Supreme Court of Ireland Decisions

Judgment Title: Elliot v Stamp

Neutral Citation: IESC No. 10

Supreme Court Record Number: 465/06

High Court Record Number: 2004 10691P

Date of Delivery: 12 March 2008

Court: Supreme Court

[S.C. No. 465 of 2006]

This case raises an important issue about costs in probate actions and is perhaps the first time this topic has been revisited since the seminal decision of this Court in In bonis Morelli:Vella v. Morelli [1968] I.R.11 (hereafter “Vella v Morelli”).

Nicholas Roche, the deceased herein, late of Ballyvalden, Blackwater, Co. Waterford, died a bachelor without issue on 3rd May, 2003. He was seventy years old. His assets, amounting in value to approximately €1.5 million, included a residential farm, credit union deposits and cash. The deceased was survived by three sisters, Anastasia Elliott, the first named plaintiff, Bridie Stamp, the second named defendant and Mary Roche, an unmarried sister who gave evidence in the case but was not a party to the proceedings. The second named plaintiff is a son of the first named plaintiff and is acting on her behalf pursuant to a Power of Attorney granted on 6th April, 2004. The first named defendant is a son of the second named defendant and is thus a nephew of the deceased. He is the principal beneficiary and sole executor appointed under the will of the deceased dated 20th February, 2003.

In the proceedings brought by the plaintiffs the parties agreed that the issues to be determined at trial were as follows:-

(a) Whether the will was executed in accordance with the provisions of the Succession Act, 1965;

(b) Whether the testator Nicholas Roche was of sound disposing mind and

(c) Whether the will was procured by duress or influence of the defendants or either of them

(d) Such other issue as to the Court might seem proper

The defence denied that the will was void. It contended that the act of the testator was the free act of a person who made the will with full capacity, competence and understanding. The will had been prepared over a two day period between 19th and 20th February, 2003, with the advice and assistance of a senior legal executive who had special responsibility for conveyancing and wills in a solicitor’s firm. It was denied that there had been any interference, duress or influence, undue or otherwise, in and about the making of the will. It was further contended that the will contained numerous legacies and bequests in accordance with the testator’s detailed instructions to his solicitor.

By Notice of Motion dated 30th January, 2006, the defendants applied for an order striking out the plaintiffs’ claim for failure to comply with the requests for further particulars and on the grounds that the plaintiffs’ claim disclosed no reasonable cause of action. It was contended that there was no evidence to support the plaintiffs’ claim of undue influence on the testator and that no evidence of same had been provided in the plaintiffs’ replies to particulars. The motion was grounded on the affidavit of the first named defendant and exhibited medical reports from two medical practitioners as to the state of health of the testator. There were further affidavits of Mr. Dick Parle, a beneficiary under the will and a neighbour and friend of the deceased; of Mrs. Bridie Stamp, the second named defendant, and of Mr. Tom Murphy, legal executive in the firm of M. J. O’Connor & Co., Solicitors, as to his role in taking instructions, drafting and witnessing the execution of the will.

On 23rd June, 2006, the High Court (Quirke J.) refused the application to dismiss and directed that the issues recited above be determined in relation to the said purported will.

The matter came on for hearing in the High Court between 17th and 18th October, 2006. Prior to the commencement of the case the plaintiffs withdrew their claims in relation to due execution and testamentary capacity and elected to run the case on undue influence alone. A large number of witnesses were heard at the hearing and judgment was thereafter given by Murphy J. on 7th November, 2006.

The learned High Court judge resolved all issues in favour of the defendants, holding firstly that the said will had been validly executed, secondly, that the testator was of sound mind, memory and understanding and thirdly, that the making of the will had not been procured by any undue influence or duress of the defendants or either of them.

In a separate hearing on the issue of costs which took place on 10th November, 2006, Murphy J. heard oral submissions from both sides before awarding the plaintiffs one-third of their costs from the estate.

It is from that latter finding and decision that this appeal is brought, the plaintiffs alleging that, pursuant to the well established authority of Vella v. Morelli, Murphy J. should have awarded to the plaintiffs their full costs from the estate of the deceased. Mr. Brian Spierin, Senior Counsel for the plaintiffs, contended that, on the facts, it had been reasonable to bring the proceedings and, secondly, that the same were brought bona fide, thus meeting the two requirements of Vella v. Morelli. Ms. Mary Laverty, Senior Counsel for the defendants, invited the court to further develop the jurisprudence within Vella v. Morelli, by indicating that when an executor makes all relevant information relating to the issues in dispute available to the plaintiffs prior to trial and the court is later satisfied, having evaluated that material objectively, that the plaintiffs should at that point have desisted from further maintaining the proceedings, then the court should not award costs from the estate to an unsuccessful litigant. She argued cogently that many small estates were liable to be dissipated entirely unless some mechanism existed whereby a plaintiff who needlessly or vindictively maintained proceedings beyond a certain point was put on hazard of not recovering costs from an estate in such circumstances.

BACKGROUND
Nicholas Roche was born on 1st March, 1933, and was thus aged seventy years at the date of his death on 3rd May, 2003. He had made no previous will and was illiterate. He had remained on the family farm while his sisters had married and moved elsewhere. It seems he was a quiet and simple man who was in failing health in 2002. He had severe arthritis and a condition known as polymyalgia rheumatica which caused him a great deal of pain. Such was his condition that he stayed with the second named defendant for a seven week period from before Christmas 2002 until he went to Wexford Hospital on 21st February, 2003. During that time the first named defendant introduced him to a new doctor and made arrangements for Mr. Tom Murphy, legal executive, to come to the house to put his affairs in order.

Mr. Murphy attended on Mr. Roche on 19th February and spent some two hours with him. He felt Mr. Roche was clear minded and gave him details of family members, assets and wishes. He took instructions for the purpose of drafting a will, but on the next day, 20th February, 2002, Mr. Stamp rang him to say that Mr. Roche had got a bed in hospital for which he had been waiting and asked if Mr. Murphy would come that day. He arrived out with the draft will. Mr. Stamp was present in the house and, as an issue of tax on the farm bequest arose, Mr. Murphy asked Mr.Roche for permission to discuss this matter with Mr. Stamp. Afterwards Mr. Murphy asked Mr. Stamp to leave the room and continued with Mr. Roche. No changes were made to the will which was then executed by the deceased in the presence of Mr. Murphy and his wife who had been brought in for the purpose of witnessing the will from a car waiting outside.

When cross-examined, Mr. Murphy agreed that Mr. Stamp, who is an accountant, had business from time to time with the firm M. J. O’Connor. He further agreed that Mr. Stamp had been told of the bequest and the implications for tax before the will was executed. Mr. Murphy agreed that Mr. Stamp had played a significant role in notifying Mr. Murphy of Mr. Roche’s desire to make a will.

The court also had evidence from Mrs. Mary Murphy, the other attesting witness, who said she found Mr. Roche sitting in his chair on the occasion in question. She said he was quite bright and smiling when she saw him sign the will in a somewhat shaky manner, and then Mr. Murphy signed and she signed and that completed their dealings with Mr. Roche.

Evidence was given by Mary Roche, the sister of Anastasia and Bridie, who described her brother as quiet, dyslexic and “not being good on the land”. She did not believe the testator could make a detailed will as he could not read or write.

Mr. Niall Elliott, the second named plaintiff, saw the deceased for three weeks in September and October, 2002 and noted that he had deteriorated. He believed that if his uncle had made a will, he would have divided the farm equally between his three sisters.

Various neighbours were called as witnesses on behalf of the defendants, all of whom spoke highly of the deceased. In particular, Mr. Dick Parle, who was a friend and neighbour. He regarded the deceased as a gentle and honest man who had a good memory. He had seen the deceased the day before he died sitting up in the dayroom of the nursing home in a chair. He was surprised that the deceased had died the following day.

No medical evidence was called, but the court had the benefit of the medical reports furnished by Dr. Bart Curtis, General Practitioner, and Dr. Michael Riordan, Consultant Physician.

Dr. Curtis met the deceased for the first time in January, 2003 and saw him on four occasions thereafter, all being prior to the date of the making of the will. Not surprisingly, Dr. Curtis was primarily concerned with the testator’s complaints of pain in his upper limbs, right knee and neck. He noted that the testator was severely limited in his movements and required considerable medication for relief. When his condition did not improve, a decision was made to admit him to Wexford General Hospital. In relation to his mental state, Dr. Curtis simply stated:-

“While his physical condition was a cause for concern, at no stage do my notes indicate that his mental state was other than normal. My memory of him was that of a normal country man of the age stated with whom it was possible to communicate easily.”

The report of Dr. Curtis reveals that the testator, prior to the execution of the will, was placed on a variety of medications for his physical ailments, including anti-inflammatory medication, a mild hypnotic (the name of which is not stated), Salazopirin and Deltacortril.

Dr. Michael Riordan had a limited recall of the deceased and so stated in a letter dated 19th October, 2005, written by him to the defendants’ solicitors. He noted that the deceased was in a great deal of pain on arrival to Wexford General Hospital the day after he made his will. He needed assistance in washing and dressing himself as an in-patient in Wexford, but his condition did improve when he got to the rehabilitation ward at St. John’s. He was then mobilised with a stick. He stated as follows in his report:-

“Mentally, he was orientated to his place and had no problems with communicating, according to the nursing notes. From what I recall of him last is that mentally he was bright and while there was no objective test done, the comments and the notes certainly don’t give rise to concern via his mental state and therefore I would conclude that he was probably mentally competent enough to make a will. However, it is very difficult to be absolutely certain of this, as I am depending on this from my own memory and from the limited notes that have been written about his mental state as an in-patient.”

It is undoubtedly the case that, going back to the time of the Prerogative Court, costs were awarded out of the estate of a deceased where it was deemed reasonable to bring proceedings.

In his judgment in the case of Fairtlough v. Fairtlough (1839) 1 Milw. 36, Dr. Radcliff, the then judge of the Prerogative Court, said at p.39:-

“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.”

“Two questions are to be considered with reference to an application for costs of the unsuccessful party:- (1) Was there reasonable ground for litigation? (2) Was it conducted bona fide?. Where both these questions can be answered in the affirmative it is the usual practice of the Court, without having regard to the amount or the ownership of the property, to order the general costs to be paid out of the personal estate”.

(a) Was there reasonable ground for litigation? and

(b) Was it conducted bona fide?

The underlying principle was formulated by Budd J. in Vella v. Morelli in the following terms (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. It would seem to me that the old Irish practice was a very fair and reasonable one and was such that, if adhered to, would allay the reasonable fears of persons faced with making a decision upon whether a will should be litigated or not. If there be any doubt about its application in modern times, these doubts should be dispelled and the practice should now be reiterated and laid down as a general guiding principle bearing in mind that, as a general rule, before the practice can be operated in any particular case the two questions posed must be answered in the affirmative.”

In ruling on the submissions made with regard to costs, the learned trial judge felt he should distinguish Vella v. Morelli from the present case, given that the former dealt only with the due execution of the will, whereas the present case largely consisted of an allegation of undue influence which was not substantiated at trial. The learned trial judge placed considerable store on the fact that the executor had made a great deal of evidence available to the plaintiffs before the case ever came to court. This was in the context of the application to dismiss, and the information made available included the medical reports of the two medical practitioners, together with statements from the witnesses already referred to. The learned trial judge then continued:-

“I am not sure it is quite accurate to say that all of the evidence that came to the court was then in the hands of the plaintiff. But certainly considerable evidence was in the hands of the plaintiff and certainly by the time of the motion of Quirke J., as I have already indicated, affidavits were lodged in relation to the three persons that I have indicated. (Robert Stamp, Dick Parle and Thomas Murphy).

It does seem to me that in the circumstances that I should award only part of the costs of the plaintiffs in this case to come out of the estate. It seems to me that the appropriate order should be that one-third of the costs of the plaintiffs should be defrayed from the estate. Then I would affirm the orders that were already made that the will be proved in solemn form, that the defendants are entitled to their entire costs from the estate, and that the plaintiffs are entitled to one-third of their costs from the estate.”

I believe the defendants in this case were entirely correct to set out by means of statements and reports the evidence which they proposed to rely on at trial. I would encourage such an initiative in all testamentary proceedings which lend themselves to such a step. 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. I see this as the equivalent in probate terms of a lodgment or tender made in a personal injuries action. I believe it is an approach which should be adopted whenever possible. It would represent a valuable protection for the estates of deceased persons, without in any way diluting the principles enunciated in Vella v. Morelli. Thus, while it may be reasonable to commence and bring proceedings, and to bring them bona fide, a point may arrive where, as a result of disclosure made by the defence, the further maintenance of the claim can no longer be seen as reasonable. In such circumstances, it seems to me a trial judge should not be fettered in the exercise of his discretion as to costs and should be free both to decline costs from the estate to an unsuccessful litigant or even to award costs against such a litigant from the time of disclosure.

In the instant case, however, I am not satisfied, based on an objective evaluation of the documentation supplied to the plaintiffs before trial, that there was sufficient information therein to meet all of the requirements or concerns which the plaintiffs may reasonably have had. Firstly, the testator was an elderly man in poor health who had never before made a will. Thus, until a matter of months before his death, the estate of Nicholas Roche would have fallen to be distributed on intestacy in equal shares among his three sisters. Given that there was no family disharmony of any sort at that time, the terms of the will mark a radical shift from that position, given that each sister was left a sum of only 10,000 euro. Secondly, this case is marked by the somewhat unusual occurrence that the services of the testator’s General Practitioner were dispensed with by Robert Stamp – perhaps for very good reason – and a new GP was brought in by him when the testator moved to the home of the second named defendant. The arrangements for making the will were made and procured by the first named defendant apparently without reference to the other sisters of the testator. One of those sisters, Mary Roche, who is not a party to the proceedings, nonetheless told the court that she had considerable reservations about her brother’s ability to make a will, noting that he could neither read nor write. The very professional detail of the will as finally executed is in stark contrast to the state of affairs described by this particular witness. Thirdly, the medical evidence is understandably focused on the testator’s physical condition and would fall short of what would normally be required by the Probate Court when assessing testamentary capacity in an uncontested case coming before it. I would see these medical reports as providing limited support only for the testamentary capacity of the testator and his ability to withstand undue influence.

I stress I am in no way stating that there was undue influence or anything of the sort in this case. In particular I would wish to emphasise that I am not suggesting that Mr. Murphy’s role was anything less than fully professional and appropriate. There is no appeal from the findings of the learned High Court judge in these respects and Mr. Spierin has confirmed to this Court that his clients are satisfied following the hearing to abide the findings made in the High Court, other than as regards costs. I confine myself exclusively to the issue as to whether or not it was reasonable to continue with the proceedings following the level of disclosure made by the defendants and in this regard I have concluded that it was reasonable for the reasons set out above. These concerns, or some of them, could not have been dispelled without the benefit of a full hearing. Despite the expense involved, there will obviously be cases such as the present one where nothing short of a full hearing will satisfy parties to a family dispute that all is above board. Any judge who has had experience of such cases either as barrister, solicitor or judge will be well aware that the cathartic nature of a full hearing may in certain instances provide the only solution.

I would therefore allow the appeal in this case and allow the plaintiffs their full costs from the estate, including the costs of this appeal. In so saying, I would hope that in future those representing estates will avail whenever possible of the option of the “probate lodgment” concept described above.