High Court of Ireland Decisions

1. The late Maria Tiilikainen (née Moorhead) (hereinafter "the deceased") died intestate on the 3rd September, 1997 survived by three children who are represented in these proceedings by the second Defendant defending by his father named in the title hereof. The first Defendant is the husband of the deceased and the Plaintiff, her brother, brings these proceedings in his capacity as acting executor of his mother the late Patricia Moorhead who died on the 10th October, 1997, that is a little over a month after the deceased.

2. The late Patricia Moorhead left her entire estate to her three children namely the Plaintiff, the deceased, and their sister Carmel in equal shares. Notwithstanding the fact that the deceased died before her mother this gift did not lapse by reason of the provisions of Section 98 of the Succession Act, 1965 which as applied to the circumstances of this case where the deceased has left issue living at the time of the death of her mother, provides that the gift shall not lapse but shall take effect as if the deceased's death had occurred immediately after the death of her mother.

3. By a separation agreement dated 6th December, 1991 the first Defendant and the deceased agreed to separate and expressed themselves as mutually covenanting and agreeing, inter alia,

4. By clause 11 of the same agreement the parties further provided as follows:-

5. The Applicant in his Affidavit grounding these proceedings deposes as follows:-

6. The first named Defendant in an Affidavit states that from January, 1994 he and the deceased had recommenced their matrimonial relationship living as man and wife and whilst this relationship was interrupted by two periods of three months each when he was employed in Japan, it continued until the death of the deceased who has since the death of his wife remained at the family home in Three Mile Water, Wicklow with her three children namely, Riki and Kevin Tiilikainen (both his sons) and the third Defendant who is in his custody with the consent of his father.

7. In an Affidavit sworn by Steve O'Donoghue on behalf of his son the second named Defendant this reconciliation and recommencement of co-habitation between the first Defendant and the deceased is controverted and challenged. Steve O'Donoghue avers (and this is not in contest) that he himself entered into relationship with the deceased in or about the year 1990 and in oral evidence specified that this relationship continued for two years and 10 months. Indeed, it was this relationship which brought about the separation agreement already referred to and the first Defendant's voluntary withdrawal from the household at Three Mile Water to take up work in Lambay Island. Steve O'Donoghue avers that there was no reconciliation as claimed by the first Defendant and states that the first Defendant was merely permitted to return to live at Three Mile Water for the sake of the children and on the basis of his poverty. He says that the first Defendant slept upstairs with his two sons whilst the deceased slept downstairs with his son the second Defendant. He makes specific reference to a meeting on the 25th May, 1996 at a public house in Wicklow where he says it was obvious that the deceased was having a sexual relationship with a new boyfriend, Bernard Mulcrone, that the deceased said to the assembled company that there was no chance of any reconciliation with the first Defendant at all and that she was very happy and in love with Bernard. This relationship continued while the first Defendant was in Japan.

8. From the foregoing it is clear that there is a conflict of fact as to whether or not the first Defendant recommenced his marital relationship with the deceased and I ruled that respective Counsel should cross-examine the Deponents on their Affidavits in regard to this issue of fact. I will return to the evidence later.

9. The Plaintiff seeks directions, further, as to whether in the event that I were to hold that there had been a reconciliation as contemplated by clause 11, this had the effect of nullifying the renunciation and surrender by the first Defendant of all his rights to the estate of the deceased under the Succession Act, 1965. The point made by the Plaintiff in his Affidavit is that clause 11 provides in the contemplated circumstances that all covenants should become null and void and there is a question as to whether a renunciation and surrender is or is not a covenant.

10. The relevance of this is that if the renunciation of his rights under the Succession Act, 1965 by the first named Defendant applies then the one third interest of the deceased in her mother's estate will be divided equally between her three surviving children namely Riki Tiilikainen, Kevin Tiilikainen and John (otherwise Jack) O'Donoghue; whereas, if that renunciation is nullified then the said one third interest will itself be divided as to two thirds to the first named Defendant and as to one ninth part each to the said three children.

11. Accordingly, I must first decide, in light of the evidence, whether the first Defendant was in fact reconciled with the deceased so as to come within clause 11 of the Deed of Separation and, if so, whether this had the effect of nullifying his renunciation and surrender of rights under the Succession Act.

12. The Affidavit of Steve O'Donoghue is based largely on information communicated to him on the telephone by the deceased. It is therefore hearsay evidence. Mr O'Donoghue was cross- examined on the contents of his Affidavit and Mr Peart S.C. submitted on behalf of the second named Defendant that this "let in" the evidence in chief of John O'Donoghue together with further evidence elicited on re-examination. He relied on a paragraph in an earlier edition of Phipson on Evidence substantially replicated in paragraph 33-70 in the 13th edition of that work. Where relevant the text provides as follows

13. I consider that I should have regard to the evidence of John O'Donoghue in all the circumstances.

14. A further point was made by Mr Peart S.C. to the effect that a diary kept by the deceased and exhibited by John O'Donoghue in his Affidavit should not be admitted because the deceased was not here to prove it and interpreting it involves speculation. Ms Cawley B.L. submitted, on behalf of the first Defendant, that the diary should be admitted, notwithstanding, because John O'Donoghue made no comment in his affidavit challenging its authenticity although he does comment on its contents. Moreover, in cross-examination John O'Donoghue conceded that some of the references to "T" in the diary were probably references to the first named Defendant (known as "Tapsa" by the deceased) and not to other parties known to her whose names began with "T" as contended by him in his Affidavit.

15. I consider that I should have regard to the diary not only because there is no suggestion that it is not indeed the diary of the deceased, but also because it is relied upon by both Defendants.

16. The first Defendant gives evidence by Affidavit that the first significant step in the reconciliation which he says occurred with the deceased took place at Christmas 1993 after she had ended her relationship with Stephen O'Donoghue. He says he recommenced his matrimonial relationship from January, 1994 sleeping with the deceased in the matrimonial bedroom (which was upstairs) as man and wife. He refers to the deceased's diary for the year 1994 for the purpose of illustrating frequent references to himself throughout that year. He says he was maintaining the deceased and their children and that he bought her a Volkswagen Golf motor car. Subsequently a letter from Cavan County Council was produced at the hearing before me confirming that the car was registered in the name of the deceased.

17. He says he finished working in Lambay Estate in June of 1995 and then went to live with the deceased as man and wife at Three Mile Water working at the Blainroe Hotel and other places. He gave evidence that he worked in Japan for the first and last three months of 1996. His absence, he says, was in the context of a resumption of matrimonial co-habitation. When he returned he recommenced living at Three Mile Water with the deceased who had a mild stroke in August, 1997 and subsequently suffered a brain haemorrhage and died at St Colmcille's Hospital, Loughlinstown, Co Dublin on the 6th September, 1996.

18. He further states that as a consequence of her illness the deceased made him promise to her that he would keep the three boys, namely his two sons and the son of Stephen O'Donoghue together, and look after them. He has complied with this promise since her death residing with the three boys at Three Mile Water.

19. In oral evidence he said that he discharged the deceased's overdraft with the Allied Irish Bank paying £10 per week and a further £5 per week to pay a Visa bill for her. He allowed her access to his account and opened a small joint account with the Credit Union in Wicklow. Bernard Mulcrone was a co-worker with him at the Blainroe Hotel which would appear to place the latter's appearance on the scene in 1995. He was cross-examined as to his drinking habits and appears to accept in a general way that he drank regularly and on occasions too much. He accepted that he had a physical fight with Bernard Mulcrone because the latter was getting too close to his wife and admits that he lost his head on one occasion giving him a bruised face but not a broken rib as suggested. He clarified that he was not making any claim to the house at Three Mile Water as a family home but was making any claim to which he was entitled under the Succession Act.

20. He said that after the reconciliation he neglected to have any wills or documentation drawn up by himself and the deceased clarifying that they had recommenced co-habitation because she got sick and this would be the last thing he was asking for in that context. He was not able to produce any documentation supporting his case that he had recommenced to live with the deceased as man and wife, for example, joint invitations or joint bank accounts. He became confused when questioned about the car which had been given to his wife and said it had been scrapped after she died. He believed that the deceased and Bernard Mulcrone were good friends but that they did not have a sexual relationship. He said that he shared a bedroom with his wife which was upstairs, that there was a second bedroom upstairs and also a landing upstairs which was used by Kevin, one of the boys. Bernard Mulcrone was working with him at the Blainroe Hotel in 1995 and on occasions, perhaps as frequently as three nights a week or more, he would sleep at Three Mile Water which was convenient to the place of work. On these occasions Bernard Mulcrone slept downstairs on the sofa in the living room.

21. Bernard Mulcrone gave evidence and agreed that he was a very good friend of the deceased but denied that he ever had a sexual relationship with her. He explained the occasion when he had the fight with the first Defendant as starting when the first Defendant saw him with his arm around the deceased. He denied that he was having a physical or sexual relationship with the deceased but did accept that the first Defendant might have misconstrued the situation. He said that the first Defendant slept upstairs in the house at Three Mile Water with his wife. He met Stephen O'Donoghue on three occasions including once at the Forge Tavern when Jack O'Donoghue was being brought to meet his father coming from England to see his son after many years. He did not remember the deceased saying or implying that she was having an affair with him at the meeting at the Forge Tavern.

22. Evidence was given by Stephen O'Donoghue father and guardian ad litem of the second Defendant. He was cross-examined on his Affidavit and stated that his affair with the deceased commenced he thought in approximately 1990 and continued for two years and ten months. They parted because they were unsuited and were having rows and fought like cat and dog. He was the subject of a barring order in 1993, he said that the deceased slept with his son Jack and initially claimed that references in her diary (for 1994) to "T" were not necessarily references to the first Defendant who was known to the deceased as "Tapsa". However, he conceded that a number of specific references indicating that "T" had gone to Lambay were possibly references to "Tapsa". He referred to the meeting at the Forge Public House where the deceased, Bernard Mulcrone, himself, his new girlfriend and his son were present and where the deceased introduced Bernard Mulcrone as her new boyfriend. This was the day after his son's birthday.

23. He said that the first Defendant did not sleep with his wife in the house but that the deceased, his son (Jack) and Bernard Mulcrone slept downstairs, all in the living room and that "Tapsa" (the first Defendant) slept upstairs with his two sons. His source of information for this was the deceased herself. Clearly this evidence is hearsay but on the basis to which I have already referred, in my view I must take it into consideration.

24. This witness accepted that he consented to the first Defendant having custody of his son. He said he had no option but to agree to this because he had no way of winning custody of his son and the agreement meant that he could see his son for two weeks in the summer and one week at Christmas which was more than he had seen him prior to that.

25. He said that at the meeting at the Forge Tavern he had seen Bernard Mulcrone holding hands with the deceased and that in all his conversations (on the telephone) with the deceased she gave him no hint of a reconciliation with the first Defendant. It was simply a case that "Tapsa" never really came up.

26. In his Affidavit and again in oral evidence this witness emphasised the drinking of the first named Defendant and the fact that he Stephen O'Donoghue used to have to cruise the pubs in Wicklow looking for him in order to bring him to meet his sons. He claimed his wife, the deceased, never wanted to see him and only tolerated him for the sake of the children.

27. I have had the benefit of seeing the witnesses give their evidence as well, of course, of considering the Affidavits. In my opinion it is more likely that the first named Defendant did effect a reconciliation with the deceased than not. The evidence on each side of this issue was less than ideal: it is surprising that the first Defendant was not able to furnish any documentation whatsoever supporting his claimed reconciliation with the deceased. His evidence was, however, corroborated in part by Bernard Mulcrone who said that the first Defendant slept upstairs with his wife and he himself specifically denied having a sexual relationship with the deceased as alleged by Stephen O'Donoghue. The diaries of the deceased for the year 1994 support, in my view, an ongoing weekly contact with the first Defendant.

28. On the other hand whilst admissible for the reason already referred to, the evidence of Stephen O'Donoghue is largely based on what he was told by the deceased on the telephone. The source of this evidence is not therefore available to be cross-examined. Furthermore, the impression gained by Stephen O'Donoghue was in one or two respects clearly incorrect. In my view the references to "T" in the diaries of the deceased for 1994 are indeed references to "Tapsa", contrary to the contention of Stephen O'Donoghue. I accept the evidence of Bernard Mulcrone that he did not have a sexual relationship with the deceased which, once again, runs counter to the impression of Stephen O'Donoghue.

29. Furthermore the fact of a reconciliation is corroborated in principle in the Affidavit of the Plaintiff the brother of the deceased. Once again, of course, this evidence is based in part on hearsay but also in part on his occasional visits to the residence at Three Mile Water, Wicklow and on his contact with his mother and his late sister.

30. Having carefully considered the evidence I hold that the first Defendant and the deceased did recommence co-habiting as man and wife within the meaning of clause 11 of the Separation Deed and that this extended for "a continual period of twelve months". In this latter regard I should say that I accept the first Defendant's evidence that his absence in Japan for work was in the context of a re-established matrimonial relationship and in my view would not mean that this period of absence would break the continuity of the re-established co-habitation.

31. The Separation Deed at clause 1 sets out three specific matters which are dealt with on the basis that the husband and wife "mutually covenant and agree with each other" in relation to them. In my view I should look at the terms of the agreement itself to see what the parties meant by the word "covenant". Clause 8 thereof also refers to a covenant to the effect that the parties "shall not at any time now or in the future apply to Court for an Order for Judicial Separation".

32. Mr Spierin for the Plaintiff submitted that it was open to the Court to construe clause 1(c) of the Agreement as a covenant by the husband and wife not, in the future, to make claims against the estate of each other. The renunciation and surrender would have effect not at the time of the making of the deed but at some time in the future. It was, accordingly, akin to a covenant strictly so called.

33. Miss Cawley submitted that in my interpretation of the Agreement I should be influenced by the policy in Family Law statutes which is to encourage reconciliation. She made a number of specific references to statutory provisions to illustrate this submission.

34. In my view it was the intention of the parties to this agreement that in the event that they recommenced co-habiting as man and wife with mutual consent for a continual period of twelve months then their mutual renunciation and surrender of all or any rights they may have in the estate of the other under the provisions of the Succession Act, 1965 should be rendered null. Accordingly I hold that the first Defendant's renunciation and surrender contained in clause 1(c) of the Separation Deed is null in the events which have occurred.

35. In these circumstances the questions asked in the special summons will be answered as follows