herald

Wednesday 14 November 2018

Bitter court battle after woman leaves nearly €4m to sons while daughters get her china and cutlery

High Court in Dublin was the setting for the case involving feuding family
High Court in Dublin was the setting for the case involving feuding family

A mother left her china, delph and cutlery to her three daughters along with €5,000 each - and €3.8m of her assets to her three sons.

The eldest son, a 53-year-old married father-of-two, has successfully challenged the will in the High Court after he received only a tiny fraction of the massive estate.

The man, who now works as a hackney driver after being forced out of the family farm business in 2007, received only a three-and-a-half-acre strip of land valued at €42,000 in 2013 when his mother died. It is worth €100,000 today.

Duty

The man's brother - the executor of the estate and personal representative of their mother - received gifts from the estate to the value of €3m in 2013. The 199 acres bequeathed to him are now valued at €3.55m.

Now, as a result of a High Court judgment delivered after a six-day private hearing between the two sides, Mr Justice Denis McDonald has directed that the eldest son receive 90 acres to the value of around €1.27m - lands described in the case as "from the village to where the stone wall goes through the shed".

These were lands promised by the mother to her eldest son in 1997 before their falling out and before she revoked her original will.

At the end of a 30,000-word judgment in "K v K", Mr Justice McDonald found that the mother "did fail in her moral duty to make proper provision for the plaintiff in her last will".

The judge said the mother "does not appear to have considered she should make any significant provision for her daughters in her will".

He said it is notable that none of the daughters has made a claim under Section 117 of the Succession Act and "furthermore, neither of the daughters who gave evidence before me suggested they were living in straitened circumstances".

Mr Justice McDonald said "the animus between the parties was palpable".

Bitterness

He said it became clear that none of the family are on speaking terms with the plaintiff, the eldest son, save for his sister M.

The judge said that even in the witness box, it was clear from M's demeanour that she shared some of the animus against the eldest son.

Mr Justice McDonald said "there are very deep divisions within the family" and several times he urged the parties to settle because any finding imposed by the court is likely to give rise to ongoing bitterness.

He said the disparity between what the eldest son received and what his brother received from the estate "is extreme".

The eldest son "had been left in a very difficult position following his expulsion from the family business in 2007", he added.

He had worked on the farm since the age of 15, and Mr Justice McDonald said that because of his lack of experience of work other than the farm, "a just and prudent parent would, in my opinion, have made more significant provision for him".

The judge found the gift to him under the will "was disproportionately small" when compared with the gifts to the defendant and a third son, J, who received gifts to the value of €748,547.

The judge said the eldest son's annual income from his hackney driver business at the death of his mother in 2013 was €16,000 after tax and he had savings of €3,000.

The father in the family had died in 1996, with all assets transferring to his wife.

In a will made in 1997, the mother left a substantial part of the farm to her eldest son.

However, in 2003 she made a new will under which the area of land she proposed to give to the eldest son was very substantially reduced.

The judge also found the plaintiff's contribution to the farm in the period up to his father's death was significantly more extensive than that of his brothers.

Mr Justice McDonald said he believes the mother's "dramatic change of heart" in revoking the 1997 will seems likely to have come from her unhappiness at the involvement of the eldest son's in-laws in a property dispute against her which took place in the courts in 2001/02.

"I have reached the conclusion that the court case did cause significant resentment on the part of the deceased and the other members of the family," he said.

Mr Justice McDonald said the 2001/02 court dispute between the eldest son's in-laws and the mother was the underlying reason why she in 2007 took the "very harsh decision to terminate the plaintiff's involvement in the family farming and sand and gravel/concrete business".

Disappointing

The eldest son had worked on the farm for three decades and said his mother came to his home in 2007 and told him things were not working out between himself and his brother (the defendant), to such an extent that he was "going to have to find something else to do with his life".

The eldest son was paid up until Christmas 2007 and then dismissed. He said he often did not receive a wage for his work as his father often told him: "You're doing it for yourself, sure I can't take it with me."

The three sons all left school at the age of 15. The parents were keen for the daughters to complete their Leaving Cert.

Mr Justice McDonald said the atmosphere in the case was not improved by the manner in which the defendant chose to deal with the plaintiff's case, and it was deeply disappointing that the defendant refused to engage in mediation.

He pointed out that the plaintiff's counsel was very critical that on the evening of the fifth day of the trial, the defendant made an offer at 4.07pm to settle the proceedings, but it was to remain open only until the end of business that same day.

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