then was, in ACC Bank plc v. Kelly & Anor. [2011] IEHC 7 at para. 2.4 quotes...