Mrs. Madge Friel was a delightful lady who lived alone in her family home in Termon, County Donegal, a small rural community. Her husband had predeceased her and her late brother Anton lived with her until his death in 1985.
My husband was first contacted by the Garda (police) sergeant in her area and asked to call with Mrs. Friel in her home as she needed some advice. He subsequently visited Mrs. Friel and as a result Mrs. Friel became a client of our office.
Following an injury at her home, she was admitted to the 'Lagan Valley' nursing home in Ballindrait, County Donegal, as a long time resident due to the fact that her nephews, nieces and closest next of kin were all resident in the U.S.A. We became acquainted with her niece, Mrs. Helen McCoy and her husband Thomas McCoy who we understand travelled to Ireland on a regular basis to visit Mrs. Friel and during one of their visits to Ireland, Mrs. Friel indicated through Mr. and Mrs. McCoy that she wanted to make her Will.My husband, Sean, attended with Mrs. Friel and took her instructions. At Mrs. Friel's request, myself and my husband were named as Executors of her Will simply because she had no-one in Ireland she could entrust with this obligation. NOTE: You can read the Will at the end of this post.
As we understood that this was important to Mrs. Friel, we took the time out to visit her at the nursing home on the 28th of December 1994 during our Christmas closed period. We had prepared the Will in accordance with Mrs. Friel's instructions and arrived at the nursing home for her signature.
On arrival, we were met by Mrs. Violet Ayton, owner of the Lagan Valley nursing home, who was aware of our intended visit and the nature of it. Mrs. Ayton handed me a piece of paper, telling us that Mrs. Friel wished to add the people named on the piece of paper to her Will. Hence a hand written Codicil had to be written on the day to annex her Will to include the persons on the list, one of whom was Violet Ayton herself. Hence, a handwritten Codicil was prepared on the day in order to deal with these additional beneficiaries and it was signed and witnessed at the same time, and in conjunction with, the Will prepared on the previous instructions, which Will and Codicil were clearly and slowly read over to Mrs. Friel before she signed these. Her signature was then witnessed by myself and my husband, both present at the same time and in her presence.
It is a STRICT rule of law in Ireland that NO witness to a Will can benefit from that Will.
Mrs. Friel had also executed a Power of Attorney in favour of my husband, Sean McGlynn, in order that he could make the necessary arrangements with the Ulster Bank, Letterkenny, for payment of the fees which had to be paid for her upkeep in the Lagan Valley nursing home in addition to the pension she was receiving, which pension was paid directly to the Lagan Valley nursing home. No monies, other than those paid to the Lagan Valley nursing home were withdrawn from Mrs. Friel's bank accounts.
Mrs. Friel, although fully lucid and capable at the time of the making of her Will, a fact verified by a letter from her attending Doctor, eventually began to suffer from dementia. Payments were still being made on foot of a standing order from her current account but these funds eventually became depleted. She did have another account which was not accessible on demand and required notice and documentation to be executed by, or on behalf of Mrs. Friel. Because of the fact that she was now incapable of managing her own affairs, the Power of Attorney which she had executed was now of no legal effect and therefore the bank would not accept either the signature of Mrs. Friel or Sean McGlynn to release these funds. Payments to the Lagan Valley nursing home therefore ceased but on the basis of an assurance from Helen McCoy (niece of Mrs. Friel) that any fees due would be paid, Mrs. Ayton, to her credit, agreed to await payment.
In her Will Mrs. Friel had sought to benefit, among others, her first cousin Mr. Anton Gallagher, who resided at Ballindrait (in the vicinity of the Lagan Valley nursing home), by leaving him one of her farms in Termon and had left her other farms in Termon to various other relatives and her good and helpful friend, Dan O'Donnell a long standing neighbour of hers.
Her cousin, Mr. Anton Gallagher, died on the 4th of March 2001 approximately 3 weeks before Mrs. Friel. Under the terms of the law of succession in Ireland, a person named as a beneficiary who predeceases the person making the Will does not benefit as a result and that gift or benefit must then be distributed among the persons entitled to the residue of the estate. The executors of the Will MUST follow this rule and are obliged to so do in their role as executors.
On the death of Mrs. Friel my husband contacted the nieces and nephews of Mrs. Friel, all of whom were beneficiaries of the residue of her estate, furnishing them with a copy of her Will and also (although he was not obliged to do so) wrote to the widow of Mr. Anton Gallagher out of respect and courtesy to inform her that Mrs. Friel had intended to benefit her late husband but that due to the fact that he predeceased Mrs. Friel, the gift was void.
Correspondence was received from the solicitor for Mrs. Anton Gallagher asking if there was any way in which she could take her husbands intended benefit. But as there were several nephews and nieces entitled to the residue of the estate, this would only be possible if they were all agreeable to surrender their interests in favour of Mrs. Gallagher. It immediately became apparent to my husband, Sean McGlynn, that a number of the said nephews and nieces were not prepared to do this and so he had to proceed on the basis that this farm, or land, would have to be sold and the proceeds divided among all of the nephews and nieces.
After a short period of correspondence with the solicitors for Mrs. Anton Gallagher nothing further occured and the matters proceeded in the normal way on the basis that the residue would be divided among the nephews and nieces.
It was not until some 2 or 3 years later when the administration of the estate was being finalised, involving the proposed sale of that land that we first informed that a claim was being made by Daniel Gallagher and his wife Elva Gallagher of Craigadoes, St. Johnston, County Donegal, that they had some entitlement to this land. It was not clear as to how they purported to have an entitlement to the land, was it simply on the basis that Mrs. Friel had intended to benefit Mr. Gallagher's father? Or was there some other basis on which they thought they were entitled to this land?
At any rate, a solicitor from Donegal wrote on behalf of Daniel Gallagher and his brother objecting to the sale of the land and was invited to support their objections on a legal basis. Which they did not. But because of the objection, our office informed the said solicitor that if his clients did not withdraw the objections that Court proceedings would have to issue to determine whether or not these objections were valid. No response was received. As a consequence, my husband and I issued the necessary proceedings in order to have the question determined.
It was then that correspondence was received from a third firm of solicitors, this time in County Mayo, representing Daniel Gallagher and his brother.
The case was eventually brought to court before Judge John O'Hagan on the 9th of May 2006 when Daniel Gallagher, his wife Elva Gallagher, and his brother were all present and were entitled to, and allowed to address the court. Mr. Daniel Gallagher's brother, who had already indicated at an early stage that he was not contesting the matter, was released from all proceedings and all liability for costs. However, Mr. Daniel Gallagher, but more particularly his wife, Mrs. Elva Gallagher (who is not related to Mrs. Friel) prevaricated at length, but no avail, on behalf of her husband and herself (although she was not named as a party to the proceedings).
His Honour Judge O'Hagan, having read and understanding the facts of the matter, made his judgement in accordance with the law as he is bound to do, dismissed the unfounded and unsubstantiated claims of the defendant, Mr. Daniel Gallagher, and granted and order in favour of the plaintiffs (myself and my husband), allowing them to proceed to administer the estate of the late Mrs. Friel in accordance with her Will and the law.
As was indicated by Mrs. Elva Gallagher on behalf of her husband Daniel Gallagher, an appeal was lodged with the High Court in Dublin. Without going into fine detail, the appeal was eventually listed before His Honour Justice Edwards in the High Court when Mrs. Elva Gallagher appearing for her husband but without her husband, and accompanied by Mr. John Gill and the Victims of the Legal Profession (about a dozen in number) handed in to His Honour Justice Edwards a plethora of paperwork which His Honour Justice Edwards agreed to receive and read and give his judgement in the month of October 2007. This was in July 2007.
His Honour Justice Edwards delivered his considered and lengthy judgement (which was also committed to writing) on the 8th of October 2007. His Honour Justice Edwards not only furnished each party with a copy of the said judgement but also took the time read his judgement in it's entirety to the Court, which is not only attend by the parties to the action but all other persons who are involved in any matters on that day. His Honour Justice Edwards provided both parties (Sean McGlynn and Elva Gallagher) with his judgement and the formal order was issued thereafter to both parties.
Daniel Gallagher and his wife Elva Gallagher (his representative) refused to accept that His Honour Judge Edwards actually made an order, espousing since that he merely gave an opinion.
The fact is, we have an order of Mr. Justice Edwards dated the 8th of October 2007 which says otherwise, and to quote:
"IT IS ORDERED that:
1. The said appeal herein be and is hereby refused.
2. The said Order of the Circuit Court be and is hereby affirmed.
3. The Plaintiffs do recover as against the Defendants the costs of this Appeal when taxed and ascertained.
Mr. Justice Edwards accepted and read all of the documentation both of the Plaintiffs, Sean and Catherine McGlynn, and the plethora of documentation presented to him by Mrs. Elva Gallagher (assisted by Mr. John Gill) on behalf of her husband Daniel Gallagher and made his decision on a totally informed basis.
Yet. Mrs. Elva Gallagher on behalf of her husband does not accept that an Order was made by High Court.
Despite the Orders of Judge O'Hagan and Mr. Justice Edwards Mr/s Gallagher continue to occupy the land by having cattle on the land and having a lock and chain on the gate.
Tuesday 11th November 2008
Mr. Daniel Gallagher was brought before His Honour Judge O'Hagan on foot of an Order made by Judge O'Hagan in the Circuit Court sitting at Cavan town on the 14th of October 2008 (when Mr. Gallagher did not appear) to give an account of himself as to why he would not obey an Order of this Honourable Court made on the 9th of May 2006 and affirmed by the High Court of the 8th of October 2007.
Mr. Gallagher chose not to come to the court voluntarily although his wife, Mrs. Elva Gallagher, was there at an early hour. Mr. Gallagher waited for the Gardai acting on foot of the Order of His Honour Judge O'Hagan to bring him to the court and was duly brought to the court by the Gardai.
When the case was called Mrs. Elva Gallagher as usual espoused her mantra of "fraud", "deception" and so on but with no logical explanation or argument to back her mantra up. Mr. Gallagher when asked a question by His Honour Judge O'Hagan had this to say: "My wife represents me.". Even though he was the one going to jail. His Honour Judge O'Hagan alluded to a certain website on which his name had been placed in conjuction with this case and his name mentioned in the most insidious manner and although he did not put the blame on Mr. and Mrs. Gallagher he was acutely aware of the fact of the association of Mr/s Gallagher with the persons responsible for this website.
Judge O'Hagan found Mr. Gallagher to be in contempt of his Order and ordered that Mr. Gallagher be committed to prison and remain there until Tuesday next 18th November unless he "purge his contempt" (complies with the Order by removing his cattle and vacating the lands). He is to be brought before the Court in Carrick on Shannon on Tuesday next 18th November when if he does not purge his contempt Judge O'Hagan may sentence him to a further term in prison or impose a daily fine which will continue until the Order is complied with.
While all of this is going on the beneficiaries in the U.S.A. are being deprived of the balance of their entitlement and inheritance. They have received their respective shares of the monies left by Mrs. Friel a considerable time ago but they have had an extracted wait for their share of the proceeds of the sale of the land concerned the sale of which has been agreed but cannot complete due to the actions of Mr/s Gallagher.
THE WILL OF MRS. MADGE FRIEL
Here is the Will of the late Mrs. Friel. This Will is no longer a confidential document as the maker is deceased and the Will has been probabated and therefore is a document of public record.
Click on the photographs to enlarge if you wish to read the details.
NOTE: Since adding the photographs of the Will of the late Madge Friel here on my blog I see a (badly) typed copy of her Will has now appeared on crookedlawyers.com.
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TUESDAY 18th NOVEMBER 2008
Circuit Court sitting in Carrick-on-Shannon, Co Leitrim
As per the Order of Judge O'Hagan on the 11th of this month, Daniel Gallagher was brought before Judge O'Hagan sitting at Carrick-on-Shannon this morning, having spent the previous seven days in prison. Niall O'Neill, Barrister for Sean and Catherine McGlynn indicated that the lands were still not vacated as per the Order of the Court and that there still remained a chain and lock on the gate as put there by Mr. Gallagher. This was not disputed by Mr. Gallagher or his wife Elva Gallagher nor their companion John Gill of the VPLS.
Nothing having been put forward by or on behalf of Mr. Gallagher, Judge O'Hagan after indicating that he had considered the matter for the past week, decided to release Mr. Gallagher from custody but imposed a fine of €50 PER DAY for as long as he continues to be in contempt of the Order made by Judge O'Hagan on the 9th of May 2006. These fines will accumulate day by day. Judge O'Hagan indicated that he would review the matter in 3 months if Mr. Gallagher has still failed to comply and that Sean and Catherine McGlynn be at liberty to bring a further Motion for Attachment and Committal if necessary.
The daily fine of €50 is a fine payable to the State and does not in any way benefit the beneficiaries of the late Madge Friel. If the fines are not paid, it will be a matter for the Court to arrange for collection of same. By our calculations, at the end of 3 months the fine will total approximately €4,500.
On a further Application by Sean and Catherine McGlynn for Attachment and Committal, Judge O'Hagan has the power to commit Mr. Gallagher to prison again or to continue this fine, or such other fine as he decides, for a further period, and indeed, indefinately.
However, my husband and I are considering alternative or other options in order to complete the sale of the lands and the administration of the estate.
We will keep you posted.
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