The Succession Act 195 & the Estate of Thomas J McLaughlin and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Laffoy |
| Judgment Date | 15 April 2013 |
| Neutral Citation | [2013] IEHC 156 |
| Court | High Court |
| Date | 15 April 2013 |
[2013] IEHC 156
THE HIGH COURT
AND
AND
D'AMBRA v COLE 1990 572 A.2D 268
O'MALLEY v ESTATE OF DOLAN 1995 CA KP 94-709
IN ESTATE OF FULD (NO.3), IN RE 1965 AER 776
KEATING ON PROBATE 3ED 2007 PARA 22-20
SUCCESSION ACT 1965 PART VIII
WILLS ACT 1861
SUCCESSION ACT 1965 S102(1)
SPIERIN THE SUCCESSION ACT & RELATED LEGISLATION: A COMMENTARY 3ED
SUCCESSION ACT 1965 S102
SUCCESSION ACT 1965 S102(2)
KEATING ON PROBATE 3ED 2007 PARA 4-21
SUCCESSION ACT 1965 S85(1)
SUCCESSION ACT 1965 S85
DICEY MORRIS COLLINS THE CONFLICTS OF LAW 14ED 2006 VOL.2 RULE 150
MARTIN, IN RE 1900 P 211
BINCHY IRISH CONFLICTS OF LAW 1988 P448
Succession law - Probate law - Real Property - Last will - Revocation - Succession Act 1965
Facts: The deceased died in the USA and was survived by his widow, whom he had married in 2009. He was the owner of one piece of immovable property in the jurisdiction and the Court considered whether his subsequent marriage had the effect of revoking his last will and testament made in 2006 and whether the duly certified copy of the executed will could be admitted to probate. The Court also considered which law was applicable, namely the law of Rhode Island or Ireland.
Held by Laffoy J. that it was impossible to infer from the evidence that the Will was made in contemplation of marriage. Nonetheless, the plaintiff had not established that the will was not revoked by the subsequent marriage of the deceased and the plaintiff and the will could be admitted to probate.
JUDGMENT of Ms. Justice Laffoy delivered on the 15th day of April, 2013
1. Thomas John McLaughlin (the Deceased) died on 1 st February, 2011, at Rhode Island in the United States of America. He was survived by his widow, Kathleen Grady McLaughlin (the Plaintiff), whom he had married on 13 th March, 2009, in the USA. On the date of his death, he was the owner of one item of immovable property in this jurisdiction - an apartment in Kinsale, County Cork. The problem which the Court is being asked to address in these proceedings is how that one element of the estate of the Deceased is to be administered, having regard to the factual background which will be outlined later. No grant of probate or administration of the estate of the Deceased has been extracted in the USA because, as has been represented to this Court, the residence of the Deceased in the USA was owned jointly with the Plaintiff and passed to the Plaintiff by right of survivorship.
2. These proceedings have had a chequered procedural history which I consider it is appropriate to outline in some detail.
3. The proceedings were commenced by special summons which issued on 4 th March, 2012. The special summons is brought "on the application of" the Plaintiff and no defendant or respondent is named. It is interesting to note that on the face of the special summons it is stated that the Plaintiff resides at Kinsale, County Cork.
4. The relevant facts as outlined on the special endorsement of claim on the special summons are as follows:
(a) The Deceased made his last will and testament on 18 th January, 2006. In the interests of brevity, I will refer to this document as 'the Will'. The Deceased appointed the Plaintiff and his daughter, Janice Stinchfield, as his executrices.
(b) The Deceased married the Plaintiff on 13 th March, 2009. He died on 2 nd January, 2011, "whilst married to the Plaintiff without having altered or cancelled [the] Will".
(c) The Will "by its terms refers to another document being a Declaration of Trust made by inter alia (sic) the Deceased which said document, by its terms, describes the Plaintiff as his 'Spouse' (which in relation to the original form of the document is not correct) and 'was amended and/or substituted by the Deceased subsequent to the making of the … Will'".
(d) Subsequent to the death of the Deceased, it has appeared that the Will was lost and misplaced and cannot be found, despite exhaustive searches and there now exists only a certified copy of the duly executed Will.
5. Arising out of the asserted facts recorded at (c) in para. 4 above, it is pleaded in the special summons "there exists some grounds for contending that the … Will was not revoked by the Deceased's subsequent marriage to the Plaintiff".
6. Arising out of the facts pleaded at (d) in para. 4 above, it is pleaded that "there exists some grounds for contending that the … Will is capable of being duly proved". It is further stated that up to the date of the special summons "there has existed no contention between the Plaintiff and any other parties whomsoever in relation to the Deceased's estate or the administration thereof, whether in the United States of America or in Ireland".
7. Arising out of the foregoing statements of fact and pleas, the Plaintiff seeks the direction of the court "essentially" as to the following two issues:
(a) Whether the Deceased's subsequent marriage had the effect of revoking the Will; and, if not,
(b) Then whether the duly certified copy of the executed Will may be admitted to Probate.
8. At the commencement of the special endorsement of claim, the Plaintiff claimed a number of alternative reliefs, the first of which was an order declaring and determining whether a duly certified copy of the Will might properly be admitted to probate, the original having been lost irretrievably. The second relief claimed was an order "construing, declaring and/or determining the effect of the … Will, and in particular, whether it was revoked by the … Deceased's subsequent marriage". Various other reliefs, some of which, for example, an order proving the Will in solemn form, could not be pursued by way of special summons.
9. The Schedule in the special summons identified the only affidavit intended to be used by the Plaintiff as an affidavit sworn by her.
10. When the special summons came before this Court, there was considerable confusion as to the affidavits filed in the Central Office to ground the special summons. As I understand the position, the following affidavits were filed on 4 th March, 2012, namely:
(a) An affidavit sworn by the Plaintiff on 20 th January, 2012; and
(b) An affidavit sworn by Joseph M. Klements, an attorney, practising in Massachusetts on 20 th January, 2012.
Those affidavits were not on the file in the Central Office when the matter came before this Court. Through the intervention of the Court, I understand that they have now been re-filed.
11. The only affidavit on the Central Office file when the matter came before this Court was an affidavit of Gerard M. DeCelles, an attorney practising in the State of Rhode Island, which was sworn on 6 th November, 2012.
12. The Court was informed that when the special summons was returned before the Master, he suggested that the proper course was for the Plaintiff to bring an application in the Probate list on the basis that the matter is a non-contentious probate matter. This was done. When the matter eventually came to this Court, the Court was furnished with copies of the following documents:
(a) A notice of motion dated 8 th June, 2012, returnable in the Probate list on 9 th July, 2012 (which I understand bore Record No. 4908 in that list), seeking to have the Will admitted to proof in the terms of the copy;
(b) An affidavit sworn by the Plaintiff of 30 th May, 2012, and the exhibits referred to in it;
(c) An affidavit sworn by Mr. Klements on 30 th May, 2012, and the exhibit referred to in it;
(d) An affidavit sworn by Leon C. Boghossian III, an attorney in the State of Rhode Island, who was a witness to the Will, which was sworn on 7 th June, 2012, and the exhibit referred to in it; and
(e) A further affidavit sworn by the Plaintiff on 19 th July, 2012, although it is not clear whether that affidavit was ever filed in the Probate office.
13. As I understand the position, the Court (O'Neill J.) declined to grant the relief sought on the Probate motion and adjourned the proceedings generally with liberty to re-enter, on the basis that the special summons proceedings would be prosecuted. The only comment I would make in relation to the evidence in support of the Probate motion is that there was no reference anywhere in the papers to the Declaration of Trust, which is a feature of the proceedings on the special summons.
14. I propose now outlining the factual matters as established by the affidavits grounding the special summons proceedings.
15. In her affidavit sworn on 20 th January, 2012, the Plaintiff exhibited a copy of the Will. In the Will, the Deceased referred to the Plaintiff as "my beloved friend". He also referred to the Declaration of Trust (the 2006 Declaration of Trust) which was executed on the same day, but prior to the execution of the Will. Having dealt with tangible personal property and joint property, he dealt with the residue of his estate, which he devised to the trustees of the 2006 Declaration of Trust "to be held, administered and distributed upon the same trusts and with the same powers, discretions, exemptions, duties and obligations as are set forth in the 2006 Declaration of Trust …" Earlier, in defining the "2006 Declaration of Trust", he had referred to the Declaration of Trust executed prior to the Will "as the same may be from time to time amended".
16. The Plaintiff also exhibited a contract which the deceased and the Plaintiff entered into prior to the deceased...
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...Re O'Brien (deceased) and, if I may say so, I respectfully agree with it. 57 In the third of the Irish cases, Re McLaughlin (deceased) [2013] IEHC 156 the judgment of Laffoy J. is littered with expressions of frustration as to the manner in which the case was presented and argued, or not ar......