Supreme Court

Winifred Carroll and Mary Jane Carroll
(Plaintiffs)

v.

Michelle Carroll
(Defendant)

No. 7751p of 1994 & No. 117 of 1998
[21st July 1999]

Status: Reported at [1999] 4 IR 243; [2000] 1 ILRM 243 

Denham J.	
This is an appeal by the defendant from the decision of the High Court (Shanley J.) delivered on the 5th March, 1998, reported at [1998] 2 I.L.R.M. 218, wherein he held that a deed of the 3rd May, 1990, should be set aside.
This action was at hearing before the High Court on the 19th, 20th and 24th February, 1998, when, inter alia, oral evidence was heard. Facts were found by the learned trial judge commencing with the fact that the plaintiffs brought the action to set aside a conveyance made on the 3rd May, 1990, on the grounds that (a) the conveyance was procured by undue influence, and (b) that it was in itself an improvident transaction. The property in question is a public house together with residential accommodation situated at Burke Street, Fethard, Co. Tipperary, which was owned in fee simple by Thomas Carroll senior. By the conveyance of the 3rd May, 1990, Thomas Carroll senior conveyed his interest in the premises to his son, Thomas Carroll junior, “in consideration of the natural love and affection which Thomas Carroll bears for his son, Thomas Carroll” subject only to a right of Thomas Carroll senior to reside in the dwelling house attached to the public house for the remainder of his lifetime. The plaintiffs are the legal personal representatives of Thomas Carroll senior, who is deceased and the defendant is the legal personal representative of Thomas Carroll junior, who is also deceased.

Family history

The learned trial judge made clear findings of fact in relation to the family. This litigation arises as a result of events occurring in the Carroll family. In 1959, Thomas Carroll senior married. He purchased a public house by conveyance dated the 31st December, 1960, wherein the premises at Burke Street, Fethard, Co. Tipperary, were conveyed to Thomas Carroll senior. Thomas Carroll senior was then in his late 40’s and suffering from arthritis. The public house business was run by his wife Sarah, also known as Sadie. Three children were born to Thomas Carroll senior and Sarah being the first plaintiff, born on the 20th February, 1962, Thomas born on the 11th August, 1964, and the second plaintiff born on the 8th January, 1968. They were a happy family. The children started at local schools, the first plaintiff spent her last two years of schooling at a boarding school and the second plaintiff spent five years as a boarder in Loretto Convent in Rathfarnham and then did a commercial course in Alexandra College. Thomas was not particularly interested in academic studies, his main interest was farming. A number of his uncles had farms near Fethard. Thomas Carroll junior spent much of his time working on the farms and helping his uncles. The family lived in the accommodation attached to the public house. The profit from the business of the public house maintained the family. The children helped in the running of the public house and from 1974, Sadie Carroll engaged the services of a full-time barman. The first plaintiff, after her schooling, obtained a job as a secretary in Dublin where she lived and travelled home to Fethard every weekend. She got married in 1986. Unfortunately her husband was unwell and ultimately in February, 1988, her marriage was annulled. The first plaintiff obtained a loan from a building society and purchased a house in Dublin. She resides there with the second plaintiff. The second plaintiff obtained a job after she left Alexandra College and lived with the first plaintiff. Every weekend they, the plaintiffs, would travel to Fethard and help in running the public house.
Thomas Carroll junior, after finishing his schooling, spent a short time in Dublin and then returned to farming and helped his uncles in the running of their farms. In consideration of Thomas Carroll junior looking after his uncles, Patrick and Philip, and agreeing to reside with them if required to do so, and in consideration of him helping in the management of the farms, on the 22nd April, 1988, Thomas Carroll junior was registered as full owner of farmlands in Milltown, Co. Tipperary, as tenant in common of one undivided third share of the property, a farm of 185 acres. Also, Thomas Carroll junior helped his uncle Gus at his farm and when his uncle died in the early 1990’s Thomas Carroll junior was left one half of the farm at Killustry, Co. Tipperary, which amounted to about 45.2 acres.
Sadie Carroll died of cancer on the 13th June, 1989. She had been ill for some time prior to her death during which time her daughters went home as often as possible and in any event every weekend. When she became too ill to work Thomas Carroll junior assumed control of the business during the week. At weekends the plaintiffs helped in the running of the public house. The learned trial judge in Carroll v. Carroll 1998]  2 I.L.R.M. 218 at pp. 221 to 223, found the facts at the time of the death of Sadie Carroll as follows:-
“Her husband was devastated. At the time of her death, he was in his late 70s 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 pacemaker 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 any way impaired at that stage. He was, of course, extremely depressed at the passing of his wife and the phrase ‘devastated’ was used by a number of witnesses to describe the impact his wife’s death had upon him.
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 senior, 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 value added tax of some £20,000. Thomas Carroll junior 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 junior. 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 encouraged and comforted in this view by their father regularly saying to them that their home would always be there for them. They recalled him saying this both before and after the transfer dated 3 May 1990 – which is the transfer in dispute in this case. Neither of the girls believed that their father had intended to transfer any ownership in the property to their  [brother] by the deed of the 3 May 1990. While that is so, there is no suggestion from them that their [brother] in any way bullied or cajoled their father into transferring the property to him. Each of them is satisfied that, had the father in fact intended to transfer the property in the premises to their [brother] in 1990, he would have told each of his daughters that that was what he had done.”

The transfer

The transfer in issue was executed on the 3rd May, 1990. Mr. Philip Joyce, solicitor, gave evidence to the High Court that he was contacted by Thomas Carroll junior in respect of the transfer of premises from Thomas Carroll senior to Thomas Carroll junior. He was told that there was a V.A.T. liability that Thomas Carroll junior was anxious to discharge. Mr.Joyce recalled visiting Thomas Carroll senior and sitting with him in his kitchen and discussing the question of the transfer. He recalled that Thomas Carroll senior told him he wanted his son to have the premises without conditions. Mr. Joyce recalled telling Thomas Carroll senior that he should have a right of residence in and maintenance and support out of the premises. The first meeting lasted 15 minutes and Mr. Joyce then prepared a draft transfer which he sent to Thomas Carroll junior. The draft contained provision for a right of residence and a right to be maintained and supported out of the premises but Mr. Joyce recalled Thomas Carroll junior responding that Thomas Carroll senior did not want any maintenance or support in the deed. Mr. Joyce visited Thomas Carroll senior for a second time, Mr. Joyce recalled going to the meeting with two engrossed deeds, one contained a maintenance and support provision and the other did not; according to Mr. Joyce, Thomas Carroll senior stated that he did not want to have any provision as to maintenance and support in the deed. This second meeting lasted fifteen to twenty minutes. Mr. Joyce said he was satisfied that Thomas Carroll senior understood matters fully. Thomas Carroll senior executed the deed which provided merely for a right of residence.

No attendance note

Mr. Joyce kept a file relating to the transaction. There is no attendance note of either of the meetings Mr. Joyce had with Thomas Carroll senior. This is most unfortunate. There is correspondence on the file, but it is all directed to Thomas Carroll junior.

Client

Mr. Joyce has acted for more than one member of the family. As the High Court (Shanley J.) found at pp. 223 and 224:-
“Given the nature of his initial instructions which were relayed to him by Mr. Carroll junior, 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 senior up until the transfer had been completed, and that thereafter he acted for Mr. Carroll junior. That he acted for Mr. Carroll junior thereafter is beyond doubt in that the file contains correspondence directed to financial institutions on behalf of Mr. Carroll junior, and contains undertakings given by Mr. Joyce on behalf of Mr. Carroll junior to those financial institutions. While on one view of matters Mr. Joyce believed that he could be said to be acting for Mr. Carroll senior 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 is now solicitor for the defendant in these proceedings.

Assets

The learned High Court Judge found that Mr. Joyce made no inquiries of Thomas Carroll senior as to whether he had any other assets apart from the premises the subject of the transfer. In light of the absence of clauses for maintenance and/or support this is a serious matter for consideration. Mr. Joyce did not believe he had any obligation to satisfy himself that Thomas Carroll senior had any other assets to support himself on the transfer of the premises in issue. The effect of the transfer was that practically all Thomas Carroll senior’s assets were transferred to Thomas Carroll junior subject only to the right of residence.

Children

It was also found as a fact that Mr. Joyce did not ask any questions concerning other children of Thomas Carroll senior. Nor did he know of the close knit relationships in this family.

Mr. Thomas Carroll senior

Mr. Joyce did not accept that he should have adverted to the possibility that Thomas Carroll junior would not support Thomas Carroll senior out of the assets nor the possibility that Thomas Carroll junior might die before Thomas Carroll senior leaving him without any financial income. The learned trial judge found that Mr. Joyce was firm in his view that he got “clear and unambiguous instructions” from Thomas Carroll senior. Between the 3rd May, 1990, and the 20th March, 1992, when he died, Thomas Carroll senior did not tell his daughters of the transfer of the property. In that time the plaintiffs continued to travel to Fethard each weekend and to help with the public house business. Thomas Carroll junior ran the business during the week. During those two years Thomas Carroll senior’s eyesight deteriorated, his arthritis and pain got worse, his hearing and general health deteriorated.

The defendant

Michelle Fogarty met Thomas Carroll junior in 1991 or early 1992. They married in September, 1993. She recollected that Thomas Carroll junior told her that he owned the premises. She lived in the public house prior to their marriage. When the barman was off duty she worked in the public house. Thomas Carroll junior spent most of his time on the farm. After their marriage they continued to live at the premises and the plaintiffs continued to go to Fethard each weekend and help in the running of the public house. Thomas Carroll junior died as a result of a road traffic accident on the 17th January, 1994. He owned a portion of the Killusty farm in Co. Tipperary and had an interest in the Milltown farm in Co. Tipperary as well as the premises in issue.
Shortly after her husband’s death the defendant asked the plaintiffs to give her a lift to Mr. Philip Joyce’s office. They saw Mr. Joyce also who told them that they, the plaintiffs, had no rights in the premises in Burke Street. The plaintiffs were devastated. However, they continued to travel to the premises at weekends. Tensions grew between the plaintiffs and the defendant. Matters came to a head in June, 1994. Allegations were made by the plaintiffs against the defendant. The defendant alleged that the first plaintiff said to her “You were never good enough for him”. After this the plaintiffs did not stay at the premises at the weekends. Steps were taken and these proceedings were commenced in which the plaintiffs succeeded in the High Court. Against that decision the defendant has appealed.

Appeal

The notice of appeal brought by the defendant was, inter alia, on the following grounds:-
1.       that the learned trial judge erred in law in finding 
that the presumption of undue influence arose having regard to the fact that evidence was given by the plaintiffs that Thomas Carroll junior had not exerted undue influence on the mind of Thomas Carroll senior;
2.        that the learned trial judge erred in law in finding 
that any presumption of undue influence was not capable of being rebutted or displaced by:-
(a)	the evidence of the clarity of mind of 
Thomas Carroll senior at the time of making the deed;
(b)	the availability of independent legal advice;
(c)	the admission in evidence by the plaintiffs
that Thomas Carroll junior had not exerted any such undue influence;
3.        that the learned trial judge had erred in law 
and fact in failing to give due weight to evidence on behalf of the defendant;
4.        that the learned trial judge’s findings were 
contrary to and against the weight of the evidence;
5.        that the learned trial judge erred in fact and
law in finding the said transaction improvident having regard, inter alia, to the clarity of mind of Thomas Carroll senior in and about that time and the availability of independent legal advice.

Submissions

Counsel for the defendant, in oral submissions, on the issue of undue influence quite correctly accepted that the relationship between Thomas Carroll senior and Thomas Carroll junior and the circumstances in which Thomas Carroll senior found himself were such as to raise the presumption of undue influence. He argued that such presumption is only a presumption and is rebuttable. He submitted that it can be rebutted by:-
(a)	Independent advice, whether legal or other qualified
advice, while such independent legal advice is not essential to rebut the transaction, see Provincial Bank of Ireland v. McKeever [1941] I.R. 471; Hilary Delany, “Equity and the Law of Trusts in Ireland”, Dublin, 1996.
(b)	Evidence that having received advice but contrary to
same he decided to continue with the transaction as an exercise of his own free will, see Inche Noriah v. Shaik Allie Bin Omar [1929]  A.C. 127; Gregg v. Kidd [1956]  I.R. 183.
(c)	Evidence that no influence such as the court has to 
presume was in fact exercised, see Reg. (Proctor) v. Hutton [1978] N.I. 139; Grealish v. Murphy [1946] I.R. 35; O’Rorke v. Bolingbroke  [1876-7] 2 App. Cas. 814.
On the issue of improvident transactions counsel for the defendant submitted that for equity to intervene in a transaction there must be three elements established, with the onus on the plaintiffs, namely: (1) one party at a serious disadvantage to the other; (2) transaction at a gross undervalue; (3) lack of independent legal advice. Counsel for the defendant submitted that it is necessary to show some unconscientious use of power by the stronger against the weaker, Hart v. O’Connor  [1985] A.C. 1000. He submitted that the transaction has to be seen in the light of all circumstances of the parties and their motives at the time, see Reg. (Proctor) v. Hutton  [1978] N.I 139.
Counsel for the defendant in relation to laches/acquiescence, submitted that it has long been accepted that failure to seek relief will bar same, especially where it is sought to set aside a transaction upon which the other party has acted, Allcard v. Skinner (1887) 36 Ch.D. 145; Keane “Equity and the law of Trusts in the Republic of Ireland”; H.(J.) v. H.(W.J.) (Unreported, High Court, Keane J., 20th June, 1989). He argued that acquiescence will always be a bar to equitable relief, Delany, “Equity and the Law of Trusts in Ireland”; McCausland v. Young  [1949] N.I. 49.
Counsel for the defendant submitted that having regard to the express evidence of both of the plaintiffs that at no stage did their brother unduly influence their father to make the transaction of the 3rd May, 1990, that that of itself must be sufficient to rebut the presumption that he did so influence his father having regard to the decision of Lowry L.C. J. in Reg. (Proctor) v. Hutton [1979] N.I. 139. He argued that even assuming that such evidence was not available there is clear evidence to the effect that on the date of the transaction Thomas Carroll senior was in full possession of all his faculties and had received appropriate advice as to the nature of the transaction and how his interest could be safeguarded; having considered this advice and chosen not to follow same was the exercise of his own free will and therefore in accordance with the principles set out by Hailsham L.C. in Inche Noriah v. Shaik Allie Bin Omar [1929] A.C. 127. He submitted that looking at the transaction and the nature of same the learned trial judge erred in fact and that he substantially overvalued the premises in question contrary to the evidence which had been given and failed to have due regard to the debts and liabilities in relation to same which would be taken on by Thomas Carroll junior. He submitted that in holding that the presumption of undue influence had not been rebutted the learned trial judge failed to have any regard to the evidence of the plaintiffs to the effect that there had been no undue influence by or on behalf of Thomas Carroll junior. Further he submitted that in holding the transaction was an improvident transaction the learned trial judge failed to have any regard to the relationship between Thomas Carroll senior and Thomas Carroll junior and the circumstances in which the plaintiffs found themselves, they were settled and working in Dublin and it was long established custom that the business would be transferred to a child, usually the eldest son. He submitted that in deciding that Thomas Carroll senior had not received adequate independent legal advice the learned trial judge failed to consider the evidence of Philip Joyce in that regard or the evidence of Mr. Eoin Binchy. Further, counsel for the defendant submitted that, the learned trial judge had erred on the issue of laches, as the learned trial judge had failed to have due regard to the fact that Thomas Carroll senior survived the transaction by a considerable period of time and was at all times in full possession of his mental faculties and in communication with his daughters on a constant basis and he failed to express any dissatisfaction with the arrangement or the fact that the same had not been procured by the exercise of his own free will. Further, he submitted that the learned trial judge failed to have any regard to the fact that, subsequent to the death of their father and notwithstanding their expressed views that they did not feel that the premises were owned by their brother, the plaintiffs failed to take any steps to clarify the situation in relation to the premises and it was only after the tragic death of their brother and their subsequent disagreements with the defendant that they took any steps to challenge the transaction where both parties to same were dead.
Counsel for the plaintiffs, submitted that the learned trial judge in his assessment of fact and law was right and that his conclusion was well warranted on the evidence. Counsel for the plaintiffs submitted that the matter of undue influence is displaced by evidence that clear advice and a full explanation of the circumstances were given. However, in this case there is limited evidence as to advice given and there is no full explanation of the circumstances. As regards the independence of Mr. Philip Joyce he pointed out that it had been stated he was the family solicitor, but that in fact Mr. Joyce was engaged by Thomas Carroll junior and paid by Thomas Carroll junior, and that the name on the file was that of Thomas Carroll junior. Further, it was pointed out that Mr. Philip Joyce is the same solicitor who is now acting for the defendant. In fact, as can be seen in the papers, when Mr. Philip Joyce wrote to the bank after the conveyance in issue he said “my client, Thomas Carroll junior.” He submitted that Mr. Philip Joyce could not have fully explained the consequences of the transfer to Thomas Carroll senior, for Mr. Philip Joyce did not know the family relationships, nor he did not know of Thomas Carroll senior’s other assets, if any. It was impossible to explain what he did not know. Counsel for the plaintiffs submitted that counsel for the defendant had referred to the fact that there was no evidence that Thomas Carroll senior lacked the appropriate mental capacity. He submitted that this is not a case that Thomas Carroll senior was not compos mentis. The issue of undue influence is not about that kind of person. It is not that category of infirmity. He submitted that counsel for the defendant was wrong in the test he had suggested for the Court. As regards reading over the deed counsel for the plaintiffs submitted that the onus is on the defendant, who is seeking to rebut the presumption of undue influence, to produce the evidence that the deed was read over to Thomas Carroll senior. That absence was adverted to in the trial. The opportunity to recall witnesses and to deal with that matter was not taken up by counsel. This specific matter was referred to in the High Court. He submitted that there was no evidence that the transfer was read over to Thomas Carroll senior.
Counsel for the plaintiffs submitted that the improvidence argument revolves around Grealish v. Murphy [1946] I.R. 35. With the adjustment of a single fact one can demonstrate the improvidence. If Thomas Carroll senior survived until today, when his daughter-in-law had remarried and had a family, then Thomas Carroll senior would be a sick, depressed and disabled man with no security for his care or medical care.
Counsel for the plaintiffs argued that Thomas Carroll junior assumed the V.A.T. liability of £20,000. However, he submitted that the evidence established that the liability was discharged out of the proceeds of the business. Thomas Carroll junior took on the liability, the bank loan, but he got that liability with the means to discharge it, i.e, the income from the business.
He submitted that there were three important matters of fact: -
1.	The status of Thomas Carroll senior. Thomas 
Carroll senior was devastated, depressed, dependant, infirm, sad and lonely. He might have seemed to be in a satisfactory position to a solicitor, but he was unlikely to confide his depression in his solicitor
2.	It was reiterated repeatedly by the plaintiffs that 
their father had regularly said that there would always be a home for them there. This was properly relied upon by the learned trial judge. This was evidence when considering whether Thomas Carroll senior understood what he had done, it was a relevant factor for analysis. Thomas Carroll senior was not a deceitful person. He was fair to all his children. He was a fond family man. He was unlikely to practice deception on his daughters. There was an incongruity in these facts.
3.	Counsel for the plaintiffs referred to the evidence of 
Mr. Philip Joyce. He pointed out that Mr. Philip Joyce was engaged by Thomas Carroll junior. The whole process was Thomas Carroll junior’s enterprise. Further Mr. Philip Joyce stated repeatedly “those were my instructions”. But that was not all he needed to do. Mr. Philip Joyce needed to explain fully and to give clear advice. Mr. Philip Joyce did not seem to know that the very transaction he was dealing with, would leave Thomas Carroll senior with nothing. Counsel for the plaintiffs referred the Court to the transcript where Mr. Philip Joyce referred on a number of occasions to the fact that he had to “take instructions”. Counsel for the plaintiffs argued that the law requires a different treatment to elderly men who are giving away all their property. The attitude that he was bound by “my instructions”, was a mistake on the part of Mr. Joyce. The instructions were not the key. It was not that kind of transaction. There needed to be clear explanations and clear advice to Thomas Carroll senior to displace the presumption. He submitted that it was evident that there were no instructions given as to Thomas Carroll senior’s assets or lack of them. On this ground alone he submitted the deed should be set aside. Without knowledge of that fact Mr. Philip Joyce could not give advice. Thus, he submitted, the solicitor was under a misapprehension as to his duty. It was not merely a question of obtaining instructions, it was a duty to give advice. Counsel for the plaintiffs referred to the 0’Flanagan v. Ray-Ger Limited (Unreported, High Court, Costello J., 28th April, 1983); Gregg v. Kidd  [1956] I.R. 183, at pp. 195, 196 and Grealish v. Murphy  [1946] I.R. 35 at pp. 49 and 50.

Undue influence –  decision

There are two classes of transactions which may be set aside on the grounds of undue influence. They were described by the House of Lords (in the judgment of Cotton L.J) in Allcard v. Skinner (1887) 36 Ch.D. 145 at p.171 as:-
“The question is –  Does the case fall within the principles laid down by the decisions of the Court of Chancery in setting aside voluntary gifts executed by parties who at the time were under such influence as, in the opinion of the Court, enabled the donor afterwards to set the gift aside? These decisions may be divided into two classes - First, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for the purpose; second, where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the Court sets aside the voluntary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the Court in holding that the gift was the result of a free exercise of the donor’s will... In the second class of cases the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused.” 
This case arises under the second class of case. Counsel for the defendant quite rightly accepted that this case falls into the latter category. He acknowledged that the relationship between Thomas Carroll senior and Thomas Carroll junior and the surrounding circumstances gave rise to the presumption of undue influence. 
The legal situation arising on such relationship being established was described in “Equity and the Law of Trusts in Ireland” by Hilary Delany at p. 482 as:-
	“Once a relationship giving rise to a presumption of undue influence is established, and it is shown that a ‘substantial benefit’ has been obtained, the onus lies on the donee to establish that the gift or transaction resulted from the ‘free exercise of the donor’s will’. As Dixon J put it in Johnson v. Butress, the evidence must establish that the gift was ‘the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of the donee’. The manner in which this presumption may be rebutted relates to two main issues; first, the question of whether independent legal advice has been received and secondly, whether it can be shown that the decision to make the gift or transfer was ‘a spontaneous and independent act’ or that the donor ‘acted of his own free will’.”
 I adopt this analysis of the law and apply it. In this case the presumption is established and a substantial benefit was obtained thus the onus lies on the donee, the defendant, to establish that the transfer was the free exercise of the will of the donor, Thomas Carroll senior. Thus, it was for the defendant to provide the evidence that the transfer was the independent and free gift of Thomas Carroll senior. The issue then arising is whether there was evidence upon which the learned trial judge could be satisfied that the presumption was not rebutted. In analysing this the first matter is that of independent legal advice. Although it was submitted that Mr. Joyce was the family solicitor on the evidence he appears to have been predominantly that of Thomas Carroll junior. The legal advice relied upon was given by Mr. Joyce. Mr. Joyce was engaged and paid by Thomas Carroll junior. It was Thomas Carroll junior’s name which was on the file. In his evidence Mr. Joyce referred to “his instructions”. He appeared to misconceive his duty. Further, Mr. Joyce did not know that the asset being transferred was practically the sole asset of Thomas Carroll senior and so could not advise him fully or explain the consequences of his action. Nor did he know of the family, the relationships with the daughters, and so could not advise on this matter either. In light of the absence of this information he could not advise Thomas Carroll senior appropriately.
In considering whether Thomas Carroll senior acted of his own free will an important matter was whether or not the transfer was read over to Thomas Carroll senior. There was no evidence of this even though the defendant was given an opportunity in the High Court to address the matter.
This case is not about the presence or absence of mental capacity. The onus is on the defendant to produce evidence to dislodge the presumption of undue influence.
The learned trial judge concluded, on this aspect of the case, at p.230 that:-
“I am not satisfied that the [defendant]  has established as a matter of probability that the transaction was the result of the free exercise of the donor’s will such as to rebut the presumption of undue influence. Mr. Joyce allowed that in substance and fact he was acting as the ‘family solicitor’ in the transaction for both parties. He saw the donor on two occasions for a total of about 35-40 minutes, not all of which was devoted to the business of the transfer. It is clear that the donor never read the transfer deed nor had it read to him by anyone else. While its contents were apparently discussed between him and Mr. Joyce, I am not satisfied that any real consideration was given to the fact that the donor (a frail man, in dependant circumstances) was disposing of all his real assets without reserving to himself (by way of a revocation clause or by way of charging the property with his maintenance and support), any protection for his own future particularly in the event of a falling out with his son, or in the event of his son predeceasing him. It is, I think, clear that Philip Joyce was not aware of the family’s circumstances either in the context of the position of the other members of the family, the totality of the assets held by the family members or the assurances given by the donor to other members of the family including the plaintiffs as to their user of the Burke Street premises during their lifetimes. Thus, while I accept the evidence (which was not really disputed) that the donor was a man who was mentally alert at the date of the transfer, I am not at all happy that at the date of the transfer he had the necessary independent advice (whether it was that of a legal advisor or a competent and qualified lay person) such as would persuade me that the transaction was made of his own free will.”
There was evidence before the learned trial judge upon which he could reach these conclusions of fact. Thus, I would affirm his determination.
Counsel for the defendant submitted that for the plaintiffs to succeed there should be evidence that Thomas Carroll junior exercised undue influence on Thomas Carroll senior. This submission was at the core of the appeal. Counsel argued strongly that as Thomas Carroll junior himself had not unduly influenced his father that was sufficient to rebut the presumption. He argued that in this case Thomas Carroll junior did not exercise undue influence, or in counsel’s word, “wiles” on Thomas Carroll senior. That being the case, it being accepted that Thomas Carroll senior was mentally capable, it was submitted that he could give away his assets as he wished. Counsel for the defendant relied on the lack of undue influence exercised by Thomas Carroll junior and referred to Reg. (Proctor) v. Hutton [1978] N.I. 139.
However, this is not a case of actual undue influence being expressly exercised but is rather a case in which the relationship between the donor and donee has raised the presumption of undue influence. It is then for the defendant to rebut the presumption. The burden was described in Inche Noriah v. Shaik Allie Bin Omar [1929] A.C. 127 at p. 135 by Hailsham L.C.:-
“It is necessary for the donee to prove that the gift was the result of the free exercise of independent will. The most obvious way to prove this is by establishing 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 so completely as to satisfy the Court that the donor was acting independently of any influence from the donee and with the full appreciation of what he was doing; and in cases where there are no other circumstances this may be the only means which the donee can rebut the presumption. But the fact to be established is that stated in the judgment already cited of Cotton L.J., and if evidence is given of circumstances sufficient to establish this fact, their Lordships see no reason for disregarding them merely because they do not include independent advice from a lawyer. Nor are their Lordships prepared to lay down what advice must be received in order to satisfy the rule in cases where independent legal advice is relied upon, further than to say that it must be given with a knowledge of all relevant circumstances and must be such as a competent and honest adviser would give if acting solely in the interests of the donor.”
In Reg. (Proctor) v. Hutton [1978] N.I. 139 at p. 146, Lowry L.J. described the different approaches to the different classes of undue influence. He stated:-
“When relying on ‘express undue influence’ the plaintiff must prove that an unfair advantage has been gained by an unconscientious use of power in the form of some unfair and improper conduct, some coercion from outside, some overreaching, some form of cheating. The undue influence which is presumed in the second class of case is influence of the same kind: the difference lies in not being able to prove its exercise but, by virtue of the presumption, undue influence is deemed to have been exercised until its exercise is negatived on a balance of probabilities by evidence.”
It is clear that what is at issue is whether the donee has taken advantage of his position or “…  been assiduous not to do so. The question can only be answered in each case by a meticulous consideration of the facts”: Hanbury, “Modern Equity” (9th ed.) p. 652.
I am satisfied that this is the correct approach. In this case, the presumption existing, it was then necessary to conduct a careful analysis of the facts. On the facts it was a matter of determining if the donee, Thomas Carroll junior, had taken advantage of his position or had been assiduous not to do so. This was not a case where the issue was whether Thomas Carroll junior had taken advantage of his position expressly. Rather it was a case where in the circumstances assiduous care should have been taken not to take advantage of the position of Thomas Carroll senior.
The learned trial judge conducted a painstaking analysis of the facts as has been set out fully in this judgment. I am satisfied that the appeal was argued on a mistaken approach to the law. The reason for the equitable law to protect Thomas Carroll senior is one of public policy - to protect a frail person. As Cotton L.J. said in Allcard v. Skinner (1887) 36 Ch. D. 145 at p. 171:-
“In the second class of cases the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused.”
Thus, the issue is whether on the facts and circumstances of the case the donee has rebutted the presumption of undue influence. The facts and circumstances of this case were fully considered and determined by the learned High Court Judge. In this case the donor was giving away practically his sole asset and the learned trial judge made careful findings of fact about the transaction.
The conclusions reached in Inche Noriah v. Shaik Allie Bin Omar  [1929] A.C. 127, are analogous on the law and facts to those found by the learned trial judge. In that case Hailsham L.C., describing amongst other matters the conduct of the lawyer, Mr. James Aitken, stated at p.136:-
“In the present case their Lordships do not doubt that Mr. Aitken acted in good faith; but he seems to have received a good deal of his information from the respondent; he was not made aware of the material fact that the property which was being given away constituted practically the whole estate of the donor, and he certainly does not seem to have brought home to her mind the consequences to herself of what she was doing, or the fact that she could more prudently, and equally effectively, have benefited the donee without undue risk to herself by retaining the property in her own possession during her life and bestowing it upon him by her will. In their Lordships’ view the facts proved by the respondent are not sufficient to rebut the presumption of undue influence which is raised by the relationship proved to have been in existence between the parties; and they regard it as most important from the point of view of public policy to maintain the rule of law which has been laid down and to insist that a gift made under circumstances which give rise to the presumption must be set aside unless the donee is able to satisfy the Court of facts sufficient to rebut the presumption.”
The learned trial judge reached a similar conclusion on the law in this case. I am satisfied that he was correct, it was not necessary to prove specific acts of undue influence by Thomas Carroll junior. The evidence as a whole must be considered to see whether the presumption of undue influence has been rebutted. This was done most carefully by the learned trial judge. I would affirm his decision on this aspect of the appeal.

Improvidence of the transaction –  decision

Thomas Carroll senior was disposing of practically his only asset. At the time he was frail. He did not retain any right of maintenance or support. I have already analysed the nature of the legal advice he received and affirmed the decision that it was inadequate. In all the circumstances, as described above, it is clear that Thomas Carroll senior was an unequal party. In Grealish v. Murphy  [1946] I.R. 35 at p. 49-50, the High Court (Gavan-Duffy J.) stated:-
“The issue thus raised brings into play Lord Hatherley’ s cardinal principle (from which the exceptions are rare) that Equity comes to the rescue whenever the parties to a contract have not met upon equal terms, see Lord Hatherley’s judgment (dissenting on facts) in 0’Rorke v. Bolingbroke; the corollary is that the Court must inquire whether a grantor, shown to be unequal to protecting himself, has had the protection which was his due by reason of his infirmity, and the infirmity may take various forms. The deed here was in law a transaction for value: Colreavy v. Colreavy ; however tenuous the value may have proved to be in fact, and, of course, a Court must be very much slower to undo a transaction for value; but the fundamental principle to justify radical interference by the Court is the identical principle, whether value be shown or not, and the recorded examples run from gifts and voluntary settlements (including an abortive marriage settlement) to assignments for a money consideration. The principle has been applied to improvident grants, whether the particular disadvantage entailing the need for protection to the grantor were merely low station and surprise (though the grantor’s rights were fully explained): Evans v. Llewellin, or youth and inexperience: Prideaux v. Lonsdale; Everitt v. Everitt; or age and weak intellect, short of total incapacity, with no fiduciary relation and no ‘arts of inducement’ to condemn the grantee: Longmate v. Ledger; Anderson v. Elsworth. Even the exuberant or ill-considered dispositions of feckless middle-aged women have had to yield to the same principle: Phillipson v. Kerry; Wollaston v. Tribe.”
He also concluded at p. 51:-
“In my judgment, without any regard to any question of undue influence, upon Lord Hatherley’s principle and the concurrent authorities the plaintiff by reason of his own weakness of mind, coupled with the deficiencies in the legal advice under which he acted and his unawareness, is entitled to have the improvident indenture of settlement, dated October 24th, 1942, set aside and the Register of Freeholders rectified.”
Whilst one might not agree with all of the classifications recognised by Gavan-Duffy J. the legal principle is stated clearly and is applicable to this case.
In light of the evidence, of the omissions in relation to the legal advice given, the fact that there was no evidence that the transfer was read over to Thomas Carroll senior, his frail health, his lack of practically any other assets, his relationship with his daughters and all the circumstances, there was clear evidence upon which the learned trial judge could come to the determination, which he did, at p. 232, that:-
“This in my view is a clear case where the equitable jurisdiction can and should be invoked with a view to setting aside the transaction on the grounds of its improvidence.”
I would affirm his conclusion.

Acquiescence laches –  decision
	
I am satisfied there are no grounds raised upon which the appeal on this point could succeed. On the evidence the plaintiffs learnt of the transfer, obtained a copy thereof and issued proceedings all well within one year. I am satisfied that the learned trial judge was correct in his conclusion that there was no acquiescence by the plaintiffs. Consequently, I would dismiss the appeal on this ground also.

Conclusion

I affirm the judgment and order of the High Court that the deed of the 3rd May, 1990, should be set aside.

Lynch J.
I agree with the judgment of Denham J. and also with that to be delivered by Barron J.

Barron J.
I agree with the judgment delivered by Denham J. I would, however, like to deal with the issue of undue influence.
These were proceedings to set aside a voluntary conveyance from Thomas Carroll senior to his son Thomas Carroll junior dated the 3rd May, 1990, whereby Thomas Carroll senior transferred to his son his licensed premises with living accommodation situate at Burke Street, Fethard, Co. Tipperary.
These premises had been purchased by Thomas Carroll senior in the year 1960. Thereafter they had comprised also the family home. The business was run by his wife, Sadie. They had three children. The first plaintiff was the eldest having been born in 1962. Next came Thomas Carroll junior born in 1964, and the youngest was the second plaintiff born in 1968. Until 1974, Sadie Carroll ran the business with the help of a part-time barman. From 1974 there was a full-time barman. Unfortunately, Sadie Carroll died in June, 1989. At that stage her husband was aged 78. He had never been seriously involved in the running of the business. After his wife’s death the second plaintiff stayed for six months helping to run the premises. When she left to take up a job in Dublin there was no one to run the business.
Thomas Carroll junior was willing to take over the running of the business. However, he was basically a farmer and was involved in looking after farms for two of his uncles. Nevertheless he was anxious that his father should make arrangements for him to take over the running of the business. Although the second plaintiff had gone to live in Dublin early in 1990, both she and her sister had always helped at weekends in the premises.
Thomas Carroll senior executed a conveyance of the licensed premises to his son dated the 3rd May, 1990, reserving to himself a right of residence in the premises. Thereafter the licensed premises continued to be run as before with the plaintiffs coming down at weekends and helping to run the business. Thomas Carroll junior married in September, 1993. Unfortunately, he was killed in a motor accident on the 17th January, 1994. Some weeks after the plaintiffs learned for the first time that the document which had been executed in May, 1990, was not as they had thought an arrangement whereby Thomas Carroll junior was entitled to run the business but in fact a conveyance of the entire property. They were surprised by this since it was a very close knit family and their father had never told them that this is what he had done. On the contrary he had always assured them both before and after the execution of the transfer that they always had a home in the premises. The plaintiffs consulted a solicitor and ultimately the present proceedings were instituted in December, 1994.
As found by the learned trial judge the circumstances in which the conveyance came to be executed were as follows. Thomas Carroll junior was anxious that some arrangement should be come to with his father whereby he should run the business. He contacted Philip Joyce, a local solicitor, who was not in fact the family solicitor and told him of the proposed arrangement. Mr. Joyce went to see Thomas Carroll senior and obtained instructions from him. These instructions were to transfer the entire premises to his son. There was some doubt as to whether he wanted to reserve a right of residence only or a right of residence coupled with a right of maintenance. In the event Mr. Joyce was informed by Thomas Carroll junior that his father wanted a right of residence only. Mr. Joyce then had two deeds engrossed, one reserving a right of residence, the other a right of residence and a right of maintenance, and went to see Thomas Carroll senior. Thomas senior said that he wanted only a right of residence and accordingly, the deed reserving this right only was executed by him. In both meetings the amount of time which Mr. Joyce spent with Thomas Carroll senior was approximately half an hour not all of which was devoted to the transaction in hand.
The case made to set aside the deed was that Mr. Joyce was unaware of what assets Thomas Carroll senior had nor was he aware of the family relationships. The evidence was also clear that the donor was old and infirm and devastated by the recent death of his wife. She had been some 25 years his junior. It was submitted that the presumption of undue influence arose and that there was no independent legal advice nor any independent advice of any sort given to Thomas Carroll senior. It was also contended that the transaction was an improvident one since it transferred the entire of his estate without reserving to himself the means of living.
The case for the defendant who is the widow of Thomas Carroll junior was to the effect that Thomas Carroll senior was of sound mind and knew very well what he was doing. It was also submitted that he had available to him the independent legal advice of Mr. Joyce, further since the plaintiffs did not allege improper conduct on the part of Thomas Carroll junior this rebutted the presumption of undue influence. In relation to the plea that the gift was improvident it was submitted that he had alternative assets and that Thomas Carroll junior provided consideration in that he took over the liabilities of the business.
The High Court (Shanley J.) before whom the matter came found for the plaintiffs on both grounds. As against this judgment the defendant has appealed. The essential grounds of appeal as set out on the notice of appeal are:-
(1)	the clarity and independence of mind of the donor;
(2)	the availability of independent legal advice; and
(3)	the admission on behalf of the plaintiffs that Thomas
Carroll junior had not exerted undue influence on his father.
At the hearing of the appeal counsel on behalf of the defendant accepted that the presumption of undue influence applied, but sought to rebut this by the admission by the plaintiffs that no improper influence had been exercised by their brother over their father. He relied in the main on the Northern Ireland case of Reg. (Proctor) v. Hutton [1979] N. I. 139.  
In that case the donor was the aunt of the donee. The aunt was aged 85 and had been living alone in Philadelphia. The niece brought her aunt home to live with her as one of the family. Unfortunately, her aunt died within a few weeks. Before her death she had opened a bank account in the joint names of herself and her niece, the money in the account to be payable to “either or survivor”. The administrator of the aunt’s estate contested the right of the niece to the monies in the account. In the course of the proceedings, the question arose whether the presumption of undue influence arose and, if so, whether it had been rebutted. Dealing with this presumption Lowry L.C.J. said at p. 148:-
“But rebuttable presumptions are rules of evidence. They arise only when the facts are not sufficiently known and operate only until the facts become known.”
In the actual case he was satisfied that all the facts were known and that the gift should not be set aside. The relevant facts as found were and are referred to in the judgment of Lowry L.C.J., at p. 145, as:-
“From her demeanour and from the way in which she gave her evidence I formed the view that Mrs. Proctor [the niece] was a truthful and reliable witness, and on the basis of her own evidence. I formed the view that when she went out to bring her aunt home from Philadelphia and when she gave her a home in Portadown, she was not concerned about what money her aunt might have or about what money she might receive from her aunt. I also formed the view that Mrs. Proctor is a kind, warm-hearted person, who went out to America and brought her aunt home out of feelings of kindness and sympathy for a lonely old lady, and not by reason of hope or desire of receiving or extracting a financial reward or benefit from her aunt.”
Having regard to the facts, Lowry L.C.J. said at p. 149:-
“But proof of adequate independent advice is merely one way of establishing that the gift was ‘the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will,’ and on the rare occasions (such as the present) when it can be done, the simple and conclusive thing is to prove positively that the donee exercised no influence. When this proof is forthcoming (as in this case) pari passu with the evidence which is said to prove the relationship of trust and confidence, it is more accurate to say that the presumption never arises rather than to say that it has been rebutted.”
I would agree that once the full facts are known, it is a matter for the court to determine whether there was or was not undue influence. In such case, the presumption really plays no part.
In reaching his conclusions Lowry L.C.J. was influenced by the decision of the English Court of Appeal in In re Brocklehurst’s Estate [1977] 3 W.L.R. 696. That was an unusual case on the facts. The owner of a large estate, who on the evidence was reluctant to benefit his nearest relation, leased the shooting rights over the estate to a garage proprietor in a totally different social position from that of the testator which had the effect of seriously depreciating its value. The court was satisfied from the evidence that the testator had intended to do what he did, probably as a halfway house between giving his relative the entire estate and none of it. Accordingly, it was held that although on the facts a presumption of undue influence might well have arisen, the court was satisfied that the disposition was the free exercise of an independent will of the testator. At p. 152 Lowry L.C.J. referring to In re Brocklehurst’s Estate says:- 
“At p. 43E the Lord Justice draws attention to a feature with which the facts of this case have something in common and which, I suggest, conduces to a similar result: I refer to the availability, as opposed to the paucity, of evidence on the relevant issue. While the facts of the two cases are completely different, Re Brocklehurst furnishes a most useful reminder of the role played by the actual evidence.
Remembering that presumed undue influence conveys the notion of the undue influence which is alleged to arise from the relationship being actually exercised, even if not proved, it must, in order to count, be capable of affecting the relevant transaction. All the evidence points away from that possibility in the present case. And if the exercise of undue influence is negatived by evidence which is believed, there can be no presumption in favour of the donor or those claiming through her.”
These two cases decide essentially that when all the facts are known surrounding the execution of the impugned document and these show that the donee exercised no influence over the donor then there is no ground to set the deed aside.
In the ordinary way, the person seeking to set aside a voluntary deed does not know all the circumstances surrounding the execution of the document. Accordingly, where the relationship between the donor and donee suggests that the deed might have been procured by undue influence, a presumption arises and the onus of rebutting it is placed upon the donee.
As Bridge L.J. said in In re Brocklehurst’s Estate [1977] 3 W.L.R. 696 at p. 718:-
“… the presumption of undue influence, like other presumptions, is a tool of the lawyer’s trade whose function it is to enable him to arrive at a just result by bridging a gap in the evidence at a point where, in the nature of the case, evidence is difficult or impossible to come by.”
What has to be shown is that “the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the Court in holding that the gift was the result of a free exercise of the donor’s will.” See the judgment of Cotton L.J. in Allcard v. Skinner (1887) 36 Ch. D. 145 at page 171.
There is no one way in which the presumption may be rebutted. The usual way is to show that the donor had advice from someone who was independent and who was aware of all the relevant circumstances. But as can be seen from Reg. (Proctor) v. Hutton [1978] N.I. 139, it is equally good to show that all the relevant facts are before the court and that these show that the donor was not in any way influenced in what he did by the donee. The presumption is important when all the facts are not known. It cannot be rebutted until all the gaps in the evidence are filled and the evidence then denies the existence of any undue influence.
The present case is easily distinguished from Reg. (Proctor) v. Hutton [1978] N.I. 139, upon which counsel for the defendant relies. In the present case the donee was instrumental in instructing the solicitor who prepared the document and was present when it was executed. He told the solicitor what his father wanted. The evidence also shows that the latter did not realise what he had done since he continued to tell the plaintiffs that there would always be a home for them in the premises. This evidence leaves a clear doubt as to whether the donor knew what he was doing and also as to what was his real intention.
It is important to realise that a presumption is a rule of evidence which shifts the burden of proof, and where the real intention of the testator cannot be determined the onus has not been discharged.
In the present case, the defendant relies essentially on three matters. The first is that the plaintiffs accept that their brother did not do anything improper. That alone is insufficient. As I have already indicated the evidence does not show clearly why the donor did what he did, that he knew what he was doing, and that it was the free exercise of his will.
The next basis upon which the defendant relies is the clarity and independence of mind of the donor. That may well be so, but it has no bearing on this case since it is not necessary to establish undue influence to establish that the donor was not mentally alert.
The final ground upon which the defendant relies is that the donor received independent legal advice from Mr. Joyce. The question of advice by a solicitor was considered by the High Court (Budd J.) in Gregg v. Kidd [1956] I.R. 183. At pp. 201 and 202, Budd J. approved certain principles from the judgment of Farwell J. in Powell v. Powell [1900] 1 CH 243.These were:-
(1)	a solicitor who acts for both parties cannot be
 independent of the donee in fact; and
(2)	to satisfy the court that the donor was acting 
independently of any influence from the donee and with the full appreciation of 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. Further, the advice must be given with a knowledge of all relevant circumstances and must be such as a competent advisor would give if acting solely in the interests of the donor.
Accepting these principles, there can have been no independent advice given by Mr. Joyce since at best he was acting for both parties. In any event his evidence was lacking in two important respects:-
(1)	he did not have knowledge of all the relevant 
circumstances; and
	(2)	he did not give advice, he merely set out to carry out
the donor’s instructions.
Even if he had been the donor’s solicitor what he did would not have saved the transaction. As I have said before, a solicitor or other professional person does not fulfil his obligation to his client or patient by simply doing what he is asked or instructed to do. He owes such person a duty to exercise his professional skill and judgment and he does not fulfil that duty by blithely following instructions without stopping to consider whether to do so is appropriate. Having done so, he must then give advice as to whether or not what is required of him is proper. Here his duty was to advise the donor to obtain independent advice.
In the present case whatever independence Mr. Joyce may have had has been destroyed by his acting in the present proceedings as solicitor to the personal representative of the donee.
In my view this was a case in which the presumption of undue influence arose to transfer the onus to the defendant, an onus which has not been discharged.