Court dismisses plaintiff's claim for full property ownership, upholding will's life interest and rejecting disputed 2003 agreement.

Record No: 2021/ 01841

Neutral Citation: [2024] IECC 20

AN CHÚIRT CHUARDA

THE CIRCUIT COURT

DUBLIN CIRCUIT CIVIL COURT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF

L. MC.G

PLAINTIFF AND

G. MC.G EXECUTOR OF THE ESTATE OF M.H. (DECEASED)

DEFENDANT

Judgment of Her Honour Judge Jennifer O’Brien delivered this 25th day of October 2024

1. This case comes before the court by way of equity civil bill issued on 14 April 2021.

The plaintiff is a lady who resides at an address in north Dublin. The plaintiff is the only child of the late M. H. who died on the 6th of January 2020. The defendant is an accountant and executor of the estate of his grandmother, the late M. H., and he resides at an address in north Dublin. The plaintiff lived with her mother in Woodview for over fifty years. The plaintiff also cared for her mother for many years after she

became unwell until she was admitted to St. Francis Hospice where she died aged ninety-seven.

2. Under the terms of her will dated 31 March 2016, the late M. H.:

I. Appointed the defendant and K.H., retired solicitor as her executors;

II. Devised a life interest in her home at Woodview, Church Avenue, Portmarnock (“the property”) to the plaintiff;

III. Devised the remainder interest in the property to the defendant;

IV. Devised an absolute interest in a garage and workshop situate on the property to the defendant;

V. Gave her joint executors complete discretion in relation to the distribution of the residue between her only grandchild, the defendant, and his nine children as they saw fit.

3. On 22 March 2021, K.H. renounced his right to probate of the will and filed a renunciation of probate in the High Court probate office. No steps have been taken by the executors to obtain a grant of probate in order to administer the estate.

4. The plaintiff has registered a caveat against the estate.

5. The plaintiff claims that on 5 August 2003, the late M.H. entered into a written agreement with the plaintiff (“the 2003 agreement”) , under the terms of which she agreed “to leave the property known as Woodview in its entirety to my daughter L. on my death in consideration of her signing over the property known as St. Declan’s to her son G. - my grandson so he can get a mortgage to build a house on the land.” It is claimed that the said agreement was signed by M.H. and by the plaintiff and was witnessed by an independent witness.

6. The plaintiff claims that she entered into the 2003 agreement on the clear and unequivocal undertaking given to her by her mother that on her death she would vest an absolute interest in the property in the plaintiff. The plaintiff says that she's honoured her obligations under the agreement and in or around 2003 she conveyed her absolute interest in the lands known as St. Declan’s to the defendant. The defendant built a house on the said lands in which he and his family now reside.

7. It is claimed that in breach of the express terms of the 2003 agreement in her will the late M.H. devised a life interest in the property to the plaintiff with the remainder interest vesting in the defendant. Furthermore, under the terms of the will, an absolute interest in the garage and workshop situated in the rear garden of the property was devised to the defendant. As such, the plaintiff seeks to enforce the 2003 agreement.

8. The court has heard evidence on behalf of the plaintiff and the defendant in this matter. The plaintiff gave sworn evidence that her mother had promised to transfer the property to her in consideration of the other property being transferred to her son.

She recounted that she entered into a written agreement with her mother on 5 August 2003 and that this agreement was witnessed by other family members. She gave evidence that the original agreement was locked away in the bureau at her mother’s house. She said that the original disappeared but that she has copies.

9. The plaintiff gave evidence that she had expended considerable sums (in excess of €500,000) on the property in reliance on the promise given by her mother. An extension was built together with a conservatory, the house was rewired, the roof was replaced, and a new kitchen was installed. She said that she was shocked when she realised her mother had only left her a life interest. She said that she had always looked after her mother and that she couldn’t believe she found herself in this situation.

10. Under cross-examination the plaintiff was brought through the various documents of title and the transfer of St Declan’s to her son. She said that she always knew her mother was leaving the house at Woodview to her. She said that her mother had told her that the property would be hers always. The plaintiff queried the manner in which her mother had signed the 2013 will. She said that her mother changed her mind when it suited her and that she was a controlling woman. The plaintiff gave evidence that her mother was coerced into signing the 2013 will by the plaintiff’s daughter in law. The plaintiff gave evidence that the will signed in 2016 was not signed the way her mother would ordinarily sign documents.

11. When queried about the identical nature of the signature on the 2013 will and the August 2003 agreement, the plaintiff responded that she had no comment as she had not seen it. It was put to the witness that her mother had left important documents with Gore & Grimes. The plaintiff responded that she did not agree as her mother kept documents in the bureau at home. The plaintiff alleged that her son took original documents from the bureau at home, including the original 2003 agreement.

12. It was put to the witness that her mother was of sound mind when she made the will and that this was reflected in the clinical note on her file. The plaintiff responded that Dr. Garrett May was not her mother’s doctor and in her opinion her daughter in law had given him information, that she had presented herself as being the plaintiff. The plaintiff stated that she did not recollect signing the litigation letter, following on from her mother’s passing. She confirmed that she had lodged the caveat as she believed her mother had been coerced into signing the final will. She gave evidence that she believed her son to be a pathological liar.

13. With regard to the manner in which the 2003 agreement was produced, the plaintiff gave evidence that she typed it from a handwritten note in her place of employment.

She said that she then destroyed the handwritten note and produced the typed version for signature by her mother and the other witnesses. She said her cousin had a copy of the document as she had witnessed it. She said that she had gone up the road after it was signed by her cousin, in order to copy it. The plaintiff gave evidence that she could not say that the signature on the 2013 will was identical to that on the 2003 agreement. The plaintiff gave evidence that she believed her mother was coerced into signing both the 2013 and the 2016 wills. She said that her son resented that she had supported his eldest daughter.

14. The plaintiff gave evidence that her mother had told everyone that the house and contents would all belong to the plaintiff. The plaintiff said that she had lived at the property for her entire life. She said that her father had made all of the furniture.

15. P. N., the plaintiff’s cousin, gave evidence that there was a verbal agreement to the effect that the plaintiff would get the Woodview property. He said that he could not recollect any ill treatment on the part of the plaintiff towards her mother. He confirmed that he had advised the plaintiff to get something in writing. He said that he never saw the 2003 agreement.

16. K. S. also gave evidence to the effect that she was familiar with the 2003 agreement.

She confirmed her signature was on the document. She said that she was aware of conversations and that she knew that something needed to be signed. She said that she witnessed M. H. sign the document and that she herself had signed in place of her own mother. She recounted that L. McG. went to have the document copied. She said that it was her understanding that Woodview in its entirety would go to L. McG. She said this copy of the agreement had been with her mother’s papers. She gave evidence that L. McG had contacted her about the matter and that she hadn’t seen the agreement for many years. She said that her aunt M.H. had been very fond of her daughter, L. McG. She also confirmed the extent of the work carried out at the property. Under cross examination, the witness confirmed that she found the document in her mother’s accordion and that same had not been folded. She could not remember whether she had folded it to post it.

17. It was acknowledged by the plaintiff’s legal team that they are no longer in a position to identify the best copy of the 2003 agreement received by them from the plaintiff.

18. D. McG, the defendant, was called into evidence and said that he was here to see through his grandmother’s wishes and act as executor to her will. He recounted that he had a great relationship with his grandmother and that she had given him money towards his first house. He said that she was a great help with the house and with minding the children. He said that the transfer of St. Declan’s was first made to his mother and then on to him, for tax reasons. He said that he built the house himself and that it took two years.

19. The defendant acknowledged that there had been a family rift in 2011 and that his daughter had moved in with her grandparents. He gave evidence that while he was aware of the wills executed by his grandmother that he was never aware of the 2003 agreement. He said that it was his understanding that his grandmother had changed her will, on account of the rift, to leave it all to him. He said that he pleaded with his grandmother not to write his mother out of the will. He said that he did not coerce his grandmother into signing new wills either in 2013 or in 2016. He said that he thought the 2016 will represented a fair compromise in that his mother was provided with a life interest in the Woodview property. He said that the first time he became aware of any agreement was when the litigation warning letter issued. He said that his mother had suggested forging a will in order to resolve the situation. He gave evidence that he believed that the signature on the 2003 agreement is a direct copy of the signature on the 2013 will. The witness also gave evidence with regard to monies expended on work to the house such as ensuring the bathroom was suitable for his grandmother. He said that he got paid for this work. He said that he had repaid loans given by his grandmother.

20. The court has also had the benefit of submissions filed on behalf of each party. The plaintiff’s and the defendant’s legal submissions are outlined below.

“Plaintiff’s Outline Legal submissions:

These written legal submissions constitute a summary of the legal arguments which are advanced on behalf of the Plaintiff addressing, at the direction of the Court, the discrete matter of the circumstances in which the doctrine of proprietary estoppel will fetter the discretion of a testator to alienate his/her property.

BACKGROUND

The Court has heard evidence proffered on behalf of the Plaintiff herein that:

1. In or around April 2003, the Plaintiff entered into a verbal agreement with her mother under the terms of which she agreed that, in return for her conveying her interest in lands owned by the Plaintiff known as "St. Declan’s" to her son the Defendant, her mother promised to make a will leaving her home known as "Woodview" to the Plaintiff absolutely.

2. In April 2003, the Plaintiff's mother, M.H., made a will giving effect to the terms of the said verbal agreement.

3. Pursuant to the terms of the verbal agreement, in or around July 2003, the Plaintiff transferred her interest in St. Declan's to the Defendant.

4. After receiving advice from a family relative, in August 2003, the Plaintiff and her mother executed a written agreement recording the terms of the April verbal agreement.

5. The Plaintiff entered into the 2003 Agreement on the clear promise made to her by her mother that, on her death, she would vest an absolute interest in the Woodview property in the Plaintiff. In reliance on the said promise made by her mother, the Plaintiff:

a) In or around July 2003, conveyed her absolute interest in the lands known as "St. Declan's" to the Defendant. The Defendant has built a house on the said lands in which he and his family now reside; and

b) expended considerable sums on the improvement and maintenance of Woodview.

6. Unknown to the Plaintiff, in a will made in March 2016, the late M.H. revoked the 2003 will. She resiled from her promise to the Plaintiff and devised a life interest in Woodview to the Plaintiff with the remainder interest vesting in the Defendant.

Furthermore, under the terms of the 2016 will, an absolute interest in a garage and workshop situated in the rear garden of the Woodview property was devised to the Defendant.

7. It is the Plaintiff's case that she is entitled to an Order for Specific Performance of the 2003 Agreement directing the Defendant to convey forthwith an absolute interest in Woodview to the Plaintiff or in the alternative, an Order that the Defendant is estopped from resiling from the promise to convey an absolute interest in Woodview to her, made to the Plaintiff by her mother.

PROPRIETARY ESTOPPEL:

8. In Thorner v Major [2009] 1 WLR 776, Lord Walker stated at 786 that the doctrine of proprietary estoppel is based on three main elements: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance.

9. In Equity and the Law of Trusts in Ireland by Hilary Delany (5th Ed.) at p. 759 the author describes the doctrine as follows:

"The basis of the doctrine of proprietary estoppel is to prevent a person from insisting on his strict legal rights where to do so would be inequitable having regard to the dealings which have taken place between the parties. It developed as an exception to the formalities required for the creation of interests in land and the rationale behind the doctrine could be said to be the prevention of unconscionable behaviour. It should be noted at this point while proprietary estoppel is almost exclusively invoked in the context of rights in or over land, it can extend to other forms of property."

Dealing with the extent of the equitable remedy, Delany states at p. 784:

"It has been recognised that of all doctrines equitable estoppel is surely one of the most flexible and that the court must look at the circumstances of each case in order to determine how the equity which arises can be satisfied. It is also important to appreciate that the raising of an estoppel does not give rise to a particular form of remedy and that the remedy required to satisfy an equity varies according to the circumstances of the case. One of the most striking features of proprietary estoppel is the wide range of responses open to the court."

LEGAL AUTHORITIES

10. It is respectfully submitted that the Court should have regard to the following authorities which set out the legal principles most relevant to the Plaintiff's claim:

McCarron v McCarron [1997] WJSC - SC 1414 - decision of the Supreme Court delivered on 13th February 1997 (Unreported).

The defendant in the proceedings was the personal representative of George McKenna who died intestate in 1992. The plaintiff was a son of a first cousin of Mr. McKenna. In 1976, when he was attending school, the plaintiff was sent by his father to help Mr. McKenna with his farm. From 1976 onwards the plaintiff helped Mr. McKenna with the management and operation of the farm. The plaintiff's case was that Mr. McKenna entered into an agreement with him in the year 1980 to remunerate him for the work which he did on the farm by devising to him all of his lands comprising some 27 acres. It was contended that that agreement was confirmed or extended by a further agreement made between Mr. McKenna and the plaintiff in the summer of 1984. The proceedings were for an order for specific performance, but there was also a claim for relief on the basis of proprietary estoppel. In the

High Court, Carroll J. upheld the claim of the plaintiff based on contract. The only issue raised was whether the conversations constituted a contract to devise Mr. McKenna's lands to the plaintiff and, in particular, the defendant raised no issue in regard to the absence of any note or memorandum in writing of the transaction. The plaintiff's evidence of the actual discussions which took place between himself, and Mr. McKenna are quoted in the judgment of Murphy J. on the appeal to the Supreme Court. While Mr. McKenna gave no assurance in such plain terms as her now deceased mother gave to the Plaintiff in the within proceedings, Murphy J. found that the High Court was correct in holding that there was evidence of a sufficient degree of certainty of a contract between the plaintiff and Mr. McKenna by which the latter agreed to devise his farms to the plaintiff and it was appropriate for the Court to grant specific performance of that contract. That being the case, the observations made by Murphy J. in relation to proprietary estoppel were obiter. He quoted the circumstances in which proprietary estoppel operates by reference to the following passage from Plimmer v Mayor of Wellington (1884) 9 App. Cas. 699, which was an appeal to the Judicial Committee of the Privy Council:

"Where an owner of land has invited or expressly encouraged another to expend money on part of his land on the faith of an assurance or promise that that part of the land would be made over to the person so expending his money a Court of Equity will prima facie require the owner by appropriate conveyance to fulfil his obligation and when, for example, for reasons of title, no such conveyance can effectively be made, or (sic) a Court of Equity may declare that person who has expended the money is entitled to an equitable charge or lien for the amount so expended."

Murphy J. went on to state that most cases and, in particular, the Irish cases of Cullen v Cullen [1962] I.R. 268 and McMahon v Kerry County Council [1981] ILRM 419, concern disputes where a plaintiff had suffered or would suffer detriment as a result of spending money on the erection of premises on lands owned by the defendant in circumstances where it would be unjust to deprive the plaintiff of his money or assets. However, he went on to state as follows:

"In principle I see no reason why the doctrine should be confined to the expenditure of money or the erection of premises on the lands of another. In a suitable case it may well be argued that a plaintiff suffers as severe a loss or detriment by providing his own labours or services in relation to the lands of another and accordingly should equally qualify for recognition in equity. In practice, however, it might be difficult to determine the extent of the estate or interest in land for which a plaintiff might qualify as a result of his personal efforts. Perhaps a claim of that nature would be adequately compensated by a charge or lien on the lands for a sum equivalent to reasonable remuneration for the services rendered. However, it is unnecessary for me to consider further the application of the still evolving principles of proprietary estoppel to the facts of the present case having regard to the views which I take to the existence of a contract between the Plaintiff and [Mr. McKenna] and the appropriate remedy for enforcing the same."

Gillett v Holt [2000] 3 WLR 815

The decision of the English Court of Appeal in Gillett v Holt represented a further step in the evolutionary process of the development of the doctrine of proprietary estoppel. The case has been quoted with approval by the Irish High Court (e.g., judgment of White J in Finnegan v Hand [2016] IEHC 255). The plaintiff spent his working life as a farm manager for and as a friend of the first defendant, a landowner of substantial means, who made repeated promises and assurance over many years, usually on special family occasions, that the plaintiff would succeed to his farming business including the farmhouse in which the plaintiff and his family had lived for twenty-five years. After 1992 relations between the plaintiff and the first defendant deteriorated rapidly. In 1995 the plaintiff was dismissed, and the first defendant made lifetime dispositions to the second defendant, in whose favour he also altered his will, making no provision for the plaintiff. The plaintiff sought equitable relief based on proprietary estoppel. The Court of Appeal held on the facts that the defendants' conduct had given rise to an estoppel, and the minimum equity to do justice to the plaintiff was for the first defendant to convey to him the freehold of the farmhouse together with a sufficient sum of money to compensate for his exclusion from the rest of the farming business.

In his judgment in Gillett, Robert Walker L.J. stated (at p. 829):

“…the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments. Both sides are agreed on that, and in the course of the oral argument in this court it repeatedly became apparent that the quality of the relevant assurances may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a 'mutual understanding' may depend on how the other elements are formulated and understood. Moreover, the fundamental

principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round.”

Later in the judgment (at p. 831) Robert Walker L.J. considered whether it is of any significance that a promise or assurance is linked to the making of a will and he stated:

"But the inherent revocability of testamentary dispositions ... is irrelevant to a promise or assurance that 'all this will be yours'. ... Even when the promise or assurance is in terms linked to the making of a will... the circumstances may make clear that the assurance is more than a mere statement of present (revocable) intention and is tantamount to a promise."

Suggitt v Suggitt [2011] EWHC 903 (Ch)

The claimant's father was a farmer with an estate comprising 400 acres of farmland and property, totalling £4 million. The father died in 2009, leaving his entire estate to his daughter. No provision was made for the claimant, who had worked on the farm his whole life, and lived in a property on the farmland with his family. The son had been written out of the father's will over fifteen years earlier, when he dropped out of agricultural college. The father’s will provided for the claimant's sister to give the claimant the farmland, if he proved to be capable of working and managing the farm. The claimant son submitted two claims, firstly under the Inheritance Act and secondly, based on proprietary estoppel arising from promises made to him by his father that he would inherit the farm. The daughter contended, inter alia, that her brother had incurred no detriment in reliance on the promise. The father had provided him with food, a home, money and business opportunities well into adult life.

Kaye J's judgment in Suggitt, upholding the son's claim of proprietary estoppel, provides a useful summation of the applicable legal principles in the doctrine of proprietary estoppel:

"41. The principles may be summarised as follows. To establish a claim based on proprietary estoppel the claimant must prove a promise, representation or assurance made to him or her, reliance on that promise by the claimant and detriment in consequence of his/her reasonable reliance.

42. Put more specifically the claimant must prove:

- A promise or assurance that he will acquire a proprietary interest in specified property. It is appropriate to mention two aspects of this:

i. The actual intention of the promissor or representor is irrelevant. What is important is whether his acts and words would reasonably have conveyed to the representee an assurance that he will acquire an interest. The assurance must be clear enough, but context is everything and the assurance (and the quality of the assurance) must be judged by the background or context, social, family or otherwise, in which it occurs.

The fact that the promise may be oblique, allusive or vague does not matter provided it was unambiguous, intended to be taken seriously and reasonable for John (in this case), given his knowledge of Frank, to have understood him to mean not merely that it was his intention to leave the farm to John but that he definitely would do so. ii. The property in question must be identified. However, given that the doctrine of proprietary estoppel requires a retrospective assessment to be made, whilst the identity of the property must be certain, its extent might vary and that was something to be ascertained when the equity crystallised, when the promise or assurance falls to be performed, as here, on Frank's death.

-The promise was relied on by John. In this context, there must be a sufficient link between the promises relied on and the conduct constituting the alleged detriment.

- John acted to his detriment in consequence of his reasonable reliance. The promises do not have to be the sole inducement for the conduct.

43. As the majority speeches in Thorner (and other cases) emphasise: ultimately the question becomes one viewed as at the moment of crystallisation, namely, whether, looked at in the round, in the circumstances that have happened, it would be unconscionable for the promise not to be kept even if there was not initially a legally binding contract.

44. If and once the equity arises (i.e., if the elements of proprietary estoppel are established) the task of the court is to do justice - to do what is necessary to avoid an unconscionable result. Here it may be relevant to consider again the context as a whole and consider the proportionality of the claimant's claim and expectations. The court has a wide judgmental discretion: see Jennings v Rice [2003] 1 P & CR 100 CA.......

Detriment

59. Reliance and detriment are often the same or overlapping concepts in this area. In my judgment it can be fairly said that John acted in some measure to his detriment or changed his position in reliance on the promises made by his father and in the expectation, he would inherit even after his break with his father when he left for York. Both before and after his 9 months in York he at least did some work on the farm, he agreed to go to college to learn necessary skills, he helped with the sheep and grain and built up a beef herd... Nevertheless, save for the break in York, it is, in my judgment, fair to say, as does Miss Reed, that John positioned his whole life on the basis of the assurances given to him and reasonably believed by him.

Unconscionability

60. Standing back and looking then at the situation as at the date of Frank's death (the point when the alleged promise was broken) and at matters in the round, I am satisfied that it would be unconscionable to deprive John of his reasonable expectations based on his father's repeated assurances and indications that the farm or farmland would be his when he was gone.

CONCLUSION

11. Having regard to the law and the evidence proffered during the proceedings in support of the Plaintiff's claim, it is respectfully submitted that the three main elements of the doctrine of proprietary estoppel are present in the Plaintiff's claim:

i. A clear promise was made to the Plaintiff by her mother through her words and actions that she would leave Woodview to the Plaintiff absolutely in her will if the Plaintiff transferred her interest in the St. Declan's lands to the Plaintiff's son; ii. The Plaintiff relied upon the said unequivocal promise and acted to her detriment by transferring the St. Declan's lands which she owned absolutely to her son in July 2003; iii. Furthermore, in reliance on the promise that Woodview would be hers absolutely, the Plaintiff expended considerable sums maintaining and improving the property.

In the circumstances, it is submitted that the doctrine of proprietary estoppel is invoked by the facts in this case, and it would be inequitable and unconscionable to permit the Plaintiff's mother to resile from the promise made to the Plaintiff upon which she has demonstrated reliance and as a consequence has acted to her severe detriment. It is submitted that the doctrine acts to fetter the discretion of the testator to alienate her property in her will in a manner that is not consistent with the promise made to and relied upon by the Plaintiff.”

“OUTLINE LEGAL SUBMISSIONS - Delivered on behalf of the Defendant:

Introduction

1. These submissions are delivered on behalf of the Defendant following direction of her Honour Judge O’Brien made on 11 July 2024. The Plaintiff seeks, by her amended equity civil bill, a variety of orders principally directed to the enforcement of an asserted agreement dated 5 August 2003 which is said entitles the Plaintiff to the freehold interest in a residential property known as Woodview situate at Church Avenue, Portmarnock, Co. Dublin. The Defendant, in turn, by way of his amended defence and counterclaim, seeks to resist the Plaintiff’s claim and instead to be permitted to administer the estate of his grandmother the late M.H., deceased, in accordance with the terms of her will dated 31 March 2016.

2. The Plaintiff is the mother of the Defendant (her only child). The Plaintiff, in turn, is the daughter and only child of the late M.H., deceased, who was also the Defendant’s grandmother. By the terms of her last will, the Deceased bequeathed a life interest in the Property to the Plaintiff with the remainder and the balance of the estate falling to the Defendant.

3. The Plaintiff, through her counsel, confirmed at the hearing that there is no dispute in respect of the wills executed by the Deceased. As such, if the Plaintiff is unsuccessful in her claim, the terms of the will dated 31 March 2016 will be binding on the parties and fall to be administered in the usual way by the Defendant. On one view, therefore, the consequence of a determination of this Honourable Court will be to resolve the question of what happens to the remainder interest of the Property – either it will fall to the Defendant on the passing of the Plaintiff (under the will) or it will join the life interest and vest in the Plaintiff (by the claimed agreement).

4. A regrettable feature of the claim is the enmity that exists between the parties who, irrespective of the decision of this court, will remain neighbours for the foreseeable future. The Plaintiff, when questioned on the deed of transfer executed on 17 July 2003 transferring her interest in the neighbouring property known as “St. Declan’s” to the Defendant expressly “in consideration of the natural love and affection which the

Grantor feels for the Grantee”, remarked that in fact at the time she had (and has) no natural love and affection for the Defendant, her son. In turn, the Defendant, when cross examined on the divergence of evidence between the parties, expressed his view plainly that each of the Plaintiff witnesses were bare faced lying about the execution of the August 2003 agreement.

The evidence

5. The court heard evidence from the Plaintiff and from two of her second cousins P.N.

and K.S. The court also heard from the Defendant. All of the witnesses provided witness statements in advance of the hearing.

6. According to the Plaintiff (from her oral evidence, witness statement and pleadings)

and in light of the uncontentious evidence, the sequence of events in respect of the 5 August 2003 “agreement” is as follows: the Deceased had lived in Woodview from about 1953. In 1969, the Plaintiff moved into Woodview. In 1973, the Plaintiff married her now husband (the Defendant’s father) and he moved into Woodview. The Defendant was born the same year and raised in Woodview. He moved out in or about 1996. The Deceased acquired the neighbouring site of St. Declan’s. The Deceased’s husband passed away in 1990. On 4 July 2000, the Deceased transferred St. Declan’s to the Plaintiff in consideration of natural love and affection. The conveyance was prepared by Mr. Louis A. Healy of Gore & Grimes Solicitors. On 20 April 2001, the Deceased executed a will appointing the Plaintiff and the Defendant as executors of her estate and leaving the entirety of her estate to the Plaintiff. That will was also drafted by Mr. Healy’s office. The Defendant moved into St. Declan’s in or about June 2002 with his wife and family. The Deceased requested that the Plaintiff transfer St.

Declan’s to the Defendant in or about April 2003. The Plaintiff and the Deceased then (allegedly) verbally agreed that if the Plaintiff transferred St. Declan’s to the Defendant, the Deceased would execute a will gifting Woodview to the Plaintiff on her death. The Deceased then made a will in April 2003. While there is correspondence to support the existence of such a will, no copies remain of the will itself. There is no explanation as to why an April 2003 will was required or prepared in circumstances where the Deceased had already, in April 2001, written a will leaving the Plaintiff the entirety of her estate. The Plaintiff transferred St. Declan’s to

the Defendant by deed dated 17 July 2003. That conveyance was prepared by Mr.

Healy’s office.

7. Arising out of an alleged conversation between the Plaintiff and Mr. P.N., the Plaintiff then raised the subject of recording the alleged agreement with the Deceased in writing. On or about Sunday 3 August 2003, at a meeting between the Deceased and the Plaintiff, the two women agreed a form of wording. The Plaintiff wrote it down by hand. She brought the note to her place of work (where she was a company director)

and where she had access to a computer and a printer. The Plaintiff then produced the final draft of the agreement and destroyed the handwritten note. Inexplicably, there is no reference to this destroyed document in any of the three affidavits of discovery sworn and filed on behalf of the Plaintiff.

8. On Tuesday 5 August 2003, K.S. and her mother M.S. visited Woodview. The visit was largely a social call but at some point, while the four ladies were sitting in the living room, the agreement was produced for execution. Mrs. M.S. had agreed to stand as witness but apparently due to forgotten reading glasses, Mrs. K.S was coopted into her place. The document and a pen were passed from the Deceased to the Plaintiff and then to Mrs. K.S. with each applying their signature, using the same pen, in turn.

9. The Plaintiff then left the room and took the original signed agreement and walked to the local Post Office where she made one photocopy. The original agreement was placed in the Deceased’s bureau and locked with a key. The Plaintiff alleged that, at a time unknown, the original agreement was removed from the bureau and that it must have been stolen by the Defendant. The only basis offered by the Plaintiff for this frankly scandalous allegation was that this was the sort of thing she would expect of the Defendant given his nature. There was no suggestion that the alleged theft or trespass were reported to the Gardaí. The copy agreement was handed to Mrs. M.S.

who put the document into her handbag. Later the copy document was stored among Mrs. M.S.’s papers in an accordion folder. That folder, together with other effects were stored in Mrs. K.S.’s attic after her mother passed away.

10. On 2 August 2013, the Deceased executed a new will which was again arranged through the offices of Gore & Grimes Solicitors. There was evidence that the Deceased reported to her GP on 22 July 2013 and also as part of her will instructions that she was being bullied by the Plaintiff and her husband although this was not accepted by the Plaintiff. By her August 2013 will, the Deceased intended to bequeath the entirety of her estate to the Defendant. It was the Defendant’s evidence that he later implored his grandmother to do right by her daughter. The result of his pleading, according to the Defendant, was that the Deceased executed her final will dated 31 March 2016 leaving a life interest in Woodview to the Plaintiff with the remainder to the Defendant. This will was also prepared through the offices of Gore & Grimes. The Deceased died on 4 January 2020.

11. There was a conflict of fact as to what happened following the Deceased’s passing. It was the evidence of the Defendant that the Plaintiff took it upon herself to contact Gore & Grimes to obtain the Deceased’s will and upon receiving and reviewing the terms of the 2016 will fell into a panic before summoning the Defendant and requesting that he participate in fraud by concocting a false will.

12. According to the Plaintiff, when she discovered that the original agreement had been stolen, in or about January or February 2021, she contacted Mrs. K.S. to enquire about the copy. After sifting through her late mother’s papers, document by document, Mrs.

K.S. discovered the copy document and sent it to the Plaintiff in Dublin. Mrs. K.S.

was however unsure as to how it was sent and did not retain proof of postage.

13. The Plaintiff was emphatic in her evidence that she did not send or at least did not recognise the litigation warning letter bearing her signature dated 13 March 2021. The Plaintiff did accept that she filed a caveat with the Probate Office in March 2021 which filing enclosed a copy of the 2016 will (which the Plaintiff had in her possession) before she commenced the within action, as a litigant in person.

Subsequently Mr. Morgan Redmond Solicitor came on record on her behalf. The action came under case management by his Honour Judge O’Connor who oversaw the closure of pleadings including the delivery of a notice for particulars and to produce and replies thereto, the making of discovery by the Plaintiff and the exchange of witness statements. Just before the matter was listed for hearing in July 2023, the Plaintiff applied and was granted leave to amend her claim. The Defendant was awarded the costs of that application. In due course, an amended civil bill was issued and the entire process was followed again.

14. The Defendant’s solicitor delivered two notices for particulars (dated 2 June 2021 and 7 November 2023) seeking inter alia the production of the alleged agreement for inspection. At the trial of the action, the original copy was not present in court.

Following enquiries, the Plaintiff’s solicitor confirmed through counsel that it was not contained on his file and that his office had only received a copy of the copy from the Plaintiff. The Defendant does not accept the validity of the 5 August 2003 agreement and has placed the Plaintiff on full proof of her claim.

The issues

15. It is submitted on behalf of the Defendant that the following issues arise to be determined:

a. The Plaintiff seeks to introduce a copy of the only copy taken of the original of the alleged 5 August 2003 agreement as evidence of the contents of this document. Has the Plaintiff satisfied the primary evidence rule by adducing primary evidence of the contents of the document?

b. If so, is the Plaintiff entitled by way of specific performance to enforce the contractual terms of the alleged agreement of 5 August 2003?

c. If not, is the Plaintiff otherwise entitled to rely on the doctrine of estoppel?

d. Finally, what are the appropriate orders and declarations that should be made?

Preliminary issue: the best evidence rule

16. Before this Honourable Court can rule on the Plaintiff’s substantive claim, it must deal with the preliminary issue of evidence and particularly the question of admitting a copy document in the place of an original. In fact, here the court is being asked to admit a copy of a copy. Ordinarily, at least in civil claims, such applications are relatively straightforward.

17. According to McGrath on Evidence (3rd ed., 2020, RoundHall) at paragraphs 12-14 to 12-16:

“At common law, the ‘best evidence rule’ sought to reduce the risks of fabrication and inaccuracy by requiring a party to adduce the best evidence available of facts in issue having regard to the nature of the case. Over time, however, this rule has fallen into disuse and has no continuing vitality in Irish law as an independent rule of admissibility. However, one remaining vestige of its application is to be found in the primary evidence rule, which stipulates that a party who seeks to adduce evidence of, and rely upon, the contents of a document must adduce primary evidence thereof. In most cases, this means that the original of the document rather than a copy or oral evidence of its contents must be produced. The rationale for the rule is to protect against the risk of error or fraud that arises if the original is not produced.

18. The primary evidence rule (which is often referred to as the best evidence rule), and the main exceptions thereto, were summarised as follows by O'Flaherty J in Primor Plc v Stokes Kennedy Crowley:

‘The best evidence rule operates in this sphere to the extent that the party seeking to rely on the contents of a document must adduce primary evidence of those contents, i.e. the original document in question. The contents of a document may be proved by secondary evidence if the original has been destroyed or cannot be found after due search. Similarly, such contents may be proved by secondary evidence if production of the original is physically or legally impossible.’

19. This decision was cited with approval by Edwards J in The Leopardstown Club Limited v Templeville Developments Limited, where he described the primary evidence rule as ‘one of the few remaining vestiges’ of the best evidence rule. […]”

20. As such, a party propounding a copy document must demonstrate that the original is likely lost, destroyed or stolen and that following a reasonably diligent search, it has not been located. In turn, once that relatively low threshold is reached, it is generally considered inconsequential whether the copy is a copy of the original or a copy of a copy provided of course that it can safely be treated as a true copy.

21. The Plaintiff has asserted that the original document was stolen by the Defendant.

That allegation was not the subject of a complaint to the Gardaí nor was it raised by the Plaintiff with the Defendant in advance of the proceedings. Notably, although she disclaimed knowledge of a “litigation warning letter” dated 13 March 2021 and containing her signature, that letter makes no mention of the accusation that the Defendant must have long known about the existence of the 2003 agreement on the basis that the document had been stolen (by him). The Defendant’s evidence was that prior to receipt of the letter, he had no knowledge of the existence of any such agreement or document. He also emphatically denied removing or destroying the document and pointed out that the Plaintiff held the only key for the bureau where it was allegedly stored.

22. Is it submitted on behalf of the Defendant that the Plaintiff has failed to demonstrate that she carried out a due search for the original 2003 agreement. On that basis alone, this Honourable Court can and ought to refuse to admit as proof a copy document.

23. The Plaintiff’s failure to even attempt to adduce best evidence of the alleged agreement was compounded even further by her failure to produce in court at the trial of the action, or in advance, the original copy document despite two formal requests.

24. Order 32, rule 4 of the Circuit Court Rules provides that:

“Every party to a cause or matter shall be entitled at any time by notice in writing, to give notice to any party, in whose pleading or affidavit reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his Solicitor, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf, unless he satisfy the Judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse, which the Judge shall deem sufficient for not complying with such notice; in which case the Judge may allow the same to be put in evidence on such terms as to costs and otherwise as he shall think fit.” [Emphasis added.]

25. The Plaintiff failed to bring the original copy document to court at the trial of the action. No excuse, no apology, no explanation was offered for that fundamental evidentiary lacuna. It is submitted that the Rules are clear, unless this Honourable Court is satisfied that there was good reason for the failure to comply with the notice to produce, the Plaintiff “shall not afterwards be at liberty to put any such document in evidence on [her] behalf”.

Is the Plaintiff entitled to enforce the contract?

26. If this Honourable Court is satisfied that the Plaintiff is entitled to and has adduced admissible evidence of the terms of the alleged 5 August 2003 agreement, it follows that the next issue for consideration is whether the terms of that contract are or ought to be enforced.

27. Specific performance is an equitable remedy that does precisely what it says: a party is compelled by the court to perform a contract. As a prerequisite to obtaining the relief, there must be a concluded, complete and certain contract. As an equitable remedy, it is discretionary and there are a number of other bases on which this Court may refuse the reliefs sought. However, before turning to those, it is worth examining whether the Plaintiff has demonstrated the existence of a valid contract.

28. Here, the Plaintiff asserts that there was an agreement in April 2003 which was then documented in August 2003. By virtue of section 51 of the Land and Conveyancing Law Reform Act 2009, no action may be brought to enforce any contract for the sale or other disposition of law unless the agreement on which such action is brought, or some memorandum or note of it, is in writing and signed by the person against whom the action is brought. As such, the Plaintiff requires to satisfy this Honourable Court that the 3 August 2003 agreement was actually signed by the Deceased.

29. The Plaintiff was, to put it at its blandest, inconsistent in her evidence on the Deceased’s signatures. The Plaintiff did not recognise that the Deceased executed the July 2000 conveyance and, when asked to comment on the August 2013 will was emphatic that her mother never signed her name “M.P.H” until she was reminded that the August 2003 agreement which is the very basis for her action was purportedly signed “M.P.H” also. Further, while the validity of each of the wills was acknowledged by counsel instructed on behalf of the Plaintiff; in her evidence, the Plaintiff asserted that the Deceased must have been coerced by the Defendant and/or Mr. Louis Healy’s offices in order to procure her agreement to execute the various iterations of will. Moreover, neither the Plaintiff nor Mrs. K.S. could explain why the signature of the Deceased on the August 2003 document bears an uncanny resemblance to her signature on the will dated 2 August 2013 or even why, if as was asserted, all of the signatures on the August 2003 document were made with the same pen, why the Deceased’s signature has notably thicker lines than those of either the Plaintiff or Mrs. K.S. To put it at its lowest, it is submitted that this court’s concern over the authenticity of the August 2003 “agreement” ought to be heightened.

30. This Honourable Court does not require the opinion of a handwriting expert to conclude that as a matter of probability the chances of the Deceased signing two documents ten years apart and for each to be a facsimile or identical copy of the other in every conceivable aspect including the form of name used, letter size, spacing, the location of punctuation after the middle initial and the notable confined flourish at the end of the send “y” are so long as to be nothing short of incredible. It is submitted that it is quite frankly impossible or difficult to believe.

31. Further, it is the submission of the Defendant that even if this Honourable Court is satisfied that the Plaintiff has adduced evidence of the existence of an agreement that was signed by the Deceased, that agreement is nevertheless unsupported by consideration and not an enforceable contract.

32. According to the authors of McDermott on Contract Law (2nd ed., Bloomsbury Professional, 2017) at para.3.61:

“If a promise is made after some gratuitous act has been performed by the promisee the subsequent promise is not supported by consideration. The consideration is said to be past consideration which is no consideration at all. The issue is not so much the temporal sequence of events as the fact that the promise has not been exchanged for anything.”

33. The Plaintiff’s contention is that the Deceased agreed in August 2003 that if the Plaintiff signed over the property known as St. Declan’s to the Defendant, the Deceased would leave the property known as Woodview to the Plaintiff on the Deceased’s death. There are a number of important and indisputable factual issues with that proposition. First, by her will made on 20 April 2001, the Deceased had already agreed to leave her entire estate to the Plaintiff. Second, by 17 July 2003 at the very latest, the Plaintiff had already agreed and taken the necessary steps to transfer her interest in St. Declan’s to the Defendant. As such, neither the Plaintiff nor the Deceased provided any consideration for the 5 August 2003 agreement. Third, the Plaintiff expressly transferred her interest in St. Declan’s to the Defendant “in consideration of the natural love and affection”. The Plaintiff ought not now be entitled to recharacterize and redefine the nature of that transaction which was prepared and drafted on instructions by a well-known firm of solicitors. Fourth, although a matter of dispute, the court would need to dismiss the contention of the Defendant that the transfer of St. Declan’s was actually carried out on legal and tax advice as a two-step process from the Deceased through the Plaintiff to the Defendant.

34. Quite apart from the foregoing, this Honourable Court also may refuse specific performance on the grounds of unfairness. This basis is described by the authors of Buckley, O’Neill & Conroy, Specific Performance in Ireland (Bloomsbury Professional, 2012) at paras 2.40-2.41 in the following terms:

“An order for specific performance may be refused on the ground of unfair conduct by the plaintiff, even if the conduct does not amount to fraud, undue influence or other wrong which would entitle the defendant to have the contract set aside:

‘[I]t is well established that there is a class of cases in which a contract may be such and entered into in such conditions that the court will not order it to be rescinded but, at the same time, looking to the substantial justice of the case, will not order it to be specifically performed. It follows naturally … that when the aid of a court is sought by way of specific performance of a contract the principles of ethics have a more extensive sway than when a contract is sought to be rescinded.’

35. Unfairness may be taken to refer to misconduct of the plaintiff in procuring the bargain in the form of overreaching, sharp dealing or taking advantage of a weaker party.

36. In assessing unfairness, the court will survey the conduct of the parties and all the circumstances in which the agreement was made:

‘[T]he Court exercises a discretion, in cases of specific performance, and directs a specific performance unless it should be what is called highly unreasonable to do so. What is more or less reasonable, is not a thing you can define, it must depend on the circumstances of each particular case.’

37. Typically, the cases in which specific performance has been refused on grounds of unfairness involve a plaintiff taking advantage of some weakness in the personal circumstances of the defendant which adversely affected his ability to negotiate a contract on fair and equal terms. Examples include a vendor suffering from ill-health and emotional distress; intoxication; mental weakness and inexperience; lack of professional or independent advice in circumstances calling for same; and a vendor agreeing to sell believing that she had no real option but to do so.”

38. The Deceased undoubtedly regularly and repeatedly sought the legal advice and assistance of Messrs. Gore & Grimes Solicitors and principally Mr. Louis Healy in matters of personal wealth and succession planning. In particular, the same firm of solicitors advised on and prepared the necessary documentation for:

a. The Deed of Assignment dated 4 July 2000 from the Deceased to the Plaintiff;

b. The Deceased’s will dated 20 April 2001;

c. The Deceased’s will in April 2003 although we only have correspondence from Mr.

Louis Healy to evidence this iteration of the will;

d. The Deed of Assignment dated 17 July 2003 from the Plaintiff to the Defendant;

e. The Deceased’s will dated 2 August 2013;

f. The Deceased’s will dated 31 March 2016; and g. Messrs. Gore & Grimes retained the original title deeds of both Woodview and St.

Declan’s together with originals of two of the Deceased’s last wills (2013 and 2016)

and a certified copy of the third (2001).

39. The Plaintiff, while accepting that the Deceased was a careful woman who routinely took legal advice, retained the same firm and kept valuable documents with her longterm solicitors, never adequately explained why the Deceased would apparently break the habit of a lifetime and agree to execute a document that was prepared over the kitchen table and drafted by her daughter who professed no legal qualifications whatsoever. Moreover, Gore & Grimes were in regular contact with the Deceased in or around the same time as the alleged agreement of August 2003 was purportedly executed. This court is left at sea as to why the Deceased did not advise her solicitors (or her grandson) that she had entered into an agreement with the Plaintiff at all or particularly when she went to change her will in 2013 and again in 2016. We obviously do not know what the Deceased would have made of the Plaintiff’s claim as she has passed. Moreover, this court did not have the benefit of Mr. Healy’s oral evidence as he passed shortly before the trial of the action although he did provide a witness statement in advance of the original trial date.

40. Finally, the Plaintiff did not attempt to explain why she requires this Honourable Court to intervene on her behalf to enforce the terms of the August 2003 agreement.

The evidence of the Defendant was that, if the Plaintiff’s claim is dismissed, he will honour the terms of the Deceased’s will which entitles the Plaintiff to reside in Woodview for the rest of her natural life. The Defendant has further confirmed that he has no difficulty in the Plaintiff retaining the use and benefit of the Deceased’s jewellery and antique furniture for the rest of her life (although such concession is not contained in either the agreement or the will) and will not press a claim for cash savings held by the Deceased at the time of her death in Woodview. It appears that the only reason the Plaintiff could possibly want to secure the remainder interest in Woodview is borne out of her open hostility and the animus she bears to the Defendant, her only child and statutory heir under the Succession Act.

41. It is submitted for the Defendant that it would be inequitable for this Honourable Court to find for the Plaintiff and enforce the terms of the alleged 5 August 2003 agreement.

Is the Plaintiff otherwise entitled to rely on the doctrine of estoppel?

42. The most relevant case on point here is the decision of Mr. Justice McDonald in the matter of K v. K [2018] IEHC 615, which was a claim brought by the one brother against another in respect of their late mother’s estate and based on pleas of estoppel, testamentary contract, section 117 of the Succession Act 1965 or otherwise on the basis of quantum meruit. In that case, the court having heard extensive evidence was ultimately satisfied to grant the reliefs sought. At paragraph 91, the High Court restated the three main elements of promissory estoppel namely a) a representation or assurance made to the claimant; b) reliance on it by the claimant; and c) a detriment to the claimant in consequence of their (reasonable) reliance on that assurance.

43. Two aspects of that decision are particularly relevant here. First, at paragraph 56, the High Court expressed its view on the credibility of the parties. The High Court found that the plaintiff there was more credible and also that the defendant was unconvincing and that certain refusals by the defendant to provide information or documentation were deemed to be fuelled by the animus which he harboured against his sibling. It is submitted on behalf of the Defendant that the reverse is true here.

While credibility is ultimately a matter for this Honourable Court, it is submitted that the Plaintiff’s evidence, even on its own terms, simply did not stack up and was not credible.

44. Second, the Plaintiff must demonstrate detriment and reasonable reliance on an assurance. Here there is no suggestion that the Plaintiff’s occupation of Woodview was ever seriously threatened. The Plaintiff expended monies, the quantum of which were a matter of dispute but not the fact of, on making improvements to the accommodation that she shared and continues to share with her husband. The Plaintiff, even if unsuccessful in her claim, will retain a life interest in the property and continue to enjoy the benefits of the efforts made to make the house her home. It is submitted that there is no detriment that the Plaintiff can sustainably point to in this case.

Conclusion

45. It is submitted that in the circumstances, leaving over the question of costs pending the determination of this Honourable Court on the substance, the following orders should be made: an Order refusing the Plaintiff’s claim and condemning the purported agreement dated 5 August 2003; an Order striking down the caveat lodged by the Plaintiff in relation to the estate of M. P. (otherwise M.) H.; An Order directing the Plaintiff to account for the assets of the Deceased in her possession, power or procurement (but with no order that they be delivered up); and an injunction prohibiting the Plaintiff or anyone on notice of the order from interfering with the Defendant’s access to or use and enjoyment of the property comprising a garage and extension together with a shed and workshop identified in the will of the Deceased date 31 March 2016.”

Decision

21. Having considered the matter carefully and the evidence proffered on behalf of each party and the submissions made by their legal representatives, the court is not satisfied with the provenance of the “2003 agreement” for a number of reasons. It is common case that the best available copy of this document was not produced to the Court, notwithstanding that the plaintiff was called on to do so, by way of notice to produce. Further, there are discrepancies in the evidence given by the plaintiff and on her behalf as to the precise manner in which the document came to exist. The Court is concerned by the extent to which the signature on the purported agreement resembles the signature of the deceased on the 2013 will. In short, the court is not satisfied on the balance of probabilities that this document represents an actual agreement that was in fact executed by the deceased, during the course of her lifetime.

22. Secondly, the Court must determine whether there was a verbal agreement between the plaintiff and her mother to the effect that the plaintiff would receive the Woodview property in its entirety. The Court is not satisfied based on the evidence adduced on behalf of the plaintiff that there was a verbal agreement to that effect upon which the plaintiff placed reliance, or which caused the plaintiff to act to her detriment. The Court is of the opinion that no estoppel arises in the particular circumstances of this case as there is no evidence of a clear promise on the part of the deceased that the plaintiff would benefit to the extent claimed. The plaintiff acknowledges that there was a family row and that her mother took sides in the matter. This row is also evident from the changes made to her mother’s will, firstly excluding the plaintiff completely and then later making provision for a life interest only. Each will was carefully executed by the deceased at the offices of her solicitors and all of the paperwork is in order. The plaintiff has the benefit of a life interest under the terms of the will. As such, the plaintiff will continue to enjoy the benefit of improvements made by her to the property for the duration of her lifetime.

23. The plaintiff’s case is dismissed, and the Court makes orders as follows:

a. An Order refusing the plaintiff’s claim and condemning the purported agreement dated 5 August 2003;

b. An Order striking down the caveat lodged by the plaintiff in relation to the estate of M. P. (otherwise M.) H.;

c. No Order with regard to accounting for the assets of the deceased in the possession, power or procurement of the plaintiff and further no order that same shall be delivered up;

d. A declaration that the defendant is entitled to the use and enjoyment of the property comprising a garage and extension together with a shed and workshop identified in the will of the Deceased dated 31 March 2016; and e. An order for costs in favour of the defendant as against the plaintiff, to be taxed in default of agreement.

Appearances Michael McGuffin BL for the plaintiff instructed by Morgan Redmond Solicitors. Stephen Moran BL for the defendant instructed by Denis McMahon Solicitors.