Rojack v Taylor and Buckhalter
|10 February 2005
| IEHC 28
|10 February 2005
 IEHC 28
THE HIGH COURT
SUCCESSION ACT 1965 S117
SPIERIN & FALLON THE SUCCESSION ACT 1965 & RELATED LEGISLATION: A COMMENTARY 3ED 2003 353
M (F) v M (T)
C & F v C (W) & C (T)
Duty of care
Solicitors - Succession - Administration of estates - Solicitor's duty to estate - Solicitor's duty to personal representative as potential beneficiary - Personal representative beneficiary under will - Whether solicitor obliged to advise personal representative to seek independent legal advice - Whether plaintiff had cause of action under s 117 of the Succession Act 1965 - Whether prior professional relationship between the parties created separate duty on solicitor concurrent with normal contractual relationship - Succession Act 1965 (No 27), s 117 - Claim dismissed (2000/14789P - Quirke J - 10/2/2005)  IEHC 28
Rojack v Taylor & Buchaltor
The defendants agreed and undertook for reward to act as solicitors in respect of the administration of the estate of the plaintiff's late mother. The plaintiff was an executrix in respect of the estate and she claimed that in addition to the duty owed by the defendants to her as her mother's personal representative the defendants owed her an independent duty in her personal capacity as a beneficiary under her mother's will. The plaintiff alleged that the defendants failed to discharge that independent duty because they failed to advise her that she had a potential cause of action against the estate of her mother and that she should accordingly seek independent legal advice. The plaintiff claimed that she suffered financial loss and damage as a result of the negligence and breach of duty of the defendants in that she failed to make an application to the court pursuant to s. 117 of the 1965 act within the relevant time limit and she was subsequently barred from seeking that relief.
Held by Quirke J. in dismissing the plaintiff's claim:
1. That the defendants were not obliged by statue or otherwise to notify the plaintiff of her right to make an application under s.117 of the 1965 Act or advise her to obtain independent legal advice.
2. That in any event the plaintiff had no cause of action whatever against the estate pursuant to the provisions of s. 117 of the Act of 1965 and accordingly could not have suffered any loss and/or damage as a result of the defendants failure to advise her of any potential cause of action under the statute.
JUDGMENT of Quirke J. delivered on the 10th day of February, 2005.
In this case the plaintiff claims that she has suffered financial loss and damage as a result of negligence and a breach of duty on the part of the defendants.
She claims that the defendants had agreed and undertaken for reward to act as solicitors in respect of the administration of the estate of the plaintiff's late mother Dr. Hazel Boland. The plaintiff was an executrix in respect of the estate.
She claims that additional to the duty owed by the defendants to the plaintiff as her mother's personal representative the defendants owed an independent duty to the plaintiff in the latter's personal capacity as a beneficiary under her mother's will. She claims that the defendants failed to discharge that duty because they failed to advise her that she had a potential cause of action against the estate of her late mother and that she should accordingly seek independent legal advice.
It is contended that independent legal advice to the plaintiff would have led to a claim by the plaintiff against her mother's estate pursuant to the provisions of s. 117 of the Succession Act 1965 and a probable finding by the High Court that her late mother had failed to discharge her "...moral duty to make proper provision for..." the plaintiff. The plaintiff claims that in consequence she would have been awarded a larger share in her late mother's estate than that which was provided for her under the terms of her mother's will.
It is claimed that by reason of the defendants' breach of duty the plaintiff failed to make an application to the court pursuant to s. 117 of the Succession Act 1965 within the (then) twelve months limited by the provisions of that Act for the making of such an application. The plaintiff is now barred by the provisions of the statute from seeking the appropriate relief.
The defendants contend that they were appointed and retained and agreed to act as the solicitors on behalf of the estate of the late Dr. Hazel Boland for the purpose of administering that estate.
They admit that they owed a duty of care to the plaintiff but contend that the duty owed to the plaintiff was a duty to her in her capacity as executrix of the estate of her late mother. It is contended on behalf of the defendants that they were not retained by and did not agree to act on behalf of the plaintiff in her personal capacity as a beneficiary under the will of her late mother. They agree that they had acted for the plaintiffs on an earlier occasion in respect of a personal injuries action and that Mr. Don Buchalter of the defendants was on familiar social terms with the late Dr. Hazel Boland and with the Boland family.
In particular the defendants reject the contention that any bona fide or potential cause of action against the estate of Dr. Hazel Boland was vested in the plaintiff after the death of her late mother or at any time thereafter. They contend that proceedings pursuant to the provisions of s. 117 of the Succession Act 1965 or any other proceedings claiming an additional interest in the estate of Dr. Hazel Boland on behalf of the plaintiff would have been unsuccessful as a matter of probability. They argue that accordingly there was no breach on the part of the defendants of any duty owed by the defendants to the plaintiff and no consequential loss or damage sustained by the plaintiff.
The following facts are relevant to these proceedings.
1. The plaintiff was the second of the four children of Dr. Stanley Boland and Dr. Hazel Boland. The Boland family home was a substantial five bedroomed home at no. 43 North Ave. Mount Merrion in Co. Dublin (hereafter "North Avenue").
The plaintiff was born in 1995. Her siblings were:-
(i) Maurice Boland who was born in 1949,
(ii) Gary Boland who was born in 1952 and
(iii) Jane Cathcart (nee Boland) who was born in 1956.
2. The plaintiff left school in 1969. She worked in Dublin and London for a short time before travelling to the United States. In 1976 she married a U.S. citizen Mr. Tom Rojack. There were five children of the marriage:-
(i) Barry who was born in 1979,
(ii) Melissa who was born in 1981,
(iii) Susan who was born in 1985,
(iv) Stanley who was born in 1988 and
(v) Julie who was born in 1990.
3. The plaintiff, who was then the mother of two children returned to Ireland in 1982. Her father Dr. Stanley Boland had been diagnosed with cancer. The plaintiff moved, with her children, to live with her parents in North Avenue. Shortly thereafter the plaintiff's husband Tom Rojack joined his wife and children. Later that year the plaintiff's father died.
4. The plaintiff's husband returned to the United States in 1984 and thereafter maintained a relationship which the plaintiff described as "intermittent" until 1988 when, by order of a U.S. Court, the plaintiff and her husband were divorced by consent.
I am satisfied on the evidence that the divorce of the plaintiff from her husband was affected for the purpose of enabling the plaintiff to successfully claim social welfare benefits within this jurisdiction.
5. Between 1983 and 1993 the plaintiff lived with her mother Dr. Hazel Boland at North Avenue. During that time the plaintiff obtained part-time employment in a book shop in Dun Laoghaire. She also operated a small stall in the Blackrock market in Co. Dublin. Her earnings from those sources were insubstantial. During that time Dr. Hazel Boland continued to practice medicine and it is probable that the financial support for the plaintiff and her children came largely from her mother's income.
The plaintiff's divorce from her husband enabled her to apply successfully for and receive social welfare benefits as a lone parent.
6. On 24th day of June, 1992 Dr. Boland, with the assistance of her then solicitor Mr. John Hooper, executed a will. The terms of the will provided that the plaintiff Vanessa Rojack and Dr Boland's son, Maurice Boland were appointed as executors and trustees of the will which inter alia purported to give, devise and bequeath:
"...my dwelling house and premises at 43 North Ave. Blackrock, Co. Dublin together with the household chattels therein...unto my daughter Vanessa absolutely."
The will provided further that all of the remainder of Dr. Hazel Boland's "...real and personal estate of whatsoever nature and whosesoever situate..." should be held upon trust for the purpose of dividing the residue equally between the plaintiff and her three siblings, Maurice Boland, Gary Boland and Jane Cathcart.
7. On the 8th February, 1993 the sum of IR£16.051 was lodged in the plaintiffs account. This was a gift to the plaintiff from her mother who had inherited money upon the death of an aunt.
On 11th May, 1993 the sum of IR£5,042.39 was lodged in the plaintiff's account. This was also a gift to the plaintiff from her mother.
The plaintiff indicated that her siblings had also received monetary gifts from her mother. No evidence was adduced indicating the nature or extent of...
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