The 83-year-old mother of murder victim Mrs Esther McCann has been awarded more than half the net proceeds of the £180,000 Co Dublin home in which her daughter and a foster-baby died six years ago. It was the first time that a civil action had been taken by a relative of a murder victim against the perpetrator.
Holding that Mrs McCann's husband and convicted killer Frank McCann could not benefit from his crime, Judge Elizabeth Dunne in the Circuit Court ordered that he pay his mother-in-law a further £27,900 which had accrued from his share of a life insurance policy on the mortgage. Judge Dunne also directed that McCann, currently serving a life sentence for the murder, pay the estimated £20,000 legal costs of the application by Mrs Bridget O'Brien, Tallaght, to recover her daughter's share of the house. Judge Dunne heard Mr Feichin McDonagh, counsel for Mrs O'Brien, outline how McCann had deliberately set a fire in his family home in 1992 in which his wife and the baby died. The house in Butterfield Avenue, Rathfarnham, had been jointly owned by Frank and Esther McCann. They had bought it in 1987 and at the time of Mrs McCann's death there had been an outstanding mortgage debt of £50,000 which had been paid off by the couple's insurance company, Shield Life.
Judge Dunne said Mr Paul Carroll, counsel for McCann, accepted his client could not benefit from his crime and that the normal rules relating to survivorship could not be applied. Judge Dunne held that although there was no specific decided case on the point, the effect of the murder severed the joint tenancy and as a result it was clear McCann could not inherit or succeed to the interest his wife held in the property. The estate of his late wife remained outstanding to the benefit of her mother. She said that as a result of his wife's death the mortgage on the house had been discharged by the insurance company. She was satisfied McCann was not entitled to the benefit of the discharge of what would have been his liability under the terms of the mortgage, a discharge which had occurred by reason of his wrongful act.
Making an order for the sale of the house, Judge Dunne directed that the net proceeds be divided 52.5 per cent to Mrs O'Brien and 47.5 per cent to McCann. She said the 5.5 per cent difference would ensure that an increase of value which had arisen by virtue of the early discharge of the mortgage would not benefit McCann.
Judge Dunne further ordered that the sum of £27,900, accruing from McCann's share of the insurance settlement of the outstanding mortgage, be deducted from his 47.5 per cent share of the house and be paid to Mrs O'Brien.
Earlier yesterday in linked proceedings, Judge Dunne ordered McCann to pay Mrs O'Brien £9,300 under the Civil Liability Act for mental stress and funeral expenses.
The cumulative effect of yesterday's court orders and costs, based on the £180,000 valuation presented to Judge Dunne, will mean little if any surplus for McCann, who continued through his legal representatives yesterday to plead innocence of the crime.