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K. (M.) v. B. (J.) [1999] IEHC 117 (26th February, 1999)
URL: http://www.bailii.org/ie/cases/IEHC/1999/117.html
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[1999] IEHC 117
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K. (M.) v. B. (J.) [1999] IEHC 117 (26th February, 1999)
THE
HIGH COURT
Record
No. 1997/500 Sp
IN
THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964
AND
IN THE MATTER OF THE TRUSTEE ACT, 1893
BETWEEN
M.K.
(SUING
BY HIS FATHER AND NEXT FRIEND E.S.)
PLAINTIFF
AND
J.B.
DEFENDANT
Judgment
of Miss Justice Carroll delivered on the 26th day of February, 1999
.
1. This
is an application by the Plaintiff through his father and next friend, E.S., to
remove the Defendant as Trustee of the Will of L.K., the mother of the Plaintiff.
2. L.K.
died on 29th April, 1996 having by her Will dated 21st October, 1998 appointed
the Defendant, her sister, as sole Executrix and Trustee and she appointed her
guardian of the Plaintiff. She made the following disposition:-
"I
give devise and bequeath the whole of my estate to my Executor upon trust
either to retain or sell it on trust to pay the capital and any income arising
from it to and for the benefit of my son (M) in such manner and at such time as
my Executor in her sole discretion thinks fit until my son shall attain the age
of 21 years and thereafter I give devise and bequeath the whole of my estate to
my said son (M) absolutely."
3. She
gave her Executor an extensive power to invest as if she were beneficially
entitled and exonerated her from loss not attributable to her own dishonesty or
wilful breach of trust.
4. The
Plaintiff was born in New York on 14th March, 1987. L.K. with the Plaintiff
returned to Ireland in May 1987 to reside with her mother in her house in
Dublin. Her mother died on 31st May, 1988 and left her house to L.K.
Thereafter L.K. and her son, the Plaintiff, lived in the house.
5. There
were visits by E.S. to Dublin and by L.K. and the Plaintiff to the U.S. during
the following years. The Defendant says that after the death of their mother,
L.K. entered into a relationship with another man and both of them lived in the
house with the Plaintiff. The death of L.K. at the age of 35 years was an
untimely one. The Defendant believes it was caused by liver failure brought on
by abuse of alcohol combined with tablets. She also says the Plaintiff had a
very undisciplined life with his mother.
6. After
the death of L.K., the Defendant took the Plaintiff to live with her and her
family. E.S. initiated guardianship proceedings in May 1996. These came on
for hearing in November 1996. E.S. was appointed joint guardian of the
Plaintiff with the Defendant and given interim custody with liberty to take the
Plaintiff to New York. On 30th October, 1997 custody was confirmed.
7. E.S.
alleges that there is animosity between himself and the Defendant and that she
threatened that she would sell the house if he initiated guardianship
proceedings. He alleges the decision to sell was not made bona fide in the
interests of the Plaintiff. He relies on a letter (21st November, 1997) from a
psychiatric social worker in New York written to support his request not to
sell the house. He also relies on an evaluation by a firm of auctioneers and
advice from Allied Insurance Consultants Limited that it would not be prudent
to liquidate the property and reinvest for seven years. He also exhibits a
note written by the Plaintiff on 25th March, 1997 to say he did not want his
house sold.
8. The
Defendant also took advice about sale or letting. She was cross-examined on
her Affidavit. She denied that she was motivated by animosity towards E.S. I
am satisfied that she was not motivated by any such feelings and that she has
made a bona fide decision to sell. She gives four reasons.
1. The
property is vacant and she foresaw difficulties about insurance although she
said the property is fully insured.
2. A
very good price can be obtained so he will have a large capital sum when he
attains his majority at 18.
3. If
he has an attachment to the property it is unhealthy. He had a disturbed
upbringing in the house with no discipline.
4. If
he wished to acquire a property at 18 he is free to do so with the proceeds of
sale.
9. Following
issue of these proceedings, the Defendant took further advice from a financial
adviser recommended by A.I.B. and he recommended sale rather than letting.
10. The
Guardianship of Infants Act, 1964, Section 3, provides:-
"Where
in any proceedings before any Court the custody guardianship or upbringing of
an infant or the administration of any property belonging to or held in trust
for an infant or the application of the income thereof, is in question, the
Court, in deciding that question, shall regard the welfare of the infant as the
first and paramount consideration."
11. Section
11 of the Children's Act, 1997 inserted Section 25 into the Guardianship of
Infants Act, 1964. This provides:-
"In
any proceedings to which Section 3 applies the Court shall as it thinks
appropriate and practicable having regard to the age and understanding of the
child take into account the child's wishes in the matter."
"The
personal representatives may sell the whole or any part of the estate of a
deceased person for the purpose not only of paying debts but also (whether
there are or are not debts) of distributing the estate among the persons
entitled thereto, and before selling for the purposes of distribution, the
personal representatives shall so far as practicable, give effect to the wishes
of the persons of full age entitled to the property proposed to be sold or in
the case of dispute, of the majority (according to the value of their combined
interest) of such persons so however that -
(a) a
purchaser shall not be concerned to see that the personal representatives have
complied with such wishes; and
(b) it
shall not be necessary for any person so entitled to concur in any such sale.
I
do not consider it appropriate or practicable to give effect to the Plaintiff's
wishes. It seems to me probable that he is influenced by his father's wishes
and also I doubt that he could appreciate the practicalities and benefits
between the two options of renting or sale.
However
there is still a duty on the Court to decide this matter in accordance with
Section 3 of the
Guardianship of Infants Act, 1964 having regard to the welfare
of the infant as the first and paramount consideration.
In
this case there are two conflicting advices. A decision has been taken bona
fide by the person chosen by L.K., the mother of the Plaintiff, to act as his
guardian and in whom she reposed confidence as a Trustee for sale. There are
no grounds for removing her as Trustee unless the decision to sell would not be
for the welfare of the Plaintiff. In my opinion the sale of the house and the
investment of the capital sum until the Plaintiff attains his majority will
enure for the benefit of the Plaintiff and is a decision which the Defendant is
entitled to take as Executor and Trustee of the Plaintiff's mother's Will. In
my opinion it is a decision to be taken on financial grounds not psychological
grounds. I have no way of evaluating the opinion of the social worker which is
not on Affidavit and as the Defendant says, it is not known how much
information was given to her about the Plaintiff's upbringing prior to his
mother's death.
I
refuse the relief sought.
© 1999 Irish High Court