Strong (plaintiff) v Holmes, Holmes and Holmes
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 12 March 2010 |
| Neutral Citation | [2010] IEHC 70 |
| Docket Number | [No. 99 SP/2009] |
| Court | High Court |
| Date | 12 March 2010 |
[2010] IEHC 70
THE HIGH COURT
AND
AND
BETWEEN
AND
SUCCESSION ACT 1965 S56
SUCCESSION ACT 1965 S115
SUCCESSION ACT 1965 S111
SUCCESSION ACT 1965 S56(6)
SUCCESSION ACT 1965 S55
SUCCESSION ACT 1965 S55(10)
MARTYN & CADDICK WILLIAMS MORTIMER & SUNNUCKS ON EXECUTORS ADMINISTRATORS & PROBATE 19ED 2008 PARA 67.12
SHERRIN & ORS WILLIAMS ON WILLS 9ED 2007 PARA 29.11
COLLINS (DECEASED), IN RE; ROBINSON v COLLINS 1975 1 WLR 309 1975 1 AER 321
H v O 1978 IR 194
URQUHART (DECEASED), IN RE; REVENUE CMRS v ALLIED IRISH BANKS LTD 1974 IR 197
SUCCESSION ACT 1965 S46(6)
SUCCESSION ACT 1965 S112
SUCCESSION ACT 1965 S117
SUCCESSION ACT 1965 S56(5)
SUCCESSION ACT 1965 S10(3)
SUCCESSION ACT 1965 S62
SUCCESSION ACT 1965 S56(14)
SUCCESSION ACT 1965 S111(1)
H v H 1978 IR 138
SUCCESSION ACT 1965 S56(5)(B)
KENNEDY (DECEASED), IN RE; KENNEDY v KENNEDY & O'RIORDAN UNREP O'NEILL 26.1.2007 2007/32/6640 2007 IEHC 77
GOLLINS DECLARATION OF TRUST, IN RE; TURNER & ORS v LEADER-WILLIAMS & ORS 1969 1 WLR 1858 1969 3 AER 1591
SUCCESSION ACT 1965 S116(2)
TALBOT v TALBOT 1968 CH 1 1967 3 WLR 438 1967 2 AER 920
PROBATE
Wills
Surviving spouse - Legal right share - Appropriation - Consideration of rights of all beneficiaries - Calculation of date of valuation - Whether date of valuation for legal right share date of appropriation, date of death or date of election - In re Collins [1975] 1 WLR 309; H v O [1978] 1 IR 194; In re Urquhart [1974] IR 197 and In re Kennedy [2007] IEHC 77 (Unrep, O'Neill J, 26/1/2007) considered - Succession Act 1965 (No 27), ss. 55, 65 and 111 - Held date of valuation is date of exercise of appropriation (2009/99SP - Murphy J - 12/3/2010) [2010] IEHC 70
Strong v Holmes
Facts: The deceased died intestate without issue, leaving him surviving his widow. The net value of the estate of the deceased was in excess of €11 million. Prior to his death, the deceased and first named defendant ordinarily resided in the dwelling house. The first named defendant elected in writing to take her legal right share pursuant to s. 111 Success Act 1965 and then the plaintiff, the executor and trustee under the Will, served a written notice of right of appropriation on the first named defendant pursuant to s. 56 of the Act of 1965. The widow claimed a direction as to her right to require an appropriation of the dwelling house where she was resident and other directions. The widow of the deceased contended that the date of the death was the appropriation date. It was submitted that the entitlement of the widow had not been established pursuant to s. 56 until she discharged the burden of proof on her pursuant to s. 56(5). It was submitted also by the second and third named defendants that the date of valuation of the assets was the date of appropriation and not the date of death. The extent of appropriation was agreed by the parties at hearing and the Court had to consider the valuation date.
Held by Murphy J. the appropriation right had not yet arisen and it was the value of the estate at the date of the appropriation which was material. While the legal right share of the widow arose under s. 111 of the Act of 1965 at the moment of the death of the testator, where there was a right of appropriation, the valuation date was at the date of the exercise of that appropriation. The exercise of the statutory discretion to appropriate had to be viewed as an instance of the trusteeship. It was the court's duty to prohibit the appropriation if it was calculated to operation unjustly or inequitably, for example.
Reporter: E.F.
2 1.1 The plaintiff, a retired solicitor, and the Governor and Company of the Bank of Ireland had been appointed by the deceased to be his executors and trustees under his last Will and testament of the 3rd December, 1994 and codicils of the 4th December, 1998 and the 17th June, 1999.
By deed dated the 28th February, 2008 the Governor and Company of the Bank of Ireland retired as trustee.
The deceased died testate on the 12th April, 2007 without issue, leaving him surviving his widow, the first named defendant herein.
The second and third named defendants are grand-nephews of the deceased and are joined in the proceedings as residuary legatees and dividees under the Will.
On the 5th December, 2007 the plaintiff extracted a grant of probate to the estate of the deceased. The gross value of the deceased's estate recited in the Revenue affidavit was €11,425,283.83 while the net value recited therein was €11,402,460.42.
Under the terms of the deceased's Will and codicils the deceased bequeathed a sum of money equal to class threshold (b) under the Capital Acquisitions Tax Act 1976 to each of one named nephew (William Thomas Holmes) and three named nieces (Carol Ann Florence Holmes, Valerie Lillian Mary Ganderton and Irene Francis Witherford). The deceased also bequeathed a sum of money equal to class threshold (c) to one named grand-nephew and four named grand-nieces and a named sister-in-law.
By way of pecuniary legacies, the deceased bequeathed IR£10,000 each to Bridie Mulvey and Rory O'Neill, the sum of IR£5,000 to the Rector and church wardens of Castlepollard parish, the Church of Ireland, to be invested for the upkeep and the maintenance of Castlepollard Church of Ireland and IR£2,000 to the first named defendant.
Thereafter the deceased's last Will and codicil thereto devised all of the deceased's land to his trustees and the deceased gave the first named defendant an exclusive right of residence in the dwelling house at Newcastle together with use of the furniture and contents therein along with the rental income from all of the said lands for lifetime.
The deceased also gave a one-tenth (1/10th) share of the deceased's residuary estate to his trustees to hold the same and pay the income therefrom for life to the first named defendant.
The issue in this case relates to the second element of the "Residuary Estate" whereby the deceased gave, devised and bequeathed the remaining nine-tenths (9/10th) of his residuary estate to his trustees upon a discretionary trust for the benefit of the second and third named defendants with remainder over to whoever of the second and third named defendants should be living at a future date therein.
Those defendants are joined in these proceedings as persons whose interests could be adversely affected by any order that the Court would make. The Court is satisfied that they are appropriately joined as defendants.
Prior to his death the deceased and the first named defendant ordinarily resided in the dwelling house and at the time of the death of the deceased the first named defendant was ordinarily resident therein as defined by s. 56 of the Succession Act1965.
On the 18th June, 2007 the first named defendant elected in writing pursuant to s. 115 of the Succession Act 1965 to take her legal right share to one half (1/2) of the estate of the deceased pursuant to s. 111 of that Act.
In compliance with his duty under the Succession Act1965, on the 17th December, 2007 the plaintiff served a written notice of right of appropriation upon the first named defendant pursuant to s. 56 of the Act.
On the 3rd June, 2008 the first named defendant's solicitors wrote to the plaintiff stating that they were instructed by their client to formally advise the executor that she wished to appropriate:
(a) The family home together with the lawns, yard and the avenue,
(b) The balance of the personal assets remaining after payment of, or provision for, debts, liabilities and pecuniary legacies,
(c) A sufficient portion of the land absolutely in order to satisfy the balance of her legal right share. In that regard she wished to appropriate approximately fourteen acres immediately surrounding the house and if possible the field known as "the bullock field" which is contiguous to the house and gardens.
2 1.2 The plaintiff claimed:
(i) A direction of the Court as to the right of the first named defendant to require an appropriation pursuant to s. 56 of the Succession Act1965 of the dwelling house at Newcastle, Castlepollard in the County of Westmeath forming part of the estate of the deceased and in which she was ordinarily resident at the date of the death of the deceased given that the dwelling is one to which the provisions of s. 56(6) applied;
(ii) If the Court is of the view that an appropriation may proceed, direction as to the extent of the property that might be appropriated and proper compliance with s. 56 of the Succession Act1965;
(iii) A direction as to whether the appropriation as sought by the first named defendant is proper and permissible and if an appropriation in such terms would constitute administration of the estate in accordance with law;
(iv) Such further or other direction in the administration of the estate as seen just and proper.
3 1.3 On the second day of hearing the parties agreed as to the extent of appropriation of the lands to include the dwelling house, parcels A and C as part of the curtilage of the house and the six parcels of land K1 to K6 situate to the north east of the farmlands which, if not included, would have no direct access to the roadway.
The Court is of the view, having regard to the evidence, that such appropriation is proper and...
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