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Solicitors ordered to pay €75,000 in will case
10 January 2010
A firm of solicitors has been ordered to pay €75,000 to a man after it ‘‘entirely ignored’’ his rights relating to the transfer of a site from a neighbour.
Brothers Patrick and Declan Darby claimed that solicitors Oliver and Michael Shanley were negligent in transferring the site to Patrick and in drawing up the will of Bridie Bird.
Mrs Bird and her husband, William, lived in a house on 36 acres at Hayestown, Navan, Co Meath, and had no children of their own. The Darby brothers were neighbours and ‘‘like sons’’ to the Birds. They collected Bridie’s pension and did her shopping, and William regularly accompanied Patrick Darby to loc al football matches.
In February 1997, Bridie Bird made a will leaving her house and land to her husband for his life and then to Patrick and Declan Darby in equal shares.
Patrick could not get planning permission to build a house on his own family’s land so, in December 1998, he asked Bridie Bird if she would give him a 3.5-acre site. She said she was happy to do so, as he would get it anyway after she died. He went with Bridie to Shanleys’ office to have the transfer document prepared.
The following month, Shanleys sent Declan Darby a form relating to the 1976 Family Home Protection Act and asked him to get Bridie and William Bird to sign it. He did so, and paid the Shanleys €683 for their work, though they did not give him or Bird any legal advice.
Within a week of Bridie Bird dying in October 1999,William Bird’s relatives, Patricia Boyle and Michael Kavanagh, took him to live at Bettystown. William’s solicitors then wrote to Oliver Shanley and Co of Academy Street in Navan saying that he intended to exercise his right to take a half share in his late wife’s estate, and to challenge the validity of the will and the site transfer.
In April 2000,William Bird instituted High Court proceedings claiming that the Darbys had pressured his wife and that the will was not executed in accordance with the 1965 Succession Act. He also said he had not given his prior consent to the site transfer.
By the time the proceedings were ready for hearing, William Bird had died, and the proceedings were continued by his nephew, William Kavanagh.
Patrick Darby was worried about the ‘‘significant risk’’ of losing his home so, following legal advice, the case was settled, with Patrick agreeing to pay Kavanagh €70,000. Bridie Bird’s remaining lands were sold, with half the proceeds going to Kavanagh, and half to the Darby brothers.
Patrick and Declan Darby sued the Shanleys for negligence.
The solicitors said the will was drawn up in accordance with Bridie Bird’s instructions, that it was clear and unambiguous, and that it complied with the requirements of the Succession Act.
In the High Court, solicitor Duncan Grehan said Patrick Darby had retained Shanleys as his solicitors in relation to the site transfer, which had been conducted in a ‘‘most informal manner’’. The estate was ‘‘haemorrhaging money’’ because of the proceedings, so he encouraged Patrick to settle the case.
Grehan said that Bridie Bird should have been advised of her husband’s legal right to a half share of the estate and the possibility of a challenge to her will. He said Shanleys should have asked Bridie to get a doctor’s certificate confirming her testamentary capacity, and should have taken detailed notes showing that he had advised her about William’s legal right.
Grehan also advised that there should have been a ‘‘cooling off period’’, so Bridie Bird could reflect on her instructions. After she executed the will, a copy should have been sent to her.
Grehan said it was inappropriate for the Shanleys to act on behalf of Bridie and Patrick on the land transfer, as a presumption of undue influence would be hard to refute.
He said Bridie should have got the prior consent of her husband under the 1976 Family Home Protection Act.
Oliver Shanley told the court that Bridie Bird was a long-standing client of his firm and was mentally alert. She said she wanted to leave her property to her husband ‘‘for his day’’ and then to ‘‘her two lads’’, the Darby brothers.
Shanley said he was unaware that spouses could waive their legal right share, so did not advise on it.
He saw no reason why Bridie should have been separately advised, and there was no point sending Patrick Darby to get independent legal advice.
Shanley agreed that the will was prepared in half an hour, and no written advice was sent to Bridie Bird afterwards.
Ms Justice Mary Irvine, in her judgment, said Shanleys owed a duty of care, not only to Bridie Bird, but also to the intended beneficiaries. As prudent solicitors, they should have satisfied themselves that their client was not acting under the influence of the Darby family, explained that the will might be open to challenge, kept a full note of the advice given and sent Bridie Bird a copy of the will.
She said the Shanleys had complied with their duty of care to Bridie Bird in some respects, but not in others. But she said the challenge to the will would probably have been instituted, irrespective of any breach of duty.
However, in relation to the land transfer, Irvine said Shanleys owed Patrick Darby a duty to act in his interest, and should have advised him to attend an independent solicitor.
‘‘Regrettably, the court has had to conclude that, in relation to the transfer, the standard of care provided for the parties to the transaction by the defendants fell well short of that which the parties were entitled to expect from a prudent solicitor," said the judge.
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