A CO Galway couple and a bank have been ordered by the High Court to pay €124,000 to a “highly vulnerable” elderly woman who had claimed she was unduly influenced into withdrawing the bulk of her life savings to hand over to the couple.
Mr Justice John Hedigan found George and Pauline O’Donnell had failed to rebut the presumption they exercised undue influence over Mary Bourke related to the “highly improvident” transaction.
The Bank of Ireland also breached its duty by allowing Ms Bourke, of Portumna Retirement Village, Portumna, Co Galway, to enter into the transaction, he held.
He ordered the couple, of Shannon Park, Portumna, Co Galway, and Bank of Ireland to repay the sum of €124,000 to Ms Bourke.
In her action, Ms Bourke (80), a widow with no children who had suffered ill-health for many years, said she had paid the O’Donnells to do messages for her while she lived at home with her late brother. She later moved to the nursing home.
She claimed the couple had influenced her into the transaction knowing she was frail, ill, confused and of advanced years. Both the O’Donnells and the Bank of Ireland had denied the claims.
It was claimed that, on December 6th, 2007, the couple signed Ms Bourke out of the nursing home and brought her to the local branch of Bank of Ireland in Portumna where it was arranged the O’Donnells would be given €124,000 – the proceeds of an insurance policy which Ms Bourke had received just three weeks earlier. Ms Bourke had told the court she had no recollection of the visit to the bank.
In his judgment yesterday, Mr Justice Hedigan said the O’Donnells had been the most frequent visitors to Ms Bourke in the nursing home and were her “only link to the outside world. She was a highly vulnerable, elderly lady. The transaction itself was wholly improvident. She was divesting herself of the large bulk of her assets for no return whatever,” the judge remarked.
Mr Justice Hedigan said the presumption that the O’Donnells had used undue influence on Ms Bourke had not been rebutted as they had chosen not to give any evidence in the case.
The judge said he accepted the bank had no duty to advise a customer on the wisdom of carrying through with their wishes and instructions. He also agreed the bank must follow the instructions of a customer until it had knowledge of a person’s incapacity.
Mr Justice Hedigan said he found the evidence of Ms Bourke compelling as she was emphatic she never intended to give her money to the O’Donnells. It appeared Ms Bourke was so mentally disordered at the time as to have lost her contractual capacity, he said.
The circumstances of the transaction should have raised substantial doubt for Bank of Ireland about Ms Bourke’s capacity to give instructions, he added.
The judge noted the bank manager, Ciaran Ryan, had agreed the requested transaction was unusual as Ms Bourke had proposed to divest herself of almost all her savings.
Those circumstances alone raised substantial doubts that ought to have been investigated further and resolved, he said.
“The manager, in the absence of any protocols to guide him in this most unusual transaction, did not make any real inquiry as to her capacity.” The bank had breached its duty to inquire into Ms Bourke’s capacity where substantial grounds to doubt existed, he found.