A successful High Court challenge by two sisters to their late father's gifting of his Co Tipperary pub and family home to their brother, now deceased, has been upheld by the Supreme Court.
The three-judge court dismissed an appeal by Mrs Michelle Carroll, widow of the late Thomas Carroll junior, against the High Court's decision to grant an application by Ms Winifred Carroll (37) and her sister, Mary Jane (31), to set aside a voluntary conveyance of May 1990 whereby their father, Thomas Carroll snr, who died in 1992, transferred to his son, ,Thomas, his pub and residence at Burke Street, Fethard, Co Tipperary.
Thomas jnr married Michelle in September 1993 and died, aged 29, in a road accident in January 1994. Some weeks later his sisters, who lived in Dublin but came to Fethard every weekend to help run the pub, learned for the first time that the May 1990 document which they believed was an arrangement whereby Thomas jnr was entitled to run the business was in fact a conveyance of the entire property.
They instituted proceedings, and the High Court found the conveyance was procured by undue influence and was an improvident transaction. The Supreme Court upheld the decision to set aside the conveyance.
In her judgment, Mrs Justice Denham said the onus was on Michelle Carroll to produce evidence to dislodge the presumption of undue influence. She affirmed the High Court's decision that this was not done.
The relationship between Thomas snr and Thomas jnr raised the presumption of undue influence.
She also affirmed the High Court decision that the legal advice received by Thomas snr was inadequate.
In his judgment, Mr Justice Barron said the sisters were surprised to find the entire property had been conveyed. Their father had never told them this was done and always assured them that they always had a home in the premises.
Outlining the circumstances, the judge said Thomas jnr was anxious to come to an arrangement with his father whereby he should run the business. He contacted a local solicitor, Mr Philip Joyce, who was not the family solicitor, and told him of the proposed arrangement.
Mr Justice Barron said Mr Joyce went to see Thomas snr and obtained instructions from him to transfer the entire premises to his son. Mr Joyce was told by Thomas jnr his father wanted a right of residence only. Thomas snr also said that, and a deed reserving that right was executed by him.
The case made to set aside the deed of conveyance was that Mr Joyce was unaware of what assets Thomas snr had, and was also unaware of the family relationships. The judge said the evidence was also clear that the donor was old and infirm and devastated by the recent death of his wife, who had been some 25 years his junior.
Ms Michelle Carroll, widow of Thomas jnr, argued that Thomas snr was of sound mind and knew very well what he was doing and had available to him the independent legal advice of Mr Joyce.
Mr Justice Barron said the evidence left a clear doubt about Thomas snr's real intention and whether he knew what he was doing.
He said a solicitor who acted for both parties could not be independent of the donee.
To satisfy the court that the donor was acting independently of any influence from the donee and fully appreciated what he was doing, it should be established that the gift was made after the nature and effect of the transaction had been fully explained to the donor by some independent and qualified person.
The advice must also be given with a knowledge of all relevant circumstances and similar to that which would be given by a competent adviser acting solely in the interests of the donor.
There could have been no independent advice given by Mr Joyce since, at best, he was acting for both parties, the judge said. Mr Joyce did not have knowledge of all relevant circumstances and he did not give advice, he merely set out to carry out the donor's instructions.
Mr Justice Barron said solicitors or other professionals did not fulfil their obligation to their client by simply doing what they were asked or instructed to do. They owed clients a duty to exercise their professional skill and judgment and "do not fulfil that duty by blithely following instructions without stopping to consider whether to do so is appropriate."
A solicitor must give advice as to whether or not what is required of him is proper. Mr Joyce's duty was to advise Thomas snr to obtain independent advice.
In the present case, whatever independence Mr Joyce may have had had been destroyed by his acting in the present proceedings as solicitor to the widow of Thomas jnr, the judge added.