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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Carroll v. Carroll [1998] IEHC 42; [1998] 2 ILRM 218 (5th March, 1998)
URL: http://www.bailii.org/ie/cases/IEHC/1998/42.html
Cite as: [1998] 2 ILRM 218, [1998] IEHC 42
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Carroll v. Carroll [1998] IEHC 42; [1998] 2 ILRM 218 (5th March, 1998)
1. In
these proceedings the Plaintiffs seek to set aside a conveyance made on the 3rd
of May 1990 on the grounds that that conveyance was procured by undue influence
and was in itself an improvident transaction. The property which was the
subject matter of the conveyance of the 3rd of May 1990 was a public house
together with residential accommodation situated at Burke Street, Fethard,
County Tipperary and which was owned in fee simple by one Thomas Carroll Snr.
By the conveyance of the 3rd of May 1990, Thomas Carroll Snr. conveyed his
interest in the premises to his son Thomas Carroll Jnr.
2. Thomas
Carroll Snr. married in 1959. Upon his marriage he decided that he would
purchase a public house which he did by a conveyance dated the 31st of December
1960, whereby one Angela Kennedy conveyed to Thomas Carroll Snr. and his wife
Sarah the premises at Burke Street, Fethard, County Tipperary. It appears
that at the time he got married and at the time the public house was purchased,
Mr. Carroll was in his late 40's and suffering from arthritis. The business of
the public house was thereafter run by Mr. Carroll's wife Sarah (known as
Sadie). She it was who assumed responsibility for the day-to-day management
of all aspects of the business. While Mr. Carroll helped occasionally in
relation to the business, he did not in any way interfere with the overall
management of the business by his wife. By all accounts the marriage of Mr.
Carroll and his wife was an extremely happy one, and there were three children
borne of their union. Winifred was born on the 20th of February 1962; Thomas
was born on the 11th of August 1964 and Mary Jane was born on the 8th of
January 1968. As the children grew up in Fethard the family was known
locally as a very close knit and happy family.
3. The
first two of the children, Winifred and Thomas, started out at local schools.
Winifred spent the last two years of her schooling as a boarder. Thomas went
to a local school in Fethard. He was not particularly interested in academic
studies and his main preoccupation and interest was in farming. A number of
his uncles (brothers of his father) had farms near Fethard in County Tipperary.
In particular, the Carrolls relations had a farm at Milltown, County Tipperary
and at Killusty, County Tipperary. Young Thomas devoted all his free time to
working on the farms and helping his uncles with the farm work. Mary Jane,
the youngest of the three children, started her schooling in Fethard but the
last five years of her school going years were spent as a boarder in Loretto
Convent in Rathfarnhman in Dublin. Thereafter she attended Alexandra College
for a further year doing a course in Commercial Studies. Throughout their
childhood, when they were not away in Dublin, the children lived with their
parents in the residential accommodation attached to the public house. The
turnover and resulting profit from the business of the public house was such as
to be able to finance the schooling of the three children and the maintenance
of the entire family during these years. As soon as they were able to assist
in the running of the public house the children did so, but from 1974 onwards
Sadie Carroll had engaged the services of a full time barman (Noel Sharpe) in
the public house.
4. Winifred,
after her last two years in boarding school in Dublin, took a job as a
secretary and lived in Dublin travelling home to Fethard every weekend.
Eventually she got engaged to be married and got married in September of 1986.
Unfortunately, her husband became unwell and was hospitalised and ultimately in
February 1988 her marriage was annulled. Winifred purchased a house in
Ballyboden in County Dublin with the assistance of a loan from a building
society. She currently resides in that house with her sister Mary Jane
Carroll. Mary Jane after she had left Alexandra College obtained a job in
Dublin and commenced to reside with her sister after the break-up of her
sisters marriage. Both of the sisters gave evidence in this case that every
weekend they would travel down to Fethard County Tipperary and help out in the
running of the public house. When Thomas Jnr. finished his schooling he spent
a short time working in Dublin, but his real love was farming and he soon
returned to Fethard County Tipperary so that he could help uncles in the
running of their farms. As I have indicated, one of those farms was at
Milltown, County Tipperary. It was owned by Patrick and Philip Carroll who
were brothers of Thomas junior's father. Sadie Carroll in 1988 arranged for
Thomas Jnr. to acquire a one-third interest in the farmlands at Milltown,
County Tipperary in consideration for Thomas Jnr. looking after his uncles
Patrick and Philip, and agreeing to come and reside on the premises should he
be required to do so, and in consideration of him helping in the management of
the farm. On the 22nd of April 1988, Thomas Carroll Jnr. was registered as
full owner, as tenant in common of one undivided third share of the property
which was a farm containing approximately 185 acres. Apart from his interest
in the Milltown farm, Thomas Jnr. also helped another uncle (Gus) at a farm at
Killusty, County Tipperary. When his uncle Gus eventually died, in the early
1990's, Thomas Jnr. was left one half of the farm at Killusty, County Tipperary
which amounted to about 45.2 acres.
5. Sadie
Carroll died of cancer on the 13th of June 1989. The family had known for
some time that she had cancer and that she was dying. Both of her daughters
came home as often as they could before the time she died, and both of them in
any event came home every weekend to help and comfort both her and their
father. During the time of her illness and when she became unable to run the
public house business, Thomas Jnr. assumed control of the business during
weekdays. At weekends both Mary Jane and Winifred helped in the running of
the public house. The death of Sadie Carroll affected every member of the
family deeply. Her husband was devastated. At the time of her death, he was
in his late 70's and suffered from a number of health complaints; he had severe
arthritis which caused him a huge amount of pain and limited his mobility to a
great extent. He had a heart complaint which had necessitated two minor
operations for the implant of a pace-maker for his heart. He was suffering
from a hearing deficit and also suffering from poor sight. Whilst all of
these elements meant that he was, to a large extent, dependant upon his
children to do things on his behalf, there was no evidence to suggest that his
mind was in anyway impaired at that stage. He was, of course, extremely
depressed at the passing of his wife and the phrase
"devastated"
6. After
the death of Sadie Carroll, Mary Jane stayed at Burke Street for a period of
six months and during that time helped in the running of the public house and
assisted her father in relation to day-to-day chores. Although Thomas had
obligations in relation to his uncles at the Milltown farm, he nonetheless
helped out in the running of the public house business and eventually he
assumed responsibility for that business on a day-to-day basis. After the
girls returned to Dublin, they came home to Fethard every weekend and when they
were there at the weekends they also helped out in the public house. The
business of the public house was
"in
the name of"
Thomas Carroll Snr., it had never been in the name of Sadie Carroll or any
other member of the family. There was a liability of the business to the
Revenue Commissioners in respect of Valued Added Tax of some £20,000.
Thomas Carroll Jnr. was concerned to raise money to pay off and discharge this
liability to the Revenue Commissioners. He spoke to his sister Winifred about
the possibility of the business being transferred from his father's name into
his name. Winifred Carroll recalls explicitly her brother asking her to ask
her father to agree to sign over the running of the business to Thomas Carroll
Jnr. Initially she said no, but eventually she did ask her father to let her
brother run the business for the time being. Mary Jane Carroll recalls her
brother mentioning the need to transfer the business to him for certain tax
reasons, and she further recalls that some weeks later her brother told her
that papers had been signed and that he would be running the business in the
future. Winifred Carroll recalls being told by her father that Philip Joyce,
a solicitor, had been in the family kitchen and that he, her father, had signed
papers but that the papers just related to the running of the business.
Winifred Carroll believed that the transfer of the running of the business to
her brother from her father, was merely a temporary arrangement until she
herself was in a position to come back home to Fethard to run the public house
business. Mary Jane Carroll, on the other hand, believed that the transfer of
the business to her brother was of a more permanent nature. Neither of the two
daughters believed that their father had transferred any ownership in the
property at Burke Street to their brother. Both of the daughters firmly
believed that it was always the intention of their parents to treat the three
children equally in terms of such assets as the parents had to divide among
their children. Both Winifred and Mary Jane Carroll were
7.
The
transfer was executed on the 3rd of May 1990. Preceding the execution of the
transfer were, as I have already indicated, discussions between the children
and Mr. Carroll Snr. as to the transfer of the business to Mr. Carroll Jnr.
Mr. Philip Joyce, a solicitor of some twenty years practice, gave evidence that
he was contacted by Mr. Carroll Jnr. in respect of a proposed transfer of the
premises from Mr. Carroll Snr. to Mr. Carroll Jnr. It was indicated to him
that there was a VAT liability that Mr. Carroll Jnr. was anxious to discharge.
Mr. Joyce recalls visiting Mr. Carroll Snr. and sitting in the kitchen of the
Burke Street premises discussing the question of the transfer with him. He
recalls that Mr. Carroll Snr. told him that he wanted his son to have the
premises without any conditions. Mr. Joyce recalls telling Mr. Carroll Snr.
that he should have a right of residence and a right to be maintained and
supported out of the premises. That first meeting with Mr. Carroll lasted
about fifteen minutes. Thereafter Mr. Joyce prepared a draft transfer. He
sent that draft to Mr. Carroll Jnr. and Mr. Carroll Jnr. responded to the draft
(which contained provision for a right of residence and a right to be
maintained and supported out of the premises) saying that Mr. Carroll Snr. did
not want any maintenance or support provision in the deed of transfer. Mr.
Joyce recalls visiting Mr. Carroll Snr. for a second time and discussing the
provisions of the deed with him: Mr. Carroll Snr. said that he did not want to
have any provision as to maintenance and support in the deed according to Mr.
Joyce. Mr. Joyce said that he satisfied himself that Mr. Carroll Snr.
understood matters fully. This second meeting lasted some fifteen to twenty
minutes. Mr. Joyce recalls going to the meeting with two engrossed deeds, one
which contained a maintenance and support provision, and the other which did
not contain any such provision but merely provided for a right of residence.
It was this latter deed which was executed by Mr. Carroll Snr. Mr. Joyce had
kept a file relating to this conveyancing transaction: the file does not
contain any attendance by Mr. Joyce relating to either of his meetings with Mr.
Carroll Snr. The file contains correspondence, documents, and invoices
relating to the transaction; all the correspondence was directed to Mr.
Carroll Jnr; an invoice was ultimately raised in relation to all work done
concerning the transfer and was addressed to Mr. Carroll Jnr. Given the nature
of his initial instructions which were relayed to him by Mr. Carroll Jnr., it
was understandable that Mr. Joyce was somewhat uncertain as to whom, strictly
speaking, he was acting for in relation to the conveyancing transaction: on
one view of events he believed that he was acting for Mr. Carroll Snr. up until
the transfer had been completed, and that thereafter he acted for Mr. Carroll
Jnr. That he acted for Mr. Carroll Jnr. thereafter is beyond doubt in that
the file contains correspondence directed to financial institutions on behalf
of Mr. Carroll Jnr., and contains undertakings given by Mr. Joyce on behalf of
Mr. Carroll Jnr. to those financial institutions. While on one view of matters
Mr. Joyce believed that he could be said to be acting for Mr. Carroll Jnr. up
until the completion of the transfer, he quite properly allowed that his
position was most probably that of a family solicitor who was, in fact, acting
for both the transferor and the transferee of the property. Mr. Joyce agrees
that he did not make any enquiries of Mr. Carroll Snr. as to whether or not he
had any other assets apart from the premises at Burke Street, Fethard in County
Tipperary. He also agrees that he did not ask any questions concerning the
existence or otherwise of any other children of Mr. Carroll Snr. he agrees that
he did not know of the close relationship all of the children of the Carroll
family had with their father. He did not accept that, in effecting the
transfer, he should have averted to what might be a worse case scenario,
namely, that Mr. Carroll Jnr. would not support Mr. Carroll Snr. out of the
assets which were being transferred. Equally he did not believe that he ought
to have taken into account the possibility that Mr. Carroll Jnr. might die
before his father thus possibly leaving his father (in the absence of any other
assets) without any form of maintenance or support. Mr. Joyce did not believe
that there was any obligation upon him to satisfy himself that Mr. Carroll Snr.
had available to him other assets out of which he could be maintained and
supported once he had transferred the premises in Burke Street to his son.
While he agreed that he could have inserted into the deed of transfer a power
of revocation, he believed that such would not have been a clause which would
have allowed any money to be raised on the security of the premises from a
financial institution. Mr. Joyce was quite firm in his view that he had got
clear and unambiguous instructions from Mr. Carroll Snr. whom he described as
appearing easy going and relaxed. Mr. Joyce noted that Mr. Carroll Snr. could
read the newspaper and indeed had recognised Mr. Joyce. The effect of the
transfer of the 3rd of May 1990 was that all of the assets owned by Mr. Carroll
Snr. were transferred to his son Thomas Carroll Jnr. and that the only
reservation was that Mr. Carroll Jnr. was to hold the premises the subject
matter of the transfer, subject to and charged with the right of Thomas Carroll
Snr. to an exclusive right of residence in the dwelling house for the remained
of his lifetime. Thomas Carroll Snr. died in his daughter Winifred's arms on
the 20th March 1992 in hospital. Between May 1990 and March 1992 there had
been no disclosure whatsoever by either Mr. Carroll Snr. or Mr. Carroll Jnr. to
his daughters of the fact that there had been a transfer of the property made
on the 3rd of May 1990. Between May 1990 and March 1992, Winifred and Mary
Jane Carroll had travelled down from Dublin to Fethard every weekend and
continued to assist in the running of the public house at the weekends.
Equally, Thomas Carroll Jnr. ran the public house business during the week days
while his sisters were in Dublin. In this period of time from May 1990 until
he died in March 1992, Mr. Carroll Snr. became increasingly more feeble and
dependant on his family. He was unable to travel outside the house unless he
was assisted by someone in doing so. His eyesight deteriorated; his
arthritis, and the pain associated with it, got worse. His hearing also
deteriorated and generally his health was declining rapidly.
8. Thomas
Carroll Jnr. met Michelle Fogarty in 1991 or early 1992. They subsequently
got engaged and ultimately married in September 1993. Michelle Fogarty was
twenty-one years of age when she married Thomas Carroll Jnr. She recalls that
when they decided to get married they had a discussion about the public house
and the accommodation attached to it, and her recollection was that it was then
that Thomas Carroll told her that he in fact owned the premises. She told the
Court that she lived in the public house for the nine months prior to her
marriage in September 1993. At that time there was still a permanent bar man,
but when the bar man was having time off work she herself worked in the public
house. She recalls that at this point in time her fiancee spent most of his
time on the farm. After their marriage in September 1993, Thomas Carroll Jnr.
and his new wife continued to reside at the premises in Burke Street as they
had done prior to their marriage. Winifred and Mary Jane Carroll continued to
come down from Dublin to Fethard each weekend and stay in the premises and help
in the running of the public house at the weekend.
9. Thomas
Carroll Jnr. died as a result of a traffic accident on the 17th of January
1994. At the date of his death he owned a portion of the Killusty farm in
County Tipperary and had an interest in the Milltown farm in County Tipperary
as well as, of course, the premises which had been transferred to him by his
father by the deed dated the 3rd of May 1990. Within a couple of weeks of the
death of Thomas Carroll Jnr., Michelle Carroll (his wife) asked his sisters if
they would give her a lift to the offices of Philip Joyce. They brought her to
see Mr. Joyce and they themselves spoke to Mr. Joyce who indicated to them that
they, Mary Jane and Winifred, no longer had any rights in relation to the
property at Burke Street in Fethard. This news devastated Winifred Carroll
and Mary Jane Carroll. However, they continued to travel at weekends from
Dublin to Fethard and to stay at the premises in Burke Street. Michelle
Carroll gave evidence of tensions growing between herself and the two sisters
of her late husband. One particular incident brought these tensions to a head
in June 1994. It was an incident which culminated in an allegation by the
sisters that Michelle Carroll was not looking after their uncles at the
Milltown farm. Michelle Carroll alleges that Winifred Carroll said to her
"you
were never good enough for him".
This
evidence was corroborated by Jennifer Fogarty, a sister of Michelle Carroll,
who heard Winifred Carroll speak such words. After this incident, Mary Jane
Carroll and Winifred Carroll did not come down from Dublin to stay at the
premises at weekends.
10. As
early as 11th of March 1994, solicitors for Winifred Carroll and Mary Jane
Carroll had written to Mr. Joyce asking him to furnish all relevant papers
regarding the transfer of the property from Thomas Carroll Snr. to Thomas
Carroll Jnr. That documentation was ultimately provided under cover of a
letter dated 25th of July 1994. By letter dated 14th of November 1994, Ivor
Fitzpatrick & Co. (the Solicitors for Winifred Carroll and Mary Jane
Carroll) indicated to Mr. Joyce that their clients were challenging the deed
dated the 3rd of May 1990. A Plenary Summons was issued on 9th of December
1994.
Mr.
Carroll and his wife Sadie Carroll had an account with the Irish Permanent
Building Society at its branch at O'Connell Street in the City of Dublin. The
monies deposited in that account were, according to the Plaintiffs, the
proceeds of a lotto win (of some £5,000) and a win in a raffle (in or
about the sum of £20,000). Mary Jane Carroll had won the sum of
approximately £5,000 in the lotto and her mother had won the sum of
£20,000 in a raffle. These monies were drawn down by the three children,
namely Mary Jane, Winifred and Thomas Jnr. They each took an equal amount of
the monies that were held on deposit together with the interest which accrued
thereon. The Plaintiffs denied the suggestion put to them by Counsel for the
Defendant that they alone had been the beneficiaries of the money placed on
deposit with the Irish Permanent. They denied the suggestion that their
father had intended to provide for them out of this deposit account and that he
had provided for his son in a different way by the transfer to his son of the
premises at Burke Street in County Tipperary.
12. All
of these matters the Plaintiffs submit should lead the Court to conclude, as a
matter of probability, that the transaction was indeed the result of undue
influence.
20. The
categories of relationship which will give rise to the presumption are
never
"closed", as Budd J. observed in
Gregg
-v- Kidd
1965
IR 183,
and
the
23. I
was satisfied that the nuclear family to which the Plaintiffs belonged was
indeed a close knit and caring family; I was satisfied that the Plaintiffs
were extremely close to their father and he to them: I have little doubt that
he did indeed constantly reassure them that there would always be a home for
them in Burke Street. His failure (between 1990 and 1992) to disclose to
Winifred Carroll and Mary Jane Carroll the actual transfer of the property to
their brother (as opposed to the running of the business) was not, in my view,
likely to have been an act of concealment; it is more likely that Mr. Carroll
Snr. did not truly understand or appreciate the nature and effect of the 1990
Deed which he had executed in favour of his son. Equally, I am satisfied that
the Plaintiffs themselves did not become aware of the transfer of ownership
until they were told the position by Philip Joyce in early 1994 at his offices.
It is somewhat surprising that they, the Plaintiffs, appear never to have been
told of the true position by their brother in his lifetime or by their
sister-in-law who says that she herself was aware of the true position prior to
her marriage to Thomas Carroll Jnr. The Plaintiffs' ignorance of the true
nature of the 1990 transaction was shared by the relatives of the Plaintiffs
who gave evidence on their behalf: it was ignorance apparently shared by the
community in Fethard as there was no-one save the Defendant, who claimed to
know the true nature of the 1990 deal during the lifetime of the Donor. All of
the foregoing matters strengthen me in my view that the presumption of undue
influence has not been rebutted by evidence which establishes as a matter of
probability that the transfer was the result of the exercise of the free will
of Thomas Carroll Snr.
28. Having
regard to my view that the Deed of 3rd May, 1990 should be set
aside,
I shall hear Counsel as to the form of Order to be made.
© 1998 Irish High Court