THE COURT OF APPEAL
Ryan P.
Peart J.
Whelan J.Neutral Citation Number: [2017] IECA 331
Appeal number [2015 458]
High Court Record No. [2011 No. 8319 P]
MAJELLA RIPPINGTON, SHAUN RIPPINGTON AND EDEL BANAHAN
APPELLANTS
AND
MICHAEL COX AND MARY BUTLER
RESPONDENTS
JUDGMENT of Ms. Justice Máire Whelan delivered on the 19th day of December 2017
1. This is an appeal against the judgment and orders of Noonan J. made in the High Court on 30th July, 2015 in the above-entitled will suit wherein the claims of the appellants impugning the last will and testament of Celine Murphy (hereinafter “the deceased”) dated 8th March, 2011 were dismissed and the said will was ordered to be admitted to probate in solemn form of law as counterclaimed by the respondents. The High Court further ordered that the respondents recover as against the appellants the costs of the proceedings including the counterclaim on a solicitor and own client basis to include all motion costs and reserved costs.
2. A notice of appeal was filed on behalf of all three appellants on 24th August, 2015. The initial notice of appeal was prolix and discursive. Subsequently, the appellants brought a motion before this Court seeking leave to amend the notice of appeal. On 29th February, 2016, this Court reviewed the notice of appeal together with the affidavits sworn by Majella Rippington, Shaun Rippington and Sheila Duffy and made an order confining the appeal to seven specific grounds.
The facts
3. The facts in this case are set out in substantial detail in the judgment of the trial judge and it is not proposed to restate them here save to the extent necessary. The deceased was born on 2nd April, 1960 and died on 15th March, 2011, aged 50. She was unmarried and without children. She resided at the home of her aged mother, Catherine Murphy, “Genazzano”, Kingswood, Clondalkin, Dublin 22. Her mother survived her by 10 days and died a widow on 25th March, 2011 at the age of 93. Majella Rippington and Edel Banahan, the first and third named appellants, are two of the three surviving siblings of the deceased. Shaun Rippington, the second named appellant is a spouse of the first named appellant and executor of the mother’s estate. Had the deceased died intestate, her net estate would have formed part of the estate of her mother and, in accordance with the tenor of the latter’s will, would fall to be distributed amongst the three surviving siblings of the deceased in equal share.
4. In July, 2010, Celine Murphy was diagnosed with cancer. She was initially under the medical care of an oncologist at St. Luke’s Hospital in Dublin and subsequently, from January, 2011, under the care of her consultant oncologist at St. Vincent’s Private Hospital in Dublin who was her treating consultant until the time of her death.
The disputed will
5. The disputed testamentary instrument is dated 8th March, 2011, being the day prior to the deceased’s final admission to St. Vincent’s Private Hospital where she died on 15th March, 2011. A central issue in this case is whether the deceased, on the evening of 8th March, 2011, left the house, Genazzano, Kingswood, Clondalkin, Dublin 22, at any time after 17.24 and drove herself to the home of her friend Mary Butler at Tuckmillstown, Straffan, Co. Kildare. A further issue is whether, whilst there, she come into the presence of Michael Cox, the first named defendant, and Joanne Butler. If so, the question remains whether she then duly and validly executed her last will and testament in accordance with s. 78 of the Succession Act 1965 with the said Michael Cox and Joanne Butler as attesting witnesses. It was also disputed whether these events could have occurred in sufficient time for her to drive back to the house Genazzano, Old Naas Road, Kingswood, arriving in time to take a phone call on the landline at 18.42 on the said evening.
The pleadings
6. A plenary summons which was issued on 16th September, 2011 by the appellants pleaded, inter alia, the following issues:
(a) That the will was not executed by the deceased.
(b) That the document dated 8th March, 2011 was not the last will and testament of the deceased.
(c) That the will was not executed in accordance with the provisions of the Succession Act 1965.
(d) That the deceased was not of sound disposing mind on 8th March, 2011 and did not have the capacity to make a will.
(e) That the transaction purported to be effected by the will constituted an improvident and unconscionable transaction.
(f) That the execution of the will was procured by virtue of undue influence.
(g) That in the circumstances the deceased died intestate.
A statement of claim was delivered on 7th December, 2011 particularising the claim. A defence and counterclaim was delivered on 3rd April, 2012. The counterclaim sought to admit the testamentary document to probate in solemn form of law as the last will and testament of the deceased.
Who are the appellants?
7. The original notice of appeal was filed in the Court of Appeal office on 24th August, 2015. It is clear from this document that all three plaintiffs have appealed and are the appellants. I note in particular that Edel Banahan, the third named plaintiff, is expressly indicated to be one of the appellants. The amended notice of appeal filed on behalf of all three appellants on 24th March, 2016 also expressly identifies all three plaintiffs as appellants. Although neither Edel Banahan nor Shaun Rippington formally addressed the Court during the appeal hearing, I am satisfied that all three are appellants irrespective of whether they attended the hearing of the appeal or addressed the Court at the appeal. Mrs. Rippington confirmed that Edel Banahan was present at the hearing in the High Court.
Litigants in person
8. The appellants are litigants in person. They emphasise this fact, including in their written submissions, in their grounds of appeal and in oral argument before this Court by Mrs. Rippington. In considering litigation involving litigants in person, Clarke J., as he then was, in ACC Bank plc v. Kelly & Anor. [2011] IEHC 7 at para. 2.4 quotes with approval from an article in the 2010 Judicial Studies Institute Journal No. 1 which states as follows:-
“The primary principle applied by judges in cases involving self represented litigants is the principle of fairness. Fairness is the touchstone which enables justice to be done to all parties. A judge in proceedings involving a self represented litigant must balance the duty of fairness to that litigant with the rights of the other party and with the need for a speedy and efficient judicial determination as is feasible. Achieving this balance is one of the most difficult challenges a judge can face. While a trial judge’s overarching responsibility is to ensure that the hearing is fair, it is not unfair to hold a self represented litigant to his choice to represent himself. A litigant who undertakes to do so in matters of complexity must assume the responsibility of being ready to proceed when his case is listed. If he embarks upon the hearing of his case, he is representing to the Court that he understands the subject matter sufficiently to be able to proceed. Although it may later become patently obvious that he is not, litigants who choose to represent themselves must accept the consequence of their choice. While the Court will take into account the litigants’ lack of experience and training, implicit in the decision to represent himself is the willingness to accept the consequences that may flow from that lack. Indeed, to hold to the contrary would mean that any party could derail proceedings by dismissing his representatives.
It is the Court’s duty to minimise the self represented litigant’s disadvantage as far as possible, so as to fulfil its task to do justice between the parties. However, the Court should not confer upon a personal litigant a positive advantage over his represented opponent nor is it the position that the party with the greater expertise must be disadvantaged to the point at which they have the same expertise effectively as the other party. That would be a perversion of what is required, which is a fair and equal opportunity to each party to present its case.”
9. It is clear from the authorities that these principles apply irrespective of whether a litigant in person represents themselves in proceedings by virtue of necessity or as a matter of choice. In the words of Clarke J.:-
“…the overriding requirement that the conduct of the trial must be fair to both sides, and that the fact that a person is, for whatever reason, unrepresented cannot be allowed to operate as an unfairness to the represented party.” (ACC Bank plc. v. Kelly [2011] IEHC 7 at 2.7)
This represents a correct statement of the approach to be adopted in this jurisdiction as regards litigants in person.
Demeanour of the appellants
10. The first named appellant, Majella Rippington, conducted the appeal on behalf of all the appellants. In reviewing all of the affidavits sworn by the appellants, the written submissions advanced in support of their contentions and the submissions made by Mrs. Majella Rippington in court on their behalf, it is clear that the appellants maintain a strong view that they alone are entitled to the estate of the deceased. That the beneficiary named by the deceased is a stranger in blood is demonstrably a cause of dissatisfaction to them. The appellant Majella Rippington characterises the will as “an unnatural disposition”. She describes the deceased as “academically challenged”. She takes grave offence that her late sister “favoured a friend as opposed to relatives” and asserts that the estate should be available to the “blood family”. In reviewing the detailed statements, submissions and affidavits advanced on behalf of the appellants, it is difficult to escape the sense that they amount to a threnody to the loss of the appellants’ testamentary anticipations and their thwarted expectations to benefit from the estate of the deceased. Viewing the submissions filed and the affidavits sworn in chronological order, there appears to be a pervasion over time of antagonism and ever-increasing hostility expressed in particular towards the first named respondent, being the executor named in the disputed will, and the second respondent who is the sole beneficiary.
11. It is apparent from the judgment delivered in the High Court that, at the hearing, Mrs. Rippington gave unbridled vent to her evaluation of both respondents and for instance at para. 40 of the judgment it is recorded that she informed the trial court that the beneficiary was “an untruthful person who was parasitic, always benefitting from her relationships with people.” The written submissions and affidavits advanced by Mrs. Rippington and her husband, Shaun Rippington, appear profoundly hostile and at times almost minatory towards the executor and the beneficiary. By way of illustration, in an affidavit of Majella Rippington sworn 4th January, 2015 she describes the first named respondent as “the purported man of the cloth and of God.” In the same affidavit it is averred that “the deceased Celine Murphy was negligent in her duty of care to her siblings and to her mother.”
The High Court Hearing
12. The matter was heard before Noonan J. in the High Court over four days between 21st and 24th July, 2015. Judgment was reserved. The appellants’ claim was dismissed and the will of the deceased dated 8th March, 2011 was admitted to probate in solemn form of law as sought in the counterclaim. The court ordered that the respondents recover against the appellants costs of the proceedings including the counterclaim on a solicitor and own-client basis to include all motion costs and reserved costs. The written judgment is detailed and reviews with particularity the testimony of the various witnesses called by the parties during the four day hearing. The judgment notes that the first named respondent was unsure about precise times involved when the deceased attended the dwelling house at Tuckmillstown, Straffan, Co. Kildare, where he was at the time a visitor. He believed that the deceased had left the property “sometime between 6 and 7 p.m. but he could not be sure”. (Para. 19 of judgment). The trial judge also recorded that the first named respondent “felt that Ms. Murphy was present in the Butler house for something between half and three quarters of an hour”. The trial judge rejected evidence led by the appellants which attempted to demonstrate that the deceased could not have been present in the Butler household at the time alleged by the respondents on the said evening. The trial judge concluded that the evidence of Mr. Brian Cole, a chartered engineer, served to confirm the possibility that she could have been present in the said household on the evening in question. He was satisfied that there was a period of 52 minutes during which it was at least theoretically possible that the deceased could have been present in the Butler household and returned between 17.38 and 18.30 on 8th March, 2011. With regard to the various issues raised including testamentary capacity, the due execution of the will of the deceased in accordance with s. 78 of the Succession Act and the validity of the execution of the will by the deceased and by the attesting witnesses, the trial judge set out the relevant law in detail and identified the evidence on which he relied in support of his conclusions that the will ought to be admitted to probate in solemn form of law.
The seven grounds of appeal
13. The seven grounds of appeal advanced at the hearing by the appellants are as follows:-
(i) “That the judgment was biased towards the appellants and completely miscalculated the timescales and the expert’s opinion to establish in truthfulness and accuracy of the claim that the deceased made a flying visit to Straffan, Co. Kildare to execute her will by chance.”
The first ground asserts bias ascribed to the trial judge and further claims that the said judge erred in his findings, in his conduct of the case and in the inferences of fact he drew. In support of a claim of bias, the appellants assert that the trial judge miscalculated the time scales and expert opinion in regard to the length of time it would have taken the deceased to make the round trip between her place of residence at “Genazzano”, Old Naas Road, Kingswood, Clondalkin, Dublin 22, and the residence of Mary Butler at Tuckmillstown, Straffan, Co. Kildare, on the evening of 8th March, 2011 and whether it could be achieved between 17.24 and 18.42. The appellants are strongly of the view that the calculations of time do not stand up. The respondents counter that the findings of the trial judge were based on the evidence.
Starting at para. 21 of the judgment, there is the following passage:-
“All of the evidence of journey times and telephone calls was led by the Plaintiffs in an effort to demonstrate that Ms. Murphy could not have been present in the Butler house at the time alleged by the Defendants. If one were to assume that Ms. Murphy left the house immediately after the earlier telephone call and arrived back immediately before the later one, the evidence of Mr. Brian Cole, chartered engineer, was that taking the quickest route between the two houses and adhering to the speed limit, the round trip took him 22 minutes and 48 seconds. Allowing about a minute or a minute and a half for getting in and out of the car and leaving/entering the house, that suggests an overall journey time of in or around 25 minutes. Subtracting that from the available 77 minutes leaves a period of 52 minutes during which it is at least theoretically possible that the deceased could have been present in the Butler house between approximately 17.38 and 18.30.
22. This is entirely consistent with the evidence given by Joanna Butler and Michael Cox, which I accept without reservation. Therefore, far from disproving the [respondents’] evidence with regard to the execution of the will, it merely serves to confirm it.”
The trial judge further noted at para. 23 of his judgment:-
“Mrs. Rippington in evidence said that she had called to see Ms. Murphy around 7 pm that evening and stayed for one hour. Ms. Murphy said that she nearly did not make it home, referring to the collision with the ditch. She parked the car unusually close to the door of the house (…) Apart from that, Mrs. Rippington did not suggest that Ms. Murphy was in any way irrational or incoherent.”
It will be recalled that Mr. Brian Cole, the chartered engineer, was the appellants’ expert witness.
(ii) The second ground of appeal permitted by order of this Court on 29th February, 2016 was as follows:-
“That the judge erred in law in admitting the will in solemn form due to the invalid execution of the will pursuant to statute law”.
An element in the case was the absence of an attestation clause in the last will and testament of the deceased. The respondents adduced evidence at the hearing before the trial judge of due execution and the attesting witnesses both gave evidence and were cross examined.
(iii) The third ground of appeal asserts that the judge was unfair and unjust in fixing the appellants with the costs order which he made. The respondents assert that the order was made within the trial judge’s jurisdiction and at his discretion pursuant to O. 99 of the Rules of the Superior Courts. They also assert that the notice of appeal fails to indicate in what respect the order was unfair or unjust.
(iv) The fourth ground of appeal claims that the trial judge failed to take into account and give consideration to the facts and evidence presented to him by the appellants by way of documentation, records and oral evidence and that the respondents had no documentary evidence. The respondents dispute this ground and assert that both of the deceased’s treating doctors were called and gave evidence at the hearing. In addition, extracts from the deceased’s chart at St. Luke’s Hospital were put in evidence by the appellants without objection. The trial judge had all of the said evidence before him in arriving at his conclusions. The respondents contest the appellants’ claim that they had no documentary evidence and assert that they had before the High Court the will of the deceased, medical records and medical reports.
(v) The fifth ground advanced is that the trial judge erred and was mistaken in allowing the respondents’ contradictory evidence to stand and denied the appellants a just and fair decision on the balance of probabilities which was weighted in the appellants’ favour. The respondents contest this ground asserting that the trial judge’s findings were reasonable having regard to all of the evidence presented at the trial and further that the allegations being advanced by the appellants that they were denied a just and fair decision is not particularised and is misplaced. Further, the respondents assert that the trial judge permitted the appellants to call all of the evidence they wished to and were in a position to call and that the trial judge further considered the said evidence carefully.
(vi) It appears a key witness of the appellants failed to attend the trial.
The sixth ground of appeal advanced is that the trial judge erred in law in refusing to acknowledge the validity of the witness subpoena served at the home of Michael Goonan. The appellants assert that the trial judge failed to require Mr. Goonan to attend at the trial to give his evidence and that the judge permitted the trial to proceed without his evidence being given and that this was an injustice. The respondents assert that this ground is entirely misplaced and does not accord with the events as transpired in court late on the afternoon of the first day of the hearing, being 21st July, 2015 as recorded at the transcript of the hearing pp. 95-98 of day one. The respondents made no submission in relation to the issue and the transcript records that the first named appellant requested the trial judge to compel a Mr. Goonan to attend court. The court enquired as to whether personal service of a subpoena had been effected. The first named appellant confirmed that personal service had not been effected. The court made no formal determination on the matter and simply moved on to establish who was the next available witness. The respondents assert that it was a matter for the appellants to make an application for substituted service or any other order as they deemed appropriate but no such application was ever made to the trial judge.
(vii) The seventh ground of appeal asserts that the judge in his judgment unjustly and unfairly vilified the first named appellant and in the absence of certainty of facts and legal certainty, stated that Mrs. Rippington was an unreliable and untruthful person. The respondents contest this ground and contend that the statements of the trial judge were reasonable having regard to the evidence at the trial and the appellants’ conduct of the proceedings. They further assert that it is not established by the appellants how such comments could impugn the validity of the judgment delivered or the orders made.
14. The respondents oppose the entirety of the appeal and assert that the findings of the trial judge constitute findings of fact which this Court should not interfere with having due regard to the appellate function of this Court as determined in Hay v. O’Grady [1992] 1 I.R. 210. They further assert that the findings of the trial judge were in each case supported by credible evidence.
The hearing of the appeal in this Court on 13th October, 2017
15. The first named appellant conducted the appeal on behalf of all the appellants. She asserted that the trial judge was biased against her and accepted everything which the respondents had said without reservation. She asserted that the trial judge was “very vicious” in his attacks upon her and her family. She described the first named respondent as “a pretender”. She emphasised her strenuous disagreement to the trial judge’s determination as regards the length of time it would have taken the deceased to make the round trip on the evening of 8th March, 2011 to the premises at Tuckmillstown, Straffan, Co. Kildare, where the instrument was executed. She asserted, in particular, that the calculations with regard to time “did not stand up”. A primary ground for the claim of bias being relied upon by the appellants was that the trial judge accepted all the evidence of the respondents in regard to the key issues in the trial. Generalised allegations of perjury, dishonesty and fraud against both respondents were liberally referenced throughout the hearing of the appeal.
16. The appellant Mrs. Rippington asserted that the respondents’ case was “utterly contrived” and that the respondents had “fabricated a document without any shred of truth in it”. She asserted that the trial judge gave no reason why he “preferred one witness over another”. She claimed that the trial judge “should not have made her out to be a liar”.
17. The respondents contested each ground of appeal, asserting that there was evidence before the Court to support each of the trial judge’s findings and further that each of the grounds in question were matters of judicial assessment. The respondents asserted that if it is accepted that the evidence before the trial judge was credible then this Court should not interfere with the findings of the trial judge in any way. With regard to the issue of costs, the respondents asserted that, in the unusual circumstances of this case, the Court should not interfere with the findings of the judge and in particular they relied on the decision of the Supreme Court in Elliott v. Stamp [2008] 3 IR 387.
Testamentary freedom
18. Freedom of testation is recognised as a core societal value. A person of full age and capacity in this jurisdiction has complete testamentary freedom to dispose of their property in whatever manner they deem fit subject in general only to the clear statutory limitations to be found principally in Parts IX and X of the Succession Act 1965 as amended.
The approach to be adopted on appeal
19. The principles to be applied by the appellate courts in considering the argument that a trial judge was incorrect in making a finding of fact based on oral evidence are set out in the oft cited judgment of McCarthy J in Hay v. O’Grady [1992] 1 I.R. 210 at p. 217;-
“1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and apparently weighty the testimony against them. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact (…) I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.”
20. In a lengthy case such as this will suit where evidence was heard over four days, the trial judge was uniquely placed to consider and evaluate the demeanour and disposition of the witnesses. In fact, as the Supreme Court outlines in O’Connor v. Dublin Bus [2003] 4 IR 459 at p. 466:-
“It is quintessentially a matter for the jury (or a trial judge acting in place of a jury) to hear and consider the evidence of a plaintiff or witness and to determine the credibility and reliability of that person and to determine the consequent facts of a case. It is only in exceptional circumstances that an appellate court would intervene in such a determination.” [per Denham J.]
21. In its decision in Doyle v. Banville [2012] IESC 25, the Supreme Court in a judgment delivered by Clarke J. had this to say regarding the approach of an appellate court where a judge’s conclusions were largely based on his findings of credibility:-
“2.1 The starting point for any consideration of the law in this area has to be the decision of this Court in Hay v. O'Grady [1992] 1 I.R. 210, where the judgment of the Court was given by McCarthy J. Placing reliance on the fact that an appellate court does not have the benefit of seeing and hearing witnesses or observing the manner in which evidence was given or the demeanour of those giving it, McCarthy J. came to the view that, if findings of fact made by a trial judge were supported by credible evidence, this Court was bound by them however voluminous and weighty any contrary evidence might seem. It is clear, therefore, that it is no function of an appellate court such as this to re-weigh the balancing exercise which any trial judge is required to do when sitting without a jury for the purposes of determining the facts.”
The Supreme Court went on to state at para. 2.2:-
“The position, in respect of a trial by a judge alone, deriving from Hay v. O'Grady, is somewhat different in that it is clear that this Court may, at least in certain circumstances, be in a position to review an inference of fact drawn by a trial judge (at least where such inference does not depend on oral evidence or recollection of fact and where the trial judge had an opportunity to assess the relevant witness(es)). It is also important to note that McCarthy J., at p.218, emphasised the importance of a clear statement by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows.”
The judgment continues at para. 2.4:-
“… it does need to be emphasised that the obligation of the trial judge is to analyse the broad case made on both sides. To borrow a phrase from a different area of jurisprudence it is no function of this Court (…) to engage in a rummaging through the undergrowth of the evidence tendered or arguments made in the trial court to find some tangential piece of evidence or argument which, it might be argued, was not adequately addressed in the court’s ruling. The obligation of the court is simply to address, in whatever terms may be appropriate on the facts and issues of the case in question, the competing arguments of both sides.”
22. Of relevance, also, is the following passage from the judgment at para. 2.7:-
“…it is also important to note that part of the function of an appellate court is to ascertain whether there may have been significant and material error(s) in the way in which the trial judge reached a conclusion as to the facts. It is important to distinguish between a case where there is such an error, on the one hand, and a case where the trial judge simply was called on to prefer one piece of evidence to another and does so for a stated and credible reason. In the latter case it is no function of this Court to seek to second guess the trial judge’s view.”
23. These pronouncements of the Supreme Court represent more recent iterations of the principles adumbrated by that court in Northern Bank v. Charlton [1979] 1 I.R. 149 where O’Higgins C.J. held that:-
“Where findings of fact are challenged on appeal, it is the existence or sufficiency of evidence to support such findings which is considered by this Court and not whether what was accepted or regarded as credible at the trial ought to have been so accepted or regarded - unless, of course, something manifestly wrong has taken place.”
24. Of relevance are the following passages from the said judgment at p. 181:-
“In my view it would be not only contrary to accepted practice but also a manifest injustice if a court, which neither saw nor heard the witness, pronounced on his credibility. There may be circumstances in which the acceptance or rejection of particular evidence by a judge was so obviously and clearly wrong as to be unreasonable and unjust. Such instances have been extremely infrequent and one can say hopefully that they will continue to be so. In the normal case, however, in so far as the judge's findings of fact are based directly on evidence which he heard and believed, it being open to him to accept such evidence or to reject it, such findings cannot be interfered with by this Court in my view.”
The learned Chief Justice further stated, regarding the role of the appellate court:-
“The task of this Court is not to look at and consider all the evidence for the purpose of deciding whether a judge ought to have accepted the particular evidence which he did accept: rather it is to consider whether such evidence is credible and supports fairly and properly the judge’s findings, and whether such inferences as he drew were fairly and properly drawn. Further than this, in my view, this Court ought not and cannot go in reviewing questions of fact.”
Bias - Ground 1
25. In written submissions dated 10th June, 2016 the appellants particularised their allegations of bias including in particular at paras. 1 to 23 of the submission, paras. 33 to 36, paras. 37 to 40 and in the submissions made in respect of a claim that the trial judge unjustly and unfairly vilified the first named appellant. The aspects of the written submission dated 10th June, 2016 particularising the allegations of bias include at para. (g):
“The plaintiff/appellants submit that there was unwarrant bias on the part of the presiding judge, given he invited the defendants/respondents to counterclaim against the plaintiff/appellants and that he had shown by his remarks a total bias against the first named plaintiff/appellant for the entire loss, costs and damages in the said estate. The remarks recited by the judge aforementioned are akin to fraud on the court.”
They further submit:
“The judgment of Judge Noonan was biased towards the plaintiff/appellants and miscalculated the timescale and expert opinion to establish in truthfulness and accuracy that the deceased made a per chance visit to Straffan, Co. Kildare, to execute her will by chance.”
The appellants thereafter set out with great particularity their claim surrounding “the miscalculation of the times at chapters 20 and 21” of the judgment. The appellants assert that they had established in court that the deceased was not present at the house in Straffan for the Angelus bell on 8th March, 2011. In addition, they reference paras. 15, 16, 18 and 19 of the judgment in support of their contention that the trial judge miscalculated the times and further that he failed to refer to Mrs. Rippington’s cross examination of Michael Cox which, she contends, established that the deceased had departed the house at Straffan prior to the Angelus bell at 6 pm on the evening in question. Para. 12 of the submissions states:-
“It is not about the conduct of the judge, but his judgment. The judge has uttered words in a manner which exhibited an obviously prejudicial attitude that may impose an even harder justice from the judge against Majella Rippington, the first named plaintiff/appellant.”
At para. 23 of the appellants’ submissions it states:-
“Judge Noonan has demonstrated serious prejudice in favour of the other party.”
The appellants rely on para. 52 of the judgment and assert that “remarks made by the judge in this chapter were of such a number and quality as to go beyond the suggestion of mere irritation and the conduct is sufficient “to dislodge the presumption of impartiality and replace it with a reasonable apprehension of bias.” It is alleged at para. 14 of the submissions that:-
“By inviting a party to bring proceedings by way of counterclaim against the plaintiffs/appellants the judge had stepped into the “arena” and seems was more concerned with “legal niceties”, than with the best interest of justice. Therefore, any reasonable man, would consider the above to be reasonable bias.”
26. The appellants assert that at para. 56 of the judgment, the trial judge erroneously relied on the medical evidence as putting the deceased’s mental state “beyond any doubt”. They assert that the oncologist’s evidence was that the deceased “could not write on 8th March, 2011 and that had she lived her fingers would have had to be amputated.”
27. It is noteworthy that at no time during the hearing of the action did the appellants request that the trial judge recuse himself on grounds of bias. The test for objective bias is whether, in all the circumstances, having due regard to the principles set out in Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412, a reasonable person in the position of the appellants would have had a reasonable apprehension that they would not have had a fair trial at their hearing.
28. At its height, the appellants’ contentions of bias appear to rest on the fact that the trial judge made a number of findings of fact based on evidence adduced by both parties at the hearing in circumstances where there was evidence before him which clearly entitled him to reach the determinations which he did in each case. That the trial judge reached conclusions which supported the respondents’ defence and in particular their counterclaim on the basis of probative evidence, far from demonstrating bias, points to the impartiality of the adjudication process he embarked upon.
29. In Bank of Ireland v. O’Donnell [2015] IECA 73 the Court stated at para. 69 that:-
“…the hypothetical reasonable person, an independent observer who is not over-sensitive and who has full knowledge of all such facts would not have had a reasonable apprehension that the appellants would not have had a fair hearing from an impartial judge…”
30. Applying the test in Bula Limited v. Tara Mines Limited (No. 6) as further adumbrated by this Court in Bank of Ireland v. O’Donnell [2015] IECA 73 at para. 69 to the facts, I am satisfied that there is no basis for an assertion that there was bias exhibited on the part of the trial judge nor could there have been any reasonable apprehension of bias on the part of a right minded independent observer conversant with all the material facts of the case. There is no evidence to support the claim that the appellants did not receive a fair trial. The trial judge, who heard the evidence and all the witnesses advanced by the parties over four days prior to reserving judgment and making his determination, did not exhibit lack of impartiality. The allegation of bias is wholly misconceived. Merely because a litigant disagrees with the determination of a trial judge based on evidence can never in and of itself constitute a basis for asserting bias. The proposition is simply unstateable.
(i) Journey time
31. On the contentious issue of journey times, there was expert evidence before the trial judge adduced on behalf of the appellants themselves from Mr. Brian Cole, a chartered engineer. His testimony was to the effect that taking the quickest route between the two houses and adhering to the speed limit, the round trip took him 22 minutes and 48 seconds. Accordingly it was perfectly open to the trial judge to conclude, as he did, that it was theoretically possible for the deceased to have travelled from her place of residence to the Butler household between approximately 17.38 pm and 18.30 on the evening of the 8th March, 2011. It would appear that the appellants called the chartered engineer, Mr. Cole, for the purposes of demonstrating that the deceased could not have been present at the premises in Straffan, Co. Kildare, between 5 pm and 6 pm on the 8th March, 2011. The trial judge heard extensive evidence of journey times and considered telephone bills to identify the times of various calls made to and from the residence of the deceased at Kingswood, Clondalkin on the evening in question. The trial judge was perfectly entitled to conclude that the evidence of the appellants’ own witness, Mr. Cole, supported the respondents’ case that the deceased could have been present in the Butler household at Straffan prior to 6 pm on the evening in question. His conclusion was arrived at in accordance with the evidence and there is no basis whatsoever for interfering with it. The ad hominem attack on the trial judge’s integrity is hence entirely baseless and unwarranted.
32. In the course of the hearing of this appeal, Mrs. Rippington accepted that it was possible the deceased had left the Kingswood premises at around 17.24 and that she returned there shortly before 18.42 on the 8th March, 2011. She went to great lengths to suggest that the deceased was not present at Tuckmilltown, Straffan, at the time of the Angelus prayer, being 6 pm, on the said evening. Ultimately she informed the Court that Michael Cox, one of the attesting witnesses and the first named respondent, had stated in the High Court under cross examination, “Sure I can’t remember anyway”. This accords with the trial judge’s conclusion at paras. 18 and 19 of the judgment. Accordingly, there was no evidence before the trial judge to suggest that the deceased was not at the premises in Straffan at 6 pm on the evening in question. I am satisfied that although Mrs. Rippington at all times disputed the evidence that the deceased attended at the house in Tuckmilltown, Straffan, Co. Kildare, on the evening of 8th March, 2011 for a period of time somewhere between 17.38 and 18.30 she at no time managed to contradict the evidence of the witnesses, including her own expert witness.
(ii) Interrogatories
33. The appellants contend that the oral evidence to the High Court by the first named respondent, Michael Cox, was to the effect that the deceased was not present in the house at Tuckmillstown, Straffan, Co. Kildare, “for the Angelus bell” on 8th March, 2011. The appellants contend that when this evidence is taken together with replies to interrogatories it demonstrates that the deceased was not present at the said property in Straffan at or after 6 p.m. on 8th March, 2011. Twice in an affidavit dated 4th January, 2016, Majella Rippington describes Michael Cox as “a man of the cloth and of God”. She emphasised to this Court at the hearing of the appeal that he was a person who in her view would , apparently, be expected to say the Angelus prayer at 6 p.m. each evening. However, the appellants are mistaken in their contention that the evidence established that the deceased was not present in the house at Tuckmillstown, Straffan, at 6 pm, the time scheduled for the Angelus prayer. Interrogatory 2, dated 10th April, 2014, asks:-
“Did Celine Murphy arrive at the second named defendant’s residence at Tuckmillstown, Straffan, Co. Kildare, on 8th March, 2011 after 6 p.m.? If not, what time did she arrive?”
The reply sworn on 20th June, 2014 by the first named respondent, Michael Cox, states:-
“2. No. The second question is not a proper interrogatory.”
By letter of 17th July, 2014 a further reply was requested and the further reply was delivered, sworn on 30th July, 2014 as follows:-
“2. No.”
Therefore, all that the interrogatory in question establishes is that the deceased did not arrive at the Straffan premises after 6 p.m. on the day in question. Likewise correspondence and other documents relied on by the appellants do not support the claim that the deceased had departed Straffan prior to 6 p.m. The appellants’ approach of repeatedly asserting that the deceased departed the second defendant’s home prior to 6 p.m. on the date in question does not operate to corroborate the bare erroneous assertion that the deceased was not present in that house at 6 p.m. or at any time thereafter. In fact, the second attesting witness, Joanna Butler, gave evidence that the deceased left between 6 p.m. and 7 p.m. though she could not be exact about the time. I am satisfied accordingly that there was ample evidence before the trial judge, reliable in nature and which was not meaningfully contradicted, upon which he was entitled to rely for the proposition that the deceased was present in Tuckmillstown, Straffan, at 6 p.m. and thereafter departed the property after 6 p.m. such that she arrived at her place of residence, “Genazzano”, Old Naas Road, Clondalkin, at some point prior to or around 6.42 p.m. It must be borne in mind that the attesting witnesses were giving their evidence almost four and a half years after the events in question. I am satisfied that there was no material inconsistency between the evidence of the attesting witnesses as to the approximate times during which the deceased was present and the sequence of events that occurred during the presence of the deceased at the premises Tuckmillstown, Straffan, Co. Kildare, on the evening of 8th March, 2011.
34. Further, I am satisfied that the trial judge analysed the competing contentions regarding the sequence of events on the evening in question and came to a reasoned conclusion based on probative evidence in accordance with the jurisprudence including the decision in Doyle v. Banville [2012] IESC 25.
(iii) Counterclaim
35. The appellants further allege that the trial judge invited the respondents to bring proceedings by way of counterclaim. However, this is not so. The respondents delivered their counterclaim on 3rd April, 2012, over three years prior to the hearing.
36. It does not appear that the appellants and in particular, Mrs. Rippington put to any of the witnesses at the hearing and including Michael Cox or Joanna Butler the proposition that the deceased did not sign the will at Straffan on the night in question or that the document is a forgery. This appears to be an extraordinary omission in light of the manner in which the statement of claim is pleaded and the tenor of the notice of appeal and the allegations made during the conduct of the appeal hearing herein.
(iv) Medical evidence
37. The appellants raised issues around the evidence of the treating oncologist as supporting their claim of objective bias. It would appear that a medical report was supplied to the appellants on 2nd July, 2013 which suggested that the deceased required high doses of pain medication and significant sedation to manage the severity of her symptoms. The appellants drew the following from that report:-
“these clearly impacted on her general condition both from a mental and physical perspective. However they were required due to the extensive nature of her disease. It is extremely difficult to testify as to her testamentary capacity at the time of her making of her will. However it was undoubtedly influenced by the extensive nature of her disease and the extent of medication that she was taking at that time.”
This certainly appeared inconsistent with a report furnished by the same oncologist on 30th June, 2011 to the respondents which stated:-
“There is no indication Celine was, at the time of her admission to hospital, incompetent of making a will, clearly I was not present at the time she was making her will. However, based on knowledge of her medical illness that would not have any obvious reasons for mental impairment at the time of making her will.”
The trial judge does directly confront the apparent inconsistencies between the views expressed in the reports of 30th June, 2011 and 2nd July, 2013. This is set out at paras. 32, 33 and 34 of the judgment. It was noted in the judgment that the witness admitted that he was unfamiliar with the requirements at law for testamentary capacity. Ultimately, he conceded that the type of medication the deceased was taking before admission to hospital on 9th March 2011 ought not to have affected her mental capacity and the trial judge was entitled to rely on that concession and did so rely as is evident from para. 56 of the judgment.
(v) Costs
38. At para. 13 of their submissions, the appellants contend that the order for costs on a solicitor and own client basis demonstrates bias against the appellants. The appellants contend that the order is erroneous and is “entirely unjust and unfair” at para. 34 of their submission. At para. 36 they submit that the trial judge unfairly penalised the appellants for the entire litigation, asserting that there were reasonable grounds for the litigation and it was conducted bona fide and hence the order should not have been made against them.
39. In the circumstances, the appellants were the unsuccessful parties to the litigation. A Calderbank letter was written to the appellants on 25th July, 2014, two years prior to the hearing, offering to compromise the litigation. The offer was made on the basis it was without prejudice but with the reservation of the right to refer to it in relation to the issue of costs in the event that the appellants obtained a less favourable outcome in the proceedings in the High Court. It is clear from O. 99, r. 1A of the Rules of the Superior Courts as amended by the Rules of the Superior Courts (Costs) 2008 S.I. No. 12 of 2008 that the trial judge was entitled to have regard to the Calderbank letter in exercising his discretion in relation to costs. There is no evidence to support a claim that the order for costs was made on the basis of bias on the part of the trial judge.
40. Accordingly, the claim in bias is not made out.
Due execution - Ground 2
41. The rules governing the due execution of a will are to be found in s. 78 of the Succession Act 1965. That section embodies well-established principles and rules which have been enshrined in legislation since the coming into force of the Wills Act 1837 as subsequently amended by the Wills Act (Amendment) Act 1852. It is clear from s. 78(2) that no particular form of attestation is necessary. The signature of the testator is required to be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness is required to attest by their signature the signature of the testator in their presence. Without an attestation clause to prove an intention on the part of a deceased to enter into the formality of executing a will, the Court requires other evidence.
42. The trial judge had ample evidence before him as both attesting witnesses gave evidence that clearly demonstrated due and valid execution in accordance with s. 78 of the Succession Act 1965. It is noteworthy that allegations that the will was procured by acts of duress and undue influence by the respondents were not pursued or established at the hearing and it would appear that the appellants adduced no evidence in support of such claims at the hearing. Neither did they cross examine any witness to that effect. It is demonstrable that the determination of the trial judge upon the issue of due execution was based on probative evidence before him. Insofar as the appellants object to the will being admitted to probate in solemn form, such an objection is unsound. At the determination of a probate suit, the general practice is that the court pronounces for or against the validity of the will in accordance with the evidence. Where a will is upheld admission to probate is invariably decreed in solemn form of law. Where the will is pronounced for, the executor is thereafter entitled to proceed to extract a grant of probate.
43. The appellants seek to rely on the decision in Clarke v. Early [1980] 1 I.R. 223. I am satisfied that that decision of the Supreme Court is distinguishable upon the following material respects:
a) Both attesting witnesses were deceased. In the instant case, by contrast, both are alive and gave evidence of due execution.
b) There was no executor named in the will. In the instant case, Michael Cox is named as executor.
c) There was some evidence before the High Court in Clarke v. Early that the alleged signature of the deceased was not his true signature. In the instant case, both attesting witnesses gave evidence of the deceased executing the will in their presence.
In the instant case, the trial judge heard the evidence of the attesting witnesses and they were subjected to comprehensive and extensive cross examination by Mrs. Rippington. Hence he had an opportunity to evaluate their testimony and assess its veracity. It is clear from the evidence that was available to the judge that the deceased knew and approved the contents of the will. This is apparent also from her instructions to the named executor to retain the will for three weeks in the event of her demise and also her request to Joanna Butler, the second attesting witness, not to divulge the existence of the will to her mother, who was the sole beneficiary. The decision of Perrins v. Holland [2010] EWCA Civ 1398 which the appellants seek to rely upon does not assist them in any material respect. In the latter case, the Court of Appeal dismissed the appellants’ appeal against an order for costs made in his unsuccessful claim challenging the validity of his late father’s will. The appellants in their legal submission dated 10th June, 2016 assert that the Court inter alia should have regard to the “larger pattern of manipulative behaviour by the main beneficiary” but also purport to rely on Albert Keating, Succession Law in Ireland (Dublin, 2015) in relation to fraud and in particular the decision of Banco Ambrosiano Spa v. Ansbacher & Co. Ltd. [1987] I.L.R.M. 669. That judgment is authority for the proposition that the burden of proof rests on any party who alleges fraud to prove it. The appellants failed to prove any fraud at the hearing of the action nor did they in any meaningful way put specific allegations of fraud or manipulative behaviour, undue influence or duress to the beneficiary Mary Butler or either attesting witness in the course cross examination.
44. In these proceedings in addition to detailed replies to particulars dated 29th June, 2012 and 13th March, 2013, interrogatories were raised on behalf of the appellants on 10th April, 2014 which were replied to under oath by the first named respondent on 20th June, 2014. On 4th April, 2012, the attesting witnesses, Michael Cox, swore an affidavit of due execution in the within proceedings clearly deposing to the valid execution of the will and a similar affidavit of attesting witness Joanna Butler was executed on 18th April, 2012. Copies of the said affidavits were in the possession of the appellants for many years prior to the hearing. Hence they had advance knowledge of the evidence of due execution.
Ground 3 - Costs “It was unfair and unjust to fix the appellants with the costs order”
45. The issue of costs will be dealt with hereinafter.
Grounds 4 and 5
46. Ground 4 states:-
“The judge erred in law in failing to take account and due consideration of the facts and evidence presented to him. In those circumstances the matter has to be referred to an Appeal or Supreme Court.”
Ground 5 states:-
“The judge erred in allowing the respondents/respondents contradictory evidence to stand, and denied us a just and fair decision on the balance of probabilities.”
These grounds assert that the trial judge’s judgment is weighted in favour of the respondents “who provided not a scintilla of documentary evidence outside of the purported will”. The appellants assert:-
“Under sworn interrogatories dated 20th June, 2014 [Michael Cox] averred that the deceased was not present for the six p.m. Angelus bell.”
However, this is not correct. As stated above, the interrogatory they raised was whether the deceased arrived at the Straffan property after 6 p.m. on the 8th March, 2011. The interrogatories make no reference whatsoever to an Angelus bell. Neither do they appear to enquire as to whether the deceased was actually present in the house at 6 p.m. Mrs Rippington’s forensic approach appears to be premised in the specious proposition that if the deceased did not arrive after 6pm therefore she must have departed before 6pm . The appellants seek to selectively pick elements and strands from the evidence and replies to interrogatories disregarding aspects that do not favour their position. Such a confused distortion of elements of the evidence generates a misleading clarity which dissipates when set against the established facts. The totality of their contentions when referenced against the actual statements and documents which they rely on do not support the contentions advanced. For instance, it is not material to the central conclusions in the trial judge’s judgment whether the deceased met the beneficiary in 1989 or, as the second named appellant asserts in an affidavit sworn on 19th February, 2016, in 2004. Neither is it material as to the exact date when the deceased experienced an accident whilst on a trip to Russia, be it the year 2009 or an earlier date. The mere fact that the second named appellant was in a position to confirm that the deceased and the beneficiary were acquainted in 2004 does not exclude the possibility that their acquaintanceship predated that date.
47. In an additional submission filed by the appellants on 18th August, 2017, it is asserted that the judge had his mind made up against Majella Rippington.
It is also asserted that he likened the appellant Majella Rippington “to a liar and psychopath.”
48. Ground 5 is redolent of an allegation of bias or lack of impartiality on the part of the trial judge. I am satisfied having carefully reviewed the judgment and the relevant evidence that there was ample evidence before the trial judge on which to base his determinations. Neither grounds 4 nor 5 of the appeal are made out.
Ground 6
49. Ground 6 asserts that the judge was informed that a key witness, Michael Goonan, failed to attend the trial and that the appellants were prejudiced in the hearing as they relied on this witness to give oral evidence. It would appear that by a submission dated 10th June, 2016 the appellants are now withdrawing this ground of appeal. I note it states:-
“On this ground, I say that I erred in my claim that the judge had erred in law and I unreservedly apologise to the Court and to Judge Noonan.”
It is clear that a subpoena was not validly served upon the proposed witness. It appears the trial judge enquired who the next witness was and the appellant, not being in a position to call the witness in question, proceeded to call another witness. The trial judge was entirely blameless with regard to the management of the appellants’ litigation and the conduct of the appellants’ case. In particular, there is no evidence to suggest that the appellants sought any directions with regard to the witness in question and accordingly this purported ground of appeal is not stateable.
Ground 7 “The judge unjustly and unfairly vilified the first plaintiff”
50. The appellants appear to have been content throughout the conduct of these proceedings to level allegations of the most serious nature against all parties, including the beneficiary, the executor, the attesting witness and even the deceased. Likewise, allegations are levelled against legal representatives of all parties including the lawyers who advised the appellants themselves from time to time throughout the years of these proceedings. Allegations such as fraud, fraudulent misrepresentation, deception, concealment of documents, deceit, intent to deceive, the bringing of “rogue motions”, wilfully and deceitfully misleading, character assassination, evasiveness, vilification, are each in their turn levelled against any individual who purports to stand in the path of the appellants’ claim.
51. The appellants in their written submissions of 18th August, 2017 state:-
“Throughout the judgment the judge clearly had his mind made up against Majella Rippington ridiculing her at every opportunity in her efforts to present sound evidence that will stand up to the rigorous testing. He likened her to Sherlock Holmes and simply refused to believe a single word. This was unjust and unfair particularly as Majella Rippington was unable to deal with the aggression of counsel whose only defence was to attack Majella Rippington.”
The appellants submit that the hearing was “not a balanced process”. The appellants offer as evidence of the trial judge’s alleged bias the fact that he clearly stated that he “accepted without reservation the entire evidence of our opponents” which creates a “reasonable apprehension of trial unfairness that requires a new trial”. The appellants go on to state:-
“The judgment is very flawed with errors, factually incorrect and it was noted that the trial judge declined the need for the transcript when offered by counsel as he had made up his mind before leaving the bench, producing the judgment in haste.”
The appellants appear to contend that a hospital admission form wherein the deceased named her mother as her next of kin could have a relevance to the issue of the validity of the last will and testament which the court determined was validly executed. Elsewhere, the appellants contend that the trial judge “on occasions adds his own evidence/opinion in relation to the will in the defendant’s favour.” The appellants contend in their written submissions that “following investigations by Gardaí, they cannot place the deceased at the venue and have stated to the appellants regarding any attendance was “highly unlikely”, and that the respondents have given contradictory evidence in this regard. However, it does not appear that the appellants called Garda witnesses at the hearing to support their contention that the deceased was never present in Tuckmillstown on the evening of 8th March, 2011. The appellants also assert that “the conclusion of the trial was no different to having it decided on the toss of a coin.”
52. The trial judge had the opportunity over the duration of four days of hearing conducted by the first named appellant and litigant in person on behalf of all the appellants to see and hear the first named appellant as well as each of the witnesses and to have due regard to the stance and demeanour of each and to evaluate the credibility of the testimony adduced. Thus the trial judge was exceptionally well placed to draw the appropriate inferences which this Court is not in a position to draw. I am satisfied on balance that there was cogent evidence before the trial judge which entitled him to come to the conclusions he arrived at including his evaluation of the respective credibility of the witnesses, their motivation and demeanour.
Costs - Ground 3
53. In this case the trial judge made an order for costs against the appellants on an indemnity basis. The appellants rely on O. 99. The first named appellant appears to claim that allegations made against her by the trial judge are akin to fraud. It is asserted that the fixing of costs was unjust, that the executor failed to discharge his duties prior to the institution of the proceedings. It is claimed that the proceedings were issued in December, 2011, however the plenary summons issued on 16th September, 2011. It is asserted that it is entirely unjust and unfair to fix the appellants with the costs “which stand at approximately €56,000”. The appellants claim that they were unfairly penalised. They rely on the decision of Burke v. Moore (1875) I.R. 9 Equity 609 where an unsuccessful plaintiff was awarded costs out of the estate and the issue involved the due execution of a will. They also cite a later decision of Gillic v. Smyth [1915] 49 I.L.T.R. 36 which involved a question of due execution of a will and where an unsuccessful defendant was allowed his costs out of the estate. They also rely on the decision in Vella v. Morelli [1968] 1 I.R. 11.
The law
54. The principles governing costs in will suits developed in Ireland over a number of centuries in a manner reflecting the central societal importance of testamentary dispositions and the paramountcy attached to ensuring that the circumstances surrounding the execution of a testamentary document should be open to scrutiny for the purposes of allaying genuine suspicion and ensuring that documents admitted to probate are valid. These principles developed within the domestic jurisprudence from the late 1700s and have not been subjected to alignment with the differing jurisprudence in the neighbouring jurisdiction to any extent post independence. Appeals pertaining to costs in probate suits have been entertained by the Supreme Court more flexibly in the light of Art. 34.4.3 of the Constitution. A majority in the Supreme Court in Vella v. Morelli [1968] 1 I.R. 11 concluded that any measure which would impose a restriction on the exercise by the Supreme Court of its appellate jurisdiction in regard to the issue of costs was inconsistent with the provisions of the Constitution and did not continue in force after the Constitution came into operation. The Supreme Court also made clear in Vella v. Morelli that although it had an extensive power to substitute its own discretion in place of the discretion of the trial judge, that power should be exercised in accordance with principles which it considered were appropriate to the facts of the case.
Costs in a will suit
55. From the case law, the following principles appear to inform the exercise of discretion and the general rule that costs are in the discretion of the trial judge where there is a dispute concerning the validity of a will in this jurisdiction:
(i) Whenever a party is satisfied that issues arise which make it proper to bring a will suit before the court for its opinion, costs may generally be given out of the estate to both parties. The decision of Fairtlough v. Fairtlough (1839) 1 Milw. 36.
(ii) The Court should enquire whether there were reasonable grounds for bringing the litigation and whether it was conducted bona fide. Since at least the beginning of the nineteenth century the general principle has been that where both these questions can be answered in the affirmative it is the normal practice of the court irrespective of the value of the estate or the ownership of the property to direct that the general costs be paid out of the estate. The cases of O’Kelly v. Browne (1874) I.R. 9 Eq. 353, Burke v. Moore (1875) IR. 9. Eq. 609 and Derinzy v. Turner (1851) 1 Ir. Ch. R. 341 are generally cited in support of this proposition. (See Miller’s Irish Probate Practice, 1900, Chapter XXXIX)
(iii) The court should consider whether and to what extent the cause of the litigation takes its origin in any default or error of a testator. If so, costs could generally be directed to be borne by the estate. An example given is Byrne v. Hogan 6 IR. Jur. N.S. 114 where a testator concealed the contents of the paper so that it appeared that the witnesses were unaware that it constituted a will. Likewise, the manner in which a testator executes his will may give reasonable grounds for concern (Williams v. Coker 67 L.T. 626).
(iv) Issues surrounding a testator’s mental or physical condition at the time of execution of a will may be such as to entitle an unsuccessful party to costs out of the estate; Daly v. Burke 8 IR. Jur. N.S. 73, Prinsep v. Sombre 10 M.P.C. 232. Likewise, where a testator is profoundly immobilised or circumscribed as to the manner in which they gave instructions whether by illness, paralysis or otherwise or where issues subsisted around the time of execution of a document as to mental capacity are relevant, an example being Fairtlough v. Fairtlough (1839) Milw. 36 where Dr Radcliff the judge of the Prerogative Court stated:-
“The principle of awarding costs out of the fund in testamentary cases, is not confined merely to cases where the question arises upon the state in which the deceased has left his testamentary papers. The rule should be taken in a wider view, and wherever it is proper to specially bring the matter before the court for its opinion, the costs may be given out of the estate.”
The court has discretion in a will suit where ultimately, at the conclusion of the trial, a will is established and admitted to proof in solemn form of law to grant costs to the next of kin out of the estate notwithstanding the individual unsuccessfully pleaded lack of capacity, undue influence and fraud, provided there was a reasonable basis for the claim and the next of kin acted reasonably. (Williams v. Coker 67 L.T. 626).
(v) Where a plaintiff can demonstrate that a will was executed in circumstances which give rise to serious suspicions or concern even if ultimately, having heard all the witnesses, the court is satisfied as to its validity and the capacity of the testator nonetheless, a trial judge has discretion to award costs if satisfied that the appellants were acting reasonably. (Orton v. Smith L.R. 3.P. 23). Where next of kin have a reasonable ground of suspicion, traditionally the Irish courts have been careful to evaluate their conduct and if a trial judge is satisfied as to the reasonableness of their concerns and their bona fides an order for costs can be made out of the estate of the deceased notwithstanding that the claim has not succeeded at trial. (Emberley v. Trevanion 29 L.J.P. 143). In the case of Smith v. McCashin 1898 82 I.L.T.R. 55 Palles C.B. stated that the trial judge was bound to have regard to the considerations which weighed with the old prerogative court in awarding or refusing costs. The prerogative court was abolished by the Court of Probate Act, (Ireland) 1857.
(vi) The position is succinctly stated in Miller’s Irish Probate Practice 1900 at p. 445:
“But failure to establish pleas of undue influence and fraud will, as a rule, though not invariably, be followed by condemnation in costs, a fortiori where no evidence is offered in support of these pleas; and if there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question either the execution of the will or the capacity of the testator or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent; and so where the parties propounding the will had acted so as to excite the suspicion of the next of kin. Wherefrom the great age of the testator and the peculiar position of the principle legatee, who had been the testator’s housekeeper, the Court considered that the next of kin were justified in pleading as they did.”
The cases cited in support of these propositions include: Keogh v. Wall 9 IR. Jur.NS 418 and the case of Broadbent v. Hughes 29 L.J.P. 134. In the case of Armstrong v. Huddleston (1837) 1 Moo.P.C. 478 the decision of the lower court as to costs was reversed on appeal. Lord Broughan stated at 491:-
“There was doubt, there was difficulty, and there was much suspicion; there were doubts of a nature which further inquiry has cleared up; difficulties which much attention enabled him to overcome; suspicion which required a thorough sifting of the facts which did not ultimately leave a taint to touch the case, but quite enough to make it impossible to come to a right decision without that inquiry, sifting, and thorough examination which the case has undergone.”
An example is Tippett v Tippett L.R. 1 P 54 ,in that case, one of the attesting witnesses informed the next of kin that he was unable to swear as to the full competency of the testator. The witness in question was a medical expert. Although the will in question was ultimately admitted to probate, the Court of Appeal reversed the order as to costs that was made against the applicant.
56. Litigants in their pleadings and in the conduct of proceedings before the Courts are accorded the protection of privilege of the court. The abuse of that privilege has historically been deprecated by the probate courts. So where next of kin who are claimants either by pleadings, in cross examination or otherwise vexatiously make unfounded imputations particularly as to forgery, fraud, dishonesty or conspiracy or engage in baseless attacks upon the good name, reputation and character of a party seeking to establish a will or gratuitously engage in conduct which unnecessarily increases the expense and burden of litigation but elect not to make due and measured enquiry as to the actual facts and failed to adduce evidence to support lurid allegations at trial , the courts have generally condemned such individuals to orders for costs: Kenny v. Kenny 3 IR. Jur.NS 352, Symons v. Tozer 3 N.C. 41. The principle was set out in Bird v. Bird, (1828) 2 Hag. 142 by Sir John Nicholl:-
“As the charges of fraudulent conspiracy, set up and founded on misrepresentation of the state of the deceased’s affections and of his incapacity, and those of control and custody, have each of them so failed in proof, and as the whole cause has been conducted with so much litigious acrimony and with attempts to introduce such irrelevant matter, justice requires that the sentence, pronouncing for the will, should be accompanied by a condemnation of the opposer, in all the costs occasioned by his giving in his allegation.”
This principle has been upheld in the Irish courts including in Campbell v. Campbell 9 Ir. Jur. n.s. 95. Likewise, where allegations of lack of capacity, insanity or the like are made without due cause or any adequate evidence, the courts in this jurisdiction have signified their disapprobation historically by making orders for costs against such a litigant.
57. The Supreme Court in its judgment in Vella v. Morelli [1968] 1 I.R. 11 recognised the special and distinct jurisprudence in relation to costs in probate and will suits that had developed in this country over the prior centuries. The underlying principle is set out in the judgment of Budd J. at pp. 34-35:-
“In our country the results arising from the testamentary disposition of property are of fundamental importance to most members of the community and it is vital that the circumstances surrounding the execution of testamentary documents should be open to scrutiny and be above suspicion. Accordingly, it would seem right and proper to me that persons, having real and genuine grounds for believing, or even having genuine suspicions, that a purported will is not valid, should be able to have the circumstances surrounding the execution of that will investigated by the court without being completely deterred from taking that course by reason of a fear that, however genuine their case may be, they will have to bear the burden of what may be heavy costs.”
58. More recently, in Elliott v. Stamp & Anor. [2008] IESC 10, Kearns J. reviewed the jurisprudence in regard to costs orders in probate suits, reiterating that the two questions to be considered were:
In reversing the costs order made in the High Court which awarded the plaintiff one third of her costs from the estate, Kearns J. observed:-
“It is beyond doubt that small estates can be entirely dissipated by legal proceedings brought by disappointed parties whose intention may be to force the executor into some form of settlement or to vindictively waste the assets in legal proceedings which, even if capable of being seen as properly brought at the outset, can no longer be seen as such once the full picture has been made available by those defending the proceedings.”
He noted that the respondents in the case before him were entirely correct to set out by means of statements and reports the evidence which they proposed to rely on at trial.
(a) Was there a reasonable basis for the appellants instituting the above entitled proceedings?
59. In this regard the following factors are relevant:
1. The will document is most unusual having been written on the back of an ICS Building Society letter.
2. It is written in the format of a letter addressed to “Una”.
3. No legal advice was obtained by the deceased prior to executing the will document.
4. It was executed in the home of the beneficiary.
5. The signature of the testatrix is incomplete.
6. The daughter of the beneficiary is one of the attesting witnesses.
7. The deceased was absent from her home on the evening in question for a maximum of 77 minutes and at the very most the deceased could have been present in the house at Straffan for about 50 minutes or so. The deceased had spoken to the first named appellant by phone from her home “Genazanno” at 17.24 and again at 18.42.
8. Dr David Fennelly furnished a medical report to the appellants dated 2nd July, 2013 which was capable of exciting concern in the mind of a reasonable person as to the capacity of the deceased, the suggestion being made that medications being used in high dosages by the deceased at the time impacted on her general condition, both from a medical and a physical perspective. Further, the report appeared to be definitive that her testamentary capacity was influenced by the extensive nature of her disease and the extent of medication that she was taking at the time.
9. Had the deceased died intestate, her mother was her sole next of kin and ultimately in the events that transpired her estate would come to be shared equally amongst her three surviving siblings.
(b) Was the litigation conducted bona fide?
60. The degree of personal invective directed towards the respondents that accompanied the prosecution of the within proceedings is worthy of note. It was unusual in its intensity and for the manner in which it sought to traduce the good name and reputation of the respondents and persons associated with them. Had the appellants not enjoyed the benefit of privilege, many of the allegations and statements made would be prima facie defamatory. It is not appropriate for litigants to use probate proceedings or harness court processes and applications for the dominant motive of perpetuating vendettas or exhibiting gratuitous ill-will towards others who have an interest in the estate of a deceased person.
61. From the time of death of the deceased, the respondents have taken steps to ensure that the appellants had information available to them concerning the estate of the deceased and her testamentary capacity. It would appear that on 12th May, 2011 a copy of the will was made available to the second named appellant, Shaun Rippington who is the legal personal representative of the deceased’s mother who had died 10 days following the death of the deceased in March, 2011. In April, 2012 the appellants were provided with copies of the affidavits of the attesting witnesses and copies of medical reports from the deceased’s treating oncologist dated June, 2011.
62. On 25th July, 2013 the respondents wrote to the appellants “without prejudice save as to costs” calling upon the appellants to withdraw their opposition to the will of the deceased being proved and to agree to remove the caveat and to discontinue the litigation. The letter sets out the various information, affidavits and medical reports that had previously been furnished to the appellants’ solicitors. Furthermore, the said letter contains an offer “that of the net balance in the estate after such payments 50 per cent be paid to your clients (to be divided as they may choose), and 50 per cent to our client, Mary Butler.” The appellants ignored the said correspondence and failed to engage with it. The appellants have pursued prodigiously expensive litigation in a thoroughly unproductive manner in respect of a relatively small estate.
63. Elements in the conduct of the appellants which influenced the trial judge in making an order for costs against the appellants on a solicitor and own-client basis are set out primarily at paras. 45-52 of his judgment. The trial judge’s dissatisfaction with the conduct of the appellants is wholly understandable.
64. The fact that in a Calderbank letter on 25th July, 2013, two years prior to the hearing, at a point before a substantial bulk of the estate was committed to dissipation in litigation costs, an offer that the net balance of the estate after discharge of certain payments to the extent of 50 per cent was made by the respondents is a material factor in determining whether an order for costs should have been made against the appellants at the conclusion of the High Court proceedings. However,the exercise of discretion by a High Court judge must remain reviewable in any circumstance where it is incorrectly premised. This is particularly so in the context of a will suit. The jurisprudence established by the Supreme Court in Vella v. Morrelli provides that an appellate court has an extensive power to substitute its own discretion in place of the discretion of a trial judge although the court on appeal ought to “give great weight to the views of the trial judge per Budd J. at p. 29.
65. By the time of the trial the only vestige of doubt remaining with regard to the validity of the will centred on the medical evidence and in particular the apparently inconsistent medical reports of 30th June, 2011 and 2nd July, 2013 furnished to the respondents and the appellants respectively by Dr. Fennelly. It is clear that the trial judge probed in detail these apparent inconsistencies and paras. 29-34 of the judgment reflect that assessment. Ultimately, at the hearing, Dr. Fennelly clarified the apparent inconsistencies:-
“I asked Dr. Fennelly about what appeared to be some inconsistency between the views expressed in the report of 30th June, 2011 and that of 2nd July, 2013. In response to that, he said that it was difficult for him to comment in detail about her testamentary capacity as from a legal perspective he was somewhat unfamiliar with what the requirements of the law were. He did however appear to be of the view that whilst the deceased’s post-admission medication was very strong and opiate based, the type of medication she was taking before admission ought not have affected her mental capacity.”
66. Whilst the respondents seek to rely on Gainey v. Elan Corporation [2005] IEHC 111 and Shell E & P Ireland Limited v. McGrath (No. 3) [2007] 4 I.R. 277 as justifying the order for costs on a solicitor and client basis I am satisfied in all the circumstances having due regard to the jurisprudence on probate costs that has developed over the past two centuries as analysed in Vella v. Morrelli [1968] 1 I.R. 11 in the context of the Constitution Article 34 and as later reviewed by the Supreme Court in Elliott v. Stamp [2008] IESC 10 that this is a case where it is appropriate to set aside the order for costs as made by the trial judge and substitute in its place an order that the appellants pay the respondents costs, including all reserved costs, on a party and party basis. Otherwise the appellants’ appeal stands dismissed on all grounds.
