THE HIGH COURT

(APPEAL FROM THE EASTERN CIRCUIT, COUNTY OF MEATH)

BETWEEN

MARY BENTHAM AND SARAH MONAGHAN (AN INFANT SUING BY HER FATHER AND NEXT FRIEND, PATRICK MONAGHAN)
		PLAINTIFFS/APPEALANTS
AND
THOMAS ELLIOT POTTERTON AND PETER HIGGINS
		DEFENDANTS/RESPONDENTS

Judgment delivered by Mr. Justice Barr on the 28th day of May, 1998.

	The facts of this case have been clearly established in evidence. I have no doubt as to the honesty, truthfulness and reliability of what has been deposed to by the various witnesses called on each side of the case.  In particular, I commend the first plaintiff and her mother, Mrs. Sheila Monaghan, on their honesty and fairness in describing what transpired regarding certain bank books which the first plaintiff received from her grandaunt, Mrs. Annie Monaghan, in Our Lady's Hospital, Navan three and a half weeks before she died on 3rd October, 1990 when she was 86 years of age.  The deceased had been a widow for about 30 years and had no children.  She lived alone in a small dwelling house on a farm of 21 acres at Bollivor, Co. Meath.  The land had been let by her on con-acre and her income comprised annual rents of about £100 per acre, the non-contributory old aged pension and occasional earnings from baby-sitting for friends in the locality.  Despite her great age, Mrs. Monaghan was an independent person who was well able to look after herself and to manage her affairs.  She was known to be a person who understood the value of money.  Her needs were modest and through careful management she was able to amass quite considerable savings over the years which were lodged in four different bank accounts and at the time of her death amounted to a total in excess of £14,000.  She had deposit books relating to each of the accounts which she kept in a suitcase in her bedroom.
	Mr. Peter Higgins, the second defendant, is a solicitor who acted for the deceased from 1984.  The first occasion was in connection with a claim which the deceased wished to bring regarding alleged infringement of her rights in a section of bog land.  The deceased insisted on the action being brought to trial where she was successful and recovered an amount of £1,500.  This episode underlines her forceful nature in the matter of protecting her property rights.  Mrs. Sheila Monaghan was a niece of the deceased.  I am satisfied that there was a close connection between them and that she gave her aunt family support, comfort and assistance when needed.  I am also satisfied that the first plaintiff had a particularly close relationship with her grandaunt up to the time when she married and left the area.  Prior to that event, she worked in a factory in Bollivor close to Mrs. Monaghan's home and for many years it was her practice to visit her grandaunt nearly every day on her way home from work or school in earlier times. Even after her marriage, the first plaintiff continued to visit her grandaunt frequently when she returned for visits to her own home.  The second plaintiff, who is now 20 years of age, is a daughter of Sheila Monaghan and sister of the first plaintiff.  The deceased was her godmother.
	A year or two before her death, the late Annie Monaghan developed abdominal pain which necessitated conservative treatment in hospital which was sufficiently successful to allow her resume her independent life at home.  However, in August, 1990 she had a relapse and was admitted to hospital again on the 6th of that month.  A few days later a laperotomy was performed and it was discovered that the deceased was suffering from excessive fluid caused by cancer of the ovary.  The condition was inoperable but a loop of the small bowel was extracted from the abdomen to relieve the situation.  This gave rise to further complications and it was necessary to reverse that situation.  She was under the care of Mr. Francis Cunningham, general surgeon, who gave evidence.  He described the deceased as being debilitated at the time and not eating enough to sustain her.  He saw her on a daily basis.  She was suffering considerable pain and general discomfort.  Mr. Cunningham stated that he put the deceased on a course of oral morphine medication, the primary purpose of which was to relieve pain and discomfort.  Dr. Liam O'Sheron, a consultant in palliative medicine, has treated over 1,000 terminally ill cancer patients in course of his practice at two leading Dublin hospitals.  He was not involved in the treatment of the deceased and was brought into the case for the purpose of commenting on the medical and nursing notes at Our Lady's Hospital, Navan relating to the deceased.  He gave evidence that he had reviewed all of the relevant records.  He found no reference in the notes indicating that the patient was confused, restless or agitated.  It was stated that from 4th to 7th September, 1990 she needed pain relief and was also treated for nausea.  On 8th September there was a reference to drowsiness.  The oral morphine medication referred to by Mr. Cunningham was commenced on that day.  It involved a slow release of morphine every twelve hours.  The dose was very small, i.e., 10 milligrams, until 24th September when it was doubled in strength, thus indicating that on 11th/12th September Mrs. Monaghan was probably tolerating pain quite well.  It was recorded that on those dates "she settled and rested well".  There was no mention of cognitive impairment.  If that had been found the morphine dosage would have been withheld or reduced and this did not happen.  The witness expressed the opinion that the effect of the morphine treatment on the crucial dates was likely to be that the patient would have felt much better than she had done previously.  This might have encouraged her to believe or hope that she was making a recovery similar to that which had happened when in hospital two years earlier.  There is no evidence that the deceased was ever told that her situation was terminal and it seems that her family were encouraging her to believe that she was getting better.  The first time that the deceased indicated that she thought she was dying was when visited by her niece, Mrs. Sheila Monaghan, a week before she died when she said "Sheila, I'm dying.  I'm on the way out.  You know what to do.  You have to go to Mr. Regan's office and they will tell you what to do".  This was a reference to her solicitors.
	In August, 1990 the first plaintiff was living in Dublin.  She visited her grandaunt nearly every day and used to stay over with her mother at times.  In the early stages she found the patient to be in good humour but in a lot of pain.  She did not notice any particular change after the morphine treatment was commend on 8th September.  She described her grandaunt as being always good humoured.  In course of a visit on 11th September Mrs. Monaghan asked her grandniece to go to her house where she would find a suitcase behind an old chair in her bedroom.  She would find bank books in the suit case.  She was to take them away and put them in a safe which the witness had at home in Dublin.  The deceased knew about the safe as she had seen it at an earlier time when staying with her grandniece.  Nothing more was said about the bank books by Mrs. Monaghan at that time.  The first plaintiff obtained the keys of the deceased's house from her mother and duly found the suitcase in question where indicated.  She found four bank books under clothes in the case and there was an elastic band around them.  She brought them to her home and put them in the safe as instructed.
	Mrs. Bentham returned to the hospital on the following day with the second plaintiff, her sister, Sarah and her mother.  Mrs. Annie Monaghan was sitting up in bed and she enquired "Mary, did you do that for me?  Did you put the bank books in a safe place?"  Mrs. Bentham deposed that the deceased went on to say "If anything was to happen to her I was to keep the contents of the books and give Sarah a few bob out of it".  Some weeks later after the death of the deceased the first plaintiff handed over the bank books to the solicitor, Mr. Higgins, the second defendant, and informed him of what had transpired between her and the deceased on 11th and 12th September.
	The deceased made her last will with Mr. Higgins on 5th October, 1987.  Having appointed the defendants as executors and trustees, she directed them to sell her lands at Shanco and Clowan, Bollivor, County Meath.  Having provided for payment of her debts and funeral expenses she bequeath nine cash legacies in various sums from £1,000 to £3,000.  These included a bequest of £3,000 to Mrs. Sheila Monaghan; £1,000 to the first plaintiff and £2,000 to the second plaintiff to be invested by the trustees until such time as she attains the age of 21 years.  The will contained a residuary clause providing for the division of the remainder of the estate equally between all of the named beneficiaries with the exception of one of them who was to receive only the £1,000 bequeath to her in the will.  In the event, the entire of the funds which the testatrix had on bank deposit has passed into residue.
	The net issue on appeal is whether or not the transaction between the deceased and the first plaintiff regarding the four bank deposits amounted to a donatio mortis causa made by the deceased in favour of the plaintiffs.  The total amount of the fund including interest presently exceeds £14,500.
	There are three essentials for a gift of property to constitute a valid donatio mortis causa:

(i)	It must be made in contemplation of the donor's death;
(ii)	it must be made subject to the condition that it will only become indefeasible in the event of the donor's death; and
(iii)	the property must be delivered to the donee.  (See Re. Mulroy, (1924) 1 I.R. 98 per Moloney C.J. and Equity & The Law of Trusts in the Republic of Ireland, at p.p. 368 et seq. 1st Edition, 1988 by Mr. Justice Ronan Keane).  

The onus is on the party claiming the gift to satisfy the court that the foregoing requirements have been met.
	Was the gift made by the donor in contemplation of her death?  It seems to me that the facts fall short of establishing that proposition on the balance of probabilities.  At the relevant time the donor was of great age and was terminally ill.  However, I have substantial doubt as to whether she appreciated her situation on 11th/12th September, 1990 when the transaction took place.  She had been grievously ill in hospital two years earlier but had made a substantial recovery.  At the relevant time when the alleged gift was made, Annie Monaghan may have believed by reason of the morphine treatment which had commenced three days earlier that she was making a recovery.  There is no doubt that she was concerned about the safety of her bank deposit books.  She knew that her grandniece, the first plaintiff, had a wall safe in her home.  It is evident she decided that the books should be secured there while she was in hospital.  If it was her intention at that time to make a gift of the funds on deposit to the plaintiffs, it seems probable that either she would have made the gift to the first plaintiff on 11th September when she referred to the deposit books for the first time and asked her to put them in her safe at home.  In fact on that occasion she did no more than arrange for the safe keeping of the books.  It was not until the following day when the first plaintiff confirmed that she had carried out her greataunt's wishes that the latter said anything which might be construed as a donatio mortis causa.  The alternative course which the deceased might have taken if she wished to make what amounted to a radical change as to the disposition of her property after death would have been to send for her solicitor and make an appropriate new will or codicil to give effect to her revised intentions.  As a person who had always been careful about her affairs and who appears to have been compus mentis at the time, it seems improbable that she did not do so if that were her intention.  It also seems strange that she should have decided to benefit the first plaintiff far out of proportion to all others, including her niece, Mrs. Sheila Monaghan, who it seems had been constantly devoted to her for very many years.  Likewise, it is strange that her direction was that her godchild, the second plaintiff, should benefit to the extent of a nominal amount of the fund only.
	All in all I am not satisfied that the deceased positively intended to make a radical change in the disposition of her property in contemplation of her death.  Although that may have been her intention, the surrounding facts raise substantial doubt in that regard and in the circumstances I am obliged to hold that the plaintiffs have not established the validity of the alleged gift on the balance of probabilities.