High Court of Ireland Decisions

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.

11. Court could only be so satisfied as a matter of probability where there was

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.

13. It was submitted that:-

14. He (the deceased) knew that both of his daughters had been adequately

15. Permanent Building Society in which a sum of £27,000 had been

16. Carroll and Winifred Carroll.

17. The Defendants Counsel submitted that the presumption of undue

18. Court was satisfied that the foregoing matters of fact had been

19. Donor or Transferor of the property. It has long been accepted that cases of

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

21. It is to be noted from the advices of Lord Hailsham that he did not regard

22. Plaintiff to establish that the transaction in question was not the result of a

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.

24. While I have concluded that the 1990 transaction should be set aside on the

25. He was disposing of it at a time when he was dependant on his son for his

26. Deed from Philip Joyce for the first time; by November 1994 proceedings

27. Accordingly this plea in the defence fails.

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.