Kennedy, Re [2000] IEHC 12; [2000] 2 IR 571 (31st January, 2000)

JUDGMENT of Kearns J., delivered on the 31st day of January 2000 1. Timothy Kennedy and Teresa Kennedy were a married couple from Nenagh, County Tipperary. Mr. Kennedy was born on the 5th September 1922 and Mrs. Kennedy was born on the 22nd September 1923. 2. On the evening of Saturday the 3rd October 1998, Mr. Kennedy and his wife went to a restaurant at Brocca, Ballinderry, Nenagh, Co. Tipperary, for a meal to celebrate an anniversary. They left the restaurant at 11 p.m. by motorcar which Timothy Kennedy was driving. It appears that he was not familiar with the route and that driving conditions were poor because of heavy rain. It further appears that he turned right on leaving the restaurant when he should have turned left for Nenagh. The road to the right led to Kilgarvan Pier on Lough Derg. The car was seen in the water of Lough Derg about thirty feet from the pier on the evening of the 6th October 1998 by investigating Gardaí. 3. Tragically, on removing the car from the water, both Mr. and Mrs. Kennedy were found to be dead inside. The body of Mrs. Kennedy was in the rear of the car lying face downwards, whereas Mr. Kennedy was in the driver’s seat with his head and left shoulder outside the driver’s door window. 4. Thereafter, an autopsy report on Timothy Kennedy by Dr. J. O’Driscoll, Consultant Pathologist, concluded that death in his case was due to acute cardiac-respiratory failure associated with coronary atheroma and with the shock of sudden immersion in water. Following the inquest on the 23rd October 1998, the Coroner issued a Certificate certifying the cause of death in similar terms and under the heading “approximate interval between onset and death” on the form of Coroner’s Certificate, the word “seconds” was inserted. 5. The autopsy report on Teresa Kennedy concluded that her death was due to drowning. The Coroner’s Certificate in her case certifies drowning as the cause of death and that the “approximate interval between onset and death” was “minutes”. 6. The Death Certificates rely on the Coroner’s Certificate and under “certified cause of death and duration of illness” respectively record “(a) Cardio respiratory failure - seconds....” in the case of Mr. Kennedy and “1(a) Drowning - minutes....” in the case of Mrs. Kennedy. 7. Both deceased made mutual wills on the 18th February 1983, each appointing the other as sole executor and universal legatee and devisee. Both died without issue or parent. The Applicant before the Court is a sister of Teresa Kennedy. Timothy Kennedy was survived by seven siblings and by ten nephews and nieces, the issue of a predeceased sister who are the Respondents. The combined assets of Mr and Mrs Kennedy amount in total to a sum of just over £100,000.00, all held as joint tenants. 8. Because of the references to an interval of time between onset and death as being “seconds” in the case of Mr. Kennedy and “minutes” in the case of Mrs. Kennedy, the Applicant’s Solicitors lodged an application on her behalf in the District Probate Registry in Clonmel for a Grant of Administration of Teresa Kennedy’s estate with will annexed, on the basis that she survived her husband. At the request of the Probate Officer, further clarification was sought as to the sequence of the deaths. 9. On the 16th December 1999, Dr. O’Driscoll wrote to the Solicitors for Mr. Kennedy’s family in the following terms:- “I found that Timothy Kennedy died from a heart attack and Teresa Kennedy died from drowning. One’s initial impression, therefore, might be that Mr. Kennedy was the first to die. However, the situation is not clear-cut. The evidence submitted by Garda Michael Varley that Timothy Kennedy’s head and left shoulder were outside the driver’s door window may be significant. It could be that the cause of the heart attack was not the shock of sudden immersion in cold water but was the struggle to open the car door. I have concluded that I cannot say for certain whether Timothy Kennedy or Teresa Kennedy died first.” 10. In the absence of agreement between the respective families on the matter, the Applicant has sought liberty to apply for administration (will annexed) on the basis that Teresa Kennedy survived Timothy Kennedy and that in the circumstances Section 5 of the Succession Act, 1965 does not apply. Section of the Succession Act, 1965 provides as follows:- “Where, after the commencement of this Act , two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, then, for the purposes of the distribution of the estate of any of them, they shall all be deemed to have died simultaneously.” 11. The Applicant relies on the following paragraph in William G Maguire’s "Succession Act, 1965" at p.25:- “The statutory presumption of simultaneous death would apply not only in the usual case of common disasters, such as car or aeroplane accidents (i.e. cases of commorientes), but also in other cases where the order of death is uncertain..for instance where a husband goes on a long voyage and the ship completely disappears on an unknown date, so that he is presumed drowned and his wife dies at home of natural causes at about the same time. The Section applies only where the circumstances render the order of deaths uncertain. The presumption may therefore be rebutted and does not govern cases where there is evidence of the order of deaths, however short a period may separate the deaths of the parties involved. For this reason it is still prudent to insert a survivorship clause in a will making a gift to a beneficiary conditional upon his surviving for, say, a month, where the gift is intended to be for the beneficiary personally.” 12. The Respondent in reply argues that there must be clear and conclusive evidence that one party survived the other and that in circumstances where any uncertainty exists, the Section should be so construed as meaning that any uncertainty, however slight, should demand an interpretation that both parties died simultaneously. 13. Prior to the 1965 Act there was no means of resolving the issue of certainty if there was no evidence of the order in which the deaths took place as there was no legal presumption as to the order of deaths. This gave rise to considerable inconvenience and uncertainty in determining succession rights, particularly where the deceased were husband and wife. The only settled law was that the onus of proving survivorship lay on the person making that claim. 14. It is interesting to compare the situation in England. In Wright -v- Netherwood [1793] 2 Salk 593, the Court concluded that it was more reasonable to consider the parties as all dying at the same rather than to, "resort to some fanciful supposition of survivorship on account of degrees of robustness". 15. This position was changed by the Law of Property Act, 1925, S 184, which provides that where after 1925 "two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall for all purposes affecting the title to property, be presumed to have occurred in order of seniority and accordingly the younger shall be deemed to have survived the elder". 16. Leaving altogether to one side the wisdom of approaching the problem in such an artificial way, the scope of that particular section was clarified in Hickman -v- Peacey [1945] AC 304. In this case two brothers were killed while in a house which was destroyed by a high explosive bomb during an enemy air attack. They had each made a will leaving a legacy to the other. It was argued that the evidence indicated that both brothers died simultaneously, so that the circumstances did not render it "uncertain" which of them died first. If this had been accepted, section 184 would have had no application. The House of Lords, by a majority, and reversing the Court of Appeal, held that section 184 did apply. Lord Macmillan said at p. 325:- "All that is necessary in order to invoke the statutory presumption is the presence in the circumstances of an element of uncertainty as to which of the deceased survived." 17. The House of Lords held that although the evidence suggested that the deaths were simultaneous, there was still an element of uncertainty as to the exact moment when each brother died, and this was sufficient to operate the section. In other words, the Court found that the section should be applied whenever there was any element of uncertainty. 18. It seems to me that a number of conclusions can safely be drawn from the foregoing. Firstly, the onus of establishing that one deceased survived another remains on the party so asserting. 19. Secondly, where clear and cogent evidence can be produced to establish and prove positiviely the order of death then, even if the time interval between deaths is a matter of only seconds, there is no scope for the section to apply. 20. However, where the evidence adduced falls short of eliminating an element of uncertainty, then the presumption in the section must apply. This may seem equivalent to or stricter than the "proof beyond reasonable doubt" test appropriate to criminal standards of proof, but in reality it is nothing more than the onus of proof necessarily to be derived from the wording of the section. "Uncertainty", it seems to me can only be displaced by "certainty". 21. Such an approach to the interpretation of the section is also one which is harmonious and not socially divisive, it is particularly apt to cases of common disaster where general experience would tend to show that the parties involved are often, as in the present case, husband and wife. An interpretation of the section which produces an outcome where a husband's family are at loggerheads with the family of his wife in circumstances where both perished in the same tragedy, would be highly undesirable. 22. In the present case the evidence establishes more than an element of uncertainty. Following the supplementary report of Dr O'Driscoll, it is quite impossible to state, even on the balance of probabilities, which spouse survived the other. 23. Against this background, I have no hesitation in holding that the presumption under section 5 of the Act applies in the circumstances. 24. Dated this 3rd day of February 2000 lgkennedy © 2000 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII