G.R. v Regan [2020] IEHC 89 (25 February 2020)

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JUDGMENT of Mr. Justice Allen delivered on the 25th day of February, 2020

1. This is an application pursuant to s. 194 of the Civil Partnership and Certain Rights and

Obligations of Cohabitants Act, 2010 for an order for provision for the plaintiff out of the

2. As required by O. 70B of the Rules of the Superior Courts, the application was made by

special summons. The summons was not, as by O. 70B, r. 16 it ought to have been,

marked as a cohabitation summons. Neither the special endorsement of claim nor the

grounding affidavit set out all of the particulars which, by O. 70B, r. 17, ought to have

been included but a supplemental affidavit of the plaintiff eventually disclosed sufficient

evidence to allow the court to adjudicate on the application. The relief claimed in the

summons was a claim to a beneficial interest in the deceased’s immovable property and

bank accounts rather than for provision from his net estate, but no objection was made as

to the form of relief claimed and the application was moved and answered on the basis

3. The deceased died intestate, unmarried and without issue. He had four siblings, three of

whom survived him. The deceased’s siblings declined to take out a grant of

administration and on 27th November, 2017, on the application of the plaintiff pursuant

to s. 27(4) of the Succession Act, 1965, Ms. Niamh Regan, solicitor, was appointed

4. Following her appointment as administrator, Ms. Regan wrote to the deceased’s three

brothers and sister notifying them of the proceedings. She suggested that they might

5. The first to reply was the deceased’s brother, Mr. E.D., who introduced himself as the

spokesman of the siblings of the deceased. He informed Ms. Regan that one of his

siblings, K.D., had died. E.D. acknowledged that the plaintiff had been his brother’s

friend for many years and had given up her job to care for him when he had been taken

ill. E.D. reminded Ms. Regan that he had agreed to her appointment as administrator

strictly subject to Ms. Regan presenting to the court an accountant’s letter of 19th July,

2006, and a letter from St. James’s Hospital of 28th March, 2007 - to which I shall come.

E.D. took the position that it was a matter for the plaintiff’s solicitor to establish the

required five years cohabitation, and for Ms. Regan to “defend the status quo of the 1965

6. Mrs. W.D., the widow of the deceased’s brother K.D. who had died in 2018, replied to

Ms. Regan by e-mail, questioning the plaintiff’s claimed status and asserting that she had

7. The deceased’s sister, Mrs. C.B., responded to Ms. Regan by telephone. Mrs. B.

expressed concern about the application and the status of the plaintiff - specifically the

plaintiff’s claim to have been in a committed relationship with the deceased. Mrs. B.

informed Ms. Regan that another of the deceased’s brothers, J.D., was in a nursing home

8. After the proceedings issued, the deceased’s siblings declined an invitation to retain their

own solicitors, but E.D. swore a short affidavit and attended court for the hearing of the

9. The application came before the court in the Monday afternoon list, which is ordinarily an

administrative list. By O. 70B, r. 10 (as applied to cohabitation proceedings by r. 16(5))

the hearing of the substantive application is to be on the oral evidence of the parties,

10. Mr. Ó Dúlacháin S.C., for the plaintiff, submitted that it was an appropriate case to be

dealt with on affidavit evidence because the evidence was uncontradicted. Mr. D’Arcy, for

the defendant, acquiesced. He said that Ms. Regan had had little in the way of

communication from the beneficiaries of the estate and that he had no instructions which

would have justified him in contesting the plaintiff’s evidence.

11. Absent opposition, it seemed appropriate to hear the application on affidavit evidence.

12. The plaintiff’s case is that she was in an intimate and committed relationship with the

deceased for 40 years and that they lived together for 32 years until his death on 5th

13. The deceased’s death certificate shows that he was 62 years’ old when he died. The

plaintiff did not state her age, but she must be in or about the same age.

14. The plaintiff and the deceased met in 1981 (she does not say in what month) in a city in

the United Kingdom where they were both then working. The plaintiff’s case is that they

more or less immediately formed an intimate relationship. At the end of 1981 the

plaintiff returned to Ireland. She says that she returned for Christmas, but I understand

her to mean that she returned at Christmas because she immediately goes on to say that

in January, 1982 the deceased gave up his job in the United Kingdom and moved to

Ireland. For about a year, the plaintiff and the deceased lived together in a rented house

in the west of Ireland and, following a transfer of his employment, in a house which the

deceased owned in the city in the United Kingdom where they had met. The city in the

U.K. to which the deceased’s employment had been transferred was about 140 miles from

his house and for a time the deceased commuted on a weekly basis.

15. In due course (the plaintiff does not say when) the deceased found suitable rented

accommodation in the city where he worked, and he and the plaintiff moved to there.

Subsequently (the plaintiff does not say when) the deceased bought a house in the city

where he worked, or at least where he was based. The deceased’s work required a lot of

travel and he was sometimes away for weeks at a time. The plaintiff was lonely when the

16. The evidence is sometimes rather vague and sometimes patchy, but it is not inconsistent

and was not challenged. In 1987 the plaintiff’s father was terminally ill and the plaintiff

returned to Dublin to be with him and near to her own family. The plaintiff’s father died

later that year. The deceased came to Dublin at weekends and for holidays. In 1991 or

1992 the deceased was made redundant by his U.K. employer. He tried, but failed, to

find work in Ireland and in the following 13 or 14 years found work in Scotland and

17. In July, 1998 the deceased bought a house in South Dublin where he and the plaintiff

lived until his death and where the plaintiff has continued to live since.

18. In about 2006 the deceased began to suffer from vascular dementia. His health

deteriorated rapidly. In 2007 the plaintiff gave up her job as a cook to care for the

deceased and did so for the remainder of his life. Initially the plaintiff cared for the

deceased alone and later with the assistance of carers provided by the Health Service

Executive and the Alzheimer's Society of Ireland. On the day before he died, the

deceased was moved to Our Lady’s Hospice, Harold’s Cross, Dublin.

19. The plaintiff and the deceased had no children together or individually.

20. The deceased’s death certificate shows the plaintiff to have been the informant and it was

she who made the arrangements for his funeral and paid the funeral expenses - which

appear not to have been reimbursed to her until towards the end of 2018.

21. The estate is not very extensive. It comprises bank deposits amounting in total to a little

over €82,000 and the house in South Dublin which was valued at €490,000. One of the

deceased’s bank accounts was held in joint names with the plaintiff. At the date of the

deceased’s death that account had a small credit balance of €62.48. The largest deposit

is an account in the name of the deceased with a credit balance of €73,109.99. This

deposit appears to be the proceeds of a transfer made after the deceased’s death of the

balance standing to the credit of an account in the name of the deceased in the United

22. As I have said, notice of the proceedings was given to the deceased’s three surviving

siblings and to the widow, and later to the executor, of the deceased’s predeceased

23. Mrs. W.D., the widow of the deceased’s brother, in correspondence with the defendant on

6th March, 2019 disputed the plaintiff’s assertion that she was cohabiting with the

deceased, asserting that she was his housekeeper. Mrs. D. died on 8th April, 2019.

Soon after, Ms. Regan was in correspondence with Mrs. D.’s executor, who was also

K.D.’s executor, but no affidavit was filed on behalf of the interest of K.D.

24. The deceased’s brother, E.D., swore a short affidavit in which he deposed that the plaintiff

- who he identified as his brother’s carer - was not in an intimate relationship with him

from 28th March, 2007, until his death on 5th December, 2013, “because of his severe

mental incapacity”. Mr. E.D. also asserted, by reference to a letter dated 19th July, 2006

written by the deceased’s accountant, that the deceased had lived and worked abroad

from 1983 to 2005 and visited Ireland for holidays. The underlying proposition was that

there could not have been an intimate and committed relationship between the plaintiff

and the deceased outside the period between 1st January, 2005 and 28th March, 2007:

25. The significance of 28th March, 2007 is that that was the date of a letter written by a

doctor at St. James’s Hospital “to whom it concerns” at a time when the deceased was

inpatient in that hospital. The letter conveyed the opinion of two consultant neurologists

and a consultant psychiatrist that the deceased no longer had capacity to make decisions

regarding his health, welfare and estate. The letter recorded that the deceased’s

“partner” and family had contemplated that he might be made a ward of court. The

deceased was not made a ward of court, but it appears that E.D. assumed the role of de

facto committee of his estate, by taking control of a bank account in the U.K. in the name

of the deceased and remitting monies to the plaintiff as required to allow her to keep up

the house and care for the deceased. Following the death of the deceased, E.D., quite

properly, paid the balance of those monies into an AIB Bank account in Ireland in the

26. The letter from the deceased’s accountant was a letter dated 19th July, 2006, to the

inspector of taxes for the district in South Dublin in which the deceased was living. This

letter offered confirmation to the inspector of taxes that the deceased had been living and

working outside Ireland from 1983 and had become tax resident in Ireland from 1st

January, 2005. It was said that the deceased did not then have employment in Ireland

27. The two letters are not strictly speaking evidence of their contents but E.D.’s positive

averments, albeit by reference to the letters, as to the deceased’s incapacity is supported

by the evidence of the plaintiff and it is common case that between 1983 and 2004 the

28. In a supplemental affidavit in reply to the affidavit of E.D., the plaintiff filled in some of

the detail of where the deceased, and where she and the deceased, had lived over the

years. She acknowledged that the deceased did work abroad throughout many years of

the relationship but said that he returned home to her at the weekends and holiday

29. The plaintiff also put before the court a greeting card sent by E.D. to the deceased and

the plaintiff at the house in South Dublin, addressed to them jointly by their Christian

names. There was no direct evidence as to when this card was sent but it was obviously

sometime after the plaintiff and the deceased had moved into the house together but

before his health deteriorated. E.D. thereby conveyed his best wishes and his hope that

“your kitchen will soon be finished and you can enjoy this summer in your garden and

conservatory. I guess you will be off to the seaside at [B] or [K] soon with the sunshine

30. The plaintiff also exhibited a series of letters written by the deceased’s doctors in which

she was identified as the deceased’s partner and carer, and which showed that the

31. This, as I have said, is an application pursuant to s. 194 of the Act of 2010. This

provision allows a “qualified cohabitant” to apply to court after the death of his or her

cohabitant for provision to be made for her or him out of the net estate of the deceased.

32. By s. 172(1) of the Act of 2010, a “cohabitant” for the purposes of Part 15 of the Act is

“…one of 2 adults (whether of the same or the opposite sex) who live together as a

couple in an intimate and committed relationship and who are not related to each

other within the prohibited degrees of relationship or married to each other or civil

33. By s. 172(5) a “qualified cohabitant” is defined as:-

“…an adult who was in a relationship of cohabitation with another adult and who,

immediately before the time that that relationship ended, whether through death or

otherwise, was living with the other adult as a couple for a period –

(a) of 2 years or more, in the case where they are the parents of one or more

34. Section 172(2) requires that in determining whether or not two adults are cohabitants,

the court shall take into account all the circumstances of the relationship and in particular

35. By s. 194(2) an application may not ordinarily be made where the relationship ended two

36. The overarching requirement of the Act of 2010 is that the relationship must be “intimate

and committed”. As Baker J. pointed out in D.C. v. D.R. (Unreported, High Court, Baker

J., 5th May 2015), [2015] IEHC 309, the relationship must be, or must have been,

sexually intimate. By s. 172(3) a relationship does not cease to be intimate merely

because it ceases to be sexual in nature, but the requirement that the relationship be

committed remains, as does the requirement that the couple live together.

37. As Baker J. did in D.C. v. D.R., I will examine seriatim the statutory requirements and

38. It is uncontested that the plaintiff and the deceased were living together – in the sense of

living under the same roof – from 1st January, 2005 (the date referred to in the

accountant’s letter) until 5th December, 2013 (the date of the deceased’s death). It is

also uncontested that the house in which the plaintiff and the defendant lived in those

years was bought by the deceased in July, 1998 and was from that time onwards the only

property which the deceased owned. Similarly, it is common case that from 1998 to

2004 the deceased worked for some time in Scotland and for some time in Germany. The

plaintiff’s case is that during those years the deceased returned home at weekends and

holidays. E.D.’s perception is that the deceased visited Ireland for holidays.

39. In M.W. v. D.C. (Unreported, Court of Appeal, 2nd October 2017), [2017] IECA 255, one

of the issues considered by the Court of Appeal was whether the law required that a

couple should have lived physically in the same shared residence at all times. Finlay-

Geoghegan J. (with whom Irvine and Hogan JJ. agreed) said, at para. 29 of her

“The concept of ‘living with the other adult as a couple’ or living ‘together as a

couple’ as stated in s. 172(1) is a legal concept for the purposes of s. 172. There

was considerable debate in the submissions before this Court as to whether the

concept of living together as a couple for the purposes of s. 172 required both

adults to live physically in the same shared residence at all times. Examples were

given of persons in an intimate and committed relationship living together as a

couple and holding themselves out as a couple but where either work demands of

one or other or ill health and hospitalisation require the couples to physically live in

different places or even different countries for periods of time. I conclude that the

legal concept of living together as a couple for the purposes of s. 172 does not

require two persons to live physically at all times in the same shared premises.

Hence, notwithstanding that a couple may not be physically living day by day in the

same residence during the two-year period immediately prior to the end of the

relationship, s. 172 envisages that a court may decide on all the relevant facts that

they, nonetheless continued to live together as a couple during that period.”

40. While the plaintiff’s evidence as to the nature of her relationship with the deceased was

doubted by the deceased’s sister in correspondence with the administrator, it was not

contested. E.D.’s affidavit was short and careful. He did not suggest that the

relationship had not been intimate. E.D.’s position was set out in an e-mail to Ms. Regan

and it was that because the deceased had been living abroad from 1983 until 1st January,

2005, the plaintiff could not have been cohabiting with him in Ireland until that date; and

that he lacked mental capacity to “decide to remain resident” with the plaintiff after 28th

March, 2007. From E.D.’s point of view, the plaintiff could only “claim from 1st January,

2005, until 28th March, 2007, as a period of willing cohabitation, which is less than the

41. Mr. Ó Dúlacháin’s submission was succinct. On the uncontested evidence, he argued, the

plaintiff was a qualified cohabitant. The court has a wide discretion, and in the

circumstances, it was said, the plaintiff should have the entire estate. The court was

urged to have regard to the duration of the relationship, the extent of the care provided

by the plaintiff to the deceased, and the absence of any evidence of financial hardship on

the part of the deceased’s siblings. The evidence was, it was submitted, that the

deceased had followed the plaintiff to Dublin and had bought the house with a view to it

42. Mr. D’Arcy was similarly economical in his submissions. He suggested that while the

rights of a cohabitant are not equivalent to the rights of a surviving spouse, the court

could have regard to the entitlement of a surviving spouse to a legal right share. Mr.

D’Arcy pointed out that there was no averment of a promise by the deceased to the

plaintiff that she would have anything. He attached significance to the fact that the

deceased’s bank account had been administered by E.D., rather than by the plaintiff.

43. Mr. D’Arcy pointed to s. 194(5) of the Act of 2010 which precludes the court from making

an order where the relationship ended before the death of the deceased unless the

applicant is financially dependent on the deceased. He argued that there was no evidence

that the applicant was financially dependent on the deceased but conceded that the

evidence was that the relationship had continued until the death. I am satisfied that s.

44. I am satisfied on the evidence that the relationship between the plaintiff and the

deceased was intimate and committed. I am satisfied that the couple lived together at

the addresses given by the plaintiff in the U.K. between 1982 and 1987. The deceased’s

work in those years kept him away from home frequently, sometimes for weeks at a time,

45. In 1987 the plaintiff’s father became ill and the plaintiff returned to Ireland to be with him

and to be near her family. The plaintiff’s father died later that year. The fact that the

plaintiff came back to Ireland to be with her father in his decline did not necessarily mean

that she was no longer living with the deceased but the plaintiff’s narrative jumps from

the death of her father in 1987 to 1991 or 1992 when the deceased was made redundant

from his employment in the U.K. and unsuccessfully tried to find a job in Ireland, and

from there to 1998 when they again moved in together. I have clear evidence that from

1st July, 1998, the plaintiff and the deceased were living together in the house in South

Dublin. Between then and 2005 the deceased was working abroad and commuting home

at weekends and for holidays but, again, the fact that the deceased was away from home

regularly, and sometimes for long periods, did not mean that he and the plaintiff were not

46. As for the period between 1987 and 1998, I am satisfied that the intimate relationship

between the plaintiff and the deceased continued but not that the plaintiff and the

deceased were living together. The plaintiff’s evidence is that coming up to 1987 she was

lonely and found the deceased’s absences from home very difficult. After she returned to

Dublin, the deceased came to see her at weekends and for holidays. The plaintiff’s

evidence is that she worked as a cook in a convent in South Dublin for 15 years between

1992 and 2007 - so she could not have been living with the deceased between 1992 and

47. The case pleaded – that the plaintiff and the deceased were in an intimate and committed

relationship for upwards of 40 years – fails as a matter of arithmetic.

48. Section 172(5) of the Act of 2010 provides that the qualifying period is to be calculated

by reference to the period of 2 or 5 years, as the case may be, immediately before the

time that the relationship ended, whether by reason of death or otherwise. It seems to

me that it is clear from the Act and at least implicit in the decision of the Court of Appeal

in M.W. v. D.C. that broken periods of cohabitation may not be aggregated and that in

determining whether a plaintiff is a qualified cohabitant the court may not look beyond

the period of cohabitation which ended at the time the relationship ended.

49. The evidence as to the seven factors identified in s. 172(2) which the court is required to

50. I have no evidence of the financial arrangements between the plaintiff and the deceased

prior to 1998. The plaintiff has deposed that from the time they moved into the house in

South Dublin on 1st July, 1998, until 2006, the gas bill was in her name. During that

time the plaintiff was working, and I infer that she was paying the gas bill. I think that I

am entitled also to infer that the plaintiff was contributing otherwise to the joint

51. In 2005 the deceased’s health deteriorated rapidly to the point that by early 2007 he

required full time care. In April, 2007 the plaintiff gave up the job she had had for 15

years to care for him and from later that year the plaintiff ran the house using money

remitted from time to time by E.D. from the deceased’s bank account in the U.K. From

2007 until his death the deceased was very frail and dependent on the plaintiff for his

care. I characterised Mr. E.D. as the de facto committee of the deceased’s estate, and I

think that it is fair to characterise the plaintiff as the de facto committee of his person.

During the same time the plaintiff became entirely financially dependent on the deceased

52. I find that the plaintiff and the deceased were in an intimate relationship from 1982 until

the deceased’s death in 2013 and that in those years they lived together between 1982

and 1987 and from 1998 until 2013. I find that from 1998 the relationship was intimate

and committed. I find that from 1998 to 2007 the plaintiff and the deceased both

contributed to the upkeep of the home they shared and to the shared household

expenses. The intimacy and commitment of the relationship was demonstrated in 2006

and thereafter when the plaintiff willingly took on the burden of caring for the deceased

and gave up such financial independence as she had had from her employment.

53. I am satisfied that from 1998, at least, the plaintiff and the deceased presented

themselves as a couple and were recognised as such by the deceased’s doctors, bank

manager and at least his brother E.D. Neither the fact that following the deterioration of

the deceased’s health the relationship ceased to be sexual, nor the deceased’s lack of

capacity from 2007, meant that the relationship ceased to be intimate.

54. The fact that the deceased worked and often stayed away from home between 1998 and

55. In D.C. v. D.R. Baker J. attached particular importance to the rituals of death as indicative

of the role of a surviving cohabitant. In this case I do not have evidence of the role of the

plaintiff at the deceased’s funeral, but I do have the deceased’s death certificate which

identifies the plaintiff as the informant, and a letter from Ms. Regan, as the deceased’s

legal personal representative, to the plaintiff’s solicitors, of 19th November, 2018,

recouping to the plaintiff the funeral expenses which she had paid.

“The scheme of the Act envisages the court looking at the seven identified factors

in s. 172(2) not as conclusive as to the nature of the relationship but as indicative

of that relationship and how it is to be properly characterised. I consider that the

test requires the court to determine whether a reasonable person who knew the

couple would have regarded them as living together in a committed and intimate

relationship, and that the individual and many factors in how they are perceived

57. In determining whether, and if so what, provision ought to be made for the plaintiff, I

have had considerable assistance from the judgment of Baker J. in D.C. v. D.R.

58. Baker J. accepted the submission of counsel for the defendant in that case that Part 15 of

the Act of 2010 was part of the nexus of family and succession legislation and that some

assistance could be derived from the jurisprudence under s. 117 of the Succession Act,

1965. That said, it seems to me that much of the value of comparing and contrasting s.

194 of the Act of 2010 with s. 117 of the Act of 1965 is to identify the differences, rather

59. While both ss. 117 and 194 use the same language of “proper provision”, the right to

make a claim under s. 194 is not founded on the mere fact of the relationship. In the

case of a qualified cohabitant the court is required to consider the nature and duration of

the relationship and the mutual contribution to welfare made in the relationship.

60. In D.C. v. D.R., as in this case, there were no children.

61. D.C. v. D.R. was, as is this, a case in which the deceased died intestate. In that case, as

in this, there was no evidence that the deceased’s siblings were financially dependent on

him or had any particular needs that might have been affected by an order that provision

be made for the plaintiff but Baker J. (unsurprisingly, if I may so) rejected an argument

that the scheme of the legislation intended that consideration be given to the interests of

spouses or children of a deceased only, and not to siblings. In that case, as in this, the

mere fact that the deceased’s siblings are entitled to succeed on intestacy means that

they have rights to which the court was and is bound to have regard. In that case, as in

this, the court was required to balance the interests of the deceased’s siblings who

benefited from the deceased’s death intestate, against the factors which suggest that

62. In D.C. v. D.R. the court noted that in Irish law marriage enjoys a constitutionally

protected status and that the Act of 2010 does not make automatic provision for a

surviving cohabitant. It also rejected an argument that an applicant under s. 194 of the

Act of 2010 carries the “relatively high onus” which is borne by adult children who apply

63. While D.C. v. D.R. was, and this case is, a case in which the deceased died intestate, it

seems to me that the circumstances of the intestacy in this case are different. Ms. J.C.,

the cohabitant of D.R., was a lady who was of sound mind, memory and understanding

until the time of her death. She had a diagnosis of secondary cancer which she knew in

the year prior to her death was likely to be fatal. Ms. J.C. had prepared a document

outlining her wishes for the distribution of her property, which she had put away safely

until shortly before her death when she directed the plaintiff to where he would find it:

but she had not made a will. In the circumstances of that case, Baker J. inferred that J.C.

64. In this case the deceased was about 55 years of age when, following a collapse, he was

diagnosed with a hereditary neurodegenerative condition which causes strokes and

dementia. If not immediately, then very soon after, he lacked capacity to make a will. It

is the fact that the deceased died intestate, but I am not confident to infer that he did so

65. The court has a wide discretion in determining whether, and if so what, provision ought to

be made for a surviving qualifying cohabitant. As Baker J. explained, the requirement

that the court should have regard to the factors set out in s. 173(3) imports a degree of

objectivity, so that the motivation of a deceased in not making provision during his or her

lifetime - or, I would add, by will - is not determinative but in an appropriate case it is

something which the court may take into account. It seems to me that this is not such a

case. It is true, as Mr. D’Arcy pointed out, that there is no evidence in this case of any

promise by the deceased, but his health failed rapidly at an age at which, perhaps, fewer

people that ought to have contemplated their mortality. This is not a case in which the

deceased cohabitant decided not to make provision for the survivor.

66. By s. 194(7) of the Act of 2010, the total value of any provision ordered to be made from

the estate of a deceased (aggregated with the value of any provision previously ordered

to be made during the lifetime of the deceased) may not exceed the legal right share that

the applicant would have been entitled to if the qualified cohabitants had been married or

civil partners: which in this case, if the deceased had made a will, would have been half of

the estate. On the other hand, the deceased in this case, would have been perfectly

entitled, while he still had capacity, to have made a will leaving everything to the plaintiff.

In a case, such as this, where it is not apparent that the deceased decided not to make a

will, I am not persuaded that it would be particularly useful to contemplate what the

67. As I have observed, the discretion of the court imports a degree of objectivity, but I do

not understand that discretion to extend to writing for the deceased what might be

objectively thought to be a reasonable will. Just as Part 15 of the Act of 2010 is not

based on a moral duty to make proper provision for a surviving cohabitant, neither does it

incorporate the notion of a just and prudent cohabitant. Nevertheless, I believe that the

court is entitled to take into account the closeness, or otherwise, of the relationship

between the deceased and those entitled on intestacy and whether there was any

financial dependence on the deceased. To take an extreme example, the entitlement on

intestacy of, say, a cousin in Australia whom the deceased had never met would carry

less weight than that of, say, a sole surviving unmarried sister of the deceased who had

lived with the cohabiting couple in a house in which she and the deceased had grown up

together and which the deceased had inherited from the survivor of their parents. I

leave over to a case in which it might arise the potentially very great difficulty of weighing

the interest of a class when there might be, among those within the class, a great

disparity in their relationship with, or financial dependence on, the deceased.

68. It is clear that when the deceased bought his house in Dublin he intended that it would be

a home for himself and the plaintiff. While the deceased’s relationship with the plaintiff

was then of sixteen years’ duration, they had not lived together for ten or eleven years. I

find it unsurprising, then, that the deceased did not put the house into joint names when

he bought it. Unlike D.C. v. D.R. there is no evidence in this case of a proposal or

discussion of marriage and no direct evidence of the deceased’s wishes or intentions as to

the devolution of his property. What is, I think, clear is that the deceased’s wish and

intention at and after the time he bought his house was that it would be, and continue to

69. By s. 194(4) the court, in considering whether to make an order, must have regard to all

the circumstances of the case, including the interests of the beneficiaries of the estate

70. The direct evidence as to the financial circumstances, needs and obligations of the

plaintiff is thinner than I would have liked but I believe that I have sufficient evidence to

draw the necessary inferences. In 2007 the plaintiff gave up a job she had held for

fifteen years to care for the deceased and from then until the time of his death was

financially dependent on him. As of the date of the application now before the court, the

deceased’s house in Dublin was the plaintiff’s home and had been for upwards of twenty

years. For the future, the plaintiff will need somewhere to live for the rest of her life.

While it would have been better if the plaintiff had directly said so, I believe that I am

justified in inferring from the fact that she was employed in what must have been

modestly paid employment for fifteen years that her means and resources are limited to

the point that she is not in a position to buy a house for herself.

71. In this case there are no spouses or civil partners, or former spouses or civil partners,

72. By s. 173(3)(f) the court is required to take into account the duration of the parties’

relationship, the basis on which the parties entered into the relationship, and the degree

73. In this case the plaintiff and the deceased were in a relationship for upwards of thirty

years but on the authority of M.W. v. D.C. [2017] IECA 255, the relevant relationship is

that during which the parties lived together as a couple. As I understand the law, the fact

that the plaintiff and the deceased previously lived together between 1982 and 1987 and

the fact that their intimate relationship continued between 1987 and 1998 are relevant in

assessing the intimacy and commitment of their relationship from the 1st July, 1998, but

the duration of their relationship is to be measured from that date. Accordingly, I find

that the duration of the relevant relationship was fifteen years.

74. This is a case in which it cannot be gainsaid that the plaintiff made a huge contribution to

the welfare of the deceased by caring for him and looking after the home. There is direct

evidence that the plaintiff gave up her job in which she was long established to care for

the deceased. While there is no direct evidence, I nevertheless believe that I am justified

in inferring that the plaintiff’s prospects of re-joining the labour market after an absence

of seven years and in competition with other candidates who are likely to be younger, are

such as to amount to an impairment of her future earning capacity.

75. In D.C. v. D.R. Baker J. held that the conduct of the plaintiff to which the court is entitled

to have regard under s. 173(3)(j) is not limited to poor conduct or bad behaviour and can

overlap considerably with the contribution to welfare identified in section 173(3)(f). I

find that the loyalty with which the plaintiff embraced the challenge of the deceased’s

illness and the dedication with which she cared for him over many years is such that it

76. Against, or with, the factors in favour of making provision for the plaintiff are to be

balanced the rights of the deceased’s siblings on his death intestate. As previously

observed, the mere fact that the deceased’s siblings are entitled to share in his estate

means that they have rights to which regard must be had. The weight that is to be

77. As, again, Baker J. explained in D.C. v. D.R., the scheme of the legislation is to make

financial provision for a surviving qualifying co-habitant. Necessarily the making of such

an order will reduce pro tanto the rights of those who would otherwise take on the

intestacy. In that case there was some evidence as to the financial circumstances of the

deceased’s siblings. In this case, there is none. On the evidence, I find in the balance an

established need on the part of the plaintiff for financial security and the legal rights of

the deceased’s siblings, but no means of assessing the practical impact of the

78. On the evidence, at least after July, 1998 when the deceased bought his house in Dublin,

the relationship between the deceased and his siblings, other, perhaps, than E.D., does

not appear to have been particularly close. Mrs. C.B., the deceased’s sister, was

unaware of the relationship between the plaintiff and the deceased. The plaintiff was

certainly not, as Mrs. W.D. the widow of the deceased’s brother K.D., thought, his

79. Mr. E.D., by contrast, was sufficiently close to the deceased to have been aware of the

relationship and of the challenges posed by the deceased’s decline in health. E.D.’s

affidavit, as I have said, was careful. It contested the plaintiff’s status as a qualified

cohabitant on what were essentially legal grounds, rather than the reliability of the

plaintiff’s evidence. If I take E.D.’s reference to the St. James’s Hospital letter as an

averment of the truth of the contents of that letter, E.D. was involved with the plaintiff in

the decision as to what was to be done having regard to the deterioration in the

deceased’s health: and the evidence is that E.D. took control of the deceased’s bank

account. Again the evidence is rather thin, but if I take E.D.’s reference to the

accountant’s letter as an averment of the truth of the contents of that letter, the

deceased had been living on his savings since 1st January, 2005. By reference to the

death certificate, he was then 55 years of age. There is no evidence of what the

deceased’s savings then amounted to, but whatever he had was all that he had, and all

that he was likely to ever have. The position was that the deceased needed to be cared

for and his fortune needed to be husbanded. The plaintiff did what was necessary, and

E.D. did what was appropriate. There is no direct evidence that the plaintiff and E.D. co-

operated but I am confident to infer that they did. I am satisfied that E.D. acted entirely

in the best interests of his brother, as he would have if he had had an enduring power of

attorney or had been formally appointed as committee of his brother’s estate, to balance

the need to ensure the deceased’s care and comfort against the need that the deceased’s

savings would last. When the time came, E.D. released the balance of the fund to the

80. In balancing the interests of the plaintiff and the deceased’s siblings, I must take account

of the value and nature of the estate, and the number of the deceased’s siblings. If

some provision is to be made for the plaintiff, whatever, if anything is left will be divided

at least four ways, and perhaps more, depending on the terms of the wills of K.D. and

W.D. On an arithmetical basis, the detriment to each of the deceased’s siblings would

be one quarter of the benefit to the plaintiff. On the evidence, I can immediately see the

effect of making – and of limiting - the provision for the plaintiff on the plaintiff’s future

life, but not the effect of making provision for the plaintiff on the lives of the deceased’s

81. In this case, as in D.C. v. D.R., there is no person other than the plaintiff to whom the

deceased had a financial commitment, or in respect of whom he might have had an

obligation to provide. The relationship was of 32 years duration and it was committed for

at least the fifteen years prior to the deceased’s death. For so long as she could, the

plaintiff contributed to the household income. While again – apart from the reference to

the gas bill - the plaintiff does not spell it out, I believe that I am justified in inferring that

she contributed to looking after the home. I find that until the deceased became ill, the

plaintiff and the deceased each contributed to the welfare and life of the other. It is

uncontested that the plaintiff made an enormous contribution to the physical and

emotional welfare of the deceased after he became ill. It is uncontested that the

deceased made no provision for the plaintiff during his lifetime.

82. I had no great difficulty in coming to the conclusion that some provision ought to be made

for the plaintiff from the net estate of her deceased partner. After careful consideration I

have come to the conclusion that proper provision will be that the plaintiff should have

the house in South Dublin where she and the deceased lived together for fifteen years.

This will provide the plaintiff with security and will keep her in what, from the time the

deceased purchased it, was intended to be her home. I am mindful of the fact that the

house accounts for the great majority of the value of the estate and that the costs of this

application will account for a good deal of the money, but that is what I believe the justice

83. By s. 196 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act,

2010 the Circuit Court has concurrent jurisdiction with the High Court to deal with

applications under section 194. I see no reason why it was thought necessary to bring

the application in relation to this relatively modest estate in the High Court. There will be

an order for the costs of the plaintiff and the defendant out of the estate, limited to Circuit

Court costs. The usual order on the application by an intended plaintiff under s. 27(4) of

the Succession Act, 1965 to appoint an administrator to substantiate proceedings is to

reserve the costs to the trial judge. If that was the order made, the parties must have

the costs of that application as well. Mr. E.D. will have his expenses of attending court.

Result: Provision made under section 194 of the Civil Partnership and Certain Rights and Obligations of Co-habitants Act 2010.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> G.R. v Regan [2020] IEHC 89 (25 February 2020) URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC89.html Cite as: [2020] IEHC 89

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