High Court of Ireland Decisions

1. This action was commenced by the issue of a Special Summons on the 28 April 1993 asking the Court to declare the meaning and effect of the Will dated the 7 April 1986 of Mary Hecker deceased, the mother of the parties to this action. The action was heard by me on the 22 March 1994 on Affidavits sworn by the first and third Plaintiffs and by the Defendant. In addition, I heard oral evidence from Mr Brian Kirwan, Solicitor, and from the Defendant and I had the benefit of submissions by Counsel for the Plaintiffs and for the Defendant.

The Plaintiffs are two sisters and a brother. The Defendant is a third sister. Each of the three Plaintiffs is married, the last of them to marry being the second named Plaintiff, Desmond Hecker. He married on the 24 February 1990 since when he lives in his own family home in Palmerstown, Dublin 20.

The Defendant is unmarried and lives at 89 Kincora Avenue, Clontarf, Dublin 3. This house was formerly the property of the mother of the four parties to this action, the said Mary Hecker who died on the 3 June 1991. By her Will made on the 7 April, 1986 so far as relevant to this case and read as at the date of death in the light of the marriage of her son, the second Plaintiff, prior to her death, the said Mary Hecker provided as follows:-

"I appoint my daughters Carmel Hecker and Mrs Bernadette Pope as joint Executrices of this my Will.

I first direct my Executrices to pay all my just debts, funeral and testamentary expenses.

I hereby give, devise and bequeath all my property, both real and personal, of which I die possessed to my four children Ann, Carmel, Bernadette and Desmond as joint tenants.

I hereby direct that my house at 89 Kincora Avenue, Clontarf, Dublin 3, be disposed of in whatever manner my children agree subject to the condition that my daughter Carmel shall have a right of residence in the said house until she marries."

Probate of the said Will was granted to the Defendant and the third Plaintiff on the 10 October 1991.

No 89 Kincora Avenue is a three bedroomed semi-detached house. The schedule of assets of the said Mary Hecker, deceased, disclosed gross assets of £112,021.00 and nett assets of £108,646.00. Of these sums the dwellinghouse No 89 Kincora Avenue was the major asset being valued at £95,000.00 in the said schedule of assets.

The parties agreed to sever the joint tenancy created by the said Will and accordingly by an assent dated the 9 July 1992 the property was vested in the four parties as tenants in common in equal shares.

Disputes have arisen between the parties as to their respective rights and duties in and to the said property in particular in relation to the right of residence given to the Defendant until she marries and the Court is asked to define and declare such rights and duties for the benefit of the parties. In a letter from the Defendant's Solicitors dated the 10 September 1992 it is stated as follows:-

"Our client is entitled to quiet enjoyment of the property and for security reasons is not anxious that keys of the property be floating around. She is, of course, quite agreeable that on appropriate arrangements being made an inspection of the property can be arranged by your clients to allay any fears they may have regarding its maintenance."

In paragraph 11 of the Defendant's Affidavit, sworn on the 16 July, 1993, the Defendant states as follows:-

"I am forty years old and as I reside in the property on my own I also installed a burglar alarm and indicated to the Plaintiffs, through my Solicitors by letter dated the 10 September 1992, that I did not dispute the Plaintiffs ownership of the property but that I was entitled to quiet enjoyment of the property and for security reasons I was not anxious that keys of the property be floating around. I indicated that I was quite agreeable that appropriate arrangements could be made for an inspection of the property and could be arranged at any stage to allay any fears that the Plaintiffs may have regarding the maintenance of the property."

In these Statements the Defendant misconceives her rights in and to the property. All four parties are equal owners as tenants in common of the property and as such owners they are entitled, if they so wish, to possession and occupation of the property. As the Defendant is given an express right of residence, this right is in the nature of a charge affecting the interests of all parties in the property and consequently the Plaintiffs, while entitled to occupy the property if they so wish by themselves and their reasonable invitees such as spouses and children, would not be entitled so to overcrowd the property as to render the Defendant's right of residence impossible or unduly incommodious. It is, however, clear that the Defendant is not entitled to exclude the Plaintiffs from the property by withholding keys thereof from them or requiring them to make advance appointments if they wish to visit the house.

In view of the married status of each of the three Plaintiffs, the Defendant, although not legally entitled to the exclusive use of any particular part of the house, would as circumstances presently exist and to enable her properly to enjoy her general right of residence in the house be entitled to choose one of the three bedrooms for her own exclusive use.

If a sale of the house were desired while the Defendant remains unmarried, the Defendant's right of residence would have some value over and above the quarter shares of each of the parties. How that right of residence should be valued is a matter on which actuarial evidence taking into account the precise nature of the house and the rights of the other parties thereto and therein would probably be relevant and admissible though not necessarily conclusive. The Court might apply a reasonable rule of thumb if it ordered a sale: for example, it might divide the proceeds of sale into fractions so as to give an extra fraction to the Defendant over and above the fraction given to each of the Plaintiffs. Without in any way indicating what might be ordered and by way of example only, this extra fraction might range from giving the Defendant an extra 50% if one were to divide the proceeds of sale into ninth shares and give two-ninths to each of the Plaintiffs and three-ninths to the Defendant down to giving the Plaintiff an extra twelve and a half per cent by dividing the proceeds of sale into thirty-third shares and giving each of the Plaintiffs eight thirty-thirds and the Defendant nine thirty-thirds.

The parties should share equally necessary and reasonable outgoings such as reasonable maintenance, repairs and insurance. The Plaintiffs are not liable to contribute to improvements effected by the Defendant: if the Defendant does or has done improvements she cannot compel the Plaintiffs to contribute thereto.

The Defendant's extra right under the Will is a right of residence only in the house 89 Kincora Avenue which would include fixtures forming part of the house. The right does not, however, affect any other of the Testatrix's property such as the contents of the house like furniture or other moveables or personal effects. The Defendant is not tenant for life of any part of the property nor does she have any of the powers given to a tenant for life under the Conveyancing Acts or the Settled Land Acts or otherwise.

Accordingly, I now deal shortly with the reliefs claimed in the Special Summons as follows:-

1.(a) The directions as to disposal of the dwellinghouse, namely: "I hereby direct that my house at 89 Kincora Avenue, Clontarf, Dublin 3, be disposed of in whatever manner my children agree" do nothing more than restate what is the position at law.

(b) Yes. The provision read in the light of the circumstances obtaining at the date of the death of the Testatrix, namely: 'Subject to the condition that my daughter Carmel shall have a right of residence in the said house until she marries" creates a charge on the property affecting all shares in the property for that right of residence.

(c) No, the right of residence is not void for uncertainty.

(d) As outlined above in this judgment.

2. I have already declared that the Defendant is not entitled to exclude the Plaintiffs from the dwellinghouse.

3. I have already declared that the Defendant is not entitled to exercise any of the powers of a tenant for life as provided for in statute law.

As regards the various reliefs claimed in paragraphs 4 to 9 inclusive in the Special Summons, I think it is not necessary to deal with these at the present time and I would hope that the attempt to clarify and define the respective rights and duties of the parties, as already set out in this judgment, would enable the matter to proceed without further reference to the Court. I will, however, adjourn the question as to whether any of these reliefs should be given generally with liberty to any of the parties to re-enter and I also give liberty in general to any of the parties to apply as may appear necessary in the future.