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Moyles v. Mahon [2000] IEHC 197 (6th October, 2000)
THE
HIGH COURT
1997
No. 6357P
BETWEEN
ROBERT
MOYLES
Plaintiff
AND
MARY
MAHON
Defendant
Delivered
extempore by the Honourable Mr Justice Thomas Smyth on 6th October 2000
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1
1. The
Plaintiff is now aged 80 and lives in an old person’s home in Birr, Co.
Offaly. He is a widower, his wife having predeceased him in September 1994.
There were a number of children of the marriage, which seems to have been
unhappy, the eldest of whom is the Defendant Mrs Mahon who married in 1968 and
who is now a widow, her husband having died in March 1995.
2. The
Plaintiff lived at Kinnitty, Birr, for many years. His mother apparently bought
the house in 1935 for him and he moved in there in 1940.
3. In
opening the case Mr Maguire described the family as fractious and the evidence
certainly bore that out.
4. In
the differences between the Plaintiff and his deceased wife the Defendant,
while not wishing to cut off her mother, tended to side with the Plaintiff in
such rows as occurred. The Defendant’s home appears to have been a haven
from the turmoils of Kinnitty for the Plaintiff where he was made welcome and
treated with that degree of affection which a dutiful and affectionate daughter
could be expected to show to a parent. The Plaintiff went to live with the
Defendant in 1991.
5. In
1991 things came to a head in Kinnitty. From a situation of having a regular
routine of Christmas dinner and Sunday lunch at the Defendant’s and
intermittent visits as a respite home, things changed to a structured position
of residence. This came about as a result of matrimonial proceedings between
the Plaintiff and his wife. The proceedings in the District Court concluded in
a barring order being made in or about October 1991. The Plaintiff was
naturally very upset
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about
this as it meant him having to leave Kinnitty which (notwithstanding that he
and his wife lived in separate sections of the house to the extent that there
were two front doors) he felt was his home. He contacted the Defendant and did
not turn to her in vain. He found accommodation with her in her home. Later,
because of some rather unsocial habits (coming in in the early hours of the
morning after a night of playing cards; putting on the television; smoking in
his bedroom; coughing and making some noise) the Defendant became worried and
anxious for the peace and good order of her home. Eventually the
Plaintiff’s accommodation was to change to what has been variously called
a shed and an apartment, being some form of outhouse or out-building altered
and adopted for residential use. At all times the Plaintiff’s meals,
other than breakfast on frequest occasions, and his laundry were looked after
by the Defendant.
6. Very
shortly after the barring order was made and when the Plaintiff was residing
with the Defendant he transferred ten-and-a-half or eleven acres of land the
subject of Folio 8511 County Offaly, which Mr Enright, the auctioneer called on
behalf of the Plaintiff, valued at £16,000 as at 1991 and in respect of
which Mr Shepherd’s valuation this morning was considerably lower.
7. The
transfer of 27th November 1991 of this land is sought to be set aside for a
variety of reasons set out in the pleadings but which were confined at the
hearing to (1) the improvidence of the transaction; (2) the absence in the deed
of a revocation clause or a right of maintenance and support or a right of
residence; (3) the lack of independent legal advice.
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8. Other
than the time sequence referred to, the circumstances were that the Plaintiff
presented himself with the Defendant to Mr James Lucey, solicitor. Mr Lucey had
been his solicitor in the matrimonial proceedings and knew the Plaintiff quite
well and got on well with him. Mr Lucey described the Plaintiff as well versed
in the ways of the world, placid but determined and an experienced businessman
(the Plaintiff had been a butcher for years and dealt in cattle and sheep; he
had bought and sold property and helped to the extent of some £70,000 his
son Eddie, elsewhere described as £50,000, to buy a property at Mount
Bolus; he had given sums of money, machinery and sheep to various members of
the family who were grown up and either married or independent).
9. Mr
Lucey tried to dissuade the Plaintiff from disposing of his land because a Will
would have been quite sufficient. Mr Lucey thought that the Plaintiff wished to
reward the Defendant or show her loyalty as she was his sole family ally in the
matrimonial dispute. He also thought that the Plaintiff may have wanted to get
back at the other members of the family. Mr Lucey was absolutely clear that the
Plaintiff unreservedly wanted to transfer the land without reservations and was
adamant that he wanted to give the land to the Defendant.
10. Mr
Lucey gave the Plaintiff careful and considered advice. Notwithstanding the
absence of a written record, I am satisfied that Mr Lucey advised the Plaintiff
against proceeding to divest himself of the property and that the concerns
pleaded to and advanced in court were properly put to the Plaintiff.
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11. Having
carefully considered the evidence of Mr Lucey, I was left with the clearest
impression of a sound and sensible man who, no matter what advice he was given,
was going to do what he wanted to do. Mr Lucey knew the Defendant with whom he
did not have a particularly easy relationship due to an outburst by her in the
District Court during the Plaintiff’s matrimonial proceedings (in the
events that later occurred in 1992 Mr Lucey came off record and refused further
instructions). The Defendant was not a client of Mr Lucey and his only
knowledge of her appears to have been as I have indicated.
12. On
the basis of Mr Lucey’s evidence I am satisfied that the advice given by
him was of an independent character.
13. Elsewhere
in his evidence Mr Lucey described the Plaintiff as a pragmatist, genial, very
resilient and very determined but calm; that he had considered that he had
taken care of the whole family; that he had in the past sold a schoolhouse in
Kinnitty for about £4,000, a transaction with which the Defendant may have
been involved. Mr Lucey knew the Defendant but never acted for her.
14. Notwithstanding
the foregoing, Mr Lucey felt that the Plaintiff should have further legal
advice as the transaction was a voluntary conveyance. Accordingly, he gave the
Plaintiff a list of about six local solicitors from which the Plaintiff, not
the Defendant Mrs Mahon, chose Mr Tom Dalton. The Plaintiff and the Defendant
having left Mr Lucey’s office, Mr Lucey inquired by telephone if Mr
Dalton would be prepared to advise the Plaintiff on the transaction, which Mr
Dalton duly did. Mr Dalton very briefly reported to Mr Lucey and the transaction
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proceeded
to a conclusion.
15. Mr
Dalton went to meet the Plaintiff at the house of the Defendant where he was
living at the time. Mr Dalton had once acted for the Defendant when she
purchased a property in Galway. Mr Dalton spoke to the Plaintiff for about half
an hour in the absence of the Defendant. He received the deed from the
Defendant on his arrival and gave it back to her at the conclusion of the
meeting. Mr Dalton was quite clear that the Plaintiff was not under any duress.
Furthermore, notwithstanding explaining to the Plaintiff the finality of the
transaction and advising him on the question of revocation, maintenance and
residence (I accept that the question of residence may have been tangential
because there was no residence on the land) the Plaintiff was simply not
interested in all this advice and that all the Plaintiff wanted was for the
Defendant to have the land with no strings attached. Mr Dalton was clear that
the Plaintiff knew what he was doing and acted independently and freely of his
own accord.
16. Mr
Dalton may not have made exhaustive inquiries as to all the assets and
liabilities of the Plaintiff’s estate but I have no doubt that he was
acutely aware of these as, according to Mr Lucey, the District Court order in
the matrimonial proceedings was under appeal by both parties at this time. In
the circumstances I think that it would have been both inappropriate and
perhaps unprofessional for Mr Dalton to inquire into matters which were outside
the scope of the limited duty undertaken by him and when the Plaintiff had his
own solicitor. I am satisfied and find as a fact that the deed is that of the
Plaintiff and resulted from an exercise of his own free will.
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17. As
Mr Lucey had come off record in the Plaintiff’s matrimonial proceedings
the Plaintiff consulted Ms Bernadette Owens, Solicitor, in or about March 1992.
Miss Owens never had anything to do with the 1991 transaction. Her instructions
were to prosecute the appeal in the Circuit Court. Between March and November
1992 Ms Owens came to deal with at least the five following items of business
for the Plaintiff: 1. The matrimonial proceedings in the Circuit Court. At one
stage Ms Owens went to the office of J. J. Kennedy, solicitors, in Birr where
she had arranged to meet the Plaintiff to go through all the various assets and
liabilities of the parties to the matrimonial action. 2. A dispute concerning
the key to a gate associated with a hairdressing salon, a separate part of the
property at Kinnitty. 3. The question of an assault by Percy Moyles on the
Plaintiff and the Defendant. 4. A dispute concerning the issuing by Canada Life
of a cheque or draft in respect of the redemption of what appears to have been
a joint entitlement in a single name. 5. A Will for the Plaintiff on his
instructions at that time. At this time he wanted to know his rights as the
surviving spouse.
18. The
outcome of the matrimonial proceedings was that the court sanctioned the
division of the Kinnitty property into two separate and segregated units, one
for the wife and one for the husband. Now that finality had been arrived at (if
finality can ever be said to exist in matrimonial disputes) the Plaintiff was
anxious to go back to Kinnitty. When he attempted to return, however, he found
that the section of the property that had been allocated to him had been
ransacked and was uninhabitable, which quite naturally upset him. The rancour
that seems to be part of the Kinnitty property and the cost of restoration, seen
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cumulatively
with his relative comfort at the Defendant’s premises, seem to have
convinced the Plaintiff after a brief interval that he was better off living
with the Defendant in Banaher.
19. While
accepting that there may be some self-interest in the depiction by the
Defendant of the life of the Plaintiff, she was not seriously challenged that
the Plaintiff was a genial sociable man, fond of cards and interested in
hurling and that most weeks he was out six out of seven nights. Ms Owens does
not appear to have had any dealings with the Plaintiff between November 1992
and September 1994.
20. Immediately
after the death of his wife in early September 1994 the Plaintiff called on Ms
Owens at her office. Both he and the Defendant were not recognised in the death
notice in the newspaper, presumably arranged by other family members. When the
Plaintiff and the Defendant called on Ms Owens on the day after the funeral the
Defendant simply brought her father to the office. The Plaintiff was upset that
the house at Kinnitty had been stripped of many items of furniture and effects,
items that had been regarded as either bought or as family possessions. On the
following day Ms Owens wrote to the solicitors for the deceased. Ms Owens
stated that the Plaintiff said that he wanted a third of his wife’s
estate in or about this time or shortly thereafter.
21. At
no time during the various transactions in 1992 or in September 1994 was the
question of a transfer of lands mentioned or discussed by the Plaintiff. He
had, as Ms Owens said, left the Kinnitty property to the Defendant in his 1992
Will. Ms Owens said that her first note
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8
about
the transfer of the house in Kinnitty is dated 7th October 1994. When the
matter was put to Ms Owens by Mr Maguire, her evidence was that she said to the
Plaintiff that he need not be in any hurry about it because he had made a Will
in favour of the Defendant. The Plaintiff was alone with Ms Owens when she was
giving him advice concerning this transaction. The Defendant was not present
during the time devoted to that element of advice and had not been present at a
later stage when the transfer was being read over to him. Ms Owens also said
that the Plaintiff understood and agreed with its contents. While Ms Owens did
not have a very detailed note of her consultation, I am fully satisfied and
find as a fact that she advised the Plaintiff about the finality of the deed,
explained to him the various ‘reservations’ that he should consider
in his own interest, that is a revocation clause, a clause providing for
maintenance and support, and advised him that there was no need for him to
transfer the property at that time because there was a Will in place to that
effect. Ms Owens clearly understood that the Plaintiff, notwithstanding her
advice and attempts to dissuade him from going ahead with the transfer, wanted
and was determined to have finality. The Plaintiff’s determination was
perfectly understandable in view of the unhappy history of the Kinnity property
and the shameful family events of the previous month.
22. A
considerable time was spent in cross-examining Ms Owens who had a very detailed
knowledge of the Plaintiff’s affairs through dealing with the matrimonial
proceedings. It was put to her forcefully that she was acting for both parties.
Ms Owens said that she did not know the Defendant, save perhaps by sight, had
never acted for her or advised her in relation to this transaction or any other
transaction
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9
and
did not know much about her, Ms Owens, who was so clearly a truthful witness,
said that if she had known that the transaction had the type of bargain
contended for, that is, that in addition to natural love and affection the
Plaintiff would live with the Defendant for the rest of his life and that the
Defendant would look after him, she would not have let the Plaintiff sign the
deed but would have tried to defer it if she had known that the Defendant would
not keep such a bargain.
23. However,
I am satisfied and find as a fact that there was no such bargain; if there was,
it was not expressly conveyed to Ms Owens. She may have surmised, as Mr Lucey
did, that there may have been some amicable family understanding as between the
Plaintiff and the Defendant. As in the case of Mr Lucey in the 1991
transaction, the Plaintiff knew what he wanted to do and did it.
24. When
the deed was typed up it was read over to both parties who understood it and
signed it. Some two weeks later both parties called back to Ms Owens on 25th
October 1994. When she read over and explained to the Plaintiff in the presence
of the Defendant the contents of both the Declaration of Insolvency and the
Family Home Declaration, the Plaintiff, she says, understood them. The
Defendant agreed to discharge the fees and stamp duty on the transaction. Ms
Owens was left with the clear impression that the Plaintiff was content to have
brought finality to the business, and I find as a fact that it was a free act
of the Plaintiff.
25. There
was much evidence concerning events which occurred after the execution of both
deeds,in particular in 1996. The issues arising
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from
this part of the evidence seem to me to be largely irrelevant to the question
of the validity of the deed. If, as alleged by the Plaintiff, the Defendant
failed to fulfil the alleged bargain to look after the Plaintiff for the rest
of his days, this of itself would not affect the validity of the deed. On the
other hand, if the deed is invalid, then no matter for how long and how well
the Defendant looked after the Plaintiff after the execution of either deed
would not of itself render them valid. However, since the issue of the
allegation to honour an alleged bargain has been raised, in general I accept
and prefer the account of the Defendant.
26. As
to the Plaintiff’s dealings with the 11 acres post-1991 (referred to at
page 50, question 448 of the Plaintiff’s own evidence) and his post-1994
conduct regarding the house, the indication is that, notwith-
standing
the Defendant’s ownership, she allowed him dignity, a sense of
usefulness, of having choice and a sense of interest and involvement, and I
find such as a fact.
27. I
realise that I would wish to be more firm in reaching this view but as at July
1999 the Plaintiff was, unfortunately, regarded as so infirm as to be unable to
come to court and his evidence was taken on commission. Accordingly, I did not
have the opportunity of assessing the Plaintiff as a witness. I am unimpressed,
however,by his refusal or failure to answer a considerable number of questions
during the course of his evidence in July 1999, in particular questions 301,
302, 383, 385, 419, 420, 425, 426 and 456. His failure of recollection in other
matters of five or eight years earlier is understandable.
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28. Neither
party impressed me with the evidence regarding the sums of money. In my view it
is an unproven and unsustainable claim.
29. The
submissions on behalf of the Plaintiff were as follows:
(1)
There is a position of undue influence presumed for the following reasons:
(a) the
special relationship of the parties;
(b) the
apparent improvidence of the transactions;
(c) the
absence of a revocation clause;
(d) the
absence of any consideration having regard to the overall assets of the
Plaintiff.
(2)
There was no independent legal advice, the question arising being whether the
transactions were free and independent acts of a man having full advice. Was he
emancipated?
(3)
Shortly before the execution of the transfers the relationship between the
parties was such as to raise a presumption that the Defendant had influence
over the Plaintiff. The transfers should be set aside unless the court is
satisfied that the gifts in the transfers were the spontaneous free acts of the
Plaintiff in circumstances which enabled him to exercise an independent will
and which justifies the court in holding that the gifts were the result of a
free exercise of the donor’s will. It is submitted that the court should
hold on the evidence that a deemed-to-be-coerced situation existed because (a)
the Plaintiff did change his mind from time to time; (b)that if, as suggested
by the Defendant, the Plaintiff was susceptible to influence by his son Eddie,
so also he should be regarded as susceptible to influence by the Defendant.
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(4)
The decision of the Supreme Court in
Carroll
v Carroll
[2000] 1 ILRM 210, in particular the passages from the judgment of Denham J. at
page 223 dealing with the public policy dimension of deemed undue influence and
also her consideration at pages 224 and 225 of the presumption of undue
influence are applicable in the instant case.
(5)
The nature and quality of the legal advice was deficient because of (a) the
absence in both deeds of the safeguards of clauses of revocation; (b) the
adequacy of clauses of revocation, maintenance and support and a right of
residence; (c) adequacy is not necessarily an expression of free will; (d) Mr
Dalton’s evidence disclosed that (i) his recollection was inaccurate in
that he did not remember taking an attendance and (ii) he was unaware of the
Plaintiff’s general circumstances; (iii) he was not independent because
he had in the past acted for the Defendant who, on the occasion of his visit,
gave him the actual deed.
(6)
All the solicitors said what they would have advised but none had a note to
this effect. If notes existed of their attendances on the Plaintiff saying
that, the notes did not disclose all they said they would have done, in
particular the distinction in character and effect of the deed as opposed to
the element of revocability.
(7)
In particular, Ms Owens when acting for both parties was wanting in documentary
evidence as to the nature and extent of the advice which she gave to the
Plaintiff. In the circumstances there must be documentary evidence to
corroborate the advice stated in evidence to have been given.
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13
(8)
When the transactions took place in 1991 and 1994 the occasions of
vulnerability of the Plaintiff should have been most particularly guarded
against.
30. The
submissions on behalf of the Defendant were as follows:
(1)
The case is distinguishable on its facts from the several cases relied upon in
opening by Mr Maguire.
(2)
McCormack
v Bennett
[1973] ILT 127 is still applicable and is the case most closely analogous to
the facts in the instant case and should be followed and applied.
(3)
The decision of the Supreme Court in
Carroll
v Carroll
,
particularly the judgment of Barron J. at pages 231 and 232 of the report,
indicates not the position contended for by the Plaintiff but one in which the
position is on a case-by-case decision on facts based on the legal principles
enunciated in
Carroll
v Carroll
and in the earlier cases therein referred to.
(4)
The quality of the legal advice in all instances was quite adequate and
sufficient. Mr Lucey and Ms Owens both fully understood the Plaintiff’s
circumstances. While Mr Dalton may not have done so, the position is that his
advice was still adequate in all the circumstances.
(5)
The Plaintiff was well versed in dealing with property and had dealt with other
members of the family and looked after them as he considered appropriate, which
is borne out by the evidence of Mr Lucey.
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(6)
The Plaintiff was not an innocent abroad, as borne out by the evidence not
merely of the Defendant but of the various other witnesses, particularly the
evidence of the solicitors all three of whom had met the Plaintiff at different
times in different places and in different circumstances. All considered him to
be a man of calm deliberation but very determined.
(7)
The departure of the Plaintiff from Banaher was not as stated by him but as
contended for by the Defendant.
(8)
The position about the moneys was unconvincing and there was no vouching. To
the extent that amounts could be established, other members of the family did
receive moneys in or about the same time and of the same order as the Defendant.
31. In
summary, my findings are as follows:
(1)
Neither the 1991 nor the 1994 deed was executed as a result of undue influence
or duress on the part of the Defendant.
(2)
The Plaintiff had no mental or physical infirmity which prevented him from
understanding the nature and consequences of either deed.
(3)
The Plaintiff had the benefit of independent advice from the solicitor of his
choice and that advice was fully and carefully made available to him.
(4)
The possibility of a clause of revocation was explained to the Plaintiff. The
desirability of making a revocable disposition of his property was urged upon
him.
(5)
Both deeds are on their face improvident in that the Plaintiff disposed of his
entire interest or estate in the properties without
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15
valuable
consideration.
(6)
Mr Lucey did surmise and Ms Owens had a general understanding that the
Plaintiff was executing the deed in favour of the Defendant for looking after
him or would look after him.
(7)
If there was, as contended for by the Plaintiff, a bargain in the terms
alleged, same was not fully expressed to any of the solicitors -Mr Lucey, Mr
Dalton and Ms Owens.
(8)
The preliminary letter dated 20th March 1997 from the Plaintiff’s
solicitor contains no mention of any deal, agreement or bargain.
(9)
There was no deal or bargain or arrangement made between the Plaintiff and the
Defendant that in consideration for looking after him for the rest of his life
or that in consideration for going to live with the Defendant he would transfer
either property.
(10)
The Plaintiff executed both transfers in his expectation and belief, not
induced by the Defendant, that he would secure or reinforce what he believed to
be the genuine loyalty and affectionate attention of his daughter the Defendant.
32. It
seems to me that the concluding remarks of Finlay J. in
McCormack
vBennett
[1973] ILT 127 at page 131 are apposite:
‘I
accept and adopt as applicable to this case the reasoning of Mr Justice Budd in
the case of
Gregg
versus Kitt
reported in 1956 Irish Reports at page 183. In particular I would adopt and
repeat the portion of his judgment at page 196 where he says “Where the
relations between the donor and another person raise a presumption that that
other person had influence over the donor and the evidence shows that the third
party is both closely related to the donee and was closely associated in action
and interest with the donee at the time of events leading to the transaction it
would seem to be on principle that the onus in such circumstances must be
likewise thrown on the donee to establish that the gift resulted from the free
exercise of the donor’s will. The presumption may of course be rebutted
either by showing that the donor has had competent independent advice and acted
of his
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16
own
free will or in some other way.”
‘As
Lord Hailsham says in
Inche
Noriah versus Shaik Allie Bin Omar
“The most obvious way to prove that the gift was the result of the free
exercise of independent will is to establish that the gift was made after the
nature and effect of the transaction had been fully explained to the donor by
some independent and qualified person so completely as to satisfy the Court
that the donor was acting independently of any influence from the donee and
with full appreciation of what he was doing.” If that method of rebutting
the presumption is adopted and it is not the only method open the advice relied
on must in the words of Lord Hailsham be given with a knowledge of all relevant
circumstances and must be such as a competent and honest adviser would give if
acting solely in the interests of the donor.
‘The
ignorance by Mr Wallace at the time when he was advising the late James Seery
of the promises made by Mrs Bennett in respect of a transfer of the land meant
that he was not a person with knowledge of all relevant circumstances. If to
defend this deed and to discharge the onus which is in my view upon her the
defendant must rely only on the independent advice of Mr Wallace she must
therefore fail. However, from the passage which I have quoted that Mr Justice
Budd was of the view and in this I am in full agreement with his judgment that
the presence of full and satisfactory independent advice is not the only way of
proving that a voluntary deed even though it may be on the face of it
improvident resulted from the free exercise of the donor’s will. I am
satisfied that James Seery in October 1967 himself was particularly concerned
to make an out and out transfer of these lands by deed to his daughter Mrs
Bennett. I am satisfied that that idea for practical purposes originated with
him and certainly did not originate with the defendant Mrs Bennett. His reason
for making such a transfer instead of a will which would have been revocable
was I am satisfied that he wanted a permanency and finality with regard to the
disposition of his affairs. I think it is a reasonable inference from the
evidence which I have heard that he was a sufficiently astute man to know that
no form of bargain or commercial transaction concerned with his land was likely
to secure for himself and his wife what they really needed and that was
personal care and attention granted largely through affection and kindness by a
member of their family. I believe therefore that James Seery when he executed
this deed did so in the expectation and belief which was his own and not
induced to them that by so doing he would secure or reinforce what he believed
to be the affectionate attendance of his daughter for both himself and his
wife. In these circumstances I conclude that there is evidence before me which
I accept other than and in addition to the evidence of the independent advice
which James Seery received before executing the deed which satisfies me that
the deed was his own act and resulted from an exercise of his own free will. In
these circumstances as I understand the legal principles applicable I must
uphold this deed even though it may on the face of it appear improvident and
even though events which occurred after its execution may have made James Seery
in his lifetime dissatisfied with it.’
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17
33. I
now proceed to deal with the submissions of the Plaintiff in reply:
(1)
There was indeed a situation which would give rise to presumed influence
because of the relationship of the parties. The transaction, as I have already
held, is improvident. There is no revocation clause and there are no rights
reserved. Mr Lucey (who drafted the first deed and gave advice against
proceeding) and Ms Owens (who drafted the second deed and gave advice against
proceeding) both had full knowledge of the affairs of the donor. Mr Dalton did
not. That does not in any way diminish the fact that Mr Dalton was consulted at
the behest of Mr Lucey.
(2)
Was this man emancipated? The answer to that is an unequivocal yes.
(3)
Was the relationship between the parties shortly before the execution of the
deed such as to raise the presumption that the Defendant had influence over the
Plaintiff? There is certainly some evidence of a sense of dependency. However,
I am quite satisfied that the Plaintiff’s decisions were made in each
instance to bring to an end the unhappy circumstances in which he found himself
and that he was the originator in each instance. There is no evidence that he
was prompted, cajoled or induced to take either of these courses. In my view
the Plaintiff exercised a spontaneous act of free will in both instances, and
that is taking into account the submissions very properly put and skilfully
argued by Mr Maguire of the deemed-to-be-coerced situation. I do not believe
that the Plaintiff’s change of mind indicates a man of fickleness.
Changes were made at different times in different circumstances for what
appeared to be good and valid reasons. His susceptibility to influence, as
suggested, is part of the peripheral dimension to this case which has not
surfaced in court and which is
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18
clearly
rumbling in the background. At the time he was dealing with these two
transactions the Plaintiff was not, in my opinion, susceptible to influence. I
am quite satisfied that the solicitors gave the Plaintiff time, assessed him,
and knew what they and he were about. I do not believe that he was susceptible
to influence in any way.
(4)
The principles in
Carroll
v Carroll
are still applicable and germane. In
Carroll
v Carroll
the facts are totally distinguishable. In this regard I totally agree with Mr
Abbott’s submission. In
Carroll
v Carroll
Mr Joyce acted for Mr Carroll Junior who literally brought his father along by
the hand at a time when he was devastated by his wife’s death, unlike the
situation here, where Mr Carroll had told his daughters who were coming up and
down to Dublin that there would always be a home for them there and who, when
Thomas Junior came to running the business, assisted him. The whole series of
circumstances until the daughters fell out with their sister-in-law is quite
different and quite unrelated to the circumstances in the present case.
34. The
nature and quality of the legal advice clearly differed because the times,
circumstances and knowledge of the different solicitors varied. However, the
two solicitors acting for the Plaintiff, Mr Lucey and Ms Owens, knew about his
affairs and had plenty of opportunity of sizing him up. Mr Dalton, who met the
Plaintiff once, was satisfied that he was a man with his wits about him and
knew what he wanted to do. Having acted in the past for the Defendant Mrs
Mahon, I do not think that Mr Dalton coloured the advice given to the
Plaintiff. He clearly did not know all the circumstances.
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35. Whatever
Mr Lucey told Mr Dalton was not explored. His recollection of not taking an
attendance of a once-off half-hour visit does not make the rest of his
recollection improbable or unreliable. Part of the gravamen of the
Plaintiff’s case is that the advice stated to have been given was not of
such a quality as to fully inform the Plaintiff, as the solicitors themselves
were not fully informed. I am satisfied that Mr Lucey himself was fully
informed. Mr Dalton was fully informed within his remit. But I am equally
satisfied that the situation is not to be discounted because there is no note
or memorandum (to satisfy the Statute of Frauds!). I know that that is drawing
the analogy a bit too far but I do take on board what Mr Maguire said. It is
certainly desirable that there should be a fuller note than exists in this case.
36. In
that regard I must make a judgment of the witnesses - their integrity, sense of
togetherness, sense of directness and their understanding and demeanour. I am
satisfied that all three solicitors gave their evidence truthfully, fully and
unequivocally and did advise as they stated. I do not think it is necessary to
have attendances to corroborate what they said they would have done. It is
certainly desirable to have an attendance but it is not a mandatory
requirement. If one of these solicitors had died, there might be grave
difficulty in certain circumstances without a contemporaneous note.
37. While
it is true that in 1991 and in 1994 the position of the Plaintiff may have been
vulnerable, he showed himself to be determined and resilient. Without
commenting on his intended return to his home in Kinnitty, he showed the signs
of a man who was not readily put down. As a businessman, I am satisfied that
the Plaintiff made his decisions
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in
circumstances where he considered them correct and appropriate and that they
were of his own volition.
38. In
the circumstances I do not think I need comment on the Defendant’s
submissions as they seem to have been borne out by the facts that emerged
during the evidence.
© 2000 Irish High Court
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