Alice Braniff and Nicholas Braniff
| Jurisdiction | Northern Ireland |
| Judge | McBride J |
| Judgment Date | 29 September 2022 |
| Neutral Citation | ['2022] NICh 15 |
| Court | Chancery Division (Northern Ireland) |
1
Neutral Citation No: [2022] NICh 15
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: McB11907
ICOS No: 2018/51561
Delivered: 29/09/2022
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
CHANCERY DIVISION
___________
Between:
ALICE BRANIFF
Plaintiff
and
NICHOLAS BRANIFF
Defendant
___________
Mr John Coyle BL (instructed by McShanes, Solicitors) for the Plaintiff
Mr Keith Gibson BL (instructed by T G Menary & Co, Solicitors) for the Defendant
___________
McBRIDE J
Introduction
[1] The plaintiff, as executrix of the Will of Annie Josephine Braniff (deceased)
(“the Testatrix”) issued proceedings seeking to have the Will of the testatrix dated
27 November 1999 proved in solemn form.
[2] The defendant, a brother of the plaintiff, defended the proceedings on the
basis that - the testatrix lacked testamentary capacity; there was a lack of knowledge
and approval of the Will and the Will was procured by the undue influence of the
plaintiff. He counterclaimed that the grant of probate extracted on 15 November
2018 be revoked.
[3] At trial, the defendant did not proceed on the grounds of lack of capacity or
lack of knowledge and approval as he accepted the expert evidence the testatrix had
testamentary capacity. The only remaining ground of challenge was that the Will
was procured by the undue influence of the plaintiff.
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[4] The plaintiff was represented by Mr John Coyle of counsel and the defendant
was represented by Mr Keith Gibson of counsel. I am grateful to both counsel for
their joint submissions on the law which were of much assistance to the court.
Background
[5] The testatrix was born on 22 February 1916. She married Thomas Vincent
Braniff and together they had 12 children including the plaintiff and the defendant.
The deceased lived with her husband and family at Loughkeeland Road,
Downpatrick.
[6] The plaintiff was born in 1957 the youngest child of the family and is single.
The defendant was born in 1947 is a middle child and is also single. He remained
living in the family home until January 2015 when he was required to leave by
reasons of an occupation order made by the magistrates’ court following a contested
hearing, in favour of the plaintiff. Another sibling, Gerard, was also single and he
remained living in the family home until his death. All the other family members
married and moved out of the family home save Vincent, who although living at the
home at the date of the Will, moved out thereafter.
[7] On 27 November 1999 the testatrix executed the Will which was drawn up by
Aidan Hanna, principal in Colman Hanna & Company, Solicitors. The Will was
executed at the deceased’s home.
[8] The testatrix died on 17 December 2010. On 15 November 2018 a grant of
probate was extracted. Notwithstanding the grant of probate the estate has not been
administered to date.
The Estate
[9] The bulk of the testatrix’s estate consists of a dwelling house and 12 acres of
agricultural land situate at Loughkeeland Road, Downpatrick and contained in folio
18996 Co Down, (“the lands”).
[10] The registered owner of the lands is the defendant, Nicholas Braniff. On
24 February 2014 the applicant issued proceedings in the Land Registry seeking to be
registered as owner of the lands in fee simple pursuant to section 53 of the Land
Registration (Northern Ireland) Act 1970. The matter was part heard before the
Registrar Ms Christine Farrell in June 2016. The court was advised that she declined
to hear the remainder of the case and it was referred to this court. A notice of
motion was issued in the Chancery Division of the High Court by the applicant
against Nicholas Braniff on 23 October 2017 for an order pursuant to section 53 of the
1970 Act to be registered as full owner of the lands (“adverse possession
proceedings”). The adverse possession proceedings were adjourned by agreement
pending the outcome of the present proceedings.
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