Per Reps; Duties & Powers
Succession Act
PART IV
Grants of Representation
Grants of probate.
[1857 (c. 79) s. 6]
26.—(1) The High Court shall have power to grant probate to one or more of the executors of a deceased person, and a grant may be limited in any way the Court thinks fit.
(2) The High Court shall have power to revoke, cancel or recall any grant of probate.
Grants of administration.
[1357 (st. 1. c. 11); 1537 (c. 18); 1959 (No. 8) s. 12]
27.—(1) The High Court shall have power to grant administration (with or without will annexed) of the estate of a deceased person, and a grant may be limited in any way the Court thinks fit.
(2) The High Court shall have power to revoke, cancel or recall any grant of administration.
(3) Subject to subsection (4), the person or persons to whom administration is to be granted shall be determined in accordance with rules of the High Court.
(4) Where by reason of any special circumstances it appears to the High Court (or, in a case within the jurisdiction of the Circuit Court, that Court) to be necessary or expedient to do so, the Court may order that administration be granted to such person as it thinks fit.
(5) On administration being granted, no person shall be or become entitled without a grant to administer any estate to which that administration relates.
(6) Every person to whom administration is granted shall, subject to any limitations contained in the grant, have the same rights and liabilities and be accountable in like manner as if he were the executor of the deceased.
[1857 (c. 79) ss. 75, 76, 77]
(7) Where any legal proceedings are pending touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any grant, the High Court may grant administration of the estate of the deceased to an administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the estate of the deceased, and every person to whom such administration is granted shall be subject to the immediate control of the Court and act under its direction.
(8) The Court may, out of the estate of the deceased person, assign to an administrator appointed under subsection (7) such reasonable remuneration as the Court thinks fit.
(9) This section applies whether the deceased died before or after the commencement of this Act.
F15[
Entitlement to grant of probate or administration.
27A.—For the purpose of the application of section 26 or 27 in respect of the estate of a deceased person, the deceased shall be presumed, unless the contrary is shown, not to have been survived by any person related to him whose parents have not married each other or by any person whose relationship with the deceased is deduced through a person whose parents have not married each other.]
Annotations:
Amendments:
F15
Inserted (14.06.1988) by Status of Children Act 1987 (26/1987), s. 30, commenced as per s. 1(2)(b).
F16
Inserted by Children and Family Relationships Act 2015 (9/2015), s. 66 (a) and (c), not commenced as of date of revision.
F17
Substituted by Children and Family Relationships Act 2015 (9/2015), s. 66(b), not commenced as of date of revision.
Modifications (not altering text):
C13
Prospective affecting provision: section renumbered as subs. (1) and amended, and subss. (2) and (3) inserted by Children and Family Relationships Act 2015 (9/2015), s. 66, not commenced as of date of revision.
27A.—F16[(1)]F17[Subject to subsection (2), for the purpose of the application] of section 26 or 27 in respect of the estate of a deceased person, the deceased shall be presumed, unless the contrary is shown, not to have been survived by any person related to him F17[whose parents have not married each other or whose parents are not civil partners of each other] or by any person whose relationship with the deceased is deduced through a person F17[whose parents have not married each other or whose parents are not civil partners of each other].
F16[(2) Subsection (1) shall not apply in relation to a person whose parents have not married each other or whose parents are not civil partners of each other where—
(a) the person has been adopted by a cohabiting couple—
(i) under an adoption order, or
(ii) outside the State, where that adoption is recognised by virtue of the law for the time being in force in the State,
or
(b) they are the parents, under section 5 of the Act of 2015, of the person.
(3) In this section—
“‘Act of 2010’ means the Adoption Act 2010;
‘adoption order’ has the same meaning as it has in section 3(1) of the Act of 2010;
‘cohabiting couple’ has the same meaning as it has in section 3(1) (amended by section 102 of the Act of 2015) of the Act of 2010.]
Editorial Notes:
E6
The shoulder note displayed above (Entitlement to a grant of probate or administration.) is the shoulder note belonging to the amending provision. The amending provision does not include a shoulder note for s. 27A.
Representation of real and personal estate separately or together.
[1959 (No. 8) s. 15]
28.—(1) Representation may be granted either separately in respect of real estate and in respect of personal estate, or in respect of real estate together with personal estate, and may be granted in respect of real estate although there is no personal estate, or in respect of personal estate although there is no real estate.
(2) Where the estate of the deceased person is known to be insolvent, the grant shall not be severed except as regards a trust estate.
Power to grant representation where no estate.
[1959 (No. 8) s. 16]
29.—The High Court shall have jurisdiction to make a grant of representation in respect of a deceased person, notwithstanding that the deceased left no estate in the State, and to make a de bonis non or other form of grant in respect of unadministered estate, notwithstanding that there is no unadministered estate of the deceased in the State.
Power to grant representation to a trust corporation.
[New. Cf. 1928 (No. 9)]
30.—(1) The High Court may—
(a) where a trust corporation is named in a will as executor, whether alone or jointly with another person, grant probate to the corporation either solely or jointly with another person, as the case may require, and
(b) grant administration to a trust corporation, either solely or jointly with another person,
and the corporation may act accordingly as executor or administrator, as the case may be.
(2) Representation shall not be granted to any person on behalf of a trust corporation.
(3) Any officer authorised for the purpose by a trust corporation or the directors or governing body thereof may, on behalf of the corporation, swear affidavits, give security and do any other act or thing which the Court may require with a view to the grant to the corporation of representation, and the acts of an officer so authorised shall be binding on the corporation.
(4) In this Act, “trust corporation” means—
(a) a corporation appointed by the High Court in any particular case to be a trustee;
(b) a corporation empowered by its constitution to undertake trust business, and having a place of business in the State or Northern Ireland, and being—
(i) a company established by Act or charter, or
(ii) an Associated Bank under the Central Bank Act, 1942, or
(iii) a company (whether registered with or without limited liability) within the definition contained in the Companies Act, 1963, or within the meaning of the corresponding law of Northern Ireland, having a capital (in stock or shares) for the time being issued of not less than £250,000, of which not less than £100,000 has been paid up in cash, or
(iv) a company (registered without limited liability) within the definition contained in the said Companies Act or within the meaning of the said law of Northern Ireland, one of the members of which is a corporation within any of the previous provisions of this paragraph; or
F18[(v) a building society authorised under the Building Societies Act, 1989; or]
(c) a corporation which satisfies the President of the High Court that it undertakes the administration of any charitable, ecclesiastical or public trust without remuneration, or that by its constitution it is required to apply the whole of its net income for charitable, ecclesiastical or public purposes and is prohibited from distributing, directly or indirectly, any part thereof by way of profits, and is authorised by the President of the High Court to act in relation to such trusts as a trust corporation.
(5) Where a body corporate, as defined by section 4 of the Bodies Corporate (Executors and Administrators) Act, 1928, is named as executor in a will executed before the commencement of this Act, probate may be granted to that body corporate under this section, notwithstanding that it is not a trust corporation as defined in subsection (4).
Annotations:
Amendments:
F18
Inserted (01.09.1989) by Building Societies Act 1989 (17/1989), s. 29(6), S.I. No. 182 of 1989.
Grant of special administration where personal representative is abroad.
[1857 (c. 79) s. 79; 1859 (c. 31) s. 14]
31.—(1) If at the expiration of twelve months from the death of a person any personal representative of the deceased person to whom a grant has been made is residing out of the jurisdiction of the High Court, the High Court may, on the application of any creditor or person interested in the estate of the deceased person, grant to him in such form as the High Court thinks fit special administration of the estate of the deceased person.
(2) The Court may, for the purpose of any legal proceedings to which the administrator under the special administration is a party, order the transfer into court of any money or securities belonging to the estate of the deceased person, and all persons shall obey any such order.
(3) If the personal representative capable of acting as such returns to and resides within the jurisdiction of the High Court while any legal proceedings to which a special administrator is a party are pending, that personal representative shall be made a party to the legal proceedings, and the costs of and incidental to the special administration and the legal proceedings shall be paid by such person and out of such fund as the court in which the proceedings are pending may direct.
Administration during minority of executor.
[1818 (c. 81); 1857 (c. 79) s. 79; 1859 (c. 31) s. 14]
32.—(1) Where an infant is sole executor of a will, administration with the will annexed shall be granted to his guardian, or to such other person as the High Court thinks fit, until the infant attains the age of twenty-one years and applies for and obtains a grant of probate or letters of administration with the will annexed, and on his attaining that age, and not before, probate of the will may be granted to him.
(2) Where a testator by his will appoints an infant to be an executor, the appointment shall not operate to transfer any interest in the property of the deceased to the infant or to constitute him a personal representative for any purpose unless and until probate is granted to him under this section.
Continuance of legal proceedings after revocation of temporary administration.
[1857 (c. 9) s. 81]
33.—If, while any legal proceedings are pending in any court by or against an administrator to whom a temporary administration has been granted, that administration is revoked, that court may order that the proceedings be continued by or against the new personal representative in like manner as if the proceedings had been originally commenced by or against him, but subject to such conditions and variations, if any, as that court directs.
Administration bonds.
[1959 (No. 8) s. 14]
34.—(1) Every person to whom a grant of administration is made shall give a bond (in this section referred to as an administration bond) to the President of the High Court to inure for the benefit of the President of the High Court for the time being and, if the High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar so requires, with one or more surety or sureties conditioned for duly collecting, getting in, and administering the estate of the deceased.
(2) (a) An administration bond shall be in a penalty of double the amount at which the estate of the deceased is sworn, unless the High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar shall in any case direct it to be reduced, in which case the Court, the Probate Officer or the district probate registrar may do so.
(b) The High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar may also direct that more administration bonds than one shall be given, so as to limit the liability of any surety to such amount as the Court, the Probate Officer or the district probate registrar (as the case may be) shall think reasonable.
(3) An administration bond shall be in such form as the President of the High Court may prescribe by rules, and shall include a provision for payment of all death duties payable in respect of the estate of the deceased for which the personal representative is accountable and a further provision for the payment of all income tax and sur-tax payable out of the estate of the deceased.
(4) Where it appears to the satisfaction of the High Court that the condition of an administration bond has been broken, the High Court may, on application in that behalf, order that the bond be assigned to such person as may be specified in the order, and the person to whom the bond is assigned in pursuance of the order shall be entitled to sue thereon in his own name as if it had been originally given to him instead of to the President of the High Court and to recover thereon as trustee for all persons interested the full amount recoverable in respect of the breach of the condition thereof.
(5) Nothing in this section shall require the Chief State Solicitor or the Solicitor for the Attorney General, when applying for or obtaining administration for the use or benefit of the State, to give an administration bond.
[New]
(6) Sureties to administration bonds shall not be required when the grant is made to a trust corporation.
[New]
(7) An administration bond issued by a guarantee society or insurance company approved by the President of the High Court shall be acceptable for the purposes of this section whether the application for the grant is made in person or by a solicitor.
Annotations:
Modifications (not altering text):
C14
Interpretation of inheritance tax clarified (21.02.2003) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 113, commenced on enactment. This provision replaced Capital Acquisitions Tax Act 1976, s. 68.
Tax, in relation to certain legislation.
113.—(1) Inheritance tax shall not be a duty or a death duty for the purposes of section 9 of the Succession Act, 1965, but it shall be a death duty for the purposes of—
(a) section 34 (3) of that Act;
(b) the definition of pecuniary legacy in section 3 (1) of that Act; and
(c) paragraph 8 of Part II of the First Schedule to that Act.
Editorial Notes:
E7
Previous affecting provision: Capital Acquisitions Tax Act 1976 (8/1976), s. 68(1)(b), repealed (21.02.2003) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 118(1).
Applications for grants and revocations.
[1857 (c. 79) ss. 50, 63]
35.—(1) An application for the grant or revocation of representation may be made to the Probate Office or the district probate registry for the district where the deceased, at the time of his death, had a fixed place of abode.
[R.S.C., O. 79, r. 3; O. 80, r. 3]
(2) The application may be made either in person or through a solicitor.
(3) Where, in any contentious matter arising out of an application to the Probate Office, the High Court is satisfied that the Circuit Court has jurisdiction in the matter, the High Court may remit the matter to the judge of the circuit where the deceased, at the time of his death, had a fixed place of abode and the said judge shall proceed in the matter as if the application had been made to the Circuit Court in the first instance.
Grants in district probate registries.
[1857 (c. 79) ss. 50, 52, 54]
36.—(1) A grant may be made in common form by a district probate registrar in the name of the High Court and under the seal of the registry where the deceased, at the time of his death, had a fixed place of abode within the district where the application for the grant is made.
(2) No grant shall be made by a district probate registrar in any case in which there is contention until the contention is disposed of, or in any case in which it appears to him that a grant ought not to be made without the direction of the Court.
(3) In any case where it appears doubtful to a district probate registrar whether a grant should or should not be made, or where any question arises in relation to a grant, or an application for a grant, the district probate registrar shall send a statement of the matter to the Probate Office for the directions of a judge of the High Court for the time being exercising probate jurisdiction, and the judge may direct the district probate registrar to proceed with the matter in accordance with such instructions as the judge thinks necessary, or may forbid any further proceedings by the district probate registrar in relation to the matter, leaving the party applying for the grant to apply to the High Court through the Probate Office or, if the case is within the jurisdiction of the Circuit Court, to that court.
[1857 (c. 79) ss. 53, 55, 56; 1859 (c. 31) ss. 21, 22]
(4) A district probate registrar shall send to the Probate Office a notice in the prescribed form of every application made in the registry for a grant as soon as may be after the application has been made, and no grant shall be made by him until he has received from that Office a certificate that no other application appears to have been made in respect of the estate of the deceased.
(5) The certificate shall be forwarded as soon as may be to the district probate registrar.
(6) All notices so transmitted to the Probate Office shall be filed and kept in that Office.
(7) Where any such notice is received from any district probate registry, the Probate Officer shall examine all notices of applications for grants received from the several other district probate registries and all applications for grants made at the Probate Office, so far as may be necessary for the purpose of ascertaining whether more than one application for a grant in respect of the estate of the same deceased person has been made, and shall communicate with the district probate registrar as occasion may require in relation thereto.
(8) A district probate registrar shall, twice in every month, transmit to the Probate Office a list in the prescribed form of the grants made by him and not included in a previous return, and also copies of the wills to which the grants relate, certified by him to be correct.
(9) A district probate registrar shall file and preserve all original wills of which probate or administration with the will annexed has been granted by him, subject to such regulations with respect to the preservation and inspection of the wills as may from time to time be made by the President of the High Court.
(10) The President of the High Court may from time to time give directions for the disposal, whether by destruction or otherwise, of such of the notices kept in the Probate Office in pursuance of this section, as have, in his opinion, ceased, owing to lapse of time, to be of any public value.
Second and subsequent grants.
[1859 (c. 31) s. 16]
37.—Second and subsequent grants shall be made in the Probate Office or district probate registry, as the case may be, from which the original grant issued.
Caveats.
[1857 (c. 79) s. 57]
38.—(1) A caveat against a grant may be entered in the Probate Office or in any district probate registry.
(2) On a caveat being entered in a district probate registry, the district probate registrar shall immediately send a copy thereof to the Probate Office to be entered among the caveats in that Office.
Calendars of grants.
[1959 (No. 8) s. 17]
39.—(1) The President of the High Court shall from time to time cause to be prepared in the Probate Office calendars of grants made in the Probate Office and in the several district probate registries for such periods as the President of the High Court may direct.
(2) Every such calendar shall contain a note of every probate or administration with the will annexed and of every other administration granted within the period specified in the calendar, setting forth—
(a) the date of the grant,
(b) the place (being the Probate Office or a district probate registry) in which the grant was made,
(c) the name and address and the date of death of the testator or intestate,
(d) the names and descriptions of the executors or administrators, and
(e) the value of the estate, if any.
(3) A copy of every calendar so prepared shall be sent by post or otherwise to every district probate registry, and every copy so sent shall be kept in the district probate registry to which it is sent.
(4) Calendars and copies may be inspected in accordance with the directions of the President of the High Court.
Copies of wills, etc., to be delivered to Revenue Commissioners.
[1857 (c. 79) s. 100]
40.—Subject to any arrangements which may from time to time be made between the President of the High Court and the Revenue Commissioners, the Probate Office and every district probate registry shall, within such period after a grant as the President may direct, deliver to the Commissioners or their proper officer the following documents—
(a) in the case of a probate or of administration with a will annexed, the Inland Revenue affidavit and a copy of the will (if required);
(b) in the case of administration without a will annexed, the Inland Revenue affidavit;
(c) in every case of administration, a copy or extract of the administration;
(d) in every case, such certificate or note of the grant as the Commissioners may require.
Issue of grants of representation in case of Circuit Court decrees.
[1857 (c. 79) s. 59]
41.—On a decree being made by the Circuit Court for the grant or revocation of representation the Probate Officer or the district probate registrar shall, on the application of a person entitled thereto, grant representation in compliance with the decree or, as the case may require, recall or vary, according to the effect of the decree, any representation already granted.
Deposit and inspection of wills and other documents.
[1857 (c. 79) s. 71]
42.—(1) The following documents—
(a) all original wills of which representation is granted in the Probate Office,
(b) copies of all wills the originals of which are to be preserved in district probate registries, and
(c) such other documents as the President of the High Court may direct,
shall be deposited and preserved in the Probate Office under the control of the President of the High Court and may be inspected in accordance with his directions.
(2) Subsection (1) shall have effect subject to the provisions of the Public Records (Ireland) Act, 1867, which provides for the ultimate removal of records to the Public Record Office for safe keeping.
Official copies of wills and grants.
[1857 (c. 79) s. 74]
43.—(1) An official copy of the whole or any part of a will, or of a grant of representation, may be obtained from the Probate Office or district probate registry where the will has been proved or the representation granted.
(2) An official copy of a grant of representation shall be sufficient evidence of the grant. This subsection applies whether the grant was made before or after the commencement of this Act.
Trial by jury of questions of fact.
[1857 (c. 79) s. 41]
44.—(1) The court may cause any question of fact arising in any proceedings under this Act to be tried by a jury, and such question shall be so tried in any case where all the parties to the proceedings concur in an application to the court for a jury.
(2) Where any party makes an application for a jury without the concurrence of the other party and the court refuses the application, the refusal of the court shall be subject to appeal.
Annotations:
Modifications (not altering text):
C15
Application of section restricted (1.03.1972) by Courts Act 1971 (36/1971), s. 6, in force as per s. 25(4).
Abolition of juries in civil cases in Circuit Court.
6.—Notwithstanding section 94 of the Act of 1924 or section 44 of the Succession Act, 1965, a civil action in the Circuit Court or a question of fact or an issue arising in the action or a question of fact arising in any proceedings in the Circuit Court under the Succession Act, 1965, shall not be tried by a jury.
PART V
Administration of Assets
Estate of deceased to be assets for payment of debts and legal right.
[1285 (c. 19); 1357 (st. 1.c.11); 1695 (c. 12) ss. 7, 8; 1833 (c. 104); 1869 (c. 46)]
45.—(1) The estate, whether legal or equitable, of a deceased person, to the extent of his beneficial interest therein, and the estate of which a deceased person in pursuance of any general power disposes by his will, are assets for payment of the funeral, testamentary and administration expenses, debts (whether by specialty or simple contract) and liabilities, and any legal right, and any disposition by will inconsistent with this section is void as against the creditors and any person entitled to a legal right, and the court shall, if necessary, administer the property for the purpose of the payment of the expenses, debts and liabilities and any legal right.
(2) This section takes effect without prejudice to the rights of incumbrancers.
Administration of assets.
[New]
46.—(1) Where the estate of a deceased person is insolvent, it shall be administered in accordance with the rules set out in Part I of the First Schedule.
(2) (a) The right of retainer of a personal representative and his right to prefer creditors may be exercised in respect of all assets of the deceased, but the right of retainer shall only apply to debts owing to the personal representative in his own right whether solely or jointly with another person, and shall not be exercisable where the estate is insolvent.
(b) Subject to paragraph (a), nothing in this Act affects the right of retainer of a personal representative, or his right to prefer creditors.
(3) Where the estate of a deceased person is solvent, it shall, subject to rules of court and the provisions hereinafter contained as to charges on property of the deceased, and to the provisions, if any, contained in his will, be applicable towards the discharge of the funeral, testamentary and administration expenses, debts and liabilities and any legal right in the order mentioned in Part II of the First Schedule.
(4) Nothing in subsection (3) affects the rights of any creditor of the deceased or the legal right of a spouse.
(5) Where a creditor, a person entitled to a legal right or a personal representative applies an asset out of the order mentioned in Part II of the First Schedule, the persons entitled under the will or on intestacy shall have the right to have the assets marshalled so that a beneficiary whose estate or interest has been applied out of its order shall stand in the place of that creditor or person pro tanto as against any property that, in the said order, is liable before his own estate or interest.
(6) A claim to a share as a legal right or on intestacy in the estate of a deceased person is a claim against the assets of the estate to a sum equal to the value of that share.
Charges on property of deceased to be paid primarily out of the property charged.
[1854 (c. 113), 1867 (c. 69) and 1877 (c. 34) extended to personalty]
47.—(1) Where a person dies possessed of, or entitled to, or, under a general power of appointment, by his will disposes of, an interest in property, which at the time of his death is charged with the payment of money, whether by way of legal or equitable mortgage or charge or otherwise (including a lien for unpaid purchase money), and the deceased person has not by will, deed or other document signified a contrary or other intention, the interest so charged shall, as between the different persons claiming through the deceased person, be primarily liable for the payment of the charge; and every part of the said interest, according to its value, shall bear a proportionate part of the charge on the whole thereof.
(2) Such contrary or other intention shall not be deemed to be signified—
(a) by a general direction for the payment of debts or of all the debts of the testator out of his estate, or any part thereof, or
(b) by a charge of debts upon any such estate,
unless such intention is further signified by words expressly or by necessary implication referring to all or some part of the charge.
(3) Nothing in this section affects the right of a person entitled to the charge to obtain payment or satisfaction thereof either out of the other assets of the deceased or otherwise.
Causes of action surviving on death.
48.—The personal representatives of a deceased person may sue and be sued in respect of all causes of action which, by virtue of Part II of the Civil Liability Act, 1961, survive for the benefit of, or against, the estate of the deceased, subject to the provisions of that Act and the rules of limitation under the Statute of Limitations, 1957, or otherwise.
Distribution of assets after notice to creditors.
[1859 (c. 35) s. 29]
49.—(1) Where the personal representatives have given such notices to creditors and others to send in their claims against the estate of the deceased as, in the opinion of the court in which the personal representatives are sought to be charged, would have been given by the court in an administration suit, the personal representatives shall, at the expiration of the time named in the said notices, or the last of them, for sending in such claims, be at liberty to distribute the assets of the deceased, or any part thereof, amongst the parties entitled thereto, having regard to the claims of which the personal representatives have then notice.
(2) The personal representatives shall not be liable to any person for the assets or any part thereof so distributed unless at the time of such distribution they had notice of that person’s claim.
(3) Nothing in this section shall prejudice the right of any creditor or claimant to follow any such assets into the hands of any person who may have received them.
(4) This section applies whether the deceased died before or after the commencement of this Act.
Powers of personal representatives to sell and to act as trustees.
[1959 (No. 8) s. 18]
50.—(1) The personal representatives may sell the whole or any part of the estate of a deceased person for the purpose not only of paying debts, but also (whether there are or are not debts) of distributing the estate among the persons entitled thereto, and before selling for the purposes of distribution the personal representatives shall, so far as practicable, give effect to the wishes of the persons of full age entitled to the property proposed to be sold or, in the case of dispute, of the majority (according to the value of their combined interests) of such persons so, however, that—
(a) a purchaser shall not be concerned to see that the personal representatives have complied with such wishes; and
(b) it shall not be necessary for any person so entitled to concur in any such sale.
(2) Subject to section 20, it shall not be lawful for some or one only of several personal representatives, without leave of the High Court, to exercise any power conferred by this section or section 60 to dispose of any land.
(3) F19[…]
Annotations:
Amendments:
F19
Repealed (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 8(3) and sch. 2 pt. 5, S.I. No. 356 of 2009.
Protection of purchasers.
[1959 (No. 8) s. 19]
51.—(1) A purchaser from the personal representatives of a deceased person of any property, being the whole or any part of the estate of the deceased, shall be entitled to hold that property freed and discharged from any debts or liabilities of the deceased, except such as are charged otherwise than by the will of the deceased, and from all claims of the persons entitled to any share in the estate, and shall not be concerned to see to the application of the purchase money.
(2) (a) This subsection applies to all property other than property the ownership of which is registered under the Registration of Title Act, 1964.
(b) A purchaser of any property to which this subsection applies, being the whole or any part of the estate of a deceased person, which has been conveyed by the personal representatives to any person shall be entitled to hold that property freed and discharged from the claims of creditors of the deceased and from any claims of the persons entitled to any share in the estate.
(3) This section applies whether the deceased died before or after the commencement of this Act.
General provisions as to assent or transfer by personal representatives.
[1959 (No. 8) s. 20]
52.—(1) In this section and in section 53—
(a) references to the land of a deceased person are references to land to which he was entitled or over which he exercised a general power of appointment by will;
(b) “person entitled” includes, in relation to any estate or interest in land—
(i) the person or persons (including the personal representatives of the deceased or any of them) who (whether by devise, bequest, devolution or otherwise) may be beneficially entitled to that estate or interest, and
(ii) the trustee or trustees or the personal representative or representatives of any such person or persons.
(2) Without prejudice to any other power conferred by this Act on personal representatives with respect to any land of a deceased person, the personal representatives may at any time after the death of the deceased execute an assent vesting any estate or interest in any such land in the person entitled thereto or may transfer any such estate or interest to the person entitled thereto, and may make the assent or transfer either subject to or free from a charge for the payment of any money which the personal representatives are liable to pay.
(3) Where an assent or transfer under subsection (2) is made subject to a charge for all moneys, if any, which the personal representatives are liable to pay, all liabilities of the personal representatives in respect of the land shall cease, except as to any acts done or contracts entered into by them before the assent or transfer.
(4) At any time after the expiration of one year from the death of an owner of land, if the personal representatives have failed on the request of the person entitled to transfer, by assent or otherwise, the land to the person entitled, the court may, if it thinks fit, on the application of the person entitled and after notice to the personal representatives, order that the transfer be made, and, in default of compliance with that order within the time specified therein by the court, may make an order vesting the land in the person entitled as fully and effectually as might have been done by a transfer thereof by the personal representatives.
(5) An assent not in writing shall not be effectual to pass any estate or interest in land.
(6) The statutory covenants implied where a person is expressed in a deed to convey as personal representative shall also be implied in any assent signed by a personal representative unless the assent otherwise provides.
(7) Subject to section 20, it shall not be lawful for some or one only of several personal representatives, without leave of the court, to make an assent or transfer under this section.
(8) This section shall not operate to impose any stamp duty in respect of an assent.
Annotations:
Modifications (not altering text):
C16
Application of section not restricted (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 80(4), S.I. No. 356 of 2009.
Covenants for title.
80.— …
(4) Without prejudice to section 52(6) of the Act of 1965, where in a conveyance a person conveying is not expressed to convey “as beneficial owner”, “as trustee”, “as mortgagee”, “as personal representative”, under an order of the court or by a direction of a person “as beneficial owner”, no covenant on the part of the person conveying is implied in the conveyance.
…
Special provisions as to unregistered land.
[1959 (No. 8) s. 21]
53.—(1) An assent to the vesting of any estate or interest in unregistered land of a deceased person in favour of the person entitled thereto shall—
(a) be in writing,
(b) be signed by the personal representatives,
(c) be deemed, for the purposes of the Registration of Deeds Act, 1707, to be a conveyance of that estate or interest from the personal representatives to the person entitled,
(d) operate, subject to the provisions of the Registration of Deeds Act, 1707, with respect to priorities, to vest that estate or interest in the person entitled subject to such charges and incumbrances, if any, as may be specified in the assent and as may otherwise affect that estate or interest,
(e) subject to the provisions of the Registration of Deeds Act, 1707, be deemed (unless a contrary intention appears therein) for all purposes necessary to establish the title of the person entitled to intervening rents and profits to relate back to the death of the deceased, but nothing in this paragraph shall operate to enable any person to establish a title inconsistent with the will of the deceased.
(2) Any person in whose favour an assent or conveyance of any unregistered land is made by personal representatives may at his own expense require the personal representatives to register that assent or conveyance in the Registry of Deeds pursuant to the Registration of Deeds Act, 1707.
[New]
(3) An assent or conveyance of unregistered land by a personal representative shall, in favour of a purchaser, be conclusive evidence that the person in whose favour the assent or conveyance is given or made is the person who was entitled to have the estate or interest vested in him, but shall not otherwise prejudicially affect the claim of any person originally entitled to that estate or interest or to any mortgage or incumbrance thereon.
(4) This section applies to assents and conveyances made after the commencement of this Act whether the deceased died before or after such commencement.
Special provisions as to registered land.
54.—(1) An assent or transfer made by a personal representative in respect of registered land shall be in the form required under section 61 of the Registration of Title Act, 1964, and shall be subject to the provisions of that Act.
(2) The Registration of Title Act, 1964, is hereby amended by the substitution of the following subsection for subsection (3) of section 61:
“(3) (a) An application for registration made by a person who claims to be by law entitled to the land of a deceased registered full owner, accompanied by an assent or transfer by the personal representative in the prescribed form, shall authorise the Registrar to register such person as full or limited owner of the land, as the case may be.
(b) On the determination of the estate or interest of an owner who is registered as limited owner of land pursuant to such an assent or transfer, the assent or transfer shall, on application being made in the prescribed manner, authorise the Registrar to register, as full or limited owner, as the case may be, the person in whose favour the assent or transfer was made, or the successor in title of that person, as may be appropriate.
(c) It shall not be the duty of the Registrar, nor shall he be entitled, to call for any information as to why any assent or transfer is or was made and he shall be bound to assume that the personal representative is or was acting in relation to the application, assent or transfer correctly and within his powers.”
Powers of personal representatives as to appropriation.
[New]
55.—(1) The personal representatives may, subject to the provisions of this section, appropriate any part of the estate of a deceased person in its actual condition or state of investment at the time of appropriation in or towards satisfaction of any share in the estate, whether settled or not, according to the respective rights of the persons interested in the estate.
(2) Except in a case to which section 56 applies, an appropriation shall not be made under this section so as to affect prejudicially any specific devise or bequest.
(3) Except in a case to which section 56 applies, an appropriation shall not be made under this section unless notice of the intended appropriation has been served on all parties entitled to a share in the estate (other than persons who may come into existence after the time of the appropriation or who cannot after reasonable enquiry be found or ascertained at that time) any one of which parties may within six weeks from the service of such notice on him apply to the court to prohibit the appropriation.
(4) An appropriation of property, whether or not being an investment authorised by law or by the will, if any, of the deceased, shall not (save as in this section mentioned) be made under this section except with the following consents:
(a) when made for the benefit of a person absolutely and beneficially entitled in possession, the consent of that person;
(b) when made in respect of any settled share, the consent of either the trustee thereof, if any (not being also the personal representative), or the person who may for the time being be entitled to the income.
(5) If the person whose consent is so required is an infant or a person of unsound mind, the consent shall be given on his behalf by his parents or parent, guardian, committee or receiver, or if, in the case of an infant there is no such parent or guardian, by the court on the application of his next friend.
(6) No consent (save of such trustee as aforesaid) shall be required on behalf of a person who may come into existence after the time of appropriation, or who cannot after reasonable enquiry be found or ascertained at that time.
(7) If no committee or receiver of a person of unsound mind has been appointed, then, if the appropriation is of an investment authorised by law or by the will, if any, of the deceased, no consent shall be required on behalf of the person of unsound mind.
(8) If, independently of the personal representatives there is no trustee of a settled share, and no person of full age and capacity entitled to the income thereof, no consent shall be required to an appropriation in respect of such share provided that the appropriation is of an investment authorised as aforesaid.
(9) Any property duly appropriated under the powers conferred by this section shall thereafter be treated as an authorised investment, and may be retained or dealt with accordingly.
(10) For the purposes of such appropriation, the personal representatives may ascertain and fix the values of the respective parts of the estate and the liabilities of the deceased person as they may think fit, and may for that purpose employ a duly qualified valuer in any case where such employment may be necessary; and may make any conveyance which may be requisite for giving effect to the appropriation.
(11) Unless the court on an application made to it under subsection (3) otherwise directs, an appropriation made pursuant to this section shall bind all persons interested in the property of the deceased whose consent is not hereby made requisite.
(12) The personal representatives shall, in making the appropriation, have regard to the rights of any person who may thereafter come into existence, or who cannot after reasonable enquiry be found or ascertained at the time of appropriation, and of any other person whose consent is not required by this section.
(13) This section does not prejudice any other power of appropriation conferred by law or by the will, if any, of the deceased, and takes effect with any extended powers conferred by the will, if any, of the deceased, and, where an appropriation is made under this section, in respect of a settled share, the property appropriated shall remain subject to all trusts for sale and powers of leasing, disposition and management or varying investments which would have been applicable thereto or to the share in respect of which the appropriation is made, if no such appropriation had been made.
(14) If, after any property has been appropriated in purported exercise of the powers conferred by this section, the person to whom it was conveyed disposes of it or any interest therein, then, in favour of a purchaser, the appropriation shall be deemed to have been made in accordance with the requirements of this section and after all requisite notices and consents, if any, had been given.
(15) In this section, a settled share includes any share to which a person is not absolutely entitled in possession at the date of the appropriation and also an annuity.
(16) This section applies whether the deceased died intestate or not, and whether before or after the commencement of this Act, and extends to property over which a testator exercises a general power of appointment, and authorises the setting apart of a fund to answer an annuity by means of the income of that fund or otherwise.
(17) Where any property is appropriated under the provisions of this section, a conveyance thereof by the personal representatives to the person to whom it is appropriated shall not, by reason only that the property so conveyed is accepted by the person to whom it is conveyed in or towards the satisfaction of a legacy or a share in residuary estate, be liable to any higher stamp duty than that payable on a transfer of personal property for the like purpose.
(18) The powers conferred by this section may be exercised by the personal representatives in their own favour.
Right of surviving spouse to require dwelling and household chattels to be appropriated.
[New]
56.—(1) Where the estate of a deceased person includes a dwelling in which, at the time of the deceased’s death, the surviving spouse F20[or civil partner] was ordinarily resident, the surviving spouse F20[or civil partner] may, subject to subsection (5), require the personal representatives in writing to appropriate the dwelling under section 55 in or towards satisfaction of any share of the surviving spouse F20[or civil partner].
(2) The surviving spouse F20[or civil partner] may also require the personal representatives in writing to appropriate any household chattels in or towards satisfaction of any share of the surviving spouse F20[or civil partner].
(3) If the share of a surviving spouse F20[or civil partner] is insufficient to enable an appropriation to be made under subsection (1) or (2), as the case may be, the right conferred by the relevant subsection may also be exercised in relation to the share of any infant for whom the surviving spouse F20[or civil partner] is a trustee under section 57 or otherwise.
(4) It shall be the duty of the personal representatives to notify the surviving spouse F20[or civil partner] in writing of the rights conferred by this section.
(5) A right conferred by this section shall not be exercisable—
(a) after the expiration of six months from the receipt by the surviving spouse F20[or civil partner] of such notification or one year from the first taking out of representation of the deceased’s estate, whichever is the later, or
(b) in relation to a dwelling, in any of the cases mentioned in subsection (6), unless the court, on application made by the personal representatives or the surviving spouse F20[or civil partner], is satisfied that the exercise of that right is unlikely to diminish the value of the assets of the deceased, other than the dwelling, or to make it more difficult to dispose of them in due course of administration and authorises its exercise.
(6) Paragraph (b) of subsection (5) and paragraph (d) of subsection (10) apply to the following cases:
(a) where the dwelling forms part of a building, and an estate or interest in the whole building forms part of the estate;
(b) where the dwelling is held with agricultural land an estate or interest in which forms part of the estate;
(c) where the whole or a part of the dwelling was, at the time of the death, used as a hotel, guest house or boarding house;
(d) where a part of the dwelling was, at the time of the death, used for purposes other than domestic purposes.
(7) Nothing in subsection (12) of section 55 shall prevent the personal representatives from giving effect to the rights conferred by this section.
(8) (a) So long as a right conferred by this section continues to be exercisable, the personal representatives shall not, without the written consent of the surviving spouse F20[or civil partner] or the leave of the court given on the refusal of an application under paragraph (b) of subsection (5), sell or otherwise dispose of the dwelling or household chattels except in the course of administration owing to want of other assets.
(b) This subsection shall not apply where the surviving spouse F20[or civil partner] is a personal representative.
(c) Nothing in this subsection shall confer any right on the surviving spouse F20[or civil partner] against a purchaser from the personal representatives.
(9) The rights conferred by this section on a surviving spouse F20[or civil partner] include a right to require appropriation partly in satisfaction of a share in the deceased’s estate and partly in return for a payment of money by the surviving spouse F20[or civil partner] on F21[his or her] own behalf and also on behalf of any infant for whom the spouse F20[or civil partner] is a trustee under section 57 or otherwise.
(10) (a) In addition to the rights to require appropriation conferred by this section, the surviving spouse F20[or civil partner] may, so long as a right conferred by this section continues to be exercisable, apply to the court for appropriation on F21[his or her] own behalf and also on behalf of any infant for whom the spouse F20[or civil partner] is a trustee under section 57 or otherwise.
(b) On any such application, the court may, if of opinion that, in the special circumstances of the case, hardship would otherwise be caused to the surviving spouse F20[or civil partner] or to the surviving spouse F20[or civil partner] and any such infant, order that appropriation to the spouse F20[or civil partner] shall be made without the payment of money provided for in subsection (9) or subject to the payment of such amount as the court considers reasonable.
(c) The court may make such further order in relation to the administration of the deceased’s estate as may appear to the court to be just and equitable having regard to the provisions of this Act and to all the circumstances.
(d) The court shall not make an order under this subsection in relation to a dwelling in any of the cases mentioned in subsection (6), unless it is satisfied that the order would be unlikely to diminish the value of the assets of the deceased, other than the dwelling, or to make it more difficult to dispose of them in due course of administration.
(11) All proceedings in relation to this section shall be heard in chambers.
(12) Where the surviving spouse F20[or civil partner] is a person of unsound mind, a requirement or consent under this section may, if there is a committee of F21[his or her] estate, be made or given on behalf of the spouse F20[or civil partner] by the committee by leave of the court which has appointed the committee or, if there is no committee, be given or made by the High Court or, in a case within the jurisdiction of the Circuit Court, by that Court.
(13) An appropriation to which this section applies shall for the purposes of succession duty be deemed to be a succession derived from the deceased.
[Cf. “dwelling” in 1960 (No. 42) s. 2 (1)]
(14) In this section—
“dwelling” means an estate or interest in a building occupied as a separate dwelling or a part, so occupied, of any building and includes any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling;
“household chattels” means furniture, linen, china, glass, books and other chattels of ordinary household use or ornament and also consumable stores, garden effects and domestic animals, but does not include any chattels used at the death of the deceased for business or professional purposes or money or security for money.
Annotations:
Amendments:
F20
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 70(a), S.I. No. 648 of 2010.
F21
Substituted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 70(b), S.I. No. 648 of 2010.
Modifications (not altering text):
C17
Application of section affected (3.04.2010) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 45AA, as inserted by Finance Act 2010 (5/2010), s. 147, commenced on enactment.
[
Liability of certain persons in respect of non-resident beneficiaries
45AA.— (1) Where—
(a) property passing under a deceased person’s will or intestacy or under Part IX or section 56 of the Succession Act 1965 , or otherwise as a result of the death of that person, is taken by a person or persons who is or are not resident in the State,
…
then, the personal representative or one or more of the personal representatives, as the case may be, and the solicitor referred to in section 48(10), shall be assessable and chargeable for the tax payable by the person or persons referred to in paragraph (a) to the same extent that those persons are chargeable to tax under section 11. ]
Editorial Notes:
E8
Certification of payment of inheritance tax in respect of property passing under section provided for (23.02.2003) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 108(2), commenced on enactment.
Appointment by personal representatives of trustees of infant’s property.
[New]
57.—(1) Where an infant is entitled to any share in the estate of a deceased person and there are no trustees of such share able and willing to act, the personal representatives of the deceased may appoint a trust corporation or any two or more persons (who may include the personal representatives or any of them or a trust corporation) to be trustees of such share for the infant and may execute such assurance or take such other action as may be necessary for vesting the share in the trustee so appointed. In default of appointment the personal representatives shall be trustees for the purposes of this section.
(2) On such appointment the personal representatives, as such, shall be discharged from all further liability in respect of the property vested in the trustees so appointed.
Annotations:
Modifications (not altering text):
C18
Meaning of “infant” subjected to transitional provision (1.03.1985) by Age of Majority Act 1985 (2/1985), s. 7(1) and sch. para. 4.
Powers of Personal Representatives During Minority of Beneficiary
4. In the case of a beneficiary whose interest arises under a will or codicil made before the commencement of this Act or on the death before that date of an intestate, section 2 shall not affect the meaning of “infant” in sections 57 and 58 of the Succession Act, 1965.
Powers of trustees of infant’s property.
[New]
58.—(1) Property vested under section 57 may be retained in its existing condition or state of investment or may be converted into money and invested in any security in which a trustee is authorised by law to invest, with power, at the discretion of the trustees, to change such investments for others so authorised.
(2) F22[…]
(3) A person who is sole trustee under section 57 shall be entitled to receive capital trust money.
(4) Persons who are trustees under section 57 shall be deemed to be trustees for the purposes of sections 42 and 43 of the Conveyancing Act, 1881.
(5) Without prejudice to any powers under the said sections 42 and 43, persons who are trustees under section 57 may at any time or times pay or apply the capital of any share in the estate to which the infant is entitled for the advancement or benefit of the infant in such manner as they may, in their absolute discretion, think fit and may, in particular, carry on any business in which the infant is entitled to a share.
(6) The powers conferred by subsection (5) may also be exercised by the surviving spouse F23[or civil partner] as trustee of any property of an infant appropriated in accordance with section 56.
Annotations:
Amendments:
F22
Repealed (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), S.I. No. 356 of 2009.
F23
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 71, S.I. No. 648 of 2010.
Modifications (not altering text):
C19
Meaning of “infant” subjected to transitional provision (1.03.1985) by Age of Majority Act 1985 (2/1985), s. 7(1) and sch. para. 4.
Powers of Personal Representatives During Minority of Beneficiary
4. In the case of a beneficiary whose interest arises under a will or codicil made before the commencement of this Act or on the death before that date of an intestate, section 2 shall not affect the meaning of “infant” in sections 57 and 58 of the Succession Act, 1965.
Right to follow property.
[Restates existing law relating to right to follow property; as to real estate, see 1830 (c. 47) 1839 (c. 60) and 1848 (c. 87)]
59.—(1) Property which has been conveyed by personal representatives to any person (other than a purchaser) shall, so long as it remains vested in that person, or in any person claiming under him (not being a purchaser), continue to be liable to answer the debts of the deceased and any share in the estate to the extent to which it was liable when vested in the personal representatives.
(2) In the event of a sale or mortgage of the property by a person (not being a purchaser) to whom it was conveyed by the personal representatives, or by any person claiming under him (not being a purchaser), the seller or mortgagor shall continue to be personally liable for such debts and for any share in the estate to the extent to which the property was liable when vested in the personal representatives.
(3) This section applies whether the deceased died before or after the commencement of this Act.
Powers to deal with estate, etc.
[Restates, clarifies and extends to real estate existing law relating to personal estate; as to real estate, see 1859 (c. 35) ss. 14 to 18]
60.—(1) The personal representatives of a deceased owner of land may, in addition to any other powers conferred on them by this Act—
(a) make such leases of the land as may be reasonably necessary for the due administration of the estate of the deceased owner; or
(b) with the consent of the beneficiaries, or with the approval of the court, make leases of the land for such term and on such conditions as the personal representatives may think proper; or
(c) make, on such terms and conditions as the personal representatives may think proper, F24[a sub-lease of the land] with a nominal reversion, where such F25[…] sub-lease amounts in substance to a sale and the personal representatives have satisfied themselves that it is the most appropriate method of disposing of the land in the course of the administration of the estate;
and, where personal representatives F25[…] lease any land pursuant to any power conferred on them by this subsection, they may sell F25[…] any reversion expectant upon the determination of any such lease.
(2) The right of the personal representatives to obtain possession of any premises demised by them pursuant to the power conferred by paragraph (a) of subsection (1) shall be exercisable notwithstanding anything to the contrary contained in the Rent Restrictions Act, 1960.
(3) The personal representatives of a deceased person may from time to time raise money by way of mortgage or charge for the payment of expenses, debts and liabilities, and any legal right and, with the approval of all the beneficiaries being sui juris or the court (but not otherwise), for the erection, repair, improvement or completion of buildings, or the improvement of lands forming part of the estate of the deceased.
(4) This section shall not prejudice or affect any power or duty of personal representatives to execute any document or do any other act or thing for the purpose of completing any transaction entered into by a deceased person before his death.
[1840 (c. 105) s. 61]
(5) The personal representatives of a deceased person may distrain upon land for arrears of rent due or accruing to the deceased in like manner as the deceased might have done had he been living.
[1840 (c. 105) s. 62]
(6) Such arrears may be distrained for after the termination of the lease or tenancy as if the term or interest had not determined, if the distress is made—
(a) within six months after the termination of the lease or tenancy;
(b) during the continuance of the possession of the lessee or tenant from whom the arrears were due.
The enactments relating to distress for rent apply to any distress made pursuant to this subsection.
[New]
(7) The personal representatives may distrain for arrears of a rentcharge due or accruing to the deceased in his lifetime on the land affected or charged therewith, so long as the land remains in the possession of the person liable to pay the rentcharge or of the persons deriving title under him, and in like manner as the deceased might have done had he been living.
[Enlarges powers conferred by 1893 (c. 53) s. 21]
(8) The personal representatives of a deceased person may—
(a) accept any property before the time at which it is transferable or payable;
(b) pay or allow any debt or claim on any evidence they may reasonably deem sufficient;
(c) accept any composition or security for any debt or property claimed;
(d) allow time for payment of any debt;
(e) compromise, compound, abandon, submit to arbitration, or otherwise settle, any debt, account, dispute, claim or other matter relating to the estate of the deceased;
(f) settle and fix reasonable terms of remuneration for any trust corporation appointed by them under section 57 to act as trustee of any property and authorise such trust corporation to charge and retain such remuneration out of that property,
and for any of those purposes may enter into such agreements or arrangements and execute such documents as seem to them expedient, without being personally responsible for any loss occasioned by any act or thing so done by them in good faith.
(9) This section shall not prejudice or affect any powers conferred by will on personal representatives, and the powers conferred by this section on the personal representatives of a deceased person who has died testate shall be exercised subject to any provisions contained in his will with respect to the disposal of his estate.
(10) This section applies whether the deceased died before or after the commencement of this Act.
Annotations:
Amendments:
F24
Substituted (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 8(1) and sch. 1, S.I. No. 356 of 2009.
F25
Deleted (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 8(1) and sch. 1, S.I. No. 356 of 2009.
Purchasers from personal representatives.
[Restates existing law: as to real estate, see 1859 (c. 35) s. 17]
61.—A purchaser from personal representatives shall be entitled to assume that the personal representatives are acting correctly and within their powers.
Time allowed for distribution.
[1695 (c. 6) s. 4]
62.—(1) The personal representatives of a deceased person shall distribute his estate as soon after his death as is reasonably practicable having regard to the nature of the estate, the manner in which it is required to be distributed and all other relevant circumstances, but proceedings against the personal representatives in respect of their failure to distribute shall not, without leave of the court, be brought before the expiration of one year from the date of the death of the deceased.
(2) Nothing in this section shall prejudice or affect the rights of creditors of a deceased person to bring proceedings against his personal representatives before the expiration of one year from his death.
Advancements to children to be brought into account.
[New]
63.—(1) Any advancement made to the child of a deceased person during his lifetime shall, subject to any contrary intention expressed or appearing from the circumstances of the case, be taken as being so made in or towards satisfaction of the share of such child in the estate of the deceased or the share which such child would have taken if living at the death of the deceased, and as between the children shall be brought into account in distributing the estate.
(2) The advancement shall, for the purposes of this section only, be reckoned as part of the estate of the deceased and its value shall be reckoned as at the date of the advancement.
(3) If the advancement is equal to or greater than the share which the child is entitled to receive under the will or on intestacy, the child or the issue of the child shall be excluded from any such share in the estate.
(4) If the advancement is less than such share, the child or the issue of the child shall be entitled to receive in satisfaction of such share so much only of the estate as, when added to the advancement, is sufficient, as nearly as can be estimated, to make up the full amount of that share.
(5) The onus of proving that a child has been made an advancement shall be upon the person so asserting, unless the advancement has been expressed in writing by the deceased.
(6) For the purposes of this section, “advancement” means a gift intended to make permanent provision for a child and includes advancement by way of portion or settlement, including any life or lesser interest and including property covenanted to be paid or settled. It also includes an advance or portion for the purpose of establishing a child in a profession, vocation, trade or business, a marriage portion and payments made for the education of a child to a standard higher than that provided by the deceased for any other or others of his children.
(7) For the purposes of this section, personal representatives may employ a duly qualified valuer.
(8) Nothing in this section shall prevent a child retaining the advancement and abandoning his right to a share under the will or on intestacy.
(9) Nothing in this section shall affect any rule of law as to the satisfaction of portion debts by legacies.
(10) In this section “child” includes a person to whom the deceased was in loco parentis.
Duty of personal representatives as to inventory.
[1357 (st. 1.c.11); 1537 (c. 18); 1695 (c. 6) s. 1]
64.—The personal representatives of a deceased person shall, when lawfully required to do so, exhibit on oath in the court a true and perfect inventory and account of the estate of the deceased, and the court shall have power to require personal representatives to bring in inventories.
Administration on behalf of the State.
[1884 (c. 71) ss. 2, 3]
65.—(1) Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the Solicitor for the Attorney General or any other person), any legal proceedings by or against the administrator for the recovery of the estate or any share thereof shall be of the same character and be instituted and carried on in the same manner, and be subject to the same rules of law and equity in all respects, as if the grant had been made to the administrator as a person beneficially entitled to a share of the estate.
(2) Proceedings on behalf of or against the State in respect of the estate of a deceased person or any share thereof or any claim thereon shall not be instituted except subject to the same rules of law and equity in and subject to which proceedings for the like purposes might be instituted by or against a private individual.
[New]
(3) Where the Chief State Solicitor for the time being is administrator of an estate for the use or benefit of the State, he shall cease to be administrator on ceasing to hold office and his successor in office shall become administrator in his place without further grant
Cases Squatting
Gleeson v. Feehan
[1997] 1 I.L.R.M. 52efore considering the authorities, I would make two preliminary observations. In the first place, I think some confusion may be caused by describing a person in the position of Edmond as ‘a trespasser’. If the submissions advanced on behalf of the defendants are well founded, it is true to say that he was, in the strictly legal sense, a trespasser. Many people would instinctively think of a trespasser as a person who takes possession of land to which he has no right. It would seem inappropriate in every day language to describe a member of a family who goes on living in the family home after the death of his parents as a ‘trespasser’. If, however, a person has remained in what the law has come to call ‘adverse possession’ of land for the specified period prescribed by the relevant statute of limitations and thereby becomes the legal owner of the land, it may well be that, in strict legal theory, his possession throughout that period can also be described as that of ‘a trespasser’, however incongruous that description may appear to be when applied to a child who stays on in possession of the family home which everyone else has left.
In the second place, while there has been much debate in this case as to the nature of the interest, if any, of the next-of-kin of James Dwyer in these lands after his death, it does not seem to me to be axiomatic that the existence of a beneficial interest in the property, if such there was, ipso facto carried with it a right to possession of the land.
In considering the authorities, it will probably be convenient to start with Martin v. Kearney (1902) 36 ILTR 117, since it is to some extent the sheet anchor of the plaintiff’s case. In that case, the plaintiff was one of four children who were in possession of a farm after their father’s death. The other three having died before the proceedings were instituted, the plaintiff claimed to be entitled to the entire farm as a surviving joint tenant. The defendant was his sister who had left the farm on her marriage before the father’s death and had returned to it with her son at the request of the plaintiff’s brother shortly before his death.
The County Court judge having given a decree in favour of the plaintiff, the appeal came on before Palles CB. He held that the plaintiff was entitled to no more than a one fourth share in the farm as tenant in common and was not entitled to an ejectment decree against his sister. He, accordingly, converted the ejectment civil bill into an equity civil bill and made an order declaring the plaintiff entitled to one undivided fourth part in the farm.
In the course of his judgment, which appears to have been ex tempore , the Chief Baron said that he was not prepared to follow a decision of Ross J (as he *530 then was) in Coyle v. McFadden [1901] 1 IR 298 to the effect that next-of-kin remaining on in possession in such circumstances acquired a possessory title as joint tenants. The report continues:
Palles CB … held that the next-of-kin remaining in possession without any administration having been taken out to the deceased intestate were equitable tenants in common under a good equitable title, and were not trespassers, and that, when the statute of limitations ran, their equitable tenancy in common became a legal estate as tenants in common ….
Counsel for the defendants had relied on a decision of the Irish Court of Appeal in Gilsenan v. Tevlin [1902] 1 IR 514, which had just been decided. In that case, the court had held that a next-of-kin of the owner of land who died intestate has a specific interest against which a judgment mortgage may be registered. There was little, if any, discussion of the applicable principles of law in the judgments of O’Brien LCJ and Fitzgibbon LJ since they considered themselves bound by the decision of the House of Lords in Cooper v. Cooper (1874) 7 HL 53 to hold that the next-of-kin of an owner of land who dies intestate have a clear and tangible interest in the land from the time of his death. Fitzgibbon LJ accepted that, to the extent that this was the effect of the decision in Cooper v. Cooper, it was irreconcilable with the later decision of the House of Lords in Lord Sudeley v. Attorney General [1897] AC 11. However, he was also of the view that, in accordance with the doctrine of stare decisis as it was then understood, the House of Lords was bound by its own decisions and that, confronted with a choice between two apparently conflicting decisions, the Irish Court of Appeal should follow the earlier one.
It is, accordingly, clear that the view of the law taken by Palles CB in Martin v. Kearney, which led him to conclude that the next-of-kin remaining in possession were equitable tenants in common and were not trespassers, derives ultimately from the decision in Cooper v. Cooper. Having regard to the disapproval which some aspects of that decision have subsequently evoked in England and elsewhere, it must be considered with some care.
The facts were as follows. A testator gave a property called Pain’s Hill in Surrey, together with personal property, to trustees on trust, after his widow’s death, to sell, and hold the proceeds, with his other property, in trust for any one of his children in such form or manner as his widow, before a certain fixed period, should appoint. He died, leaving three sons, W.H., R.E. and F.J. Before the expiration of the fixed period, the widow executed a deed by which, after disposing of other property, she directed the proceeds of Pain’s Hill to be divided equally among the three sons. The deed reserved to her a power of revocation. She afterwards made a will, apparently under the impression that she still had power to dispose of Pain’s Hill, under which she gave that property to W.H., the eldest son, and then by different successive codicils, gave benefits to the *531 other two sons and a special legacy to each of the two children of R.E. (the only one of the three sons of the original testator who had married). R.E. died before his mother, intestate. On his mother’s death a suit was instituted in which it was declared that, so far as the estate of Pain’s Hill was concerned, her will was inoperative, since it could only speak from the date of her death and therefore purportedly came into operation long after the expiration of the period fixed for the making of the appointment. The eldest son, W.H., then filed a bill to compel the two children of R.E. and also his youngest brother, F.J., to elect between their claims under the deed of appointment and under the will and codicils. F.J. submitted; the two children of R.E. resisted.
This would have seemed a classic case for the application of the equitable doctrine of election, under which the law does not permit a beneficiary to claim a benefit under the will and at the same time to defeat the intention of the testator in regard to other gifts contained in that will. One of the arguments advanced on behalf of the children of R.E., however, was to the effect that the doctrine of election did not apply where the benefit allegedly taken under the will was not a defined or tangible interest in property, but was merely a right to have the estate administered in due course of law and to be paid whatever the beneficiary’s share of the residue might be after the payment of debts.
It is not surprising that this singularly unmeritorious argument was rejected in the House of Lords since, as the Lord Chancellor, Lord Cairns, pointed out, it was perfectly clear that, whatever the nature of the right of a residuary legatee or next-of-kin might be, it was beyond argument that it was a right which was capable of being released or assigned. (It has never been disputed that the rights of the residuary legatee or next-of-kin to a share in the balance of the estate is a chose in action capable of being assigned.) The children, in that case, were accordingly in a position to abandon the benefit they took under the will and rely on their share of the proceeds of the sale of Pain’s Hill by virtue of the deed of appointment. Alternatively, they could release their interest under the deed of appointment and take the benefits under the will. They could not, however, both approbate and reprobate the will.
In arriving at this conclusion, Lord Cairns undoubtedly expressed a view, which was not dissented from by any of the other law lords, that the interest of the next-of-kin in the estate of an intestate is a defined and tangible interest in specified property. The relevant passage in his speech (at pp. 64–66) is as follows:
My Lords, it was very much pressed on your Lordships in the extremely able argument we heard at the bar from the counsel for the appellants, that the interest of a next-of-kin in the estate of an intestate is an undefined and intangible interest, that it is a right merely to have the estate converted into money and to receive a payment in money after the debts and expenses are discharged. My *532 Lords, no doubt the right of a next-of-kin is a right, which can only be asserted by calling upon the administrator to perform his duty, and the performance of the duty of the administrator may require the conversion of the estate into money for the purpose of paying debts and legatees. But I apprehend that the rule of law, or the rule laid down by the statute, which requires the conversion of an intestate’s estate into money, is a rule introduced simply for the benefit of creditors and for the facility of division. For the benefit of creditors, and for the facility of division among the next-of-kin, the estate is to be turned into money, but as regards substantial proprietorship the right of the next-of-kin remains clear to every item forming the personal estate of the intestate, subject only to those paramount claims of creditors . [emphasis added.]
In Lord Sudeley v. Attorney General, the issue was as to whether probate duty was payable on the value of mortgages of property in New Zealand. The testator had left one quarter of his residuary estate to his widow and had not specifically disposed in the will of the mortgages. His widow died domiciled in England before the administration of her husband’s estate had been completed. It was claimed by her executors that the value of these mortgages should not be taken into account for the purpose of ascertaining the duty, but it was unanimously held in the House of Lords that the widow had not, so long as the residue was unascertained, a right to claim a share of any particular assets of the estate in specie: she could only call on the executors to administer in due course and claim her share of the residue when finally ascertained. Lord Herschell said:
Francis P. Gleeson v Donal G. Feehan
Francis P. Gleeson v Francis Purcell
1996 No. 14
Supreme Court
21 November 1996
[1997] 1 I.L.R.M. 522
(Nem. Diss.) (Blayney, Barrington and Keane JJ)
21 November 1996
KEANE J
(Blayney and Barrington JJ concurring) delivered his judgment on 21 November 1996 saying: The facts in this case are set out in the case stated by the High Court (Morris J) as follows:
1. The plaintiff is the personal representative of James Dwyer, registered owner of the lands described in Folios 11057 and 3371 of the Register of Freeholders County Tipperary, and of Edmond (otherwise Edward) Dwyer, the registered owner of the lands described in Folio 28973 of the same register.
2. The plaintiff is acting under a power of attorney from the next-of-kin of the registered owners, who reside in the United States of America.
3. The defendants are in actual possession of the lands described in the said folios by virtue of the sale for value of the same to them by one James Dwyer (referred to herein so as to distinguish him from the aforesaid registered owner as Jimmy Dwyer). The aforesaid Jimmy Dwyer is the illegitimate offspring of a sister of Edmond Dwyer deceased aforesaid.
4. James Dwyer died intestate on 27 November 1937, leaving his widow and six children, including Edmond, and Josephine who was Jimmy Dwyer’s natural mother. All the children are now deceased. Only Edmond remained of the children of James Dwyer but Jimmy Dwyer also remained at home with him.
5. Edmond Dwyer died on 22 October 1971 intestate and leaving neither spouse nor issue and, after his death, Jimmy Dwyer remained on the lands and eventually sold the lands described in Folio 28973 to the defendant Donal Feehan in 1978 for £5,000, and the lands in the remaining Folios (11057 and 3371) to Patrick Purcell, father of the defendant, Francis Purcell, under an agreement entered into in 1975, which said agreement was completed by deed dated 3 March 1978. The deed purporting to convey the aforesaid Jimmy Dwyer’s interest in the property to Donal Feehan was dated 3 March 1981, but the purchase monies had been paid on or before 11 January 1978.
6. The registration of Edmond Dwyer as full owner of the lands described in Folio 28937 aforesaid was effected on 16 June 1953 in pursuance of the fiat of the Land Commission dated 16 June 1953.
7. From the date of the death of James Dwyer deceased, it is agreed that the aforesaid Edmond Dwyer and the aforesaid Jimmy Dwyer have been in possession and occupation of the property up to the transfer of the properties to the defendants who thereafter went into occupation and have been in occupation since that time. The other children of James Dwyer deceased left the property, either before James Dwyer’s death or shortly after it.
8. Under power of attorney from the next-of-kin of Edmond Dwyer dated 15 *527 December 1980, the plaintiff obtained letters of administration intestate in the estate of the said Edmond Dwyer on 14 January 1983, and letters of administration intestate in the estate of James Dwyer on 8 February 1983. The instant proceedings were commenced by the plaintiff as administrator of those estates on 1 March 1983, by way of ejectment civil bill on the title, endorsed as appears thereon.
9. The defences of the defendants filed on 16 June 1983 objected that the plaintiff’s claim was statute barred. This objection was tried as a preliminary issue, and ultimately it was held by the Supreme Court that the plaintiff’s claim was not so barred.
10. The proceedings were in due course remitted to the Circuit Court and, following a trial of the case, the learned Circuit Court judge granted the plaintiff a decree for possession. From that decree the defendants have appealed to the High Court.
B 1. On the hearing before me it was conceded by the plaintiff that the registration of Edmond Dwyer as full owner of the lands described in Folio 28973 was effected by fiat of the Land Commission as a graft on his interest in the lands described in Folios 11057 and 3371 and, being subject to the equities affecting the latter lands, conferred on Edmond Dwyer no better or greater title than that then enjoyed by him in those latter lands.
2. The defendants conceded that they were not claiming the protection afforded to purchasers by s. 3 of the Conveyancing Act 1882, and that the title conferred on them by Jimmy Dwyer was no better or greater than that enjoyed by Jimmy Dwyer in 1978.
3. It was conceded by both parties that Jimmy Dwyer, being illegitimate, could at no stage have inherited a distributive share in any of the estates.
4. In the circumstances, the only issue of law to be determined was whether in January 1978 Jimmy Dwyer was entitled to be registered as owner of the said lands to the exclusion of the next-of-kin of Edmond Dwyer.
The questions posed by the case stated are as follows:
1(a) Where, prior to the Succession Act 1965, several next-of-kin in actual occupation of lands of a deceased person acquired title to those lands by adverse possession against the personal representative was the title so acquired the title to which they would have been beneficially entitled on due administration?
(b) Where such next-of-kin acquired title by adverse possession against other next-of-kin not in occupation, was such title acquired as joint tenants?
*528
2. Where such next-of-kin in actual occupation shared such occupation with persons other than next-of-kin, was the possession of such other persons adverse possession against (a) the personal representative or (b) next-of-kin not in occupation?
3. If the answer to 2(a) or 2(b) is yes, was such title acquired jointly with the next-of-kin in occupation as (a) joint tenants or (b) tenants in common?
The central issue is clearly identified in the case stated. It is accepted that, had Jimmy Dwyer been in sole possession of the lands for the period of twelve years prior to January 1978, he would clearly have been entitled to be registered as owner of the lands to the exclusion of the next-of-kin of Edmond Dwyer. There is no suggestion in the facts as found in the case stated that his occupation of the lands was any different in character from that of Edmond Dwyer: although he was not a member of the ‘family’ in the strictly legal sense, he was neither a stranger in blood nor someone in the position of a caretaker staying on in occupation with the licence of the true owners.
However, if the submissions advanced on behalf of the plaintiff are correct, it would seem that Jimmy failed to acquire a possessory title solely because another member of the family — again using the expression broadly — was also in possession during the relevant period. It seems an unjust and anomalous conclusion but one, of course, that would have to be upheld, if that is indeed the state of the law.
The submissions on behalf of both parties can be briefly summarised. On behalf of the defendants, it is submitted that, on the death of James Dwyer, the registered owner, in 1937, the lands became vested in the President of the High Court pending the extraction of a grant of letters of administration. The next-of-kin, it was said, acquired no legal or equitable interest on the death of James Dwyer to any particular asset which happened to form part of his estate. In those circumstances, it was urged that the occupation by Edmond, or anyone else, of the lands was unlawful and could have been restrained by the legal owner, i.e. the President of the High Court. Since Edmond and Jimmy had acquired title as disseisors, it followed that they acquired that title as joint tenants and that, on the death of Edmond in 1971, Jimmy, as the surviving joint tenant, became entitled to the land.
On behalf of the plaintiff, it was submitted that, on the death intestate of the owner of the lands, the beneficial interest vested immediately in the next-of-kin entitled under the Statute of Distributions (Ireland) 1695 and that any of them who remained on in possession were equitable tenants in common of the land and not trespassers. Prior to the Administration of Estates Act 1959 and the Succession Act 1965 the personal representative (or the President of the High Court before the raising of administration) could only eject the next-of-kin in possession if a sale of the lands was required for the payment of debts. Moreover, *529 the beneficiaries were entitled to call on the personal representative to vest the land in them. In the present case, the lands vested in the six children of James Dwyer to the exclusion of anyone else, whether in possession or otherwise. The claims of the remaining five tenants in common were statute barred at the time of Edmond’s death and, accordingly, he was solely entitled to the land at that stage. It thereupon devolved on his next-of-kin of whom Jimmy was not one.
Before considering the authorities, I would make two preliminary observations. In the first place, I think some confusion may be caused by describing a person in the position of Edmond as ‘a trespasser’. If the submissions advanced on behalf of the defendants are well founded, it is true to say that he was, in the strictly legal sense, a trespasser. Many people would instinctively think of a trespasser as a person who takes possession of land to which he has no right. It would seem inappropriate in every day language to describe a member of a family who goes on living in the family home after the death of his parents as a ‘trespasser’. If, however, a person has remained in what the law has come to call ‘adverse possession’ of land for the specified period prescribed by the relevant statute of limitations and thereby becomes the legal owner of the land, it may well be that, in strict legal theory, his possession throughout that period can also be described as that of ‘a trespasser’, however incongruous that description may appear to be when applied to a child who stays on in possession of the family home which everyone else has left.
In the second place, while there has been much debate in this case as to the nature of the interest, if any, of the next-of-kin of James Dwyer in these lands after his death, it does not seem to me to be axiomatic that the existence of a beneficial interest in the property, if such there was, ipso facto carried with it a right to possession of the land.
In considering the authorities, it will probably be convenient to start with Martin v. Kearney (1902) 36 ILTR 117, since it is to some extent the sheet anchor of the plaintiff’s case. In that case, the plaintiff was one of four children who were in possession of a farm after their father’s death. The other three having died before the proceedings were instituted, the plaintiff claimed to be entitled to the entire farm as a surviving joint tenant. The defendant was his sister who had left the farm on her marriage before the father’s death and had returned to it with her son at the request of the plaintiff’s brother shortly before his death.
The County Court judge having given a decree in favour of the plaintiff, the appeal came on before Palles CB. He held that the plaintiff was entitled to no more than a one fourth share in the farm as tenant in common and was not entitled to an ejectment decree against his sister. He, accordingly, converted the ejectment civil bill into an equity civil bill and made an order declaring the plaintiff entitled to one undivided fourth part in the farm.
In the course of his judgment, which appears to have been ex tempore , the Chief Baron said that he was not prepared to follow a decision of Ross J (as he *530 then was) in Coyle v. McFadden [1901] 1 IR 298 to the effect that next-of-kin remaining on in possession in such circumstances acquired a possessory title as joint tenants. The report continues:
Palles CB … held that the next-of-kin remaining in possession without any administration having been taken out to the deceased intestate were equitable tenants in common under a good equitable title, and were not trespassers, and that, when the statute of limitations ran, their equitable tenancy in common became a legal estate as tenants in common ….
Counsel for the defendants had relied on a decision of the Irish Court of Appeal in Gilsenan v. Tevlin [1902] 1 IR 514, which had just been decided. In that case, the court had held that a next-of-kin of the owner of land who died intestate has a specific interest against which a judgment mortgage may be registered. There was little, if any, discussion of the applicable principles of law in the judgments of O’Brien LCJ and Fitzgibbon LJ since they considered themselves bound by the decision of the House of Lords in Cooper v. Cooper (1874) 7 HL 53 to hold that the next-of-kin of an owner of land who dies intestate have a clear and tangible interest in the land from the time of his death. Fitzgibbon LJ accepted that, to the extent that this was the effect of the decision in Cooper v. Cooper, it was irreconcilable with the later decision of the House of Lords in Lord Sudeley v. Attorney General [1897] AC 11. However, he was also of the view that, in accordance with the doctrine of stare decisis as it was then understood, the House of Lords was bound by its own decisions and that, confronted with a choice between two apparently conflicting decisions, the Irish Court of Appeal should follow the earlier one.
It is, accordingly, clear that the view of the law taken by Palles CB in Martin v. Kearney, which led him to conclude that the next-of-kin remaining in possession were equitable tenants in common and were not trespassers, derives ultimately from the decision in Cooper v. Cooper. Having regard to the disapproval which some aspects of that decision have subsequently evoked in England and elsewhere, it must be considered with some care.
The facts were as follows. A testator gave a property called Pain’s Hill in Surrey, together with personal property, to trustees on trust, after his widow’s death, to sell, and hold the proceeds, with his other property, in trust for any one of his children in such form or manner as his widow, before a certain fixed period, should appoint. He died, leaving three sons, W.H., R.E. and F.J. Before the expiration of the fixed period, the widow executed a deed by which, after disposing of other property, she directed the proceeds of Pain’s Hill to be divided equally among the three sons. The deed reserved to her a power of revocation. She afterwards made a will, apparently under the impression that she still had power to dispose of Pain’s Hill, under which she gave that property to W.H., the eldest son, and then by different successive codicils, gave benefits to the *531 other two sons and a special legacy to each of the two children of R.E. (the only one of the three sons of the original testator who had married). R.E. died before his mother, intestate. On his mother’s death a suit was instituted in which it was declared that, so far as the estate of Pain’s Hill was concerned, her will was inoperative, since it could only speak from the date of her death and therefore purportedly came into operation long after the expiration of the period fixed for the making of the appointment. The eldest son, W.H., then filed a bill to compel the two children of R.E. and also his youngest brother, F.J., to elect between their claims under the deed of appointment and under the will and codicils. F.J. submitted; the two children of R.E. resisted.
This would have seemed a classic case for the application of the equitable doctrine of election, under which the law does not permit a beneficiary to claim a benefit under the will and at the same time to defeat the intention of the testator in regard to other gifts contained in that will. One of the arguments advanced on behalf of the children of R.E., however, was to the effect that the doctrine of election did not apply where the benefit allegedly taken under the will was not a defined or tangible interest in property, but was merely a right to have the estate administered in due course of law and to be paid whatever the beneficiary’s share of the residue might be after the payment of debts.
It is not surprising that this singularly unmeritorious argument was rejected in the House of Lords since, as the Lord Chancellor, Lord Cairns, pointed out, it was perfectly clear that, whatever the nature of the right of a residuary legatee or next-of-kin might be, it was beyond argument that it was a right which was capable of being released or assigned. (It has never been disputed that the rights of the residuary legatee or next-of-kin to a share in the balance of the estate is a chose in action capable of being assigned.) The children, in that case, were accordingly in a position to abandon the benefit they took under the will and rely on their share of the proceeds of the sale of Pain’s Hill by virtue of the deed of appointment. Alternatively, they could release their interest under the deed of appointment and take the benefits under the will. They could not, however, both approbate and reprobate the will.
In arriving at this conclusion, Lord Cairns undoubtedly expressed a view, which was not dissented from by any of the other law lords, that the interest of the next-of-kin in the estate of an intestate is a defined and tangible interest in specified property. The relevant passage in his speech (at pp. 64–66) is as follows:
My Lords, it was very much pressed on your Lordships in the extremely able argument we heard at the bar from the counsel for the appellants, that the interest of a next-of-kin in the estate of an intestate is an undefined and intangible interest, that it is a right merely to have the estate converted into money and to receive a payment in money after the debts and expenses are discharged. My *532 Lords, no doubt the right of a next-of-kin is a right, which can only be asserted by calling upon the administrator to perform his duty, and the performance of the duty of the administrator may require the conversion of the estate into money for the purpose of paying debts and legatees. But I apprehend that the rule of law, or the rule laid down by the statute, which requires the conversion of an intestate’s estate into money, is a rule introduced simply for the benefit of creditors and for the facility of division. For the benefit of creditors, and for the facility of division among the next-of-kin, the estate is to be turned into money, but as regards substantial proprietorship the right of the next-of-kin remains clear to every item forming the personal estate of the intestate, subject only to those paramount claims of creditors . [emphasis added.]
In Lord Sudeley v. Attorney General, the issue was as to whether probate duty was payable on the value of mortgages of property in New Zealand. The testator had left one quarter of his residuary estate to his widow and had not specifically disposed in the will of the mortgages. His widow died domiciled in England before the administration of her husband’s estate had been completed. It was claimed by her executors that the value of these mortgages should not be taken into account for the purpose of ascertaining the duty, but it was unanimously held in the House of Lords that the widow had not, so long as the residue was unascertained, a right to claim a share of any particular assets of the estate in specie: she could only call on the executors to administer in due course and claim her share of the residue when finally ascertained. Lord Herschell said:
I do not think that they [the executors] have any estate, right, or interest, legal or equitable in these New Zealand mortgages so as to make them an asset of her estate.
Cooper v. Cooper is not referred to in any of the speeches and was, it would seem, not cited in the course of the arguments. Lord Sudeley’s case was also applied by the House of Lords in Doctor Barnardo’s Homes v. Special Income Tax Commissioners [1921] 2 AC 1. In Vanneck v. Benham [1917] 1 Ch 60, Younger J sought to reconcile the apparent conflict between the two earlier decisions of the House of Lords in this passage:
It is not difficult to arrive at the true distinction between the two lines of authority which at first sight may seem to be in conflict. The distinction, it appears to me, is that an interest in an intestate’s estate is sufficiently specific to raise a case of election, representing as that interest does all the money’s worth of the property comprised therein, but that such interest is not sufficiently specific apart from agreement by the next-of-kin, whether one or more than one, to enable anyone of the next-of-kin to say to the administrator ‘This or that thing is mine. Hand it over to me’.
That explanation was approved by Evershed MR in In re Cunliffe-Owen [1953] 1 Ch 545.
The divergent lines of authority were also referred to by Kingsmill Moore J giving the judgment of this Court in In re Cuff Knox deceased [1963] IR 263. That was another revenue case in which the revenue, relying on Lord Sudeley’s case, argued that estate duty was payable in respect of a trust fund settled by an Irish trust instrument. The person in respect of whose death the claim arose was domiciled in the Channel Islands at the time of his death, but it was argued on behalf of the revenue that he had no interest in specie in the specific investments constituting the trust fund, but had only a personal right of action to call upon the trustee to execute the trust declared by the relevant instruments and, if necessary, to enforce that request by legal action. The locality of such a right, it was contended, was that of the proper law of the instruments creating the trust and would in the circumstances be Irish.
Kingsmill Moore J said that he was not prepared to extend Lord Sudeley’s case beyond what it actually decided. Having referred to the fact that the judges in Gilsenan v. Tevlin had pointed out the impossibility of reconciling some of the reasons given in that case with the judgments in Cooper v. Cooper and to the explanation of the two decisions by Younger J in Vanneck v. Benham, he went on:
So explained, Sudeley’s case is not applicable to an ascertained residue, certainly where there is only one residuary legatee; nor is it applicable to an ascertained trust fund, certainly when there is only one beneficiary entitled; and this is so, as will appear subsequently, even when there are charges on the fund.
That case, accordingly, although clearly authority for the proposition that Lord Sudeley’s case does not apply to an ascertained residue, at least where there is only one residuary legatee, does not assist in determining the question as to whether the general statements of the law by Lord Cairns in Cooper v. Cooper represent the law in Ireland today.
In England, however, the conflict between Cooper v. Cooper and Lord Sudeley’s case was authoritatively resolved by the decision of the Judicial Committee of the Privy Council in Commissioner of Stamp Duties (Queensland) v. Livingston [1965] AC 694. The facts were somewhat similar to those in Lord Sudeley’s case. A testator, who died domiciled in New South Wales, by his will, which was proved in New South Wales, gave his real estate and the residue of his personal estate to his executors and trustees, of whom his widow was one, on trust as to one third thereof for his widow absolutely. His assets consisted of real and personal estate in both New South Wales and Queensland. The widow died intestate, domiciled and resident in New South Wales. The testator’s estate was at the date of her death still in the course of administration, no clear residue had been ascertained, and consequently no final balance payable or attributable *534 to the shares of residuary beneficiaries had been determined. On a claim by the appellant, the Commissioner of Stamp Duties (Queensland), under the relevant revenue legislation that the respondent, as administrator of the estate of the widow, or, alternatively, as one of her next-of-kin, was liable to pay duty in respect of her share of the Queensland assets on the ground that her death conferred a succession on those becoming entitled to her estate, it was held, inter alia, that no beneficial interest in any item of the testator’s property in Queensland, real or personal, belonged to his widow at the date of her death and duty was therefore not exigible.
Giving the advice of the Judicial Committee, Viscount Radcliffe, having cited the relevant passages from Lord Cairns’ speech in Cooper v. Cooper went on:
Cooper v. Cooper certainly was not cited during the argument of Sudeley v. Attorney General and it has apparently been suggested that, if it had been, the law as laid down in that case would somehow have been stated in a different or qualified form. Their Lordships can give no encouragement at all to this speculation. The members of the House who decided Sudeley were dealing with a branch of the law that was familiar and well established and they were dealing with it with the precision that they regarded as being required by the particular issue that was before them. The law as they there stated it was reaffirmed by the House in the same terms in Doctor Barnardo’s Homes v. Special Income Tax Commissioners.
Vicount Radcliffe added:
In their Lordships’ opinion the truth of the matter is that Lord Cairns’ speech in Cooper v. Cooper cannot possibly be recognised today as containing an authoritative statement of the rights of next-of-kin or residuary legatee in an unadministered estate. His language is picturesque but inexact; and while it was no doubt sufficient to enforce the point with which he was concerned to deal, a beneficiary’s right or duty of election, and the decision of the case remains an authority on that point, it would be idle to try to set it up as an exposition of the general law in opposition to what was said and laid down in the Sudeley and Barnardo cases.
It will be obvious from this necessarily abridged summary of the authorities that the decision of the Irish Court of Appeal in Gilsenan v. Tevlin, on which Palles CB presumably based his terse judgment in Martin v. Kearney, must today be regarded as resting on, at the very least, somewhat insecure foundations. Martin v. Kearney was followed by Kenny J in Morteshed v. Morteshed (1902) 36 ILTR 142 in preference to Coyle v. McFadden and by O’Connor MR in Re Christie [1917] 1 IR 17. In Smith v. Savage [1906] 1 IR 469, Barton J, while adopting the view that the next-of-kin who remained on in possession did so as equitable tenants in common, held that they acquired title to the shares of the *535 absent next-of-kin as joint tenants.
In Maher v. Maher [1987] ILRM 582, O’Hanlon J, while acknowledging that the weight of Irish authority was in favour of the view that the next-of-kin remaining in possession should be regarded as occupiers as tenants in common and not as joint tenants, said that he found the argument to the contrary more persuasive. He summed up his views as follows:
From the date of death of an intestate the next-of-kin have no right to take possession of any part of his assets until they come to be vested in them by the personal representative. Under s. 13 of the Administration of Estates Act 1959 it was provided that where a person died intestate his real and personal estate until administration was granted in respect thereof should vest in the President of the High Court in the same manner and to the same extent as formerly in the case of personal estate it vested in the ordinary.
Under s. 22 of the same Act it was provided that on the death of a sole registered full owner of land the personal representative of the deceased owner should alone be recognised by the registering authority as having any rights in respect of the land, until an assent in the prescribed form was made available by the personal representative for the purpose of securing the registration of the persons named in such assent as owner.
It appears to me that if some of the next-of-kin take possession or remain on in possession of lands of an intestate to the exclusion of others, their possession of the entire interest in the lands is adverse to the claims of the personal representative and of the other next-of-kin and that they should not be regarded as occupying the lands in a different character as to the shares claimed by them in their capacity as next-of-kin and as to the shares of the other next-of-kin and the entitlement of the personal representative which they are in the process of extinguishing. I consider that their occupation was as joint tenants in the entire lands and every interest therein.
It is safe to assume that O’Hanlon J would have treated that view as reinforced by the opinion of Viscount Radcliffe in Livingston which, however, does not appear to have been cited in that case.
I should also refer to the Northern Ireland decision of Kavanagh v. Best [1971] NI 89. In that case, the issue was as to whether a judgment mortgage was well charged on the defendant’s interest in a property which had been specifically devised to her. The executors of the will had let her into possession and agreed to assent to the devise but no actual assent was executed. The plaintiff relied on Gilsenan v. Tevlin, and, in the course of his judgment, Gibson J considers the divergent lines of authority and the resolution of the issue in England by Livingston. However, he was also of the view that s. 2(3) of the Administration of Estates Act (Northern Ireland) 1955, which provided in terms *536 similar to s. 7(1) of our Administration of Estates Act 1959 and s. 10(3) of the Succession Act 1965, that the executors are trustees for the persons by law entitled to the real and personal estate, meant that the executors in that case held the premises as express trustees for the defendant and the creditors of the estate. In his view, it was not necessary, in order that a judgment mortgage might be registered against an equitable interest of a person, that the interest should be exclusive.
The relevant statutory provisions must next be considered. These were lands to which Part IV of the Local Registration of Title (Ireland) Act 1891 applied when James Dwyer died in 1937. S. 84(1) provided that land to which that part of the Act applied devolved to, and became vested in, the personal representative as if it were a chattel real. S. 86(1) then provided that:
subject to the powers, rights, duties and liabilities hereinafter mentioned, the personal representative of a deceased person shall hold such land as trustees for the persons by law beneficially entitled thereto, and those persons shall, subject to the provisions of this Act, have the same power of requiring a transfer thereof as they have of requiring a transfer of personal estate.
As already noted, similar provisions were enacted in 1959 in the case of all freehold land and the provisions were re-enacted by s. 10(3) of the Succession Act 1965 which was applicable to all the real and personal estate of the deceased person.
S. 15 of the Probate and Letters of Administration (Ireland) Act 1859, as amended, provided that:
From and after the decease of any person dying intestate, and until letters of administration shall be granted in respect of his estate and effects, the personal estate and effects of such deceased person shall be vested in (the President of the High Court) for the time being, in the same manner and to the same extent as heretofore they vested in the ordinary.
A similar provision was contained in s. 13 of the Administration of Estates Act 1959 and in s. 13 of the Succession Act 1965.
The first question that arises in this case is, accordingly, as to whether the lands comprised in Folios 11057 and 3371 of the Register of Freeholders, County Tipperary, of which James Dwyer was the registered owner, vested in the six children of James Dwyer as equitable tenants in common, entitled to one undivided sixth share each, after the deaths of James and Mary Dwyer.
It is obvious that, using the word in a loose and imprecise sense, the next-of-kin of the intestate owner of property have at least an ‘interest’ in ensuring that the administration of his property is carried out in accordance with law by the administrator. They have indeed more than a mere ‘interest’ of that *537 nature: they have a right, in the nature of a chose in action, to payment to them of the balance of the estate after the debts have been discharged, a right which can be enforced against the personal representative. It is also not in dispute that, whatever the legal nature may be of the estate vested in an executor or administrator, he does not hold the property for his own benefit: to that extent, at least, he is properly regarded as a trustee who must perform the duties of his office, not in his own interest, but in the interests of those who are ultimately entitled to the deceased’s property, whether as beneficiaries or as creditors.
It is, however, clearly contrary to elementary legal principles to treat the persons entitled to the residuary estate of a deceased person as being the owners in equity of specific items forming part of that residue, until such time as the extent of the balance has been ascertained and the executor is in a position either to vest the proceeds of sale of the property comprised in the residue in the residuary legatees or, where appropriate, to vest individual property in specie in an individual residuary legatee. Precisely the same considerations apply to the rights of a next-of-kin in relation to the estate of a person who dies intestate. Until such time as the extent of the residue after payment of debts available to the beneficiaries is ascertained, there is no basis in law for treating them as entitled in equity to any specific item forming part of the estate.
As Viscount Radcliffe pointed out in Livingston, it is no answer to these fundamental propositions to say that the beneficial interest in the property must reside somewhere during the course of administration and that, since the executor or administrator is not beneficially entitled, it must vest in the residuary legatee or (in a case such as the present) the next-of-kin. He disposes of that contention in this well known passage:
This dilemma is founded on a fallacy, for it assumes mistakenly that for all purposes and at every moment of time the law requires the separate existence of two different kinds of estate or interest in property, the legal and the equitable. There is no need to make this assumption. When the whole right of property is in a person, as it is in an executor, there is no need to distinguish between the legal and equitable interest in that property, any more than there is for the property of the full beneficial owner. What matters is that the court will control the executor in the use of his rights over assets that come to him in that capacity; but it will do it by the enforcement of remedies which do not involve the admission or recognition of equitable rights of property in those assets. Equity in fact calls into existence and protects equitable rights and interests in property only where their recognition has been found to be required in order to give effect to its doctrines.
It cannot, in my view, be plausibly contended that the provisions of s. 86(1) of the Local Registration of Title (Ireland) Act 1891 or the corresponding provisions in the Administration of Estates Act 1959 and the Succession Act have brought about a wholly different result in Ireland from that identified by the English decisions in Lord Sudeley’s case, Barnardo and Livingston. It is to be remembered that, prior to the 1891 Act and the 1959 Act, freehold land devolved upon the heir at law and did not vest in the personal representative.
When the legislature decided to change the law, in the case of compulsorily registrable freehold land in 1891 and all freehold land, whether registered or not, in 1959, it was perfectly logical that it should also provide that that land would vest in the personal representatives, not for their own benefit, but in trust for the persons entitled to the land, whether they should ultimately prove to be creditors or beneficiaries or both. There was no reason why the legislature should draw any distinction in this regard between the nature of the estate which vested in the personal representative in the case of personal property and in the case of real property and I do not believe that these provisions were intended to create any such distinction. It would appear, in any event, that identical provisions to those contained in the 1959 Act had been enacted for England by the Land Transfer Act 1897 and, if the English decisions after that date are not applicable in Ireland, it cannot be because of any difference in the statute law in the two jurisdictions.
To the extent that there is a conflict between the view of O’Hanlon J in this regard in Maher v. Maher and Gibson J in Kavanagh v. Best, I would, with respect, prefer the view adopted by O’Hanlon J. However, it should be pointed out that, while the observations of Gibson J as to the effect of the relevant legislation in Northern Ireland are not easy to reconcile with the approach to the law adopted in Livingston, he was dealing in that case with a specific devise of property and not with the position of a residuary legatee or the next-of-kin of an intestate owner. While it is not necessary to decide the point in the context of the present case, it may be that different considerations arise in such a case.
I am satisfied that the decision of the Court of Appeal in Gilsenan v. Tevlin cannot now be regarded as correctly stating the law in Ireland. It follows that the decision in Martin v. Kearney and the subsequent cases in which it has been followed must be overruled. The possession of both Edmond Dwyer and Jimmy Dwyer of these lands was at all times adverse to the title of the true owner, the President of the High Court, in whom the entire estate in the land was vested pending the raising of representation. That view is not only in accord with the law as stated in Lord Sudeley’s case, Doctor Barnardo’s Homes and Livingston: it also accords with the views of the majority of the Australian High Court in Livingston and of the Supreme Court of Canada in In re Steed and Raeburn Estates, Minister of National Revenue v. Fitzgerald [1949] SCR 453. This is how the law is also stated in such well known English textbooks as Snell’s Equity , 29th ed., 41-2; Underhill and Hayton on The Law of Trusts and Trustees , 15th ed., 13–14 and Pettit on Equity and the Law of Trusts , 7th ed., 35-6. It is also supported by the leading Australian textbook, Meagher, Gummow and *539 Lehane on Equity: Doctrines and Remedies , 3rd ed., paragraphs 404–412 where Livingston and its implications, in particular, are subjected to a characteristically close analysis. It is the view of the law I took at first instance in Moloney v. AIB [1986] IR 67 and Mohan v. Roche [1991] 1 IR 560 and I have not been persuaded by the arguments in this case that I was wrong. It is unnecessary, in the context of the present case, to decide whether the law as so stated has any application save to the unadministered residue or the unadministered estate of an intestate and whether, for example, it applies to a specific bequest or devise.
I have so far approached the case on the assumption, implicit in some at least of the authorities and in the submissions advanced on behalf of the plaintiff, that, if Edmond Dwyer was entitled to an undivided share in these lands as an equitable tenant in common prior to the raising of any representation, his possession in the land was as a necessary consequence not adverse to the title of the true owner. It is, however, difficult to see why this should be so. Even if, contrary to the authorities already cited, the next-of-kin of an intestate owner of land have an equitable interest in the land from the time of his death, it does not follow that they also have a right of possession which they can enforce against the personal representative. The right, if it exists, of any of the next-of-kin to possession of any part of the estate cannot depend on the purely fortuitous circumstance that he or she happens to be in possession of the particular property at the time of the intestate’s death. If the administrator were to institute ejectment proceedings against any other person in possession, it would be no defence for that person to say that he was entitled to remain in possession of the property until such time as the administrator put up the property for sale with a view to paying the debts of the deceased. There seems no reason in principle why any different law should apply to one of the next-of-kin who happens to be in possession at the date of death.
These fundamental legal realities have been somewhat obscured in Ireland by the traditional reluctance of small farmers in rural Ireland to make wills or raise representation. The traditional method of establishing the title to such holdings was by an application under s. 52 of the Local Registration of Title (Ireland) Act 1891 or s. 49 of the Registration of Title Act 1964 for registration on the basis of a title having been acquired by long possession. Hence, questions rarely arose as to the rights of personal representatives to recover possession in the circumstances I have mentioned.
If, however, the next-of-kin at the time of the intestate owner’s death are entitled to possession, not by concession, but as a matter of legal right, the same must apply to a house in a city or town. It cannot be seriously suggested that, in those cases where the owner of such a house happens to die intestate leaving, say, six children, only one of whom was living with him at the date of his death, all six are entitled to possession of the house. The personal representative may, of course, enter into some arrangement with one or more of the next-of-kin which *540 renders their possession no longer adverse. It seems to me that, save where some licence from the true owner can be so proved or inferred, the possession of the next-of-kin must be considered as adverse.
It follows that the possession of both Edmond and Jimmy after the deaths of James and Mary Dwyer was adverse to the title of the true owner, i.e. the President of the High Court.
It is conceded on behalf of the plaintiff that, in the event of both Edmond and Jimmy being regarded as in adverse possession during the relevant period, they would have acquired title to the lands as joint tenants and not as tenants in common and that, accordingly, the interest of Edmond in the lands would have devolved by survivorship on his death on Jimmy.
It is clear from the decision of this Court in Perry v. Woodfarm Homes Ltd [1975] IR 104 that, at the expiration of the limitation period, there is nothing in the nature of a ‘parliamentary conveyance’ to the person in adverse possession. Since, however, under s. 24 of the Statute of Limitations 1957,
at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished,
it is also clear that, at the end of the limitation period, no persons other than Edmond and Jimmy were entitled to any interest in the land. While the distinction is somewhat academic, I do not think that it is a case of the shares of the absent next-of-kin having vested in Edmond and Jimmy at the end of the limitation period, since, for the reasons already given, they had no proprietary interest in the land, legal or equitable, pending the administration of the estate. What was extinguished at the end of the limitation period was the title of the President of the High Court to the land and his right to bring an action to recover the land. As a result, no estate or interest in the land could thereafter be vested in the next-of-kin, whether in or out of possession, by anyone. It need hardly be said that the grant of letters of administration intestate to the estate of James Dwyer on 14 January 1983 could not have the effect of reviving the title to the land which had been extinguished many years before by the operation of s. 24 of the 1957 Act.
I am satisfied that this conclusion is not in conflict with the decision of this court at an earlier stage in these proceedings, i.e. Gleeson v. Feehan [1993] 2 IR 113; [1991] ILRM 783. In that case, the only issue with which the court was concerned was whether the present proceedings were statute barred by virtue of s. 45 of the 1957 Act (as inserted by s. 126 of the Succession Act 1965) which requires an action in respect of any claim to the estate of a deceased person to be brought before the expiration of six years from the date when the right to receive the share or interest accrued. The court unanimously held that the relevant statutory period was s. 13(2)(a) of the 1957 Act, under which an action *541 by a person to recover land must be brought before the expiration of twelve years from the date on which the right of action accrued to the person bringing the proceedings. The court did not have to resolve the issue which has now arisen, i.e. as to whether, assuming that the proceedings were not barred by s. 45 of the 1957 Act, the lands were assets forming part of the estate of Edmond Dwyer or whether his interest in the land was that of a joint tenant which devolved upon his death to the surviving joint tenant.
As I have already noted, Barton J in Smith v. Savage held that the next-of-kin in possession held their shares as tenants in common, but acquired the shares of the absent next-of-kin as joint tenants. This position was altered by s. 125 of the Succession Act 1965 which provided that those in possession were to be deemed to have acquired title as joint tenants (and not as tenants in common) as regards their own shares and also as regards the shares of the absent next-of-kin. This provision was not in force at the time Edmond and Jimmy acquired their title by possession and is, therefore, of no relevance in this case. It is, accordingly, unnecessary to determine whether the section proceeds upon the mistaken assumption that the next-of-kin in possession are entitled as of the date of death to an equitable interest in the property or whether it is simply directed to the nature of their co-ownership of the land at the stage when, by virtue of adverse possession, they have acquired title to the land.
It has been urged on behalf of the plaintiff that, having regard to the long standing practice in rural Ireland of not raising representation to the estates of deceased persons, particularly when they consist of small farms, the conclusions arrived at in this judgment would lead to considerable uncertainty as to the title to such properties. That is indeed an argument of last resort which I do not find in the least persuasive. The facts of the present case demonstrate that the state of the law, thought to have been established by Martin v. Kearney, is itself capable of producing injustice. I would, accordingly, answer the questions in the case stated as follows:
(a) No.
(b) Yes.
(a) Yes.
(b) No.
3. As joint tenants.
I do not think that they [the executors] have any estate, right, or interest, legal or equitable in these New Zealand mortgages so as to make them an asset of her estate.
Cooper v. Cooper is not referred to in any of the speeches and was, it would seem, not cited in the course of the arguments. Lord Sudeley’s case was also applied by the House of Lords in Doctor Barnardo’s Homes v. Special Income Tax Commissioners [1921] 2 AC 1. In Vanneck v. Benham [1917] 1 Ch 60, Younger J sought to reconcile the apparent conflict between the two earlier decisions of the House of Lords in this passage:
It is not difficult to arrive at the true distinction between the two lines of authority which at first sight may seem to be in conflict. The distinction, it appears to me, is that an interest in an intestate’s estate is sufficiently specific to raise a case of election, representing as that interest does all the money’s worth of the property comprised therein, but that such interest is not sufficiently specific apart from agreement by the next-of-kin, whether one or more than one, to enable anyone of the next-of-kin to say to the administrator ‘This or that thing is mine. Hand it over to me’.
*533
That explanation was approved by Evershed MR in In re Cunliffe-Owen [1953] 1 Ch 545.
The divergent lines of authority were also referred to by Kingsmill Moore J giving the judgment of this Court in In re Cuff Knox deceased [1963] IR 263. That was another revenue case in which the revenue, relying on Lord Sudeley’s case, argued that estate duty was payable in respect of a trust fund settled by an Irish trust instrument. The person in respect of whose death the claim arose was domiciled in the Channel Islands at the time of his death, but it was argued on behalf of the revenue that he had no interest in specie in the specific investments constituting the trust fund, but had only a personal right of action to call upon the trustee to execute the trust declared by the relevant instruments and, if necessary, to enforce that request by legal action. The locality of such a right, it was contended, was that of the proper law of the instruments creating the trust and would in the circumstances be Irish.
Kingsmill Moore J said that he was not prepared to extend Lord Sudeley’s case beyond what it actually decided. Having referred to the fact that the judges in Gilsenan v. Tevlin had pointed out the impossibility of reconciling some of the reasons given in that case with the judgments in Cooper v. Cooper and to the explanation of the two decisions by Younger J in Vanneck v. Benham, he went on:
So explained, Sudeley’s case is not applicable to an ascertained residue, certainly where there is only one residuary legatee; nor is it applicable to an ascertained trust fund, certainly when there is only one beneficiary entitled; and this is so, as will appear subsequently, even when there are charges on the fund.
That case, accordingly, although clearly authority for the proposition that Lord Sudeley’s case does not apply to an ascertained residue, at least where there is only one residuary legatee, does not assist in determining the question as to whether the general statements of the law by Lord Cairns in Cooper v. Cooper represent the law in Ireland today.
In England, however, the conflict between Cooper v. Cooper and Lord Sudeley’s case was authoritatively resolved by the decision of the Judicial Committee of the Privy Council in Commissioner of Stamp Duties (Queensland) v. Livingston [1965] AC 694. The facts were somewhat similar to those in Lord Sudeley’s case. A testator, who died domiciled in New South Wales, by his will, which was proved in New South Wales, gave his real estate and the residue of his personal estate to his executors and trustees, of whom his widow was one, on trust as to one third thereof for his widow absolutely. His assets consisted of real and personal estate in both New South Wales and Queensland. The widow died intestate, domiciled and resident in New South Wales. The testator’s estate was at the date of her death still in the course of administration, no clear residue had been ascertained, and consequently no final balance payable or attributable *534 to the shares of residuary beneficiaries had been determined. On a claim by the appellant, the Commissioner of Stamp Duties (Queensland), under the relevant revenue legislation that the respondent, as administrator of the estate of the widow, or, alternatively, as one of her next-of-kin, was liable to pay duty in respect of her share of the Queensland assets on the ground that her death conferred a succession on those becoming entitled to her estate, it was held, inter alia, that no beneficial interest in any item of the testator’s property in Queensland, real or personal, belonged to his widow at the date of her death and duty was therefore not exigible.
Giving the advice of the Judicial Committee, Viscount Radcliffe, having cited the relevant passages from Lord Cairns’ speech in Cooper v. Cooper went on:
Cooper v. Cooper certainly was not cited during the argument of Sudeley v. Attorney General and it has apparently been suggested that, if it had been, the law as laid down in that case would somehow have been stated in a different or qualified form. Their Lordships can give no encouragement at all to this speculation. The members of the House who decided Sudeley were dealing with a branch of the law that was familiar and well established and they were dealing with it with the precision that they regarded as being required by the particular issue that was before them. The law as they there stated it was reaffirmed by the House in the same terms in Doctor Barnardo’s Homes v. Special Income Tax Commissioners.
Vicount Radcliffe added:
In their Lordships’ opinion the truth of the matter is that Lord Cairns’ speech in Cooper v. Cooper cannot possibly be recognised today as containing an authoritative statement of the rights of next-of-kin or residuary legatee in an unadministered estate. His language is picturesque but inexact; and while it was no doubt sufficient to enforce the point with which he was concerned to deal, a beneficiary’s right or duty of election, and the decision of the case remains an authority on that point, it would be idle to try to set it up as an exposition of the general law in opposition to what was said and laid down in the Sudeley and Barnardo cases.
It will be obvious from this necessarily abridged summary of the authorities that the decision of the Irish Court of Appeal in Gilsenan v. Tevlin, on which Palles CB presumably based his terse judgment in Martin v. Kearney, must today be regarded as resting on, at the very least, somewhat insecure foundations. Martin v. Kearney was followed by Kenny J in Morteshed v. Morteshed (1902) 36 ILTR 142 in preference to Coyle v. McFadden and by O’Connor MR in Re Christie [1917] 1 IR 17. In Smith v. Savage [1906] 1 IR 469, Barton J, while adopting the view that the next-of-kin who remained on in possession did so as equitable tenants in common, held that they acquired title to the shares of the *535 absent next-of-kin as joint tenants.
In Maher v. Maher [1987] ILRM 582, O’Hanlon J, while acknowledging that the weight of Irish authority was in favour of the view that the next-of-kin remaining in possession should be regarded as occupiers as tenants in common and not as joint tenants, said that he found the argument to the contrary more persuasive. He summed up his views as follows:
From the date of death of an intestate the next-of-kin have no right to take possession of any part of his assets until they come to be vested in them by the personal representative. Under s. 13 of the Administration of Estates Act 1959 it was provided that where a person died intestate his real and personal estate until administration was granted in respect thereof should vest in the President of the High Court in the same manner and to the same extent as formerly in the case of personal estate it vested in the ordinary.
Under s. 22 of the same Act it was provided that on the death of a sole registered full owner of land the personal representative of the deceased owner should alone be recognised by the registering authority as having any rights in respect of the land, until an assent in the prescribed form was made available by the personal representative for the purpose of securing the registration of the persons named in such assent as owner.
It appears to me that if some of the next-of-kin take possession or remain on in possession of lands of an intestate to the exclusion of others, their possession of the entire interest in the lands is adverse to the claims of the personal representative and of the other next-of-kin and that they should not be regarded as occupying the lands in a different character as to the shares claimed by them in their capacity as next-of-kin and as to the shares of the other next-of-kin and the entitlement of the personal representative which they are in the process of extinguishing. I consider that their occupation was as joint tenants in the entire lands and every interest therein.
It is safe to assume that O’Hanlon J would have treated that view as reinforced by the opinion of Viscount Radcliffe in Livingston which, however, does not appear to have been cited in that case.
I should also refer to the Northern Ireland decision of Kavanagh v. Best [1971] NI 89. In that case, the issue was as to whether a judgment mortgage was well charged on the defendant’s interest in a property which had been specifically devised to her. The executors of the will had let her into possession and agreed to assent to the devise but no actual assent was executed. The plaintiff relied on Gilsenan v. Tevlin, and, in the course of his judgment, Gibson J considers the divergent lines of authority and the resolution of the issue in England by Livingston. However, he was also of the view that s. 2(3) of the Administration of Estates Act (Northern Ireland) 1955, which provided in terms *536 similar to s. 7(1) of our Administration of Estates Act 1959 and s. 10(3) of the Succession Act 1965, that the executors are trustees for the persons by law entitled to the real and personal estate, meant that the executors in that case held the premises as express trustees for the defendant and the creditors of the estate. In his view, it was not necessary, in order that a judgment mortgage might be registered against an equitable interest of a person, that the interest should be exclusive.
The relevant statutory provisions must next be considered. These were lands to which Part IV of the Local Registration of Title (Ireland) Act 1891 applied when James Dwyer died in 1937. S. 84(1) provided that land to which that part of the Act applied devolved to, and became vested in, the personal representative as if it were a chattel real. S. 86(1) then provided that:
subject to the powers, rights, duties and liabilities hereinafter mentioned, the personal representative of a deceased person shall hold such land as trustees for the persons by law beneficially entitled thereto, and those persons shall, subject to the provisions of this Act, have the same power of requiring a transfer thereof as they have of requiring a transfer of personal estate.
As already noted, similar provisions were enacted in 1959 in the case of all freehold land and the provisions were re-enacted by s. 10(3) of the Succession Act 1965 which was applicable to all the real and personal estate of the deceased person.
S. 15 of the Probate and Letters of Administration (Ireland) Act 1859, as amended, provided that:
From and after the decease of any person dying intestate, and until letters of administration shall be granted in respect of his estate and effects, the personal estate and effects of such deceased person shall be vested in (the President of the High Court) for the time being, in the same manner and to the same extent as heretofore they vested in the ordinary.
A similar provision was contained in s. 13 of the Administration of Estates Act 1959 and in s. 13 of the Succession Act 1965.
The first question that arises in this case is, accordingly, as to whether the lands comprised in Folios 11057 and 3371 of the Register of Freeholders, County Tipperary, of which James Dwyer was the registered owner, vested in the six children of James Dwyer as equitable tenants in common, entitled to one undivided sixth share each, after the deaths of James and Mary Dwyer.
It is obvious that, using the word in a loose and imprecise sense, the next-of-kin of the intestate owner of property have at least an ‘interest’ in ensuring that the administration of his property is carried out in accordance with law by the administrator. They have indeed more than a mere ‘interest’ of that *537 nature: they have a right, in the nature of a chose in action, to payment to them of the balance of the estate after the debts have been discharged, a right which can be enforced against the personal representative. It is also not in dispute that, whatever the legal nature may be of the estate vested in an executor or administrator, he does not hold the property for his own benefit: to that extent, at least, he is properly regarded as a trustee who must perform the duties of his office, not in his own interest, but in the interests of those who are ultimately entitled to the deceased’s property, whether as beneficiaries or as creditors.
It is, however, clearly contrary to elementary legal principles to treat the persons entitled to the residuary estate of a deceased person as being the owners in equity of specific items forming part of that residue, until such time as the extent of the balance has been ascertained and the executor is in a position either to vest the proceeds of sale of the property comprised in the residue in the residuary legatees or, where appropriate, to vest individual property in specie in an individual residuary legatee. Precisely the same considerations apply to the rights of a next-of-kin in relation to the estate of a person who dies intestate. Until such time as the extent of the residue after payment of debts available to the beneficiaries is ascertained, there is no basis in law for treating them as entitled in equity to any specific item forming part of the estate.
As Viscount Radcliffe pointed out in Livingston, it is no answer to these fundamental propositions to say that the beneficial interest in the property must reside somewhere during the course of administration and that, since the executor or administrator is not beneficially entitled, it must vest in the residuary legatee or (in a case such as the present) the next-of-kin. He disposes of that contention in this well known passage:
This dilemma is founded on a fallacy, for it assumes mistakenly that for all purposes and at every moment of time the law requires the separate existence of two different kinds of estate or interest in property, the legal and the equitable. There is no need to make this assumption. When the whole right of property is in a person, as it is in an executor, there is no need to distinguish between the legal and equitable interest in that property, any more than there is for the property of the full beneficial owner. What matters is that the court will control the executor in the use of his rights over assets that come to him in that capacity; but it will do it by the enforcement of remedies which do not involve the admission or recognition of equitable rights of property in those assets. Equity in fact calls into existence and protects equitable rights and interests in property only where their recognition has been found to be required in order to give effect to its doctrines.
It cannot, in my view, be plausibly contended that the provisions of s. 86(1) of the Local Registration of Title (Ireland) Act 1891 or the corresponding provisions in the Administration of Estates Act 1959 and the Succession Act have brought about a wholly different result in Ireland from that identified by the English decisions in Lord Sudeley’s case, Barnardo and Livingston. It is to be remembered that, prior to the 1891 Act and the 1959 Act, freehold land devolved upon the heir at law and did not vest in the personal representative.
When the legislature decided to change the law, in the case of compulsorily registrable freehold land in 1891 and all freehold land, whether registered or not, in 1959, it was perfectly logical that it should also provide that that land would vest in the personal representatives, not for their own benefit, but in trust for the persons entitled to the land, whether they should ultimately prove to be creditors or beneficiaries or both. There was no reason why the legislature should draw any distinction in this regard between the nature of the estate which vested in the personal representative in the case of personal property and in the case of real property and I do not believe that these provisions were intended to create any such distinction. It would appear, in any event, that identical provisions to those contained in the 1959 Act had been enacted for England by the Land Transfer Act 1897 and, if the English decisions after that date are not applicable in Ireland, it cannot be because of any difference in the statute law in the two jurisdictions.
To the extent that there is a conflict between the view of O’Hanlon J in this regard in Maher v. Maher and Gibson J in Kavanagh v. Best, I would, with respect, prefer the view adopted by O’Hanlon J. However, it should be pointed out that, while the observations of Gibson J as to the effect of the relevant legislation in Northern Ireland are not easy to reconcile with the approach to the law adopted in Livingston, he was dealing in that case with a specific devise of property and not with the position of a residuary legatee or the next-of-kin of an intestate owner. While it is not necessary to decide the point in the context of the present case, it may be that different considerations arise in such a case.
I am satisfied that the decision of the Court of Appeal in Gilsenan v. Tevlin cannot now be regarded as correctly stating the law in Ireland. It follows that the decision in Martin v. Kearney and the subsequent cases in which it has been followed must be overruled. The possession of both Edmond Dwyer and Jimmy Dwyer of these lands was at all times adverse to the title of the true owner, the President of the High Court, in whom the entire estate in the land was vested pending the raising of representation. That view is not only in accord with the law as stated in Lord Sudeley’s case, Doctor Barnardo’s Homes and Livingston: it also accords with the views of the majority of the Australian High Court in Livingston and of the Supreme Court of Canada in In re Steed and Raeburn Estates, Minister of National Revenue v. Fitzgerald [1949] SCR 453. This is how the law is also stated in such well known English textbooks as Snell’s Equity , 29th ed., 41-2; Underhill and Hayton on The Law of Trusts and Trustees , 15th ed., 13–14 and Pettit on Equity and the Law of Trusts , 7th ed., 35-6. It is also supported by the leading Australian textbook, Meagher, Gummow and *539 Lehane on Equity: Doctrines and Remedies , 3rd ed., paragraphs 404–412 where Livingston and its implications, in particular, are subjected to a characteristically close analysis. It is the view of the law I took at first instance in Moloney v. AIB [1986] IR 67 and Mohan v. Roche [1991] 1 IR 560 and I have not been persuaded by the arguments in this case that I was wrong. It is unnecessary, in the context of the present case, to decide whether the law as so stated has any application save to the unadministered residue or the unadministered estate of an intestate and whether, for example, it applies to a specific bequest or devise.
I have so far approached the case on the assumption, implicit in some at least of the authorities and in the submissions advanced on behalf of the plaintiff, that, if Edmond Dwyer was entitled to an undivided share in these lands as an equitable tenant in common prior to the raising of any representation, his possession in the land was as a necessary consequence not adverse to the title of the true owner. It is, however, difficult to see why this should be so. Even if, contrary to the authorities already cited, the next-of-kin of an intestate owner of land have an equitable interest in the land from the time of his death, it does not follow that they also have a right of possession which they can enforce against the personal representative. The right, if it exists, of any of the next-of-kin to possession of any part of the estate cannot depend on the purely fortuitous circumstance that he or she happens to be in possession of the particular property at the time of the intestate’s death. If the administrator were to institute ejectment proceedings against any other person in possession, it would be no defence for that person to say that he was entitled to remain in possession of the property until such time as the administrator put up the property for sale with a view to paying the debts of the deceased. There seems no reason in principle why any different law should apply to one of the next-of-kin who happens to be in possession at the date of death.
These fundamental legal realities have been somewhat obscured in Ireland by the traditional reluctance of small farmers in rural Ireland to make wills or raise representation. The traditional method of establishing the title to such holdings was by an application under s. 52 of the Local Registration of Title (Ireland) Act 1891 or s. 49 of the Registration of Title Act 1964 for registration on the basis of a title having been acquired by long possession. Hence, questions rarely arose as to the rights of personal representatives to recover possession in the circumstances I have mentioned.
If, however, the next-of-kin at the time of the intestate owner’s death are entitled to possession, not by concession, but as a matter of legal right, the same must apply to a house in a city or town. It cannot be seriously suggested that, in those cases where the owner of such a house happens to die intestate leaving, say, six children, only one of whom was living with him at the date of his death, all six are entitled to possession of the house. The personal representative may, of course, enter into some arrangement with one or more of the next-of-kin which *540 renders their possession no longer adverse. It seems to me that, save where some licence from the true owner can be so proved or inferred, the possession of the next-of-kin must be considered as adverse.
It follows that the possession of both Edmond and Jimmy after the deaths of James and Mary Dwyer was adverse to the title of the true owner, i.e. the President of the High Court.
It is conceded on behalf of the plaintiff that, in the event of both Edmond and Jimmy being regarded as in adverse possession during the relevant period, they would have acquired title to the lands as joint tenants and not as tenants in common and that, accordingly, the interest of Edmond in the lands would have devolved by survivorship on his death on Jimmy.
It is clear from the decision of this Court in Perry v. Woodfarm Homes Ltd [1975] IR 104 that, at the expiration of the limitation period, there is nothing in the nature of a ‘parliamentary conveyance’ to the person in adverse possession. Since, however, under s. 24 of the Statute of Limitations 1957,
at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished,
it is also clear that, at the end of the limitation period, no persons other than Edmond and Jimmy were entitled to any interest in the land. While the distinction is somewhat academic, I do not think that it is a case of the shares of the absent next-of-kin having vested in Edmond and Jimmy at the end of the limitation period, since, for the reasons already given, they had no proprietary interest in the land, legal or equitable, pending the administration of the estate. What was extinguished at the end of the limitation period was the title of the President of the High Court to the land and his right to bring an action to recover the land. As a result, no estate or interest in the land could thereafter be vested in the next-of-kin, whether in or out of possession, by anyone. It need hardly be said that the grant of letters of administration intestate to the estate of James Dwyer on 14 January 1983 could not have the effect of reviving the title to the land which had been extinguished many years before by the operation of s. 24 of the 1957 Act.
I am satisfied that this conclusion is not in conflict with the decision of this court at an earlier stage in these proceedings, i.e. Gleeson v. Feehan [1993] 2 IR 113; [1991] ILRM 783. In that case, the only issue with which the court was concerned was whether the present proceedings were statute barred by virtue of s. 45 of the 1957 Act (as inserted by s. 126 of the Succession Act 1965) which requires an action in respect of any claim to the estate of a deceased person to be brought before the expiration of six years from the date when the right to receive the share or interest accrued. The court unanimously held that the relevant statutory period was s. 13(2)(a) of the 1957 Act, under which an action *541 by a person to recover land must be brought before the expiration of twelve years from the date on which the right of action accrued to the person bringing the proceedings. The court did not have to resolve the issue which has now arisen, i.e. as to whether, assuming that the proceedings were not barred by s. 45 of the 1957 Act, the lands were assets forming part of the estate of Edmond Dwyer or whether his interest in the land was that of a joint tenant which devolved upon his death to the surviving joint tenant.
As I have already noted, Barton J in Smith v. Savage held that the next-of-kin in possession held their shares as tenants in common, but acquired the shares of the absent next-of-kin as joint tenants. This position was altered by s. 125 of the Succession Act 1965 which provided that those in possession were to be deemed to have acquired title as joint tenants (and not as tenants in common) as regards their own shares and also as regards the shares of the absent next-of-kin. This provision was not in force at the time Edmond and Jimmy acquired their title by possession and is, therefore, of no relevance in this case. It is, accordingly, unnecessary to determine whether the section proceeds upon the mistaken assumption that the next-of-kin in possession are entitled as of the date of death to an equitable interest in the property or whether it is simply directed to the nature of their co-ownership of the land at the stage when, by virtue of adverse possession, they have acquired title to the land.
It has been urged on behalf of the plaintiff that, having regard to the long standing practice in rural Ireland of not raising representation to the estates of deceased persons, particularly when they consist of small farms, the conclusions arrived at in this judgment would lead to considerable uncertainty as to the title to such properties. That is indeed an argument of last resort which I do not find in the least persuasive. The facts of the present case demonstrate that the state of the law, thought to have been established by Martin v. Kearney, is itself capable of producing injustice. I would, accordingly, answer the questions in the case stated as follows:
(a) No.
(b) Yes.
(a) Yes.
(b) No.
3. As joint tenants.
Dolan v Reynolds
IEHC 334
JUDGMENT of Mr. Justice Henry Abbott delivered on the 11th day of February, 2011
1. This judgment relates to an appeal by the defendant/appellant against an injunction directing him to vacate his ancestral home subject to compensation to be paid for work done. The hearing took place in Trim on the 5th and 6th October, 2009.
Background
2. Matthew Reynolds was the sole registered owner of the property described in Folio 21280 situated at Possexton, Enfield, County Meath. Matthew Reynolds died on the 22nd March 1980 and was survived by his widow, Evelyn Reynolds and five children. Matthew Reynolds died intestate. Evelyn Reynolds extracted Letters of Administration on 28th October, 1980. Under section 67 (2) of the Succession Act, 1965 Evelyn Reynolds became beneficially entitled to two thirds of the estate and the five children became entitled to the other third. The children decided to give their mother their shares in the estate. This was done by the four children who were over 21 and therefore of age through the execution of a deed of Family Settlement. The plaintiff was under 21 years of age, thus her share of the estate was valued and an amount of money representing this share was placed on deposit which the plaintiff withdrew when she turned 21.
3. No assent was ever executed by Evelyn Reynolds vesting the subject property in herself as beneficiary. Matthew Reynolds continued to be named as the registered owner. Evelyn Reynolds would, therefore, in ordinary circumstances, continue to occupy the subject property as the personal representative. Evelyn Reynolds died on 19th January 1992. She died intestate. As Matthew Reynolds was the registered owner, his estate remained unadministered at the date of Evelyn Reynolds’s death. Letters of Administration de bonis non, in respect of the unadministered part of the estate of Matthew Reynolds, Deceased, issued from the Probate Office to the plaintiff on 11th June, 2003. Letters of Administration, in respect of the estate of Evelyn Reynolds, Deceased, issued from the Probate Office to the defendant on 5th May, 2005.
The Pleadings
4. Proceedings were commenced by the plaintiff in the Circuit Court in 2003. The plaintiff, as personal representative of the estate of Matthew Reynolds, sought to primarily recover possession of the subject property from the defendant who was residing in the subject property. The plaintiff claimed that, as she was administrator of her father’s estate, she had the entitlement for the property to be sold. She also claimed that, as she was beneficially entitled to be registered as owner of the subject property, the occupation by the defendant on the property was an act of trespass. The plaintiff sought an injunction directing the defendant to leave the property.
5. The defendant claimed that he resided in the subject property since 1978 and looked after his mother after his father’s death. He stated that he continued to reside there after his mother died, and remained the sole occupant since 19th January, 1992. He claimed that all the other members of the family had left the family home and none lived there after 1992. The defendant submitted that over the intervening years he had expended a large sum of money, exceeding €75,000.00, in renovating and repairing the dwelling house. He claimed that all members of his family agreed and acquiesced to the carrying out of such works. The defendant argued that the plaintiff’s claim was barred pursuant to the provisions of the Statute of Limitations 1957 and the Succession Act 1965, as she took no steps to administer the estate of her father for more than twenty three years. He further pleaded that it would be unjust and inequitable to grant the reliefs sought by reason of prolonged and inordinate delay. The defendant submitted that the plaintiff was at all material times aware of the fact that he was in possession of the property and that he had carried out extensive repairs and renovations and that the plaintiff had raised no objection or expressed any interest in the property and therefore would be unjustly enriched if she was given possession of the property.
Relief Sought by the Plaintiff and the Circuit Court Order
6. The relief claimed by the plaintiff was as follows:-
(a) Damages for trespass.
(b) A mandatory injunction compelling the defendant to render forth vacant possession of the lands contained in Folio 21280 of the Register County Meath.
(c) A mandatory injunction directing the removal from the lands contained in Folio 21280 of the Register County Meath of all property belonging to the defendant his servants or agents.
(d) An injunction restraining the defendant from committing any further acts of trespass on the aforementioned lands.
7. On 3rd April, 2009, the Circuit Court made the following order:-
(a) A Declaration that Evelyn Reynolds was entitled to be registered owner of the lands comprised in Folio 21280 of the Register County Meath.
(b) A Declaration that James Reynolds had not acquired title to Folio 21280 of the Register County Meath by way of adverse possession.
(c) A Declaration that James Reynolds was entitled to financial compensation in the sum of €60,000.00 for work expended on the property from 19th January, 2002, to 18th May, 2004.
(d) That the defendant be restrained from carrying out any further work on the property.
(e) The sale of the property and that the defendant could remain in the property pending sale.
(f) No order as to costs.
The Law
8. Section 10 of the Succession Act, 1965 provides-
“(1) the real and personal estate of a deceased person shall on his death, notwithstanding any testamentary disposition, devolve on and become vested in his personal representatives.
(3) The personal representatives shall be the representatives of the deceased in regard to his real and personal estate and shall hold the estate as trustees for the persons by law entitled thereto.”
9. After the death of Matthew Reynolds, Evelyn Reynolds, as personal representative, held the property in trust for the person(s) entitled thereto. Those entitled were herself and her five children. By virtue of the Deed of Family Settlement, dated in 1980, the four children of age transferred their interest to their mother, while the plaintiff, when coming of age, accepted a sum of money in lieu of her interest. The defendant contends, therefore, that Evelyn Reynolds held the entire residue of the estate for herself, having barred the other next of kin six years after the full administration of the estate in 1980 or thereabouts. Presumably, it was with this submission in mind that the defendant extracted grant of letters of Administration of the estate of his mother Evelyn Reynolds on the 5th May 2005 after delivery of his defence on the 20th October 2004. However, in this context it is noteworthy that the defendant admits that Evelyn Reynolds died without having completed the administration of Matthew Reynolds’s estate.
10. Generally an assent or transfer is required to be executed by a personal representative to vest any interest or land in a beneficiary. Section 52 of the Succession Act, 1965 is the general empowering provision in this regard. Section 54, which is relevant in this case, states as follows:-
“54.—(1) An assent or transfer made by a personal representative in respect of registered land shall be in the form required under section 61 of the Registration of Title Act, 1964 , and shall be subject to the provisions of that Act.
(2) The Registration of Title Act, 1964 , is hereby amended by the substitution of the following subsection for subsection (3) of section 61:
‘(3) (a) An application for registration made by a person who claims to be by law entitled to the land of a deceased registered full owner, accompanied by an assent or transfer by the personal representative in the prescribed form, shall authorise the Registrar to register such person as full or limited owner of the land, as the case may be.
(b) On the determination of the estate or interest of an owner who is registered as limited owner of land pursuant to such an assent or transfer, the assent or transfer shall, on application being made in the prescribed manner, authorise the Registrar to register, as full or limited owner, as the case may be, the person in whose favour the assent or transfer was made, or the successor in title of that person, as may be appropriate.
(c) It shall not be the duty of the Registrar, nor shall he be entitled, to call for any information as to why any assent or transfer is or was made and he shall be bound to assume that the personal representative is or was acting in relation to the application, assent or transfer correctly and within his powers.’”
11. The plaintiff submits that these provisions are mandatory, and the personal representative is duty bound to comply in full. The assent or transfer accompanying the application for registration is then treated as conclusive by the Registrar of titles who is not required to examine the will nor any deed of family arrangement or releases signed by next of kin.
12. As the personal representative of Matthew Reynolds, Evelyn Reynolds would have had to have executed an assent in writing or a transfer on the prescribed Land Registry Form in order to vest the property in the person beneficially entitled. It was submitted that the person entitled could have been, by virtue of the arrangements surrounding the 1980 Deed, Evelyn Reynolds herself. No assent or transfer was ever signed and therefore the property was never transferred to the beneficial ownership of Evelyn Reynolds. The plaintiff therefore submits that the property did not form part of her estate when she died and the property remains part of the unadministered estate of Matthew Reynolds and is thus vested in the plaintiff in her capacity as administrator de bonis non.
Adverse Possession
13. Section 13 of the Statute of Limitations 1957 states as follows:-
“(2) The following provisions shall apply to an action by a person (other than a State authority) to recover land—
(a) Subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.”
Section 18(1) of the Statute of Limitations provides:-
“(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.”
14. Generally, time does not begin to run against the owner of land until a right of action accrues to it. There must be both a dispossession of the owner, or discontinuance of possession by him, and adverse possession by some other person. It must be proved, in each case, that there is actual possession by the squatter coupled with the intention to exclude all others. The date from which the limitation period begins to run may be postponed as a result of there being a disability, fraud or mistake.
Deceased Persons’ Estates
15. The limitation period in respect of estates of deceased persons was 12 years, with 6 years for recovery of arrears of interest on a legacy. These periods have since been reduced to 6 years and 3 years respectively. However, the courts have held that these provisions apply only to claims against a personal representative, but not to claims by a personal representative to recover the assets of the deceased’s estate from a person holding adversely to the estate, where the normal 12 year period applies (Gleeson v. Feehan [1993] 2 I.R. 113. Gleeson v. Feehan [1997] 1 ILRM 522).
16. A next-of-kin entitled to a share in an intestate’s estate may bar the rights of other next-of-kin by adverse possession. (Wylie, Irish Land Law, 3rd Ed., 1997). Wylie continues at p. 1097 to state: “However, if one of the next-of-kin was in possession at the date of death of the owner, it would appear that his possession is adverse to the holder of the legal title, i.e. the President of the High Court, and not adverse to the other next-of-kin, because at that stage they have no equitable or other interest vested in them. No interest vests in them until, at the earliest, a grant of representation is made in favour of administrators vesting the legal title in them and they complete administration of the estate, so that the net estate is available for distribution to the next-of-kin as intestate successors. This was the view of the Supreme Court in Gleeson v. Feehan [1997] 1 ILRM 522”.
17. Before his death, Matthew Reynolds was the registered owner of the property. The plaintiff submits that at no time before his death can the defendant claim to have been in adverse possession as the owner was occupying the premises. The period from 22nd March, 1980 to 19th January, 1992 cannot, according to the plaintiff, be recognised as adverse possession as his mother was in actual occupation as personal representative, and therefore the defendant did not have exclusive possession. He also signed the Deed of Settlement which recognised his mother’s entitlement to the total estate. Evelyn Reynolds died on the 19th January, 1992. It is the contention of the plaintiff that 12 years did not pass even if the defendant was in adverse possession, as these proceedings were commenced on 11th November, 2003. The plaintiff submitted that under Order 11 Rule 3 of the Circuit Court rules, the proceedings were commenced when they were deemed to be issued when the equity Civil Bill was presented to the Office sealed and marked with the appropriate record number by the appropriate officer on the 11th November, 2003.
Assents
18. A personal representative is a person who is responsible for the administration of a deceased person’s estate. Where the deceased died intestate, the court may authorise a person to administer the estate (an administrator) by granting it letters of administration. After the initial grant of representation, a further grant, a grant de bonis non, may be required in respect of the same estate, for example where an administrator dies without having administered the entire estate.
19. Generally an assent or transfer is required to be executed by a personal representative to vest any interest or land in a beneficiary. In Re King’s Will Trusts [1964] Ch 542, 547, Pennycuick J. defined an assent as ‘the instrument or act whereby a personal representative effectuates a testamentary disposition by transferring the subject-matter of the disposition to the person entitled to it.’ The form of the assent depends on whether the land is registered or unregistered. In the case of unregistered land, section 53 of the Succession Act, 1965 requires that an assent should be in writing and signed by the personal representatives. Section 54 of the 1965 Act provides that an assent or transfer by a personal representative in respect of registered land must be in the form required under section 61 of the Registration of Title Act 1964. Section 52 of the 1965 Act provides that ‘…the personal representatives may at any time after the death of the deceased execute an assent vesting any such land in the person entitled thereto…’ A personal representative, if beneficially entitled, may make an assent in his own favour. A case which deals with this issue is the case of Mohan v. Roche [1991] 1 IR 560. In this case Michael Roche died intestate in 1967. Letters of Administration were granted to his widow Mary Bridget Roche in 1968. The nine children granted, released and conveyed their interest in a dwelling-house, which was part of the estate of Michael Roche, to their mother, Mary Bridget Roche. Mary Bridget Roche died in 1989 and appointed her son Thomas Roche to be her executor. Thomas Roche extracted a Grant of Probate of the will of Mary Bridget Roche and entered into a contract to sell the house. The purchaser of the house refused to complete the sale, arguing that the title was defective as no assent had ever been executed by Mary Bridget Roche. The purchaser stated that he would only complete the sale if such defects were cured by a grant de bonis non to the estate of Michael Roche and by the due execution of an assent and its registration in the Registry of Deeds. Keane J refused the purchaser a declaration that the vendor had not shown good marketable title to the premises in accordance with the terms of the contract. Keane J held that where a property had devolved and was vested in the personal representative and was to be distributed to him or he became beneficially entitled to it, then an assent was not required.
20. The Law Reform Commission in its report on Land Law and Conveyancing Law, 1998, has stated that Mohan v. Roche only applies in limited circumstances. In the case of intestacy, it is limited to where the administrator is beneficially entitled to the entire of the estate and all the liabilities have been discharged or have become statute barred. However, the Commission does state that in the great majority of cases it would be much more satisfactory if assents were to be completed. It would be good conveyancing practice to execute an assent and this is suggested in the judgment of Keane J who acknowledged that a personal representative executing an assent in his own favour signals that he no longer acts as personal representative charged with completion of administration of the estate and makes it clear to prospective purchasers and others contemplating entering into dealings with him that he has become the full beneficial owner.
21. Coughlan states that it is unlikely that Mohan v. Roche can be read as having any application to registered land (Coughlin, Property Law, 2nd Ed p 429.). Section 61(3) of the Registration of Title Act 1964, as inserted by s. 54(2) of the 1965 Act, suggests that an assent or transfer by the personal representative is a prerequisite to registration of the person entitled to the deceased’s land as owner, regardless of whether that person is also a personal representative.
Schedule of Works
22. The defendant submits that he made the following repairing and refurbishment works to the subject property:
• In the late 1970’s a 600 sq. ft. extension comprising kitchen, bathroom and two bedrooms were added to the dwelling house. At the same time the existing dwelling house was refurbished and a septic tank and water supply installed. The estimated cost of materials for this was £15,000.00.
• In the 1990’s the existing extension to the dwelling house was refurbished and PVC windows and central heating were installed. A front porch was added to the dwelling house. New floors were installed throughout the house which was insulated. The outside of the house was replastered. The works were completed in 2003 and the estimated cost of materials was €25,000.00.
• In 2004 external works were commenced comprising the installation of new paths, yard and fencing. Brick and stone walls were added around the house together with timber fencing and gates. The estimated cost of materials was €20,000.00.
All the above works were carried out by the defendant and no provision has been made for his labour costs.
23. In relation to the works carried out in the 1970’s, the plaintiff claims that this claim is barred by virtue of s. 9 of the Civil Liability Act, 1961 which reads as follows:
“9. (1) In this section “relevant period” means the period of limitation prescribed by the Statute of Limitations or any limitation enactment.
(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either-
(a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, and
(b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.”
As the proceedings were not pending at the date of Matthew Reynolds death, the plaintiff contends that under s. 9(2)(b) the defendant had two years from 22nd March,1980, in which to commence proceedings against the estate and did not do so. The plaintiff also submits that the defendant does not plead that this work was done under any agreement with the Deceased, or that the Deceased made any promise that the defendant would in some way benefit on his death. By entering into the Deed of Settlement, the plaintiff argues that the defendant is estopped from maintaining this part of his claim.
Estoppel
24. When a person makes a representation, whether by words or by conduct, of an existing fact which causes another party to incur detriment in reliance on this representation, the person making the representation will not be permitted to act subsequently in a manner inconsistent with that representation. As Edward Nugee QC (sitting as a High Court judge) stated in Re Basham [1986] 1 W.L.R. 1498 ‘Where one person, A, has acted to his detriment on the faith of a belief which was known to and encouraged by another person, B, that he either has or is going to be given a right in or over B’s property, B cannot insist on his strict legal rights if to do so would be inconsistent with A’s belief.’ Therefore there must be assurance, reliance and detriment and it is important to note that the fundamental principle that equity ‘is concerned to prevent unconscionable conduct permeates all elements of the doctrine’ Gillet v. Holt [2001] Ch 210, 225 per Robert Walker L.J.
25. In relation to the works carried out in the 1990’s, the plaintiff claims that there was no encouragement of this expenditure on the part of Matthew Reynolds other next of kin. It is for the defendant to prove that he relied on their silence or acquiescence. If he did not place reliance, but simply did these works for his own benefit as occupier, it was submitted that he cannot succeed in his claim for propriety estoppel or unjust enrichment. The plaintiff also submits that the defendant was benefiting from these works and was not paying any rent.
26. In relation to the works carried out in 2004, the plaintiff submits that all these works have been carried out after these proceedings were issued and served, and at a time when the defendant knew that his father’s estate was seeking to restrain his trespass. Therefore, they were technical trespasses and unlawful acts. The plaintiff contends that the works after 2004 were clearly not encouraged and acquiescence cannot be said to arise as proceedings were in being, of which the defendant was aware. The plaintiff also argues that as the defendant has no receipts or invoices in respect of the materials purchased the maxim he who claims equity must come with clean hands should apply to exclude this claim.
Trespass
27. The plaintiff claims damages for trespass, and she submits that the estate is entitled to a fair sum representing mesne rates for a period of six years prior to the institution of proceedings up to the present time.
Delay
28. During the course of the hearing of the appeal, counsel for the defendant/appellant argued that even if the plaintiff is held to have the paper title and in law is entitled to possession of the property, the court should not grant an injunction for the recovery on the basis that an injunction is an equitable relief and is subject to the overall restraint of the equitable maxim “delay defeats equity”. In “Equity and the Law of Trusts in Ireland” Hillary Delaney (2nd Ed.) p. 26, the relationship between limitation periods provided for in the Statute of Limitations and this maxim is stated as follows:-
“The only exception to the principle that equitable considerations will have no application to cases to which the Statute of Limitations 1957 applies, is the reasoning employed by Henchy J. in ÓDomhnaill v. Merrick [1984] I.R. 151, based on the constitutional right to fair procedures to the effect that in certain circumstances ‘inordinate and inexcusable delay’ will bar a claim brought within the relevant limitation period where this will place an unfair burden on the person sued. The principle in ÓDomhnaill was applied by the Supreme Court in Toale v. Dignan (No.2) [1991] ILRM 140, where Finlay C.J. said that the courts have an inherent jurisdiction to dismiss a claim in the interests of justice where the length of time which is left between the events out of which it arises and the time when it comes for hearing is in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself. However, as Keane (Equity and the Law of Trusts in the Republic of Ireland (1988)) at p. 35-36) has pointed out, these principles are likely to only apply in a small number of cases, namely those relating to personal injuries claims by minors, in which the limitation period may be particularly long, and the recollection of witnesses of considerable importance.”
He who seeks Equity must do Equity
29. Delaney in the 2nd Ed., p. 17, sets out the principles applying to the maxim “He who seeks Equity must do Equity” as follows:-
“Equity will only grant relief on terms which ensure that a defendant is treated fairly and to obtain equitable relief, a plaintiff must be prepared to act in an honourable manner. This maxim has many different applications and reflects the fact that equitable remedies are discretionary in nature. It is one of the few maxims that can be interpreted fairly literally as Magher, Gummow and Lehane (Equity Doctrines and Remedies (3rd Ed. 1992) p. 77) point out ‘there are many illustrations of and almost no exceptions to the maxim’ it is, in a sense, compliments the maxim that ‘he who comes to equity must come with clean hands’ and while the latter principle focuses on the past conduct of the parties seeking the intervention of the court, the maxim that ‘he would seeks equity must do equity’ is concerned with his likely future conduct.
The effect of the maxim is noticeable in the approach of equity towards the granting of remedies and is a feature of equitable jurisdiction which distinguishes it from the common law. An illustration of this is the manner in which equity approaches a claim for recission of a contract. Recission will be granted to a plaintiff on such terms which the court considers just and relief of an unconditional nature may not achieve this aim so in Cheese v. Thomas an elderly plaintiff who had given the defendant, his great nephew, approximately half the purchase price of a house on the understanding he would live there until he died, sought to have the transaction set aside on grounds of undue influence. Nicholls V.C. ordered that the property should be sold and that both parties should bear the loss on the sale in the same proportions that they had contributed to the purchase price. He pointed out that the court was concerned to achieve practical justice for both parties and not for the plaintiff alone and stated that the ‘plaintiff is seeking the assistance of the court of equity and who seeks equity must do equity’.”
The Evidence
30. The plaintiff gave evidence in relation to her entitlement as personal representative DBN to the deceased, Matthew Reynolds, and of the folio concerned from which it was clear in an earlier version thereof that the site concerned was provided with a house thereon subject to the payment of a purchase annuity for the house. The defendant gave evidence of the expenditure of money in providing an extension to the house, which was a basic County Council house without significant services, prior to the death of his father, the said Matthew Reynolds, deceased, on foot of a promise he alleged his father made that he could “have” the house after his life on foot of the work carried out, and subject, of course, to the right of his mother, the said Evelyn Reynolds, to reside therein. He stated that after the death of his father he continued to execute works and had an expert prepare a detailed estimate of the work carried out since the death of his father, the said Matthew Reynolds. He stated that the children of the said Matthew Reynolds executed a release of their claim on the intestacy of his father to his mother, the said Evelyn Reynolds, and admitted that he was a party to this Deed of Release and that the plaintiff herself, not being of full age, was catered for by the payment of a sum (it seems to be less than £1,000) into an account held by her on behalf of Evelyn Reynolds. He agreed that no formal assent was executed by Evelyn Reynolds in respect of the lands in the said folio. He stated that his mother and the other siblings were aware of his continuing to execute work on the dwelling house after the death of his father, and he produced documentation and correspondence including an undertaking by his mother’s solicitor which he claimed were for the purpose providing security for credit afforded to him to complete certain works on the house. He claimed that his possession of the house was adverse to the other members of the family, including his mother, by reason of the promise of his father and his agreement with his father to take care of his mother. He agreed in cross examination that certain steps were taken to investigate and apply for planning permission for a second dwelling house in the site of the said folio for the benefit of the plaintiff, and that when the plaintiff sought to have some material deposited on the site that he resisted this on the basis that she had no entitlement thereto, and that shortly after this spat the proceedings were initiated by the plaintiff. He stated that he was unemployed and was of an age where he might not obtain employment and it would be a hardship on him to vacate the dwelling house on the site. Equally, he conceded in cross examination that the plaintiff herself had experienced some hardship in her life and that his other siblings were not well off. He disputed the suggestion made in cross examination that the other siblings could come and go to the home as they pleased, and asserted that such visits were only occasions social visits and on his invitation. The plaintiff gave evidence in relation to her continued interaction with the defendant in regard to the possibility of building a second house on the site and taking steps in the planning process to effect such an objective. She said that none of the family were excluded from the family home, either by her mother, the said Evelyn Reynolds, or by the defendant and that his possession was not exclusive of any member of the children of Matthew Reynolds and Evelyn Reynolds.
Conclusions
(I) Adverse Possession of the Defendant
A. The defendant clearly was not in adverse possession in relation to his late father, Matthew Reynolds, as he did not reside on the lands to the exclusion of his father’s family, i.e. his later mother and siblings. Also, his evidence was that his father requested him to carry out the extension for him and there was no suggestion that this work was an exercise of the defendant in the exclusion of the father.
B. Neither was the defendant in adverse possession as against the mother insofar as he was not in possession to the exclusion of other persons, especially the mother and his siblings, although as time went on the siblings were coming and going on a less frequent basis. The dealings admitted by the defendant to have taken place between himself and the mother, such as the Deed of Release of 1980 and the action taken by the mother to provide security for a loan to the defendant from a financial institution to enable him to carry out works, is overwhelming evidence to indicate that there was no exclusion by the defendant of the mother either in her own right or in her capacity as personal representative of his late father, Matthew Reynolds.
C. Neither did the defendant exclude the plaintiff or other members of the family from the premises insofar as he participated to a certain extent in the endeavour of the plaintiff to provide housing for herself on the site of the lands, and it was only late in the day when a spat arose over the placing of material on the lands on behalf of the plaintiff that an adverse claim commenced to be asserted.
(II) Statute of Limitations
31. As the defendant was not in adverse possession of the lands and did not have exclusive occupation thereof as against either his father or his personal representative and did not have the requisite period of time from the death of his mother to the commencement of proceedings by the plaintiff to establish title by adverse possession as against the estate of the mother, I find that the plaintiff is not statute barred from claiming possession of the lands and is, therefore, entitled to an injunction in this case subject to such further equitable considerations as arise.
(III) Delay
32. I accept the statement of the law in Delaney quoted above in relation to the general non-applicability of the defence of delay to cases governed by the Statute of Limitations. The principles referred to are all the more applicable in a case such as this where registered land is involved, insofar as the jurisprudence arising from ÓDomhnaill v. Merrick and other following cases is not relevant to the situation of a person seeking to establish a right to the lands which would constitute a burden without the necessity for registration under s. 71(1)(p) of the Registration of Title Act 1964, which deals with rights of persons acquiring or in the course of being acquired under the Statute of Limitation by way of adverse possession. It seems to me that the disqualification from asserting a right as envisaged by ÓDomhnaill v. Merrick, such as the inability to establish a defence, is anathema to the positive acquisition of a right envisaged under s. 72(1)(p) or for that matter, establishing a right as a person in actual occupation as envisaged by s. 72(1)(j) of the 1964 Act. While I note that consideration of a case of delay under ÓDomhnaill and related cases involved the balancing of conduct including delay on the part of a person in the defendant’s position, I consider that the delay caused by the defendant in this case by not accepting service of proceedings and subsequently tardiness in replying to a notice for particulars necessitating, in both cases, remedial applications to the Circuit Court, while being relevant in relation to consideration of various aspects of the case later on, would not tip the balance against the defendant even if he were to get some advantage or defence on the basis of ÓDomhnaill principles.
(IV) Absence of Assent
33. As transactions in relation to registered land are governed in detail by Statute and the rules made thereunder, the courts should be reluctant to interfere with such an extensive scheme which has had and continues to have the effect of greatly simplifying the complexities of conveyancing. Hence, I am very reluctant to accept that the solution proposed in the judgment of Keane J. in Mohan v. Roche in the case of the absence of an assent of non-registered land, should be followed as it would fly in the face of the principle of the conclusiveness of the register and the express provisions of s. 72 of the 1964 Act specifically listing burdens which may affect registered land whether those burdens are or not registered. To concede an extension of the Mohan v. Roche principle to registered land would be for the courts to create an additional burden affecting land of a type outside s. 72 and would constitute an unwarranted usurpation of the powers of the Oireachtas.
(V) Compensation for Work
34. The defendant is clearly statute barred in respect of any claim for works done on behalf of his father, Matthew Reynolds deceased. While his counsel did attempt to argue that the performance of works by the defendant for his late father should give rise to an inference that there was an agreement expressed or implied by the father to grant an interest in the lands corresponding to the proportionate value of the works to the defendant, this argument has no credence in the light of the dealings which the defendant had with his mother in relation to the Deed of Release and undertaking of mother through her solicitor to hold title deeds as security for a loan (even though the formal title to the lands in question was not perfected by reason of the absence of an assent). The plaintiff did not really contest the entitlement of the defendant to the sum of €60,000 awarded by the learned Circuit Court Judge in respect of works carried out during the life of his mother and after the death of his father up to the 18th May, 2004. Similarly the question arises whether the carrying out of such extensive works which, combined with the works done during the life of his father, fundamentally altered the footprint and image of the house would carry with it by reason of the court holding that there was an implied agreement that an interest would pass proportionality to the defendant in the lands, I can say that there was no course of dealing evidenced between the mother and son such as would indicate such an agreement express or implied. The case is, therefore, one where the defendant should be compensated for the work done after the death of his father on the basis that to grant an injunction without further compensation would be to unjustly enrich the estate of the deceased and the other beneficiaries.
(VI) Entitlement of the Defendant to remain in Possession
35. While counsel on behalf of the plaintiff prevaricated on the matter during the course of the appeal, it is clear that it is contemplated that the plaintiff, as personal representative of the deceased registered owner, will sell the property and administer the estate as was stated on her behalf by her solicitors in the preliminary letter sent to the defendant prior to the commencement of the proceedings herein. Indeed, on the basis of Gleeson v. Fehan above, to do otherwise than sell the lands and administer the estate for distribution to the next of kin or their personal representatives would be to create from these proceedings an incorrect interpretation of the commendation of the Statute of Limitations and the Succession Act as an engine of fraud. Therefore, I consider that the order of the Circuit Court in para. E that the sale of the property be subject to the defendant remaining in the property pending sale is inappropriate as such a provision would not only jeopardise the sale of the property, but could well lead to further disputes and litigation in a family already damaged by such events.
(VII) Treatment in Equity
36. As the plaintiff could, having regard to this judgment, have brought proceedings by way of ejectment on the title which might not be amenable to the flexibility and fine tuning of the same relief being obtained by way of an injunction, and the defendant has eloquently prayed for equitable relief to temper the severity of any order for possession by way of injunction, it is appropriate in the interests of justice and this family that the court would temper the injunction with the following terms:-
A. That the defendant is not entitled to payment of the sum of €60,000 compensation until he administers the estate of his mother and pays the next of kin their appropriate shares.
B. That the plaintiff proceeds forthwith to administer the estate of Matthew Reynolds, deceased.
Summary
37. The court discharges the order of the 3rd day of April, 2009, and substitutes therefore the following order:-
A. A declaration that the plaintiff, as administrator of the estate of Matthew Reynolds, is entitled to possession of the lands comprised in folio 21280 of the Register of County Meath.
B. A declaration that James Reynolds, the defendant/appellant, has not acquired title to Folio 21280 of the Register of County Meath by way of adverse possession.
C. A declaration that the defendant/appellant is entitled to financial compensation in the sum of €60,000 for work expended on the property from the 19th January, 2002, to the 18th May, 2004, such compensation to be paid on condition of compliance with the conditions for payment of same as described in this judgment.
D. That the defendant/appellant be restrained from carrying out any further works on the property.
E. A mandatory injunction directing the defendant/appellant to forthwith vacate the lands contained in Folio 21280 of the Register of County Meath and give up possession thereof, including all keys, utility bills and all matters for the effective handover of the property to the plaintiff.
F. That the plaintiff/respondent proceed with the proper administration of the estate of Matthew Reynolds, deceased, upon receipt of possession of the property and lands contained in Folio 21280 aforesaid in accordance with the preliminary letter herein.
38. The court invites the parties to make submissions in the light of the foregoing judgment and amended order in relation to the costs of the parties and how the costs of these proceedings should be dealt with (if at all) in the administration of the relevant estates.
Hearing of the 22nd February, 2011
39. Counsel for the parties addressed the court in relation to the details of the order proposed to be made herein and the costs issue as invited on the 22nd February, 2011. Counsel for the defendant/appellant sought a stay on the order for possession to enable the defendant to take steps to find alternative accommodation, and I find that a stay on possession to the 1st September, 2011, is appropriate. Such reasonable course was not resisted by counsel for the defendant/appellant.
40. Counsel for the defendant/appellant argued that the defendant would be penalised disproportionately in relation to a family dwelling where he had resided for most of his life and that have to carry all the costs of complex litigation would be disproportionate to the compensation of €60,000 which he expected to receive as a result of the judgment. The court indicated that the failure of the defendant in the appeal should be marked by some penalty but that the court was prepared to measure a sum in respect of costs to be paid by the defendant representing approximately half of the costs. These were estimated to be €10,000 by counsel for the defendant and €20,000 by counsel for the plaintiff exclusive of VAT, and that in any event that there should be a stay on the payment of €6,000 costs by the defendant to the plaintiff until such time as the plaintiff pays to the defendant the said sum of compensation subject to such set off. It was agreed that the preliminary letter of the 7th July, 2003, from the plaintiff’s solicitors to the defendant would be appended to the order on the basis that the proceedings were necessary to recover the lands and selling them in accordance with the demand of the preliminary letter of the 7th July, 2003. I certify for senior counsel in both courts and as a guide for taxation that the costs would bear a reasonable relationship to the level of costs indicated by the sum measured in respect of half the costs for which the defendant is liable herein. Accordingly, for the purpose of clarity, the summary indicating the form of order set out in para. 15 of the judgment herein should be replaced by the following:-
A. A declaration that the plaintiff, as administrator of the estate of Matthew Reynolds, is entitled to possession of the lands comprised in folio 21280 of the Register of County Meath.
B. A declaration that James Reynolds, the defendant/appellant, has not acquired title to Folio 21280 of the Register of County Meath by way of adverse possession.
C. A declaration that the defendant/appellant is entitled to financial compensation in the sum of €60,000 for work expended on the property from the 19th January, 2002, to the 18th May, 2004, such compensation to be paid on condition of compliance with the conditions for payment of same as described in this judgment.
D. That the defendant/appellant be restrained from carrying out any further works on the property.
E. A mandatory injunction directing the defendant/appellant to vacate the lands contained in Folio 21280 of the Register of Freeholders County Meath on the 1st day of September, 2011, and give up possession thereof, including all keys, utility bills and all matters for the effective handover of the property to the plaintiff and that the defendant, his servants or agents allow access for the plaintiff’s engineer, architects and for local authority personnel to inspect the premises and do such minimal excavations as are necessary to examine the septic tanks and services of the property for the purpose of presenting a retention application to the planning authority and allow prospective purchasers to visit and inspect the property.
F. That the plaintiff/respondent proceed with the appropriate administration of the estate of Matthew Reynolds, deceased, upon receipt of possession of property and lands contained in Folio 21280 of the Register of Freeholders aforesaid in accordance with the preliminary letter herein dated the 7th day of September.
G. Liberty to apply to the Circuit Court in relation to the enforcement of this order.
H. The plaintiff is entitled to recover her costs out of the estate for the Circuit Court case on the lowest equity scale with a certificate for senior counsel, his fees being tied to the scale of junior counsel.
The plaintiff is entitled to recover half her costs of the appeal against the defendant measured on the lowest equity scale with a certificate for senior counsel, these costs being measured at €6,000.00 for the appeal would be recoverable from the estate.
The plaintiff shall be entitled to set off the sum of €6,000.00 against the defendant’s compensation of €60,000.00 ordered herein and the payment of such sum of €6,000.00 shall be stayed until such time as the payment of such compensation subject to such set off has been paid by the plaintiff.
Appendix Hereinbefore Referred To
“We act for your sister Catherine Dolan the administrator of your late father’s estate, Mr. Matthew Reynolds. We enclose herewith a copy of the grant of administration in the said estate.
Our client proposes selling your late fathers property at Posseckstown comprised in folio MH21280 and dividing the proceeds equally among the beneficiaries i.e. your good self and your siblings.
In the circumstances, we would ask you to provide us immediately with a set of keys to the dwelling house on the said property so that we can arrange for viewings at times convenient to your good self. We also require you to vacate the premises within 28 days of the date hereof, failing which we will be compelled to take legal proceedings against you. We strongly recommend that you pass this letter on to your solicitor.”
O’Hagan v Grogan
[2012] IESC 8
udgment of Macken J. delivered on the 16th February, 2012
This is an application arising on a consultative Case Stated to this Court from the Circuit Court (Judge Linnane) dated the 16th January, 2007, pursuant to the provisions of s.16 of the Courts of Justice Act, 1947. The questions posed in the Case Stated are the following:
(a) Is the plaintiff a “State authority” for the purposes of the Statute of Limitations, 1957?
(b) Having regard to sections 23 and 24 of the Statute of Limitations, 1957, is the relevant limitation period in this case prescribed by s.13(1) of the Statute of Limitations, 1957 or by section 13(2) thereof?
(c) Is the answer to (b) affected by s.65 of the Succession Act, 1965?
The Case Stated has arisen as a result of the pleadings, including the defence and counterclaim of the defendant, in proceedings commenced by the plaintiff, seeking possession of a house which the defendant occupies, and has occupied since 1982, and an injunction restraining trespass. The defendant claims that, on the basis of what are frequently called squatters’ rights, he acquired title to the premises “adverse to the President of the High Court” more than 12 years prior to the time when Letters of Administration were granted to the plaintiff in 2000, and therefore the plaintiff has no legal right to have either possession of the house, or an injunction to restrain the alleged trespass.
Background Facts as Agreed or Proven
According to the Case Stated, on facts agreed or proven, the late Mrs. Alice Dolan died intestate on the October 22, 1981 in possession and in occupation of a house at 6 Enniskerry Road in Dublin. Well before she died, and on her death, Mrs. Dolan was entitled to the beneficial ownership of that property which had been agreed by Dublin Corporation (as it then was) to be conveyed directly to her by the then vendors of the property, in exchange or in part exchange for her previous home in Dublin, which the Corporation required for road widening. The deed of assignment (dated in December, 1978) to Mrs. Dolan had been executed both by the then vendor and by Dublin Corporation (who were paying the vendor for the property) and the deed had also been stamped. At the time she died, Mrs. Dolan had not executed the deed of assignment, but she had been allowed into occupation of the property well prior to that time (in 1978). No issue arises as to Mrs. Dolan’s entitlement to the property. In the course of his employment in the auctioneering business, the plaintiff learned of Mrs. Dolan’s death and of the apparent absence of any next of kin. He, it seems, broke into her home (“the premises”) through the back door, in February, 1982, and has remained in possession of the premises, along with a Mary Grogan, since that date.
A citation to next of kin, if any, was issued on 21st January, 1998, and was deemed as a renunciation of any interest in the estate. Letters of Administration were extracted in July, 2000 and granted to Laurence A. Farrell, as then Chief State Solicitor, the then Attorney General having consented to his doing so. He thereupon became the personal representative of the estate of Mrs. Dolan. Mr. O’Hagan (“the plaintiff”) is the successor to Mr. Farrell. Although his entitlement to bring proceedings, both as Chief State Solicitor and as personal representative was raised in the defence, as filed, which challenged devolution to the plaintiff from Mr. Farrell in either such capacity, these pleas are not mentioned in the Case Stated or in the submissions on behalf of the defendant. For the purposes of this judgment, I take the view that no issue arises on that devolution.
By a Circuit Court Equity Civil Bill issued on the 14th May, 2002 and served on the defendant on the 24th May, 2002, the plaintiff sought, inter alia: injunctions directing the defendant to vacate the premises, delivery up of possession of them to the plaintiff, and an order restraining the defendant from all further trespass on the premises, as well as damages for trespass and a declaration that the defendant has no equitable or legal title to the premises. The defendant by his defence, denied trespass and all entitlement in the plaintiff to the reliefs sought. He then followed these denials with the following positive pleas: (a) that as of the 21 July 2000, the date when Letters of Administration issued, the real and personal estate of the late Alice Dolan on the date of her death on the 22nd October, 1981 had vested in the President of the High Court until administration of her estate was granted, pursuant to the provisions of s.13 of the Succession Act, 1965; (b) that in or about the month of February, 1982 the defendant, together with a Mary Grogan, went into occupation and possession of the premises, and remained there for upwards of 12 years, “adversely to the President of the High Court”; (c) that as of the 21st July, 2000, all right, title and interest in the estate of Alice Dolan, of the then personal representative, and of all other persons claiming any interest in her estate, including the State as ultimate successor pursuant to the provisions of s.73 of the Succession Act, 1965, were already statute barred under the provisions of the Statute of Limitations 1957 and the Succession Act 1995; (d) that no estate or interest in the premises vested in the personal representative, Laurence A. Farrell, on the extraction of the grant of Letters of Administration; (e) that neither Laurence A. Farrell, as former Chief State Solicitor, nor the plaintiff, either in the same capacity or as personal representative of the late Alice Dolan, is, or were, at any relevant time, a “State authority” within the meaning of the Statute of Limitations, 1957, contrary to the plaintiff’s plea that he was; and (f) that the title of the said Laurence A. Farrell, and/or of the State, to the premises had been extinguished by virtue of the provisions of s.24 of the said Statute of 1957.
The defendant did not, by his defence, although it is entitled “Defence and Counterclaim”, in fact, counterclaim either as against the President of the High Court, any State authority, or the State, which latter was otherwise entitled to the premises, as ultimate intestate successor to the estate of Alice Dolan, and no relief was sought against any of them. Neither the President of the High Court, nor the State, nor any State authority was joined as a party to any plea by the defendant in his defence, or the adverse possession plea. I will return to this in the course of my judgment.
Issues Presented
It will be seen from the foregoing exposé of the basic facts and of the pleadings, that the essential issues to be resolved in the Circuit Court proceedings are whether the plaintiff, either as a State authority, or as personal representative, is entitled as against the defendant to possession of the premises, and whether the defendant has established that he is the owner, by adverse possession of the premises, as against the true owner. In turn, the outcome of these depends on (a) whether the plaintiff is a State authority, as he claims; (b) whether, if not a State authority, he is entitled as personal representative pursuant to the Grant of Letters of Administration to have possession of the premises as against the defendant, and (c) what limitation periods operate in relation to these and allied issued arising, in particular in the case of a person dying intestate with no next of kin. The significance of determining the relevant limitation period is as follows. The defendant began his occupation of the premises in February 1982. Letters of Administration issued in July 2000. The defendant was, therefore, in possession of the premises for over 17 years before that date. If the defendant is correct in his contention that the applicable limitation period is 12 years from the date of death of the late Mrs. Dolan, and he had, in law, adversely possessed the premises against the appropriate party(ies) for the appropriate period, this would have the effect of barring any title to it vesting in the personal representative in July, 2000, following upon the purported grant of Letters of Administration to the plaintiff’s predecessor at that date. If the plaintiff is, on the contrary, a “State authority” within s.2(1) of the Statute of Limitations for and on behalf of the State – at least according to one of his pleas in the Equity Civil Bill – and as argued in this appeal, or is entitled to possession on any alternative legal basis pleaded, then the defendant’s claim cannot succeed, since possession does not become adverse to the State or any State authority until the expiration of 30 years from the date on which the right of action accrued, according to s. 13(1)(a) of the Statute of Limitations, 1957. If a 30 year limitation period properly applies, this effectively bars the defendant’s claim to have adversely possessed the property on or before July, 2000 In the above context, and having heard legal argument, the learned Circuit Court judge posed the three questions set out at the commencement of this judgment, for the opinion of this Court. Helpful written submissions were filed by both parties and were supplemented by oral argument on the part of counsel for each party.
Since the answers to the questions raised, and to important allied issues, concern the correct interpretation and application of several legislative provisions, it is appropriate to commence by setting out the relevant legislation, which is fairly lengthy, interrelated and also quite complex.
Ministers and Secretaries Act, 1924
S.6(1) of this Act is relied on by the plaintiff. It states:
“There shall be vested in the Attorney-General … the business, powers, authorities, duties and functions formerly vested in or exercised by the Attorney-General for Ireland, the Solicitor-General for Ireland, … and any or all of them respectively, and the administration and control of the business, powers, authorities, duties and functions of the branches and officers of the public services specified in the Ninth Part of the Schedule to this Act …” (emphasis added)
The “Ninth Part of the Schedule to this Act” includes, inter alia, the “Chief State Solicitor’s department and all local State Solicitors.”
Statute of Limitations 1957
There are several provisions of this Act (“the Statute of Limitations”) which play a pivotal role in a proper consideration of the issues arising on the Case Stated. They are the following:
s.2(1) “State authority” means any authority, being:
(a) a Minister of State, or
(b) the Commissioners of Public Works in Ireland, or
(c) the Irish Land Commission, or
(d) the Revenue Commissioners, or
(e) the Attorney General.”
s.3(1) “Save as in this Act otherwise expressly provided and without prejudice to section 7 of this Act, this Act shall apply to proceedings by or against a State authority in like manner as if that State authority were a private individual.”
S.7 “This Act shall not apply to—
(a) any action for which a period of limitation is fixed by any other limitation enactment, or
(b) any action to which a State authority is a party and for which, if that State authority were a private individual, a period of limitation would be fixed by any other limitation enactment.”
s.13(1)(a) “Subject to paragraphs (b) and (c) of this subsection no action shall be brought by a State authority to recover any land after the expiration of thirty years from the date on which the right of action accrued to a State authority or, if it first accrued to some person through whom a State authority claims, to that person.”
s.13(2) “The following provision shall apply to an action by a person (other than a State authority) to recover land –
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;
(b) if the right of action first accrued to a State authority the action may be brought at any time before the expiration of the period during which the action could have been brought by a State authority, or of twelve years from the date on which the right of action accrued to some person other than a State authority whichever period first expires.”
s.14(2) “Where –
(a) any person brings an action to recover any land of a deceased person, whether under a will or on intestacy, and
(b) the deceased person –
(i) was on the date of his death in possession of the land or, in the case of a rentcharge created by will or taking effect upon his death, in possession of the land charged, and,
(ii) was the last person entitled to the land to be in possession thereof
the right of action shall be deemed to have accrued on the date of his death.”
s.18(1) “No right of action to recover land shall be deemed to accrue unless the land is in possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.”
s.23 “For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person shall be deemed to claim as if there had been no interval of time between the date of the death of the deceased and the grant of letters of administration.”
s.24 “Subject to section 25 of this Act and to section 52 of the Act of 1891, at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished.” (emphasis added)
The Administration of Estates Act 1959
Section 13 of this Act (“the Act of 1959”) is also invoked, and is in the following terms:
s.13 “Where a person dies intestate, his real and personal estate, until administration is granted in respect thereof, shall vest in the President of the High Court in the same manner and to the same extent as formerly in the case of personal estate it vested in the Ordinary.”
The Succession Act 1965
Again, several provisions of the Act (“the Act of 1965”) are also important, and include:
s.13(1) “Where a person dies intestate, or dies testate but leaving no executor surviving him, his real and personal estate, until administration is granted in respect thereof, shall vest in the President of the High Court who, for this purpose, shall be a corporation sole.”
s.65(1) “Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the Solicitor for the Attorney General or any other person), any legal proceedings by or against the administrator for the recovery of the estate or any share thereof shall be of the same character and be instituted and carried on in the same manner, and be subject to the same rules of law and equity in all respects, as if the grant had been made to the administrator as a person beneficially entitled to a share of the estate.”
s.65(2) “Proceedings on behalf of or against the State in respect of the estate of a deceased person or any share thereof or any claim thereon shall not be instituted except subject to the same rules of law and equity in and subject to which proceedings for the like purposes might be instituted by or against a private individual.”
s.65(3) “Where the Chief State Solicitor for the time being is administrator of an estate for the use or benefit of the State, he shall cease to be administrator on ceasing to hold office and his successor in office shall become administrator in his place without further grant.”
s.73(1) “In default of any person taking the estate of an intestate, whether under this Part or otherwise, the State shall take the estate as ultimate intestate successor.”
(emphasis added)
Intestates Estates Act 1884 (U.K.)
Some English legislation, including of the late 19th century, were also invoked. The provisions of this Act, and of the later Administration of Estates Act 1925, were both cited in argument by the parties. The relevant provisions are the following:
s.2 “Where the administration of the personal estate of any deceased person is granted to a nominee of Her Majesty (whether the Treasury Solicitor, or a person nominated by the Treasury Solicitor, or any other person), any action or other proceeding by or against such nominee for the recovery of the personal estate of such deceased person, or any share thereof, shall be of the same character, and be brought, instituted and carried on in the same manner, and be subject to the same rules of law and equity (including the rules of limitation under the Statutes of Limitation or otherwise), in all respects as if the administration had been granted to such nominee as one of the next-of-kin of such deceased person.”
s.3 “After the passing of this Act, information or other proceeding on the part of Her Majesty shall not be filed or instituted, and a petition of rights shall not be presented, in respect of the personal estate of any deceased person or any part or share thereof, or any claim thereon, except within the same time and subject to the same rules of law and equity in and subject to which an action for the like purpose might be brought by or against a subject.” (emphasis added)
It will be seen that s.2 covers the position as to personal estate, where administration is granted to a nominee of the Crown, in which event proceedings by or against the nominee are subject to the same rules (including expressly those concerning limitation periods under the “Statute of Limitations or otherwise”). Section 3 concerns proceedings taken on the part of the Crown.
Administration of Estates Act 1925 (U.K.)
Section 30 of this Act repealed and restated the above two sections of the Act of 1884, and extended the provisions of those sections to real property, but did not otherwise change them. S.30(1) amended s.2 of the Act of 1884, and s.30(2) amended s.3 of the same Act. S.30(2) covering proceedings by the Crown was, however, later amended by s.34 of the next mentioned Act.
Limitation Act 1939 (UK)
Section 34 of this Act which is the section concerned with the repeal of earlier legislation, repealed in a small, but important, manner, the provisions of s.30(2) of the Act of the 1925 Act, by deleting the words “within the same time and” from that section. This had the effect of removing any suggestion of time limits applying to an action commenced by the Crown in respect of the personal estate of a deceased, such as had been the position under s.30 of the Act of 1884, as amended in 1930. Different rules have always applied to proceedings by the Crown relating to real property. Such proceedings by the Crown are commenced by the Solicitor General or the Treasury Solicitor, depending on the nature of the proceedings.
The Arguments of the Parties
The First Question
Is the plaintiff a state authority for the purposes of the Statute of Limitations 1957?
There is disagreement between the parties as to the meaning, scope and ambit of the language used in s.2(1) of the Statute of Limitations, 1957. The plaintiff’s argument is that s.2(1) does not simply limit “State authority” to those parties expressly set out in paragraphs (a) – (e). Rather, the definition is said to encompass other relevant persons, at least as concerns the Attorney General. For the purposes of this argument, the plaintiff invokes s.6(1) of the Ministers’ and Secretaries’ Act, 1924 set out above. On the basis of the wording of that section, and the 9th Schedule to that Act, which specifically refers to the branches and officers of the Chief State Solicitor’s department, including the Chief State Solicitor, since it is under the direct control and administration of the Attorney General, is, by virtue of the above provision, and for the purposes of s.2(1) of the Statute, an authority ‘being’ the Attorney General, and thus “a State authority” within s.2(1).
The defendant, on the other hand, argues that those included within the definition of a “State authority” in s.2(1) are only those expressly listed parties there mentioned. Since neither the plaintiff nor his predecessor, as Chief State Solicitor, is within the definition, neither can be a “State authority” for the purposes of s.2(1). On the argument arising under s.6(1) of the Act of 1924, while the defendant accepts that the administration and control of, inter alia, the powers, duties and functions of branches and officers of, inter alia, the Chief State Solicitor’s department, vested in the Attorney General, this did not, however, make the Chief State Solicitor’s department a “State authority”, but merely vested those functions and control in the Attorney General. Further, the defendant argues that on the documents before the Circuit Court, it was clear that the Attorney General at the time, had renounced his right to raise representation, and consented to the then Chief State Solicitor taking out the grant.
The defendant argues further, however, that the issue of his title to the premises by adverse possession has, in any event, been put beyond dispute by the decision of this Court in Gleeson v. Feehan (No. 2) [1997] 1 ILRM 522, which I deal with in greater detail below, but in the course of which it was stated that the title of the defendant in that case, was “adverse to the President of the High Court”, in circumstances where the defendant had occupied the premises for more than 12 years from the relevant date had passed. It follows, the defendant here submits, that on the facts of this Case Stated, the time to be calculated to establish his adverse possession of the premises is 12 years, in accordance with s.13(2) of the Statute of Limitations, and not the 30 year period provided for under s.13(1), in favour of a State authority. Therefore, since he took possession of the premises in 1982, 17 years before the Grant of Letters of Administration, no title then vested in the plaintiff’s predecessor in July, 2000, as that title to the premises had been extinguished by reason of the defendant’s adverse possession of them. Whereas the defendant does not base his claim to the application of a 12 year limitation period as against the President of the High Court on any express provisions of legislation, implicit in his argument in reliance on the Gleeson, supra. case, is that 12 years is the correct period in law to be applied.
The Second Question
Having regard to sections 23 and 24 of the Statute of Limitations 1957, is the relevant limitation period in this case prescribed by s. 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof?
Under this heading, the plaintiff also submits that, since these proceedings are “an action for the recovery of land”, as expressly referred to in s.13(1) of the Statute of Limitations, brought by the administrator of the estate of a deceased person, s.23 of the Act also applies to it. It follows, therefore, that even if Chief State Solicitor is not, himself, a “State authority” within the meaning, or for the purposes, of s.2(1) of the Statute, the plaintiff, as administrator of the estate, is nevertheless entitled to succeed against the defendant. The time that had elapsed between the death of Mrs. Dolan in 1981 and the date of the grant of Letters of Administration in July, 2000 is irrelevant, counsel for the plaintiff argues, as his action for the recovery of land must be treated “as if there had been no interval of time” between the two events. On this argument, the effect of s.23 is to permit the plaintiff to sue for and recover the premises from the defendant, once Letter of Administration were extracted, as occurred here.
The defendant, on the other hand, while accepting that s.23 permits relation back, contends that this provision applies solely to actions brought by an administrator in respect of tortious claims, which, the defendant contends, cannot be applicable to the facts as found in the Case Stated. To support this argument, the defendant relies on an extract from Spierin in A Commentary on The Succession Act 1965 and Related Legislation, paragraph [82], which will be considered below.
As to the provisions of s.24 of the Statute, while this also appears to be fairly straightforward on its face, each party again cites different case law to discern its meaning. The plaintiff invokes the interpretation found in Perry v. Woodfarm Limited [1975] IR 104 at p. 119, in which it was stated:
“In the case of land, the effect of the Statute is to destroy the title of the person dispossessed to the estate from which he has been dispossessed, but it does not destroy the estate itself.”
The plaintiff argues that the meaning of this statement is simply to clarify that no estate in the land is extinguished, and that what is affected is only the title of the party who, but for the dispossession, would be entitled to the premises. The plaintiff also submits that, in any event, in view of the combination of s.23 and s.13(1) of the Statute, a thirty year period exists during which the plaintiff can bring a claim, which taken alone, is sufficient in the context of the facts in the present Case Stated, to defeat the defendant’s claim to be in possession “adverse to the President of the High Court”. As a result, s.24 can have no limiting effect on the plaintiff’s claim against the defendant.
The defendant, on the other hand, contends that Perry v. Woodfarm Homes Limited, supra., as followed in Gleeson v. Feehan (No. 2) [1997] 1 ILRM 522 supports his argument that he acquired title by adverse possession as against the President of the High Court and, as a result, the plaintiff’s title was extinguished 12 years after the date of death of Mrs. Dolan, and nothing, including a later purported grant of Letters of Administration, could revive it. The defendant invokes the following extract from the judgment of Keane, J. in Gleeson v. Feehan (No. 2), supra:
“As s.24 of the Statute of Limitation 1957 extinguished the title of the President of the High Court to the land and his right to bring an action to recover the land, no estate or interest could thereafter be vested by anyone in the next-of-kin, regardless of whether the next-of-kin were in or out of possession. The grant of letters of administration to the estate of James Dwyer could not revive the title to the land which had been extinguished by s.24.”
The Third Question
Is the answer to (b) affected by s.65 of the Succession Act, 1965?
For purposes of clarity, the defendant’s position is set out first. He relies on this provision, together with s.3(1) of the Statute of Limitations 1957, to support his argument as to the appropriate limitation period. He submits that these two provisions, taken together, dictate that any proceedings instituted by the State in respect of the intestate estate of a deceased person, must be dealt with as if the grant of Letters of Administration had been made to a “person”, in which case a 12 year – rather than a 30 year – limitation period applies. The defendant also submits that since there is no express provision to the contrary in the Act of 1965, the plaintiff must be treated as a private individual for the purposes of that Act, and all limitation periods contained in it. To support this argument, counsel looks to earlier English legislation, commencing with s.30 of the Administration of Estates Act 1925 itself, which will be discussed further below, as well as to the commentary on that section found in Williams, Mortimer and Sunnucks on “Executors, Administrators and Probate” which is in the following terms:
“Where the Crown or its nominee claims land in the course of administration of a deceased person’s estate, the position is governed by section 30 of the Administration of Estates Act 1925. The limitation period applicable to an action by the nominee of the Crown, who had obtained a grant of letters of administration, to recover land forming part of an intestate’s estate is 12 years, for the effect of the Administration of Estates Act 1925 is to put the nominee in the same position as the subject for limitation purposes.”
The defendant also relies on s.14(1) of the Statute of Limitations, 1957 contending that, under that provision, since Mrs. Dolan was the last person in occupation of the premises, the right of action against a person dispossessing her by adverse possession, accrued on her date of death.
The plaintiff presents two arguments on s.65 of the Act of 1965 and its application to this case. First, counsel submits that, in adopting the Act of 1965, the Oireachtas made a deliberate decision to exclude the issue of limitation periods from the reach of s.65. In support of this point, the plaintiff cites the equivalent of s.65 in the earlier English Act of 1884, above cited. The Act of 1884 only governed personal estate. It was only subsequently amended by the s. 30 of the Administration of Estates Act of 1925 to include real estate, and, at that time, the limitations invoked by the defendant. Secondly, it is said, that the Oireachtas had all of the prior language available to it from corresponding English legislation, in order to decide whether or not it wished to displace the provisions of the Statute of Limitations when enacting s.65 of the Act of 1965, but it chose not to do so. Thirdly, counsel submits that the term “the same rules of law” in s.65 of the Act of 1965 does not, in any event, include a statutory provision or enactment such as the Statute of Limitations, but is instead limited to judge-made rules or case law only. The plaintiff cites T v. L (Unreported, High Court, 23rd November 2001) [at p.15] in support of this argument, and also invokes the distinction made between a “rule of law” and an “enactment” or “statutory provision” in the following statutory provisions in contending that his interpretation is to be preferred, because it is correct in law. The examples include s.12(1) of the Succession Act, 1965 itself which states: “All enactments…and rules of law …”; s.45(1) of Courts and Courts Officers Act, 1995 which states: “any enactment or rule of law…”; s.2 of European Convention on Human Rights Act 2003, which speaks of “statutory provision or rule of law”. As to s.3(1) of the Statute of Limitations, invoked by the defendant, the plaintiff submits that this is of no application, as there is an express provision, namely in s.13(1) of the same Statute, which applies to proceedings by a State authority, including the plaintiff.
Conclusion: Preliminary
Although a significant amount of legislation and some case law was opened to the Court on the hearing of this appeal, and the interaction of some of that legislation is complex, I am of the view that it is necessary first, to clarify in simple terms, or as simply as possible, the legal position obtaining in the administration of an intestate estate, in particular of the type in issue here, and the status of several of the players, including that of the Attorney General, the Chief State Solicitor, and the President of the High Court, as well as an Administrator of an intestate estate. It is also necessary to say something about the rules of court applicable to proceedings of this nature.
The Role of an Administrator
I start with an administrator, and the general position in the case of administration of an intestate estate with no time limit issues arising. In such circumstances, there may be next of kin or none, and the deceased may have died wholly or only partly intestate. In either event, the grant of Letters of Administration is made with a view to the proper administration of the intestate estate. Under the provisions of s.10() of the Act of 1965 the whole of the intestate estate vests in the personal representative, who nevertheless does not hold the estate on his own behalf, but (under s.10(3)) as a trustee for the persons in law who are entitled to it, and he must act accordingly. Those persons have an immediate beneficial equitable interest in the estate by way of trust, which is, nevertheless, subject to rights of the administrator, who has certain powers, including, for example, those for the purposes of disposition. The power to deal with the property of an intestate dates only from the date of grant, however, (as opposed to the position of an executor of a person who dies testate where the property vests on death).
An administrator, acting in accordance with the provisions of the Act of 1965, is charged with collecting in all assets, paying all relevant debts, and on completion of the administration, vesting the assets in the beneficiaries entitled on intestacy. This is not to say, however, that although the administrator must act as aforesaid, he cannot himself take property by adverse possession. He can, as is provided for in Part V of the Act of 1965. That is not, however, an issue in the present case. Such an event is most likely to arise where a next of kin within a family raises representation, and either takes possession, or is already in possession, of property within the estate, and retains it for a limitation period of, say, 12 years, as against other next of kin, even siblings, not in possession, who would otherwise have been entitled, on final administration, to that part of the estate, a situation which arose in Gleeson v. Feehan (No. 2), supra., although in that case there was also a non-next of kin (“a stranger”) in possession, adverse to the parties otherwise entitled. During the course of administration, if a party, such as a next of kin or a stranger (but most often a next of kin) in possession, seeks to assert adverse possession in land the subject of administration, the administrator may sue for possession, or defend a claim to title by adverse possession, acting at all times in the interest of the eventual beneficiaries.
Rules of Court Relating to Administration Proceedings
In the normal course of events, and absent administration, where parties are in dispute in relation to the ownership of land, a defendant who raises a defence of adverse possession, may do so against a plaintiff claiming title to the land – the most usual situation – or against a third party. If a defendant contends he has acquired adverse possession as against a third party not already a party to the proceedings, he must also counterclaim naming the third party as the person against whom he sets up his claim, so that such third party has an opportunity to be heard. In the case of an administration, of course, several other non-possession next of kin (as ultimate beneficiaries) may well be parties against whom a defendant sets up a claim to adverse possession. In the case of an intestate estate, as here, the administrator when bringing proceedings or defending an adverse possession claim, is deemed to act in the interest of all those ultimate beneficiaries otherwise entitled to the property but for the adverse possession claimed. Because of this, and to avoid unnecessary depletion of the estate, those parties do not have a right to be joined as parties separate to the administrator. This is both straightforward and sensible and should not create complexity, whatever the eventual outcome of any such proceedings, since it is undesirable that a myriad of persons having the same interests being protected by the administrator should be joined separately in proceedings. It is only where, in special circumstances, on an application to court, a separate party might be joined in such proceedings. Order 15, Rule 8 of the Rules of the Superior Courts provides accordingly. Analogous provisions exist in the Rules of the Circuit Court.
As is clear from Gleeson v. Feehan (No. 2), supra., and other cases, when an administrator sues or defends proceedings concerning adverse possession of land, the limitation period affecting the administrator depends entirely on whose interest he represents, that is, on the identity of those who, but for such a claim, would be entitled to the land or premises. In that case all of the parties involved were persons who were next of kin, and a stranger – all subject to a 12 year limitation period under the Statute of Limitations. As will be seen later, no other limitation period was considered in that case.
Once administration is completed, the administrator must ensure the property vests in the ultimate beneficiary, that is, in the present case and absent the defendant’s claim, in the State, or its nominee, likely to be the Minister for Finance, pursuant to legislation in that regard.
The Position of The President of the High Court
The position of the President of the High Court was also part of the argument before this Court, once the defendant pleads in his defence adverse possession “against the President of the High Court”, after a period of 12 years from 1982. That reflects an extract from the decision of this Court in Gleeson v. Feehan, supra. Before considering that case, it is however important to consider the President’s role and status. As mentioned, under the provisions of s.13(1) of the Act of 1965 the estate of, inter alia, a person such as Mrs. Dolan dying intestate, vests in the President of the High Court as a corporation sole, between the date of death and until Letters of Administration are granted. The President, however, is not entitled, nor would his estate be entitled, to deal with or dispose of the estate, in his own right, or at all. He has no beneficial interest in the estate, and s.13(1) imposes on him no powers, no duties and no obligations. It is precisely to avoid such an estate being left, in effect, in limbo, that s.13(1) vests the estate in him, pro tem. It, in a sense, “hovers” in the person of the President of the High Court for the time being, by means of a legal fiction, until something else happens. In the case of intestacy, the first necessary condition, the estate vests in him automatically on death. It remains so until the second condition occurs, that is, the grant of administration and the appointment of the personal representative, on which event he is divested of the estate, also automatically. The mechanism adopted in the Act of 1965, which mirrors previous legislation, is a mere “mechanism of convenience”, as it is described in the case law, and to ensure that an estate has a temporary home pending the grant of administration. It becomes clear, however, on a consideration of the case law, not considered in Gleeson v. Feehan, supra., and discussed below, that there is no beneficial or other estate vested in the President, against which a claim to adverse possession can be made. At most he has, on a temporary basis, a bare estate in the property in question. In these proceedings, not surprisingly, he was not joined as a party, was not represented, and no order was sought against him.
I am fortified in my view that the President of the High Court does not hold any interest in the property which vests in him temporarily, sufficient to permit a third party to secure rights by means of adverse possession, by a consideration of his role in the devolution of the property upon administration Apart from the fact that, as mentioned below, Letters of Administration are not granted to the Attorney General (or the Chief State Solicitor) by or on behalf of the President of the High Court, which would be the logical position, if the intestate estate vests in him in any real sense, when such property is eventually to vest in the beneficiary at the end of the administration, the President of the High Court plays no role in that either. He does not even assent to the vesting of such bare estate as is vested in him temporarily under the Act of 1965. His interest is not mentioned as a party to any devolution of the property in any of the learned academic writings, such as in Wylie on Conveyancing, nor is his English equivalent mentioned in Halsbury, nor in any other writing I have been able to research. Nor have I been able to trace any case law in which the President of the High Court, nor indeed the Ordinary in whom such estates temporarily vested prior to the modern legislation, in which any court has held that those parties had such an interest in an estate, which could support an adverse possession claim. In the case of the Ordinary, at least, he held the estate as Trustee, whereas, according to the case law to which I refer below, the President of the High Court does not hold it even in that capacity.
The Position of the Attorney General and the Chief State Solicitor
The Attorney General is the legal representative of the State in all legal proceedings. The State does not, in general, act in its own name, independently of its Ministers or others officers, although it may, of course, do so. It acts through Ministers, including the Minister for Finance. The Attorney General falls into a different category to Ministers of state and those other parties mentioned expressly in s.2(1) of the Statute of Limitations. The Attorney General may hold property, qua Attorney General, although I do not know in what circumstances this occurs, but undoubtedly is also entitled to deal with the State’s own property and in property to which it may become entitled, such as on an intestacy, by virtue of the unique position of the Attorney General as such legal representative. No limitation is placed on the scope of the Attorney General’s role as a “State authority” in s.2(1), and he/she may act in more than one capacity, although always for an on behalf of the State, or on behalf of a Minister of State. The State itself is not separately represented in the list, although it must be accepted as a given, and, in the course of argument was accepted by counsel for the defendant, that it would be entitled to raise representation to the estate of Mrs. Dolan. But if it did so decide, it would act through the Attorney General, or the Chief State Solicitor. In circumstances where the State is the ultimate intestate successor to an intestate estate, as here, the Attorney General may act as a “State authority”, and, as such, clearly is within the ambit of s.2(1) of the Statute.
For the purposes of extracting a grant of Letters of Administration of an intestate estate, the application is not made by or on behalf of the President of the High Court, in whom the estate formally vests. According to the terms of the Grant of Letters of Administration in the present case, which appears to be in a standard format, the grant was made to the named party, Laurence A. Farrell “for and on behalf of the State”, and correctly I believe, was not made on behalf of the President of the High Court. When an Attorney General secures Letters of Administration, he does not – any more than any other administrator – do so, qua beneficial owner, but as personal representative of the estate, acting in the interests of the party entitled as beneficial owner, that is in the present case, the State, as ultimate beneficial owner.
There does not, however, appear to me to be any reason why Letters of Administration cannot, with the consent of the party otherwise entitled, issue to another appropriate party, such as the Chief State Solicitor, as indeed occurred in the cast of Gleeson v. Feehan (No. 2), supra. In this application, apart from querying the devolution of the grant from the originally nominated Chief State Solicitor to the present plaintiff, in truth no objection was raised to a Chief State Solicitor being granted Letters of Administration. S.65(1) and s.65(3) of the Act of 1965 expressly recognises that the Chief State Solicitor is an appropriate person to be granted Letters of Administration, on behalf of the State. The objection which is raised is that he could not have done so, qua “State authority”.
Decision on The Three Questions
The First Question
S.2(1) of the Statute of Limitations, 1957 is clearly intended by its terms to protect what might be called “state property”, that is, the type of property that formerly vested in the Crown. In providing that, as concerns the parties included in s.2(1), the limitation period is, at 30 years, significantly longer that in the case of a private person, the Oireachtas clearly intended that in respect of such property – of whatever nature, and from wheresoever emanating, once the State owns or is beneficially, or otherwise entitled in law to the same – a longer limitation period is to have effect.
Under the provisions of s.2(1) of the Statute of Limitations, it is submitted by the defendant that since the Chief State Solicitor is not a party mentioned in that section, he cannot be a “State authority”. I am satisfied that the defendant’s argument on this point is the correct one, and that the plaintiff is not, himself, a “State authority” within the section. Other parties listed, including the Attorney General, may also hold State assets, including lands, or represent the State in relation to them, and the State will protect such property, inter alia, from being adversely acquired. In the case of s.2(1), several of the Ministers included in the first group there cited, may, or do, have land vested in them, as opposed to it being vested in the State, simpliciter. Simple examples include military barracks, airports and the foreshore which may be vested in the Minister for Defence: roadways in the Minister for Local Government: harbours and ancient monuments in the Commissioners for Public Works. Lands were, and may still have been until recently, vested in the Land Commission, and as concerns the Revenue Commissioners, real property may also vest in them, for example, on the recovery of assets procured through the proceeds of crime or on execution of revenue debts. It is readily understandable why all of the parties listed in s.2(1) fall within the category of “State authority” for the purposes of real property, of whatsoever kind or type.
I also accept the defendant’s argument that, even if the plaintiff, or any predecessor to him, is – pursuant to the provisions of the Act of 1924 – under the control of the Attorney General, he is not himself, a “State authority” within s.2(1). I am satisfied that, notwithstanding the close relationship between the Attorney General, as a State authority, and the Chief State Solicitor, there is no basis for concluding that the latter is a “State authority” for the purposes of s.2(1) of the Statute of Limitations. The terms of s.6(1) of the Ministers and Secretaries Act 1924 are not sufficiently broad or inclusive to support the plaintiff’s claim in that regard. That subsection deals with two situations: (a) the “vesting in” the Attorney General of, inter alia, the “powers … duties … and functions…” formerly vested in the Attorney General for Ireland, and (b) the “administration and control” of the “powers, duties and functions …” of the branches and officers of the public service (including the Chief State Solicitor as per the Ninth Schedule). But the powers, duties and functions remain those of the Chief State Solicitor. That phraseology does not support the plaintiff’s contention that a Chief State Solicitor is a “State authority” for the purposes of s.2(1) of the Statute of Limitations, or as “being” the Attorney General for the purposes of s.2(1). This is clear from the wording of the section itself which is expressly limited to those parties who fall within it. Moreover, since the list of parties in that subsection very clearly represents parties likely to hold property, and include the legal representative of the State in the persona of the Attorney General, there seems no need to have any other party included in the category, since this would simply add a layer of legal persons acting in the same cause and for the same end, and in respect of the same beneficiary. I am satisfied, therefore, that the plaintiff is incorrect in his assertion that he is a “State authority”, such as to enable him, in that capacity, to claim a 30-year limitation period in respect of the premises.
The purpose of the argument as to whether of not the plaintiff is a “State authority” is in order to apply the appropriate limitation period. I am not satisfied that merely because he is not a State authority, within s.2(1) of the Statute of Limitations that, nevertheless, determines the limitation period. The answer to question one, therefore, is that the plaintiff is not a “State authority” within s.2(1) of the State of Limitations. However, that response does not determine whether, in the circumstances of this case, a 30 year limitation period applies. It is therefore necessary to examine that issue in greater detail.
I deal first with the question of the defendant’s claim to be a person in “adverse possession” of the premises since 1982, as against the President of the High Court, and his contention that title to the estate was extinguished, pursuant to s.24 of the Statute, at the very least well prior to the date of the grant of Letters of Administration in July, 2000. He argues that such a result is clear from the judgment of this Court in Gleeson v. Feehan (No. 2), supra. This argument, however, does not seem to me to flow logically from the facts leading to the decision in that judgment, notwithstanding the language used. All the parties in that case were individuals and therefore the limitation period in issue was 12 years. Indeed, there had been an earlier decision on the same estate, Gleeson v. Feehan (No. 1) [1993] 2 I.R. 113, in which a dispute arose as to whether a limitation period of 6 years as opposed to 12 years applied. It is clear, therefore, that many different limitation periods exist. The primary issue in the second case, concerned, first, whether or not, as against other family members (otherwise next of kin) not in possession of the land, but claiming to be entitled to a share in it, a next of kin in possession was entitled to succeed against them. A second important issue concerned possession by a next of kin together with a stranger in possession, and their rights as against other next of kin. These issues are clear from the questions posed in the Case Stated itself, which were in the following terms:
“1(a) Where, prior to the Succession Act, 1965, several next-of-kin in actual occupation of lands of a deceased person acquired title to those lands by adverse possession against the personal representative, was the title so acquired the title to which they would have been beneficially entitled on due administration?
(b) Where such next-of-kin acquired title by adverse possession against other next-of-kin not in occupation, was such title acquired as joint tenants?
2. Where such next-of-kin in actual occupation shared such occupation with persons other than next-of-kin, was the possession of such other persons adverse possession against (a) the personal representative or (b) next-of-kin not in occupation?
3. If the answer to 1 (a) or 1 (b) is yes, was such title acquired jointly with the next-of-kin in occupation as (a) joint tenants or (b) tenants in common?”
(emphasis added)
It is true, as counsel for the defendant notes, that Keane, J. (as he then was) in a unanimous decision of this Court, and in the course of a lengthy judgment, mentioned the President of the High Court. What he actually stated was as follows:
“As s.24 of the Statute of Limitations 1957 extinguished the title of the President of the High Court to the lands and his right to bring an action to recover the land …”
(emphasis added)
However, although that statement was made, it was not, it seems to me, the ratio of the decision, and nor was it, strictly speaking, necessary for the determination of the questions raised. The questions did not even mention the President of the High Court. Nor, according to the judgment, was any issue argued as to the status or role of the President of the High Court under the Succession Act, 1965, or under earlier legislation. No order was sought against the President of the High Court. Nor was any issue raised as to whether, as against the President of the High Court – in a claim based on the State’s ultimate entitlement to an estate – as here – a different period of limitation might apply. The judgment gives no reasons for the implicit assumption that a 12 year limitation period applies to property vesting in the President of the High Court under s.13(1) of the Act of 1965. Moreover, the plaintiff in Gleeson, supra., was the personal representative of the next of kin, and, as such, argued, not on his own behalf, but as representing the interests of those next of kin who would otherwise have been entitled to the estate on intestacy (analogous to the position of the State in this Case Stated), and against whom adverse possession was claimed. It seems clear reading the judgment that there was no argument at all leading to the statement made, and now relied on in this Case Stated, and the very detailed arguments made in the case on the actual issues arising from the questions, take up almost the entire of the judgment. If it was intended to determine that adverse possession was procured as against the President of the High Court, then, with respect, I consider this not to be a correct statement of the law, as contended for by the defendant. For the reasons explained above, as to his status, and having regard to the case next mentioned, I consider that the mention of adverse possession as against the President of the High Court in Gleeson v. Feehan (No. 2), supra. can only properly be understood in the shorthand sense that, once title adverse to the interest of the relevant next of kin who would have been entitled to the property upon administration, absent rights acquired by the non next of kin stranger, in that case, the role of the President of the High Court, and his interest in the property, ended at that date.
The role of the President of the High Court under s.13(1) of the Act of 1965 was, however, directly in issue in the decision of the High Court in Gladys Flack and another v The President of the High Court (Unreported, The High Court, 29th November 1983) in which Costello, J (as he then was), dealt with an application to strike him out of proceedings commenced by the plaintiffs, on the basis that he had been wrongly joined. The circumstances were as follows. There had been in existence a partnership, never formalised, created by five brothers, and all of whom had died, some testate and others intestate. The last of the two brothers died intestate in 1982, and a row broke out between the members of the several families of the deceased brother partners, in respect of which two sets of High Court proceedings had been commenced. These were commenced by the executors of one of the 1982 deceased for the taking of an account and for an order for sale of the partnership assets. No representation had, however, been raised to the estate of the other brother to die (intestate) and the executors joined the President of the High Court as a party on the basis of s.13(1) of the Succession Act, 1965, on the basis that the property vested in him, in the absence of an administrator. As was pointed out in that case, the plaintiff, as in the case of the defendant in this Case Stated, had sought no order against the President.
The learned High Court judge granted the order striking out the proceedings as against the President of the High Court. Before doing so, however, he analysed the legal position of such an administration pre-1965, and of the status of the President, tracing the matter back to the Probate Act (Ireland) 1857 which abolished the jurisdiction of the then diocesan courts in Ireland in testamentary and intestate business and established a new court “the Court of Probate”. He explained the rationale of his judgment as follows:
“I do not think that it was proper so to join the President. To explain this conclusion I think I can best begin by referring to the pre-1965 position. The Probate Act (Ireland) 1857 abolished the jurisdiction in testamentary and intestate business of the diocesan courts in Ireland and established a new court, ‘the Court of Probate’. By section 15 of the Court of Probate (Ireland) Act 1859 it was provided that:-
‘From and after the decease of any person dying intestate, and until letters of administration shall be granted in respect of his estate and effects, the personal estate and effects of such deceased person shall vest in the judge of the Court of Probate for the time being, in the same manner and to the same extent as heretofore they vested in the Ordinary.’
By virtue of the provisions of the Judicature Acts and later the Courts of Justice Acts, the personal estate of persons dying intestate until letters of administration were granted vested firstly in the Judge of the Probate and Matrimonial Division, and later in the President of the High Court.
Section 15 of the 1859 Act was repealed by the Administration of Estates Act 1959 but the vesting of the personal estates of persons dying intestate in the President remained the same for section 13 of that Act provided:
‘Where a person dies intestate, his real and personal estate, until administration is granted in respect thereof shall vest in the President of the High Court in the same manner and to the same extent as formerly in the case of personal estate it vested in the Ordinary.’
Section 13 of the 1959 Act was repealed by the Succession Act 1965 but was re-enacted with only slight modification by section 13 to which I have already referred.
I think it is worthy of note that neither under the 1859 Act nor under the 1959 Act was the President of the High Court ever joined as a defendant in proceedings arising from the vesting provision to which I have referred. The reason was perfectly clear. In vesting personalty and later both realty and personalty in the President, the legislature did not make him a trustee of the estate which vested in him and he had no duty to perform and no obligation in respect of the estate. As was pointed out in relation to the vesting provisions of section 9 of the Administration of Estates Act 1925 in England (which are similar to those I am considering) these vesting provisions are ‘a mere matter of necessary convenience and protection’ (see re Deans 1954 1 A.E.R. 496 at 498). The President’s position under the 1965 Act is exactly the same.” (emphasis added)
This judgment, although unreported, has been cited in two other decisions of the High Court, although in related contexts. Moreover, the decision in re: Deans, supra. has been adopted as correct in recent decisions of the English Court of Appeal, in Earnshaw v Hartley [1999] EWCA Civ 1141.
I consider that had the above case law been brought to the attention of and considered by the Supreme Court in Gleeson v. Feehan (No. 2), supra., it is unlikely the learned Supreme Court judge would have made the statement found in the judgment as to the role of the President. The defendant’s defence, and the limitation period applicable to his claim to adverse possession as against the President of the High Court must be considered in light of the above case law, and of the true legal position arising in an administration of the type at issue here, which gave rise to the questions posed in the present Case Stated.
In the present case, the only parties whose interest are in issue are the defendant, who claims squatters’ rights, and the State, represented by the plaintiff. This is clear from the grant. Looking at the Grant of Letters of Administration, it provides as follows:
“Be it known, that on the 21st day of July 2000 Letters of Administration of all the estate which devolves to and vests in the personal representative of Alice Dolan late of 6 Enniskerry Road Phibsboro Dublin deceased… were granted by the Court to Laurence A. Farrell of Osmond House Little Ship Street Dublin Chief State Solicitor for and on behalf of the State the Attorney General of Ireland Michael McDowell having duly renounced his right and consented hereto the said Laurence A. Farrell.” (emphasis added)
From the language of this document it is clear that the Attorney General was the person entitled, on behalf of the State, to raise representation to the estate. He in turn delegated a task assigned to him to another person who acts on behalf of the State. From the numerous tasks assigned to the Attorney General in the Ministers’ and Secretaries’ Act 1924, such as the right to raise representation, delegation would appear necessary and unexceptional for such duties to be executed effectively and efficiently. Secondly, and perhaps of more importance, it seems to me that the Attorney General’s role, in so far as the Letters of Administration are concerned, is an administrative one, although one having legal consequences. He is the legal officer who acts for and on behalf of the State in a myriad of events and circumstances. He is therefore the person entitled to make application for letters of administration for and on behalf of the State. As such, he may delegate that role to any other authorised person. In Gleeson v. Feehan (No. 2), supra., the personal representative had been granted Letters of Administration pursuant to a power of attorney. In this case, the Attorney General consented in writing to Lawrence A. Farrell being appointed, as nominee of the State. The Chief State Solicitor, pro tem, appears clearly to be a person who may act for and on behalf of the State, on the instructions of the Attorney General, in applying for Letters of Administration, and has done so in the present case. The Act of 1965 recognises this possibility in s.65(1) and s.65(3). The application for the grant of Letters of Administration to the Chief State Solicitor, pro tem, thereafter, and devolving to his successor, the plaintiff, is also in accordance with the Act of 1965, is perfectly proper.
It would, in my view, be wholly inconsistent to have a procedure whereby the Attorney General renounces his right to raise representation on behalf of the State, and appoints another individual under his control to act on behalf of the State, as administrator, if by doing so the State’s rights under s.2(1) were eliminated. I can find nothing in the legislation, or in any case law, that suggests this as a result only of such a renunciation and appointment of the Chief State Solicitor, as administrator. That does not alter my earlier view that the Chief State Solicitor is not a “State authority”. The Attorney General’s “renouncement” in the grant is not a renouncement by him of the State’s entitlement in the estate under s.73 of the Act of 1995, or of any rights under s.2(1) of the Statute, but merely of the right to extract Letters of Administration.
The Second Question
Having regard to sections 23 and 24 of the Statute of Limitations, 1957, is the relevant limitation period in this case prescribed by s.13(1) of the Statute of Limitations, 1957 or by section 13(2) thereof?
An issue also arose under what is known in some jurisdictions, and in some authorities, as the doctrine of “relation back”. By this is meant that once letters of administration issue, the right of the administrator to protect the interests of the estate, relates back to the date of death of the deceased owner, as if no time had elapsed in the period between death and administration. Section 23 of the Statute, which provides for this, is set out earlier in the judgment. The doctrine was available at common law, but has now been incorporated into s.23.
The plaintiff’s interpretation of s.23 appears to me to be extremely and unjustifiably extensive, and is so broad as to render the limitations period moot. If s.23 was read so as to be applicable in the manner contended for by the plaintiff, then any period of time, be it eighteen years (at issue in this case) or one hundred years (which could be at issue in the future), could pass, without this intervening period affecting the administrator’s claim to land, once Letters of Administration eventually issue.
The defendant, on the other hand, relies on an extract from Spierin, referred to earlier in the exposé of his argument earlier in this judgment. On that basis, it is contended that the doctrine is only to be invoked in respect of claims of a tortuous nature for damage to the estate. I do not agree that this is so. The extract relied on in the written submissions is not quite complete, and the full extract is in the following terms:
“To overcome the inconvenience of the postponement of vesting in an administrator, the doctrine became established that the grant of administration when made would, for certain purposes, relate back to the time of the death of the deceased. The reason for this was to provide a remedy for wrongs done against the estate. Thus an administrator may, after the grant of administration, bring an action in respect of tortious injuries to the estate in the interval between death and grant, or bring an action for breaches of covenant during the interval by a lessee of the deceased’s land. See also the Statute of Limitations 1957, s.23, in relation to actions by an administrator to recover the land.” (emphasis added)
While the defendant’s argument as to the limitation on the meaning of s.23 is based on the above extract, I am not satisfied that this proposition can be correct. There is no limiting language within the provision which supports the defendant’s contention that the author suggests, in turn, that s.23 applies only to tortious claims arising in the intervening period. On a reading of the extract, it is not what the author suggests is the scope of the section.
From the above exchanges, two things emerge. First there is no suggestion in the text relied upon that the relation back can only occur in the limited manner which the defendant contends for. Use of the phrase “wrongs done against the estate” cannot, in law, mean only claims of a tortious nature. I can see no basis for suggesting that a claim of adverse possession is not a wrong done against the estate. The use of the doctrine of relation back in the case of tortious claims is but an example of the circumstances in which it may apply. Secondly, it is of note that the author, while making specific reference to s.23 of the Statute does not suggest that it provides any limitation of the type the defendant invokes, on the application of the rule. The text of the section itself permits, on the application of the rule in actions for the recovery of land, itself broader than the defendant’s contention., when the relation back may apply to such “a claim”, and is no narrower.
The question arises therefore, as to the scope of the section, and if any limits are imposed on the relation back. No express limitation is found in Spierin, and indeed no limit is suggested either in Halsbury, where, dealing with the equivalent section (s.26 Limitation Act 1980), the doctrine is explained in the following terms:
“In order to prevent injury being done to a deceased person’s estate without remedy, the courts have adopted the doctrine thqt on the grant being made the administrator’s title relates back to the time of death. This doctrine has been consistently applied in aid of the administrator seeking to recover against a person who has dealt wrongfully with the deceased’s … real estate. It cannot be applied however to disturb the interests of the other persons validly acquired in the interval, or to give the administrator title to something which has ceased to exist in the interval, or to bind the administrator to an agreement made before the grant irrespective of its benefit to the estate.”
Halsbury also clarifies that the doctrine of relation back applies for the purposes of the statutory provisions limiting the time for bringing proceedings to recover land …, since the administrator is “deemed to claim” as if there had been no interval of time between the death and the grant of administration. This is in the same terms as s.23 of the Statute of Limitations, and equally applies only to the recovery of land. A similar approach is taken in the Australian writings, where somewhat similar, but not identical legislation in all States, is found.
It is clear from the above statement that if an interest has been validly acquired in the interval, or title has ceased to exist in the meantime, the doctrine cannot assist the administrator. When an administrator has been appointed, his title to the real estate relates back to the intestate’s death; see Re Pryse, 1904, P. 301, 306. All this concerns the application of the doctrine in the case law. S.23 of the Statute provides a statutory basis for the application of the doctrine of relation back, and is on its face, in broad and clear terms.
I am satisfied, however, that the section must be read so as to avoid the consequences of the approach contended for by the plaintiff. The best expression of the true meaning of the section is found in Jourdan on Adverse Possession 2002 [London], in which, in dealing with the English equivalent, he states:
“Under the general law, the estate of a deceased person vests in an executor at the moment of death. But an administrator’s title only vests on the grant of letters of administration, although for certain purposes it is treated as relating back to the death. Apart from the Limitation Act, 1980, s.26, time for bringing an action does not begin to run against the administrator until letters of administration are granted. The effect of s.26 is that time for recovering land runs against a deceased person’s estate, regardless of whether an executor or an administrator is appointed.” (emphasis added)
I am satisfied that this is a correct statement of the effect of the section. It means that, if in the interval between the death of an intestate and the appointment of an administrator, a party has procured a lawful interest in lands the subject of the administration, that interest may be sufficient to bar its recovery by the administrator, when appointed, acting in the interests of those who, but for such event, would have been entitled to the lands. In the result, time commenced to run against the estate for the purposes of adverse possession from either the date of death of Mrs. Dolan, or the date of possession by the defendant. In either event, in this case, well more than 12 years passed before July, 2000. It does not follow, however, in the present case, that by reason of this interpretation of s.23 of the Statute of Limitations, the claim of the defendant to adverse possession is thereby determined. That issue at all times depends on the appropriate limitation period.
Before dealing with the effect of s.13 of the Act on the issues arising, however, I should also dispose of the arguments under s. 24. That section appears to me, however, to be little more than a passage that spells out the consequences flowing from the expiry of the applicable limitation period – whatever that period may be. The estate itself in the land is not extinguished, but title to that estate may well be, if a party has successfully established that he has adversely possessed the property for the relevant period. I am not persuaded that s.24 has any substantive impact on, or is at all determinative of, which limitation period applies in the present case.
I now return to the real issue in this case, that arising under s.13 of the Statute of Limitations, which I find is not limited by the possible application of s.23. The role of the Chief State Solicitor’s is very material to the right in State authorities having the benefit of a 30 year limitation period under the provisions of s.2(1) of the Statute of Limitations. When the Attorney General renounces the right to seek Letters of Administration on behalf of the State (in whom the longer limitation period vests), and instead transfers that right to the Chief Solicitor, as already mentioned, I am satisfied he is entitled so to do, having regard both to the provisions of s.6 of the Act of 1924 and also to the provisions of s.65 of the Succession Act 1965. The consequence is that the relevant limitation period is not disturbed at all, and the Chief State Solicitor, as personal representative, cannot, by so acting, affect a limitation period which is determined by reference to the interests of persons otherwise entitled to the estate, in this case, the State, as intestate successor. As in the case of any other administrator, when the Chief State Solicitor is granted Letters of Administration on behalf of the State, he takes no beneficial interest in the estate in his own right, but can only act as and how required by law, as a trustee for the benefit of the ultimate beneficiaries. That position is no different to the position of an administrator who acts for personal beneficiaries.
Although in the Case State, and in argument, much emphasis was laid on the claim by the plaintiff to be a “State authority” within s.2(1) of the Statute of Limitations, and I have rejected that plea, I have also found that Letters of Administration were correctly granted to the former Chief State Solicitor, and the plaintiff as his lawful successor, has, as personal representative both the right and indeed the obligation in law, both to bring proceedings in respect of the recovery of the premises, and to defend the claim to adverse possession, representing the beneficiary, that is, the State, and including claiming the appropriate limitation period on its behalf. If on the other hand, he were an administrator acting for an on behalf of an individual, the period would be the shorter period of 12 years applicable to the beneficiary, namely, a person with s.13(2) and the period would be 12 years. This approach is unexceptional. I know of no case in which an administrator is entitled to alter or reduce the statutory period of limitation applicable to the beneficiary otherwise entitled, or is subject to a lesser period than that to which a beneficiary is entitled.
There is another reason why I do not think the position is determined by his presence or absence as a named State authority in s.2(1) is because, if for any reason, he was not entitled to raise representation to the estate of Mrs. Dolan, because he is not a State authority, then it would be perfectly possible for the grant to be set aside on consent. If that occurred, it would be a simple matter for the Attorney General to reapply for Letters of Administration to be granted to him again on behalf of the State, and commence fresh proceedings before the expiry of the 30 year limitation period. There might be costs implications in such an approach of course, but as to the substantive position, the consequences of the plaintiff not being expressly mentioned in s.2(1) as a State authority is immaterial to the applicable limitation period. Moreover, as mentioned earlier in this judgment, if a defendant pleads he has acquired adverse possession as against a person not already a party to the proceedings, such as in the present case against the President of the High Court, he cannot do so, as against that third party, by mere defence. He must instead counterclaim, naming the third party as the person against whom he sets up his claim, so that such third party has an opportunity to be heard. The third party against whom he has asserted adverse possession is the President of the High Court, against whom however no relief has been sought, and against whom no counterclaim was lodged. It seems to me unsatisfactory that the appropriate party(ies) have not been joined, while at the same time the defendant seeks to suggest that the ultimate beneficiary, the State, is a person on whose behalf the administrator is not entitled to invoke the State’s a 30 year limitation period. Had the appropriate parties been joined against whom the adverse possession assertion is made, then the position would have been quite different, and the President would have been removed from the proceedings, on the above case law, with the administration continuing on behalf of the State, with the State’s limitation period being applied.
In this Case Stated, the nub of the defence is, in reality, confined to whether or not the defendant had already acquired adverse possession of the property in July, 2000, as against the President of the High Court, long before Letters of Administration were granted. I now propose to treat that issue. I have already held that the vesting of the estate, pro tem, in the President of the High Court does not, and could not deprive the administrator of the limitation period vesting in the State. For the reasons I have already mentioned, the President only holds, pro tem, a bare estate in the property, but no sufficient interest against which adverse possession could be claimed, and the President has neither powers nor obligations in that regard, as is clear from the case law. The defendant has of course been clever in not joining the State or even the President of the High Court in the proceedings, as to do so would have entitled those parties to be heard, and to raise their interests and limitation period. He has relied instead on the statement in Gleeson v. Feehan (No. 2), supra. As to the State’s interest, it does not have to be joined in order for the personal representative to resist the adverse possession claim on the basis of the limitation period found in s.13(1), for the reasons given.
I am satisfied that the correct period of limitation applicable in the present case is that provided for in s.13(1) of the Statute of Limitations.
The Third Question
I mentioned in the preliminary part of my conclusions, before dealing with the three particular questions, that much emphasis was placed on the meaning to be attached to the provisions of s.65, the Succession Act of 1965 and on its predecessors, both Irish and English in support of the respective contentions of the parties.
I find it is possible to rule on the third question without difficulty. As to the s.65 of the Act, having regard to the provisions of the section itself, and to the legislative history of its predecessors, as set out above, I am satisfied that the plaintiff’s argument is the correct one in law. The earlier legislation in the United Kingdom, even though it refers, at least prior to 1921, only to the personal estate (limitation periods in respect of Crown land were always different), together with later amendments were clearly before the Irish legislature when adopting the provisions of the Act of 1965, which dealt with both realty and personalty, and the deliberate omission of any reference to enactments as opposed to rule of law it would have said so. The Administration of Estates Act, 1925 s.30(1), cited above, specifically includes, as concerns personal estate, the following:
“… except as otherwise provided by this Act, the rules of law and equity, (including the rules of limitation under the Statutes of Limitation or otherwise) …”
In passing, although not specifically mentioned in the course of the appeal to this Court, I should mention that S.30(2) which applied in like or similar manner to proceedings commenced by the Crown, was itself, as is clear from the above extracts, also amended by a later Act. For the reaons set out in my later conclusions, these provisions of English legislation must also be seen in light of their history.
On this issue, I am persuaded by the argument of the plaintiff. Contrary to the defendant’s contention in relying on English legislation, the language referring to “time limits” or similar limitation rules, that exists within legislation that preceded the Act of 1965 demonstrates that, when adopting s.65 of the Act of 1965, the Oireachtas made a decision not to have the provisions of s.2(1) of the Statute of Limitations pre-empted by the adopting language in s.65 so as to have that effect, buy amendment or otherwise. Further, there is a plethora of case law supporting the plaintiff’s argument that the term “rules of law” is limited to judge-made rules. Since the Statute of Limitations is a legislative enactment, this further solidifies the argument that s.65 provision should have no bearing on the correct limitation period applicable. Finally, section s.3(1) of the Statute of Limitations should similarly have no effect. This is because, as the plaintiff argues, there is an express provision (13(1)) which directly applies to the facts of this case: therefore, on its own language s.3(1) cannot be relied upon.
The provisions of s.65 do not affect the position.
I mention in passing that no question has been posed in the Case Stated on the issue of estoppel, although it was addressed by the parties in some detail. I make no comment on this aspect of the submissions of either party.
I would answer the questions posed as follows:
(1) The plaintiff not a State authority within s.2(1) of the Statute of Limitations.
(2) The relevant limitation period is that provided for in s.13(1) of the Statute of Limitations.
(3) No
Judgment of Mr Justice Finnegan delivered on the 16th day of February 2012
This matter comes before the court by way of a Case Stated from the Circuit Court pursuant to the Courts of Justice Act 1947 section 16. The questions raised on the Case Stated concern the appropriate limitation period within which, in the facts and circumstances hereinafter detailed, an action must be brought by a personal representative to recover lands forming part of the estate of a deceased in respect of whom the State is the ultimate intestate successor.
Facts agreed or found
The facts agreed or found by the learned trial judge are set out in the Case Stated as follows.
“1. The late Alice Dolan was the owner of a house at 36 Botanic Road, Dublin, which Dublin Corporation wished to acquire for the purposes of road widening. The Corporation made a deal with Mrs Dolan to acquire this property in exchange for a house at No. 6 Enniskerry Road, which the Corporation purchased with the intent that it would be conveyed directly to Mrs Dolan. An assignment dated 15th December 1978 between the vendors of No. 6 Enniskerry Road, the Corporation of the second part and the purchaser Alice Dolan of the third part was prepared. The assignment was executed by the vendors and by the Corporation but not by Mrs Dolan. The document has been stamped.
2. Mrs Dolan was allowed into occupation of No.6 Enniskerry Road. The Corporation carried out the road works involving 36 Botanic Road which are long since complete.
3. Mrs Dolan died intestate on the 22nd October 1981. The defendant learned of Mrs Dolan’s death, and the apparent absence of next-of-kin, in the course of his auctioneering business, and broke into the premises through the back door in February 1982. The late Alice Dolan, nee Alice Williams, had shared the house at 36 Botanic Road with her sister Mary Williams who predeceased her. Her husband had died in 1969.
4. A citation was issued on the 21st January 1998 and letters of administration were extracted on the 21st July 2000 by the plaintiff’s predecessor as Chief State Solicitor, Laurence A. Farrell, for and on behalf of the State, the Attorney General, Michael McDowell,(note: in fact David M. Byrne) having duly renounced his right and consented thereto.
5. These proceedings were issued on the 14th May 2002 and served on the 24th May 2002. The plaintiff brings the proceedings in his capacity as Chief State Solicitor and as successor to Laurence A. Farrell, who was appointed as personal representative of the estate of Alice Dolan, for inter alia an injunction directing the defendant to vacate the dwelling house and lands and to forthwith deliver up possession of the same to the plaintiff.”
Documents
From the documents annexed to the Case Stated it appears that Alice Dolan (hereinafter “the deceased”) by virtue of an assignment dated the 15th December 1978 became entitled to the leasehold interest under an indenture of lease dated 18th March 1902 in the premises 6 Enniskerry Road in the City of Dublin for a term of two hundred and forty five years from the 25th March 2002. The deceased died on the 22nd October 1981 intestate leaving no known next-of-kin her surviving. On the 26th September 1997 David M. Byrne the Attorney General executed a consent in the following terms:-
“And I hereby consent that Letters of Administration in the estate of the said deceased be granted to Michael A. Buckley, Dublin Castle, in the City of Dublin, Chief State Solicitor, as nominee and on behalf of the State. And I hereby appoint the said Chief State Solicitor to file or cause this consent to be filed for me in the Principal Registry of the said Court.”
Michael A. Buckley duly set about obtaining a Grant of Letters of Administration Intestate. For that purpose he completed the Oath for Administration which contained the following averment:-
“That by an instrument in writing dated the 26th day of September 1997 on which marked ‘A’ I have signed my name, Mr David Byrne, Attorney General of Ireland, duly renounced on behalf of the State all rights to Letters of Administration of the estate and effects of the said deceased and consented that same should be granted to me.”
It is to be noted that this not an accurate recital of the terms of the consent of 26th September 1997 which merely consented to the application for Letters of Administration “as nominee and on behalf of the State”.
On the 21st July 2000 Letters of Administration Intestate were granted to Laurence A. Farrell in the following terms:
“Be it known, that on the 21st day of July 2000 Letters of Administration of all the estate which devolves to and vests in the personal representative of Alice Dolan late of 6 Enniskerry Road, Phibsboro, Dublin, barrister deceased who died on or about the 22nd day of October 1981 at James Connolly Memorial Hospital, Blanchardstown, Dublin, intestate, a widow and a citation to the next-of-kin (if any) and all persons interested and their non-appearance thereto having been deemed and taken as and for a renunciation of their rights were granted by the court to Laurence A. Farrell of Osmond House, Little Ship Street, Dublin, Chief State Solicitor, for and on behalf of the State the Attorney General of Ireland Michael McDowell having duly renounced his right and consented hereto the said Laurence A. Farrell having been first sworn faithfully to administer the same.”
No issue arises by reason of the succession from Laurence A. Farrell to Michael A. Buckley and to Desmond Grogan as Chief State Solicitor (see Succession Act 1965 section 65(3) post). Again no issue arises in relation to the succession of Michael McDowell to David M. Byrne as Attorney General.
Questions of law for determination by the Supreme Court
The questions of law for determination raised by the Case Stated are as follows:-
(a) Is the plaintiff a State authority for the purposes of the Statute of Limitations 1957?
(b) Having regard to sections 23 and 24 of the Statute of Limitations 1957 is the relevant limitation period in this case prescribed by section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof.
(c) Is the answer (b) affected by section 65 of the Succession Act 1965?
The statutory provisions
The relevant statutory provisions are as follows.
Statute of Limitations 1957
Section 2. “State authority” means any authority being:
(a) a Minister of State, or
(b) the Commissioners of Public Works in Ireland, or
(c) the Irish Land Commission, or
(d) the Revenue Commissioners, or
(e) the Attorney General.
Section 3. (1). Save as in this Act otherwise expressly provided and without prejudice to section 7 of this Act, this Act shall apply to proceedings by or against a State authority in like manner as if that State authority were a private individual.
Section 13. (1)(a). Subject to paragraphs (b) and (c) of this subsection no action shall be brought by a State authority to recover any land after the expiration of thirty years from the date on which the right of action accrued to a State authority or, if it first accrued to some person through whom a State authority claims, to that person.
(2) The following provision shall apply to an action by a person (other than a State authority) to recover land –
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;
(b) if the right of action first accrued to a State authority the action may be brought at any time before the expiration of the period during which the action could have been brought by a State authority, or of twelve years from the date on which the right of action accrued to some person other than a State authority whichever period first expires.
Section 14. (2) Where –
(a) any person brings an action to recover any land of a deceased person ,whether under a will or on intestacy, and
(b) the deceased person –
(i) was on the date of his death in possession of the land or, in the case of a rentcharge created by will or taking effect upon his death, in possession of the land charged, and,
(ii) was the last person entitled to the land to be in possession thereof
the right of action shall be deemed to have accrued on the date of his death.
Section 18. (1) No right of action to recover land shall be deemed to accrue unless the land is in possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.
Section 23. For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person shall be deemed to claim as if there had been no interval of time between the date of the death of the deceased and the grant of letters of administration.
Section 24. Subject to subsection 25 of this Act and to section 52 of the Act of 1891 at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the lands shall be extinguished.
The Succession Act 1965.
Section 73.(1) In default of any person taking the estate of an intestate, whether under this Part or otherwise, the State shall take the estate as ultimate intestate successor.
Succession Act 1965
Section 65.(1) Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the Solicitor for the Attorney General or any other person), any legal proceedings by or against the administrator for the recovery of the estate or any share thereof shall be of the same character and be instituted and carried on in the same manner, and be subject to the same rules of law and equity in all respects, as if the grant had been made to the administrator as a person beneficially entitled to a share of the estate. (underlining added)
(2) Proceedings on behalf of or against the State in respect of the estate of a deceased person or any share thereof or any claim thereon shall not be instituted except subject to the same rules of law and equity in and subject to which proceedings for the like purposes might be instituted by or against a private individual.
(3) Where the Chief State Solicitor for the time being is administrator of an estate for the use or benefit of the State, he shall cease to be administrator on ceasing to hold office and his successor in office shall become administrator in his place without further grant.
Intestates Estates Act 1884
Section 2. Where the administration of the personal estate of any deceased person is granted to a nominee of Her Majesty (whether the Treasury Solicitor, or a person nominated by the Treasury Solicitor, or any other person), any action or other proceeding by or against such nominee for the recovery of the personal estate of such deceased person, or any share thereof, shall be of the same character, and be brought, instituted and carried on in the same manner, and be subject to the same rules of law and equity (including the rules of limitation under the Statutes of Limitation or otherwise), in all respects as if the administration had been granted to such nominee as one of the next-of-kin of such deceased person. (underlining added)
Section 3. After the passing of this Act an information or other proceeding on the part of Her Majesty shall not be filed or instituted, and a petition of right shall not be presented, in respect of the personal estate of any deceased person or any part or share thereof, or any claim thereon, except within the same time and subject to the same rules of law and equity in and subject to which an action for the like purpose might be brought by or against a subject. (underlining added)
Administration of Estates Act 1925 (U.K.)
This Act in section 30 repealed and restated sections 2 and 3 of the Intestates Estates Act 1884 and extended the provisions to real property. Subsection (1) restated section 2 and subsection (2) restated section 3 of the 1884 Act.
Limitation Act 1939 (UK)
Section 34 of the Act amended subsection (2) of the Administration of Estates Act 1925 by deleting the words “within the same time and”. However subsection (1) still provided for actions by and against an administrator who is a nominee of the Crown that the ordinary limitation should apply.
Submissions of the Plaintiff
The plaintiff submits that the relevant limitation period is that prescribed by section 13(1) of the 1957 Act the Chief State Solicitor being a State authority within the definition in section 2(1) of the Act. The definition does not simply define State authority as those set out at paragraphs (a) to (e) but extends to “any authority being” one of those Authorities. The Ministers and Secretaries Act 1924 section 6(1) and the ninth part of the schedule to that Act provide for the vesting in the Attorney General of the administration and control of the business, powers, authorities, duties and functions of the branches and officers of the Public Services specified in the section and in the ninth part of the schedule: included in the ninth part of the schedule is the Chief State Solicitor’s Department. It is submitted that the Chief State Solicitor’s office, being under the administration and control of the Attorney General, it is for the purpose of the Statute of Limitations an authority “being” the Attorney General and so a State authority. Section 3(1) of the Act provides that the provisions of the Act shall apply to proceedings by or against a State authority in the like manner as if the State authority were a private individual unless it is otherwise expressly provided in the Act. Section 13(1)(a) of the Act expressly provides for a thirty year limitation period in respect of an action brought by a State authority to recover any land.
Insofar as the defendant relies on the Succession Act 1965 there are material differences between section 65 of the Act and the corresponding provisions in the Intestates Estates Act 1884 and the English Administration of Estates Act 1925 section 30 as amended by the Limitation Act 1939. The 1884 Act expressly refers to limitation periods in sections 2 and 3. The restated section 3 contained in section 30(2) of the Administration of Estates Act 1925 had the words “within the same time and” deleted by the Limitation Act 1939 section 34. The Succession Act 1965 section 65 subsection (1), corresponding to section 2 of the 1884 Act and subsection (2) corresponding to section 3 of the 1884 Act make no mention of Statutes of Limitation or time limits.
In referring to “rules of law and equity” in section 65(1) the reference includes statutory enactments and so includes the Statute of Limitations 1957.
Submissions of the Defendant
The definition of “State authority” is clear and there is no basis upon which the court should extend the same and in particular to interpret the phrase “the Attorney General” as including the Chief State Solicitor. As the plaintiff is not a State authority section 3(1) of the 1957 Act applies. The Statute of Limitations applies to proceedings by or against a State authority in like manner as if the State authority were a private individual unless it is otherwise expressly provided. As the Chief State solicitor is not a State authority section 13(1)(a) of the Statute of Limitations has no application. The relevant limitation period is that in section 13(2)(a), twelve years.
The effect of the Succession Act 1965 section 65(1) and (2) is to place a State nominee in the same position in relation to limitation periods as a private individual: accordingly the relevant limitation period is twelve years. Reliance is placed on the United Kingdom Administration of Estates Act 1925 section 30 and the Limitation Act 1939 section 34 and on the passage in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate at paragraph 64.06 which states as follows:-
“If the Crown or its nominee claims land in the course of administration of a deceased person’s estate, the position is governed by section 30 of the Administration of Estates Act 1925. The limitation period applicable to an action by the nominee of the Crown, who has obtained a grant of letters of administration, to recover land forming part of an intestate’s estate is twelve years, for the effect of the Administration of Estates Act 1925 is to put the nominee in the same position as the subject for limitation purposes.”
Section 65(1) of the Succession Act 1965 has the same effect in relation to the State as the United Kingdom legislation. The phrase “same rules of law and equity” in section 65(1) and (2) of the Succession act 1965 should be interpreted as including the statutory provisions as to the limitation of actions and in particular the provisions of the Statute of Limitations section 13(1)(a).
Discussion
(a) Is the Chief State Solicitor a State Authority?
The definition of State authority in section 2 of the Statute of Limitations 1957 is clear. There is within the definition or within the Act as a whole nothing to suggest that the Attorney General for the purposes of the Act includes the Chief State Solicitor. However, the plaintiff calls in aid the Ministers and Secretaries Act 1924 which provides as follows:-
“6(1) There shall be vested in the Attorney General of Soarstat Eireann (who shall be styled in Irish Priomh-Aturnae Shaorstait Éireann and shall be appointed by the Governor General on the nomination of the Executive Council) the business, powers, authorities, duties and functions formerly vested in or exercised by the Attorney General for Ireland, the Solicitor General for Ireland, the Attorney General for Southern Ireland, the Solicitor General for Southern Ireland, the Law Adviser to the Lord Lieutenant of Ireland and any or all of them respectively, and the administration and control of the business, powers, authorities, duties and functions of the branches and officers of the public services specified in the Ninth Part of the Schedule to this Act and also the administration and business generally of public services in connection with the representation of the Government of Saorstat Éireann and of the public in all legal proceedings for the enforcement of law, the punishment of offenders and the assertion or protection of public rights and all powers, duties and functions connected with the same respectively together with the duty of advising the executive council and the several ministers in matters of law and of legal opinion.”
The Ninth Part of the Schedule lists the particular services assigned to the Attorney General as follows:-
Chief Crown Solicitor for Ireland
Chief State Solicitor’s Department and all local State solicitors
Treasury Solicitor for Ireland
Parliamentary Draftsman
Charities
Estates of illegitimate deceased persons.
I am not satisfied that the vesting in the Attorney General of the administration and control of the Chief State Solicitor’s Department by section 6(1) of the 1924 Act has the effect of expanding the definition contained in section 2 of the 1957 Act. The definition is clear and concise. The fact that the Attorney General has conferred upon him administrative powers in relation to the offices mentioned in the ninth schedule does not, I am satisfied, justify an extension of the meaning of State authority in the 1957 Act to include the Chief State Solicitor or other officers mentioned in the ninth schedule to the 1924 Act.
A similar drafting approach to that in the 1957 Act was adopted in the State Property Act 1954 where State authority is defined even more narrowly:-
“State authority” means any authority being –
(a) a Minister of State or
(b) the Commissioners (i.e. the Commissioners of Public Works in Ireland).
This contrasts sharply with the approach with the legislature took in the Succession Act 1965 section 65 dealing with actions by or against the State in relation to the Administration of Estates:-
“Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the solicitor for the Attorney General or any other person)…”
In defining State authority in the 1957 Act there are no general words, “such as any other person”. Had it been the legislative intention that Attorney General be broadly interpreted I would expect in the 1957 Act an approach similar to that adopted in the Succession Act 1965.
Historically, where the Crown by reason of the failure of all next-of-kin became entitled to the estate of a deceased, the practice was for representation to be raised by a nominee of the Crown, normally the Treasury Solicitor. To facilitate this practice, by the Treasury Solicitor Act 1876, the Treasury Solicitor was constituted a corporation sole. The Act continues to apply in Ireland. The wording of the consent of the Attorney General and of the Letters of Administration Intestate issued in this case reflect that procedure – the grant is made to the Chief State Solicitor as nominee for and on behalf of the State. It is quite clear that the person entitled to bring or defend proceedings on behalf of the estate is the Chief State Solicitor to whom representation has been granted. This will remain the position until an assent is executed to a Minister of State pursuant to the provisions of the State Property Act 1954. The Minister of State being a State authority could then maintain proceedings. As the Chief State Solicitor can be called upon at any time to execute an assent in favour of a State authority (normally the Minister for Finance) it does not appear to be necessary to construe Attorney General widely to enable the State’s interest to be protected where representation issues on behalf of the State to the Chief State Solicitor. For this reason also I would not extend the definition of State authority.
I am satisfied that the Chief State Solicitor is not a State authority within section 2 of the Statute of Limitations 1957.
(b) Is the relevant limitation period that provided for in section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof?
As the plaintiff is not a State authority within the meaning of the Act of 1957, section 13(1)(a) of the Act does not apply. The relevant limitation period is that in section 13(2)(a).
(c) Is the answer (b) affected by section 65 of the Succession Act 1965?
As section 13(2)(a) is the relevant provision of the Statute of Limitations this question is moot: however, I propose dealing with the same briefly. The defendant’s submission is that, in the event that section 13(1)(a) applies, then the Succession Act 1965 section 65(1) has the effect of applying the ordinary period of limitation which would apply had the administrator been a person beneficially entitled to a share in the estate, that is twelve years. Section 65(1) applies to this action: it provides that such action shall be subject to“the same rules of law and equity in all respects as if the grant had been made to the administrator as a person beneficially entitled to a share in the estate.” Had it been the legislature’s intention in enacting section 65(1) to apply not just rules of law and equity but enactments it would have done so in express terms. Thus the Succession Act 1965 in section 12(1) commences as follows:-
“All enactments (including this Act) and rules of law…”
The Succession Act itself distinguishes between rules of law and enactments. I am satisfied that it is not the effect of section 65(1) to apply statutory limitation periods.
The legislative history of section 65 is relevant. The Intestates Estate Act 1884 section 2 applied where administration was granted to a nominee of the Crown. The effect of the section was to apply the ordinary rules of limitation to any action coming within the section whether by or against the nominee of the Crown. Likewise section 3, in relation to actions by or against the Crown coming within that section, applied the ordinary rules of limitation. Section 3 related to informations and other proceedings and petitions of right claiming in an estate and is not relevant to the present case. The result was that thenceforth the rules of limitation could be relied upon by or against the Crown. See In re Mason [1929] 1 Ch.1, In Re Blake [1932] 1 Ch. 54. In the United Kingdom prior to the enactment of the Irish Statute of Limitations 1957 there were two statutory amendments to the 1884 Act sections 2 and 3. The Administration of Estates Act 1925 section 30 repealed sections 2 and 3 and re-enacted the same in section 30(1) and (2) extending them to real property. The Limitation Act 1939 amended section 30(2) (corresponding with section 3 of the 1884) by deleting the words “within the same time and” : thus at the enactment of the Succession Act 1965 the position in the United Kingdom was that in actions coming within section 30(1) of the 1925 Act (corresponding with section 2 of the 1884 Act) the same limitation period applied to an action by or against a Crown nominee as if the administrator was a next-of-kin. Section 30(2) of the 1925 Act no longer provided for a limitation period. The Succession Act 1965 repealed sections 2 and 3 of the 1884 Act and in substance re-enacted the same in section 65 (1) and (2) but without in any way prescribing in express terms in either subsection for a limitation period. Having regard to the legislative history I am satisfied that it was the intention of the legislature in enacting section 65 of the Succession Act 1965 to repeal and re-enact in an amended form sections 2 and 3 of the 1884 Act by no longer applying a limitation period: the effect of this is that the limitation periods provided for in the Statute of Limitations 1957 section 13(1) and (2) are unaffected by section 65 of the Succession Act 1965.
It follows from this that had the appropriate limitation period in this case been that prescribed by section 13(1)(a) of the Statute of Limitations that limitation period would be unaffected by the provisions of section 65(1) of the Succession Act 1965. However as the appropriate limitation period is that prescribed by section 13(2)(a) of the 1957 Act section 65(1) has no application. Section 65(2) does not provide for a limitation period so that the relevant period where that section applies is that provided for by section 13(2)(a), twelve years.
Conclusion
I would answer the questions of law for determination raised by the Case Stated as follows:-
(a) Is the plaintiff a State authority for the purposes of the Statute of Limitations 1957?
Answer: No.
(b) Having regard to sections 23 and 24 of the Statute of Limitations 1957 is the relevant limitation period in this case prescribed by section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof?
Answer: the relevant limitation period in this case is prescribed by section 13(2) of the Statute of Limitations 1957.
(c) Is the answer (b) affected by section 65 of the Succession Act 1965?
Answer: No.
M’Ginley v. Gallagher
Trading
[1929] IR 329
Meredith J.
27. May
This matter comes before the Court on two notices of motion one by the Ulster Bank, and the other by the Ulster Manure Company. I can decide the two points raised now, and the further consideration can be taken up next term.
In the first case the Ulster Bank claims a charge of £300, with interest, due on foot of a mortgage by way of equitable deposit of title deeds. With regard to £100 of that charge, I consider that there is no difficulty, because that sum was advanced by the Ulster Bank for the purchase of premises, and therefore those premises only became assets subject to that charge. The other £200 is, in my opinion, on a different footing, and if the deposit had been made by Susan Gallagher herself to secure a loan there might have been a question of some difficulty. What happened, however, was that there was a deposit by William Gallagher, and any charge which the bank got on that occasion was only in the nature of an additional security in respect of the guarantee that was given by William Gallagher. Under those circumstances the mortgage could only affect the beneficial interest of William Gallagher, whereas it is sought to make it affect the beneficial interest of Susan Gallagher. I do not see anything in the transaction to indicate that Susan Gallagher was depositing the deeds by way of mortgage on her interest. For these reasons I must hold that the equitable charge is only valid as regards the £100.
That being so, the claim in regard to the balance of the sum of £300 and the claim of the Ulster Manure Company depend on the question whether or not Susan Gallagher is entitled to be indemnified out of the assets of the estate in respect of the trading since the death of Bernard M’Ginley. Mr. Maguire drew my attention to the pleadings in the case, and pointed to certain objections to the transactions by the administratrix. What was sought to be done was to declare the parties trustees. But there was actually a claim made in respect of profits since the date of Bernard M’Ginley’s death. That was a clear election on the pleadings not to proceed with the claim on the basis of assets as assets at the date of death. If there had been profits the plaintiffs would have got the benefit, and they can only do that by also running the risk of loss. Therefore, it is not necessary to go into the pleadings in order to see that the case falls within the distinction drawn in the case of Dowse v.Gorton (1); and, in my opinion, the unreported case of Phillipsv. Kavanagh (2), to which I was referred, is on all fours with the present case.
The observations which I have made in regard to the pleadings are more apparent when the affidavits are examined. The matter is perfectly clear, taking them in conjunction with the pleadings; and I must grant a declaration that the administratrix is entitled as against, and in priority to, the next-of-kin of the deceased to be indemnified out of the assets against debts or liabilities incurred by Susan Gallagher to the full extent of such debts and liabilities. There must be a reference to the Examiner to inquire as to the claim of creditors, and then, in the first instance the charge of the Ulster Bank for £100, and interest, is good, and must be paid out of the proceeds of the sale of the licensed premises. The bank is also entitled to a charge at the date of the deposit of title deeds on the interest of the defendants in the one-third share in the said premises, which the defendant, Susan Gallagher, took as widow of Bernard M’Ginley, deceased, by virtue of the deposit made by William Gallagher at her request, in respect of all moneys payable by William Gallagher under the letter of guarantee.
The judgment delivered by O’Connor M.R. on December 20th, 1912, in the unreported case of Phillips v. Kavanagh (and in which the facts are set out), was as follows:
In this matter an application was made on the part of the plaintiff for an order to vary the certificate of the Chief Clerk, filed on the 20th July, 1912, and that it be declared that the assets of the deceased have been decreased by the sum of £3,220 by the trading and farming operations carried on from the death of the deceased until the appointment of a receiver and manager over his business; and that it be referred back to the Chief Clerk, and that the Chief Clerk be directed to find specifically what were the assets of the said deceased at the time of his death and the value thereof, and what were his assets at the time the receiver and manager was appointed and the value thereof.
In order to understand the purport and meaning of the application it will be necessary to review shortly the history of the matter.
The deceased, John Phillips, carried on the business of a farmer, publican, grocer, and General Merchant in the town of Collooney, Co. Sligo.
He died intestate on the 21st May, 1894, leaving him surviving, his widow, Mary Phillips, and six children, all of whom were infants at his death.
Letters of Administration of the personal estate of the deceased were granted to the widow on the 20th August, 1894. She died on the 7th May, 1895, having made her will, dated 5th May, 1895, whereby she appointed her sister, Agnes Mullarkey, and the defendant, Lizzie Kavanagh, her executors, and appointed them trustees and guardians of her children, and directed that her estate should be realised and divided in such manner and at such times as they should think fit, directing that it should be divided, share and share alike, among her children. The executors proved this will on the 10th June, 1895, and on the 10th November, 1895, obtained a Grant of Letters of Administration de bonis non durante minore aetateof the personal estate of the said John Phillips, deceased. Agnes Mullarkey died on the 13th January, 1906, and Lizzie Kavanagh is now the sole administratrix of John Phillips.
The business of the deceased was not sold or wound up. It was continued by his widow during the short period she survived him, and afterwards by Agnes Mullarkey and Lizzie Kavanagh during their joint lives, and by Lizzie Kavanagh, the survivor.
The infant children were maintained and educated out of the profits, and they continued to live, as they had done in their father’s lifetime, in the business premises which contained a dwelling-house as well as a shop.
The eldest son, Charles Phillips, attained age on the 18th September, 1906, but he does not appear to have concerned himself with the administration of the estate until the present proceedings were commenced by the issue of a summons at his suit on the 12th February, 1908, for the administration of the personal estate of his father, John Phillips, deceased.
At that date two courses were open to him. A breach of trust had no doubt been committed by the personal representatives of his father in carrying on his business instead of selling to the best advantage. The plaintiff could then have elected to repudiate the trading and have sought to charge the personal representatives with the value of the assets at the date of the death with £5 per cent. interest thereon, or he could have adopted the trading eelected to take the assets as he found them. If he elected to take the former course, his proceeding should have been by action, expressly charging the defendant with breach of trust, and asking for an account of the assets as they were at the death, and to have the defendant charged with the net value thereof with interest at 5 per cent. If he elected to take the latter course, the appropriate proceeding would have been that which he, in fact, took, viz.: an ordinary summons asking for the usual accounts and enquiries given on an administration summons. Having taken one or other course, he was bound by it unless he could show that he had not at the time sufficient information to enable him to determine what his course should be, and that it was only subsequently on getting further informationthat he learned the true position.
Let us then see what was the information on which the plaintiff acted when he commenced proceedings in the present matter.
His summons was supported by an affidavit in which he stated that the business had been, and was still being, carried on; that for some years it had been worked at a loss of between £1,000 and £1,400 per annum; that assets of the deceased had been lost and large debts incurred. He also refers to reports of accountants, and thus shows that he had full knowledge of the state of affairs.
I must therefore hold that he had no locus poenitentiae which enables him now to free himself from the election which he originally made.
But the conduct of the suit confirms the election originally made.
The defendant, Lizzie Kavanagh, as the sole surviving administratrix, was directed to bring in accounts of the personal estate of the deceased, but she did not do so, excusing herself by saying that no accounts were kept of the trading, and that it was impossible for her to bring in accounts. Now, here was an opportunity (if it ever existed) for the plaintiff to ask to be relieved from the form of procedure he had adopted, and to be allowed to charge the defendant with breach of trust. But he again elected not to do so. The excuse of the defendant for not accounting was apparently accepted, and the business as it then stood was taken to represent the business as it existed at the death of the intestate. The certificate of the Chief Clerk was filed on the 6th July, 1910, and it was thereby found inter alia that the outstanding personal estate consisted of the stock-in-trade of the business then in the hands of the manager, who had been appointed by the Court, and of the book debts due to the business. It was also found that debts amounting to £3,176 0s. 5d. had been allowed against the trading carried on by the defendant since the testator’s death. In other words, the fruits of the defendant’s trading are adopted in specie,and the obligations incurred are admitted, such is the position clearly marked out by the certificate of which the plaintiff himself had the carriage.
But notwithstanding the form of the certificate, it does appear that when the claims of the creditors were being sent in under the posting for creditors it was intimated that their right to be paid out of the assets would be disputed, and that they should look only to the defendant personally for payment. The meaning of this was that the trading by the defendant would be repudiated; but, if this were the intention, the plaintiff should even at that late stage have taken the definite course of charging the defendant with a breach of trust and for wilful default, and have asked for the appropriate accounts. He did not, however, do so, but proceeded to the filing of the certificate under the order which he had obtained.
Now I have no doubt that under such circumstances when the matter came on for further consideration the plaintiff was precluded by his previous conduct from questioning the right of the creditors to be paid out of the assets as if the trading had been carried on by the defendant under proper authority. In such case the right of the defendant would be to be indemnified out of the assets and the creditors would be entitled to stand in her shoes.
In my opinion this case comes clearly within the principles laid down by Lord Macnaghten in Dowse v. Gorton , [1891] A.C. 190, and adopted by the other members of the House of Lords who sat with him. He says at p. 202: “Your Lordships are familiar with the distinction between the usual administration order and an order founded on breach of trust a distinction in principle which is not affected by the recent changes in practice and procedure. Keeping the distinction in view, I would ask your Lordships to observe that neither in the pleadings nor in the evidence are the executors charged with wilful default or any other misconduct. The writ in the action asks for the usual order, coupled with the appointment of a receiver and manager of the testator’s businesses, and it asks for nothing more. No statement of claim was delivered and no affidavits were filed in the action. The summons, on which alone affidavits were filed, also asks for the usual order. And, indeed, I apprehend it would not be competent for an applicant on an originating summons to ask for or obtain otherwise than by consent an order founded on breach of trust or inquiries pointing to wilful default.” In the case before me Mr. Jellett pointed out that there were facts in the affidavits which might have been alleged as breaches of trust, but he did not charge a breach of trust. Lord Macnaghten continues: “Moreover it will be observed that both the writ and the summons treat the two businesses in their then actual state and condition as part of the testator’s estate.” That has occurred here. Lord Macnaghten then goes on (at p. 203): “My Lords, there is not, I believe, a shadow of authority for such a claim as that put forward by the appellants. It is contrary to all principle. Creditors of a deceased trader whose business has been continued by his executors, when they come for an administration decree, must treat the continuance of the business either as proper or as improper. If the business has been properly continued as between the executors and the creditors, or if the creditors choose to treat it so, which comes to the same thing, the executors are entitled to be indemnified against all liabilities properly incurred in carrying it on. If it has been improperly continued and the creditors choose to treat the continuance as improper (which, of course, they are not bound to do), they may proceed in the proper way to make the executors accountable for the value of the assets used in carrying on the business, and they may also follow the assets and obtain a charge on the business in the hands of the executors for the value of the assets misapplied, with interest thereon; and they may enforce the charge, if necessary, by means of a receiver and a sale.” In other words, the only assets are the stock-in-trade and interest at 5 per cent. “Then there can be no room for any claim to indemnity on the part of the executors. The charge in favour of the trust estate must be satisfied first. The executors can only take what is left. But the creditors must do one thing or the other. Though they are not bound by what they do in ignorance, and may, by leave of the Court, sue in respect of wilful default after having taken the usual order, they cannot approbate and reprobate in one breath. They cannot claim the assets of the business as a going concern in the state and condition in which those assets happen to be at the moment when they choose to intervene, and at the same time refuse the executors indemnity in respect of liabilities incurred in carrying on the business.”
Dowse v. Gorton was a creditors’ suit, this is a next-of-kin suit, but the same principles apply, and all the more, in it.
Notwithstanding the law so clearly laid down, the plaintiff, when the matter came before the Court on further consideration of the Chief Clerk’s certificate, disputed the right of the creditors to be paid out of the assets. In other words, he sought to approbate and reprobate. He adopted the trading for one purpose, viz.: to capture the stock-in-trade and debts due to the business. He repudiated it for another, viz.: to escape the liabilities consequent on the trading. He could not do so, and in my opinion the decision of the House of Lords was an ample answer for the creditors, but they seem to have thought that they would be in a better position if they showed that the assets of the business had increased in value since the deceased’s death, and accordingly they asked for an enquiry how far, if at all, the assets of the deceased had been increased by the trading and farming operations carried on from the death. The Court acceded to this application; and, accordingly, an order was made, dated the 24th April, 1911, referring it to the Chief Clerk to make the enquiry asked for and the further consideration of the matter was adjourned. As a condition to the enquiry, the creditors were ordered to lodge £50 in Court as security for the costs of the enquiry.
I put it to counsel for the creditors why they asked for this enquiry, because, if the principle laid down by Lord Macnaghten in Dowse v. Gorton applied, the right of the creditors to be paid was independent of the question whether the trading resulted in a profit or a loss. The answer I got was that this was the view pressed on the Court, but as their claim to be paid was strongly resisted by the plaintiff, they thought it well to have it established that the trading did not result in a loss to the estate.
The plaintiff appealed from the order dated the 24th April, 1911, but the only result of the appeal was that the creditors were ordered to lodge £200 by way of security instead of £50.
I need not say that if my predecessor in this Court or the Court of Appeal expressed any opinion as to the right of trade creditors to be paid out of the assets, I would consider myself bound by it, but I am assured that no opinion was expressed, and that the question was not argued, but allowed to stand over.
The enquiry directed by the order of the 24th April, 1911, has been held, and the Chief Clerk, by his certificate filed the 20th July, 1912, has found as follows:”Not taking into account the alleged increase in the value of the business premises, farms, and houses of John Phillips, the intestate, in this matter and cause from £1,270 on the 21st May, 1894, the date of his death, to £4,100 on the 16th day of April, 1908, the date of the appointment of the receiver in this matter and cause, but taking into account the trade debts due by the intestate’s business on the said 16th day of April, 1908, the assets of the said intestate do not appear to have been increased or materially decreased by the trading and farming operations carried on between said dates.”
The explanation of the reference to the alleged increase in the value of the business premises, farms, and houses is to be found in the contention of the creditors that there was a great increase in the value of those properties caused by the improvement of the town of Collooney, consequent on the establishment there of a Junction Railway Station, and the increased value of the farms owing to the Land Purchase Acts. The alleged increase in value is no doubt exaggerated, but I think that it was admitted that there was some increase, which, however, ought not to be taken into account in an account of the trading.
However, the Chief Clerk found in effect that (apart from the value of the business premises) the position of the business was pretty much the same now as the deceased left it when he died. I think on the evidence before him that this was the best conclusion at which he could have arrived.
The plaintiff quarrels with this finding, and asks that the certificate be varied, and that it be declared that the assets have been decreased by the sum of £3,220 by the trading and farming operations carried on from the death of the deceased until the appointment of the receiver; or that it be referred back to the Chief Clerk, and that he be directed to find specifically what were the assets of the deceased at his death, and what were his assets at the time the manager was appointed, and what was the value thereof.
Now, before dealing in detail with this application, I wish to observe that it seems to me to be entirely misconceived, because if the plaintiff is right in his contention, that the principal of Dowse v. Gorton does not apply, an enquiry whether the assets have been increased or decreased is quite irrelevant. The defendant, without authority, incurred debts in carrying on the trading, and she alone is liable, and she has no right to be indemnified out of the assets. The plaintiff’s case is that he is entitled to repudiate the trading, and therefore to repudiate her claim to indemnity. If he is, he has no need for the enquiry he asks for. The plaintiff in fact is too timid to rely upon the legal proposition which he asserts, and seeks to strengthen his position by a show of merits. He has fallen into the same mistake as did the creditors when they asked for the enquiry ordered on the 24th April, 1911. Neither party appears to have been very sure of his ground.
For the reason, then, that the application as now made by the plaintiff is an unnecessary one from the legal point of view, I am prepared to refuse it, but I refuse it on the further ground that the finding in the Chief Clerk’s certificate is most reasonable and proper on the evidence. He could not have arrived at any better finding. I say, too, with very great respect, that in another respect the application seems to me to be entirely misconceived. It asks for a declaration that the assets have been decreased by a sum of £3,220. Now this figure is the amount of the debts, as certified by the plaintiff’s accountant, now due on foot of the trading the same debts which the plaintiff contends are not payable out of the assets. I fail, then, to see how, if the plaintiff is right, the assets were decreased by that amount.
The main ground, however, on which I refuse the plaintiff’s motion is that it is an attempt to escape from the election which he deliberately made when he commenced the present proceedings, viz.:to take the business as it was found in the year 1908. I have no doubt that he was well advised when he made his election. The business has been found to be in no worse condition now than it was in at the death. There is, moreover, good evidence that the business premises and farms have substantially increased in value. No loss, therefore, has accrued to the estate, while the plaintiff, his brothers and sisters have been liberally maintained out of the profits of the business.
On the other hand, if the plaintiff elected to charge the defendant with a breach of trust in carrying on the business, her liability would have been to be charged with the value of the assets less by all debts paid, funeral and testamentary expenses, with interest at 5 per cent. As against this liability she would be entitled to credit for maintenance, and I feel convinced that in taking accounts on this basis the plaintiff, his brothers and sisters would come off very much worse than they would by adopting the trading. This is a good explanation why the suit was commenced in the manner it was, the plaintiff having at the time full knowledge of the material facts.
I must say that I am glad to be able to arrive at this conclusion, because I am satisfied if the plaintiff succeeded in his attempt a very gross injustice would be done to the creditors of the business who supplied the goods which have been appropriated as assets of the deceased.
I have not yet noticed a point made by the plaintiff, that even if the defendant were entitled to be indemnified against the trade debts out of the assets she has lost her right to an indemnity by her default in not bringing in an account, but Serjeant Matheson has shown by authority: Re Kidd,70 L.T.R. 648, that this is not the kind of default which has the effect of depriving an accounting party of the right to be indemnified.
The plaintiff’s motion was supported by two of the infant children of the deceased, who maintained that, being infants, they are not bound by an election made by the plaintiff, or by acquiescence in the trading. But I treat the motion as only the plaintiff’s motion, and as such I refuse it. I may say, however, that if any step is taken on behalf of the infants in this matter on the lines of the plaintiff’s motion I will not act upon it without first directing an enquiry whether it is for the infants’ benefit to repudiate the trading and to charge the defendant with a breach of trust.
I refuse the plaintiff’s motion; but, as I consider that all parties are to a great extent responsible for what I consider to be a mistaken course, I will make the costs of all the parties who appeared on the hearing of this application costs in the matter.
In re Harris; Lyons v Harris
Conversion Wasting Assets
Conversion
Court of Appeal.
6 December 1906
[1907] 41 I.L.T.R 18
Sir S. Walker L.C., FitzGibbon, Holmes L.JJ.
Sir S. Walker, L.C.
I adopt the rule laid down by Lord Romilly, M.R., in Morgan v. Morgan, and followed in MacDonald v. Irvine, that it is incumbent on the persons who oppose the application of the rule in Howe v. Earl of Dartmouth, and on the Court which forbids that application, to point out words in the will which will exclude it. There have been cases, such as Collins v. Collins and Pickering v. Pickering, in which that onus was held to have been discharged, but the terms of the will now before us (His Lordship read the will) do not in my opinion show any intention on the part of the testatrix that the property bequeathed thereby was to be enjoyed in specie, the words, “my said property or the investments from time to time representing the same,” appear to me to be inconsistent with that interpretation. In Collins v. Collins the testator gave to his wife “all and every part of his property in every shape and without reserve, and in whatever manner it was situate,” for her life, and directed that “at her decease” it should be divided amongst other legatees; and in Pickering v. Pickering the testator gave and bequeathed “all the interest, rents, dividends, annual produce and profits, use and enjoyment” of his estate, both real and personal, to his wife for her life, and “at the decease” of his wife he gave “all the rest and residue of his estate” to his son and sole executor. Lord Cottenham, who decided the latter case, pointed out that there was no gift of the residue till after the death of the testator’s wife, while the argument of the defendant in the case would, in effect, substitute for the words “at the decease of my said wife,” the words “at my death”; and the same Judge in following Collins v. Collins relied on the fact that there were in the will “expressions referable to the particular descriptions of property which the testator had.” In the more recent case of Game v. Young, Stirling, J., held that the mere use of the word rent in a gift of a life estate would not, where the testator was possessed of both freehold and leasehold property, indicate an intention that the property was to be enjoyed in specie, inasmuch as the use of that word could be satisfied by applying it to freeholds. MacDonald v. Irvine is a strong authority in favour of the plaintiff. In that case the words were: “I give to my wife all the income, dividends and annual profits of my entire estate, and I postpone the payment of all legacies and the distribution of all estates vested in me … till after her death.” Those words are certainly more opposed to the application of the rule in Howe v. Earl of Dartmouth than any expression in the will now before us, and yet Thesiger and James, L.JJ. (Baggallay, L.J., dissenting), held that they were “quite consistent with the residuary estate being put in a state of investment which would secure the succession to it of all the persons named in the will.” In the present case there is no gift of rent, no postponement of legacies; the testatrix speaks of her property “or the investments from time to time representing the same,” and directs her trustees in certain events to raise £4,000 by a sale or otherwise. It appears to me to be a typical case for the application of the rule in Howe v. Earl of Dartmouth.
FitzGibbon, L.J.
I concur. In cases like the present we are sometimes obliged, in seeking for an indication of the testator’s intention, to rely on very small points. Here the fact that the ultimate division of the property might be postponed till the coming of age of the youngest child of a person still unmarried, taken in conjunction with the fact that the leases had less than forty years to run, appears to be inconsistent with an intention that the tenant-for-life should enjoy the property in specie; and so is the reference in the will to “investments from time to time” representing the property.
Holmes, L.J., delivered judgment to the same effect.
In the Goods of John Byrne, Deceased
Trading Insolvent Estate
King’s Bench Division.—Probate.
28 April 1913
[1913] 47 I.L.T.R 301
Madden J.
Application on behalf of the Mountjoy Brewery, Ltd., for an order that John Byrne, of Inch, in the County of Wexford, shopkeeper, and Ellen Byrne, wife of Patrick Byrne, of Rose Bank, Ovoca, in the County of Wicklow, or either of them, do proceed to take out letters of administration with the will annexed of John Byrne, deceased, who died on or about Aug. 2, 1883, or in the alternative for an order that such administration shall be granted or committed unto the said Mountjoy Brewery, Ltd., or their substitute, and for costs. John Byrne, of Inch, County Wexford, died on Aug. 2, 1883, having made his will on Feb. 5, 1883, as follows:—I, John Byrne, of Inch, in the County of Wexford, grocer and spirit dealer, being of sound and disposing mind, memory and understanding, do make and publish this as my last will and testament. I do hereby nominate, constitute and appoint Benjamin Dickinson, of Killybegs, and Patrick Stafford, of Clonsilla, both in the County of Wexford, farmers, trustees and executors of this my last will and testament. Now I give, devise and bequeath unto the said Benjamin Dickinson and Patrick Stafford all that and those two small houses in the town of Cool greany and the plot of ground behind them, and the field called Locklen’s Field, and which houses are now occupied by James Tallon and James Kearon, and also the Ram house and 5 acres of land attached thereto and now occupied by Mr. William Read, and the plot called the Fort, which land and the houses and premises at Inch and the premises and the business where I now reside and my stock and chattels there and elsewhere, and also a sum of £400 now in the National Bank of Ireland, and also an insurance on my own life for the sum of £400 effected with the Sun Office, and all my business transactions, to hold to them as follows:—To permit and suffer my said wife to manage my said lands and my houses and rents and my business in the same way as I now do during her life so long as she remains single and no longer, but she is not to commit or permit any waste, but to show and exhibit the receipts and vouchers to my said trustees when required, and if any deficiency, then the business to be carried on by the said trustees and from the moment that my said son comes of age he is to remain with his mother and after her death to succeed her in every way, and my two daughters are to receive a sum of £400 each on their marriage, provided they please you in a husband and not otherwise. In witness whereof I, the said John Byrne, hath hereto put my name this 5th day of February, 1883, &c.” Probate of the said will was granted by the Principal Registry on Nov. 29, 1883, to the executors. At his decease John Byrne left one son, John Byrne, mentioned above, and two daughters—namely, Annie Byrne, who became a nun and died intestate, a spinster, about fifteen years ago, and Ellen Byrne, wife of Patrick Byrne, of Rose Bank, Ovoca, County Wicklow. After the death of testator his executors inserted a statutory notice to creditors in respect of the goods of John Byrne, deceased, dated Feb. 12, 1884, in the Gorey Correspondent of Feb. 16 and 23, 1884, and in the General Advertiser of Feb. 23, 1884, requiring all persons claiming to be creditors or otherwise to have any claim to send particulars to the solicitor of the executors before April 1, 1884. All creditors sent in *301 their claims and were paid. All funeral and testamentary expenses, legacies and duties were paid and the estate was administered. From the death of the testator until her own death the widow took over the business at Inch, carried it on in her own name and went into receipt of the rents from the houses and lands forming the testator’s estate. The bequests were assented to by the executors, who never interfered with the carrying on of the business by the testator’s widow. Save the business premises at Inch and some land all the property under the will was sold during the lifetime of the widow, John Byrne, the son of the testator, joining in the assignments to the purchasers. Testator’s widow remained unmarried until her death on Oct. 23, 1912. On her death the testator’s only son, John Byrne, entered into possession of the testator’s assets, including the business premises at Inch, and continued to carry on the business of the testator from the date of the death of the widow until the present time. Patrick Stafford, one of the executors, died on March 24, 1906, the other executor died intestate on Sept. 30, 1906. No representation was raised to the widow, and she left no assets. The widow, while carrying on the business of the testator, dealt with the Mountjoy Brewery for porter and stout, and on Oct. 23, 1912, she was indebted to the brewery for porter and stout sold and delivered to her in £61 43s. 10d.; the brewery held no security for the debt.
G. E. Hamilton for Mountjoy Brewery.—The widow carried on the business under the will in the interest of the whole estate and to the knowledge of all concerned. She was in a fiduciary position with respect to the beneficiaries, and was entitled to an indemnity in the absence of misconduct on her part. Here there was no such misconduct, and her creditors were entitled to stand in her shoes as having an interest under the will: Kirkwood v. Hamilton, 36 Ir. L. T. R. 155; Fairland v. Percy, 3 P. & D. 217.
Garrett Walker, K.C., against the application.—The widow was in possession as beneficial owner under the will. The burden of proof was on the other side to show that the widow managed the business for the benefit of the estate so that she was in the position of a trustee entitled to an indemnity: Dowse v. Gorton, (1891) A. C. 190; M’Aloon v. M’Aloon, [1900] 1 I. R. 367; Hodges v. Hodges, [1899] 1 I. R. 480; Morris v. Latchford, 23 L. R. Ir. 333; Cutbush v. Cutbush, 1 Beav. 184.
Madden, J., said that the application was made on behalf of the Mountjoy Brewery as creditors of the widow of John Byrne, deceased. It was argued on their behalf that the widow carried on the business of the testator under the provisions of the will and incurred debts for the benefit of the estate, and that, inasmuch as she would have been entitled to an indemnity, her creditors were entitled to stand in her shoes and to become creditors of the estate of John Byrne, deceased. The general principle as to subrogation was fixed, but its applicability depended on the facts of each case. He had no desire to prejudice any claim that might be made in the present case. The only question to be decided was as to whether the estate of John Byrne should be represented in order that creditors might have an opportunity of asserting their rights. Mere lapse of time as in the present case was not a conclusive answer to such an application. The order to be made would not decide anything as to any claim, but would set up a legitimus contradictor to dispute any claim that might be made. If the application was not granted it was difficult to see by what proceeding the Mountjoy Brewery could assert their rights, if any, against the estate of John Byrne. The order to be made would provide that the next of kin should enter an appearance within 8 days, and that in default the applicants should take out a side bar order of no appearance and have liberty to apply for grant of administration with will annexed.
Hanratty, Deceased; Hanratty v Hanratty
Priority Costs Insolvent Estate
High Court of Justice.
Chancery Division.
8 March 1905
[1905] 39 I.L.T.R 132
Barton J.
Barton, J.
It has been argued the plaintiff is not entitled to be paid anything by way of costs out of the fund unless and until the debts are first paid, upon the principle laid down in Newbegin v. Bell, that where there are no residuary or pecuniary bequests, and the next-of-kin of the testator institutes a suit for administration of the estate and the debts exhaust the residue, the plaintiff must bear his own costs, but the executor must have his out of the specific legacies. In Weston v. Close, which was a suit by a residuary legatee under the will of the testator in the cause, against the executor and the other residuary legatee, the testator’s estate proved to be insufficient to pay his debts, and the only argument was as to whether the plaintiff was entitled to his costs as between solicitor and client or as between party and party. The Vice-Chancellor declined to follow a case of Burkitt v. Ransom (2 Coll. 536), and held that the plaintiff was entitled to costs as between party and party only. In In re Burrell the costs of a plaintiff, who was a residuary legatee, in a suit for administering an insufficient estate, which he had commenced in Chambers, were allowed as between solicitor and client, on the ground that he had acted in the least expensive way possible, and the estate had been increased by his exertions. I assume the same principle would apply to a next-of-kin suit as to a suit by a residuary legatee. Newbegin v. Bell was a very special case in which there was no residuary gift, and it was held that the debts were primarily payable out of the general residue. There being no residuary gift, the next-of-kin filed a bill for administration. The debts exhausted the residue, but there remained assets specifically bequeathed, and it was held that the plaintiff must bear his own costs. But the case turned entirely on the fact that there was no residue available. The next-of-kin are only entitled to undisposed of personal estate, and where there is no such estate they can get nothing. In the present case the plaintiff is in my opinion entitled to the costs and expenses in and about the sale and getting in of the estate.
Dickie pressed for general costs of the suit.
Barton, J.
It was contended that you were entitled to nothing, and I decide that you are entitled to something—viz., to the costs and expenses in and about the sale and getting in of the estate. Probably you are entitled to the costs of the suit, but I do not know what these costs are, and give no decision on the point.
Bank of Ireland v M’Phillips and M’Avinney
High Court of Justice.
Chancery Division.
19 December 1904
[1905] 39 I.L.T.R 86
Sir Andrew M. Porter Bart. M.R.
Dec. 19, 1904
Administration suit—Costs—Partnership suit pending—Deceased partner having no separate assets.
The administrator of a deceased partner instituted a partnership suit against the surviving partner and obtained a decree, and while that suit was pending a partnership creditor, although informed by the administrator that the deceased partner had no assets outside his interest in the partnership, obtained an order for the administration of the deceased partner’s estate, and the two suits were subsequently consolidated. The Chief Clerk having found by his certificate that the only asset of the deceased partner was his interest in the partnership:
Held, that as the administration proceedings were unnecessary and fruitless, and the plaintiffs might have applied in the partnership suit, their costs of such proceedings up to the date of consolidation should be disallowed.
Upon the further consideration of this suit, *86 which had been brought to administer the real and personal estate of James M’Avinney, deceased, a question arose in reference to the costs of the suit under the following circumstances:—Mary M’Phillips, as administratrix of James M’Avinney, deceased, had brought a partnership suit against Peter M’Avinney, the surviving partner, to have the affairs of the partnership, which had existed between them, wound up, and on the 7th May, 1902, she obtained the usual decree in that suit. The Bank of Ireland was a creditor of the partnership, and although informed by the solicitor for Mary M’Phillips that James M’Avinney had no assets outside his interest in the partnership, and that probably there would be sufficient partnership assets to pay their debt, they took out an originating summons for the administration of James M’Avinney’s estate, and on the 1st July, 1902, they obtained an order for such administration, and, amongst other accounts, an account was directed of the monies due from the partnership to partnership creditors, the question of costs being reserved. In the partnership suit the Chief Clerk had found that the Bank were creditors of the partnership, but in the administration suit they were not found to be creditors of James M’Phillips, and from the figures it appeared probable that the Bank would be paid in full out of the partnership assets. The Chief Clerk had also found in the administration suit that James M’Avinney had no assets outside his interest in the partnership. The further consideration in the partnership suit was heard on the 11th Dec., 1902, when, amongst other directions, it was referred to Chambers to take in that suit the account of the partnership creditors ordered in the administration suit, and on the 9th May, 1904, the action was consolidated, and the carriage of the consolidated action was given to the Bank, and the consolidated action of Bank of Ireland v. M’Phillips and M’Avinney now coming on for further consideration.
Pim, for the plaintiff.—In the partnership decree there was no direction to take an account of the partnership creditors, and it was in the administration suit that this account, which was absolutely necessary, was directed, although subsequently taken in the partnership suit. The Bank were entitled to protect themselves by having James M’Avinney’s estate administered, and they have been given carriage of the consolidated suit, and should get their costs of the administration proceedings.
Pringle, for the defendant, Mary M’Phillips, the administratrix of James M’Avinney.—The Bank should not get costs of the administration proceedings, which were unnecessary and fruitless, as James M’Avinney had no assets outside the partnership, and the Bank were informed that this was so. They are in the same position as an ordinary creditor bringing administration proceedings where there are no assets. They were entitled to full relief in the partnership suit, and could have applied for any necessary account or inquiry therein: Hibernian Bank v. Lauder, [1898] 1 Ir. R. 262; Williams on Exors. (6 ed.) 1,221.
Chas. Brady, for Sir Augustine Baker, who had been appointed to represent the interest of Peter M’Avinney.
Sir A. M. Porter, Bart., M.R.
It has been found that James M’Avinney had no personal assets, and the Bank have not been found to be personal creditors of his estate. The partnership suit was pending, and although there was no direction in the partnership decree, as there should have been, to take an account of the monies due to partnership creditors, the Bank could have applied in that suit for any account to be taken which they thought right, but before taking administration proceedings they did not even ask the plaintiffs in the partnership suit to have such an account taken. The administration proceedings were unnecessary, and have had no beneficial result, and I disallow the plaintiffs their costs of same up to the date of the consolidation of the suits.
Hickey v O Dwyer & Ors
Satisfaction
[2005] IEHC 365 (09 November 2005)
Judgment of Miss Justice Laffoy delivered on 9th November, 2005.
Background
Two separate and distinct issues are raised on the special summons in these proceedings.
The facts common to both issues are that they arise in relation to the estate of John Hickey (the testator) who died on 30th January, 1999. The testator was the husband of the plaintiff and the father of the fourth defendant, who was born on 5th December, 1990. The third defendant is the mother and, in effect, the next friend of the fourth defendant. The testator and the third defendant were not married. The testator made his last will and testament on 26th May, 1998, wherein he appointed the plaintiff to be his sole executrix and residuary legatee and devisee. She having renounced her right to probate, Letters of Administration with the testator’s will annexed were granted to the first and second defendants on 15th July, 2003. The first and second defendants are party to these proceedings in their capacity as personal representatives of the testator.
The first issue
There were only two dispositive provisions in the will of the testator. The provision which gives rise to the first issue in these proceedings is Clause 4 wherein the testator devised and bequeathed the sum of IR£100,000 to the first, second and third defendants to be held by them in trust as thereinafter set out for his daughter, the fourth defendant, until she should reach the age of 25 years and then to his said daughter absolutely. The first, second and third defendants were appointed as trustees of that bequest and the trusts upon which they were to hold the sum of IR£100,000 were set out. The other dispositive provision was the devise and bequest of the residue to the plaintiff for her own use and benefit absolutely.
In 1993 the testator had taken out a policy of assurance on his life with Prudential Life of Ireland. On 21st June, 1993 he executed a document (the 1993 Trust) which, in effect, was a declaration of trust in a standard form, apparently, produced by the insurer. It was a special condition of the policy that it was issued pursuant to the 1993 Trust. In the 1993 Trust the testator declared that the trustee or trustees for the time being thereof should hold the policy and the full benefit thereof and all monies which might become payable thereunder (the trust fund) upon trust, if the benefit under the policy should become payable in consequence of the death of the testator, which happened, for the benefit of all or one or more of the class of persons named by relationship to the testator (which included the spouse and children of the testator) as the testator in his absolute discretion should “be (sic) deed or deeds revocable or irrevocable appoint”. It is quite clear that the word “be” is a misprint for “by”. It was expressly provided that no appointment should be made nor any power of revocation exercised after the death of the testator. It was provided that, in default of and subject to any such appointment, the trust fund should be held for the absolute benefit of the fourth defendant as to 100% of the trust fund.
The testator did not exercise the power of appointment over the trust fund conferred on him in the 1993 Trust during his lifetime by deed. Following his death, the proceeds of the policy, IR£223,350 (€283,595.99), were paid out by Prudential Life of Ireland to two trustees appointed by the court of the trust fund on behalf of the fourth defendant.
The first issue raised on the special summons concerns the entitlement to the fourth defendant to the proceeds of the policy and under the will of the testator and requires the court to answer the following questions:
(a)(i) Did the testator by the bequest in his will in favour of the fourth defendant, exercise the power of appointment in relation to the proceeds of the policy?
(a)(ii) What is the interest of the fourth defendant in the proceeds of the policy?
(a)(iii) What is the interest of the plaintiff in the proceeds of the policy?
(a)(iv) If the answer to question (i) is in the negative, was the bequest in the testator’s will to set up a trust in favour of the fourth defendant in the amount of IR£100,000 intended to be in whole or in part satisfaction of the monies held upon trust for her pursuant to the terms of the trust funds?
(a)(v) In the light of the answers to the above questions, in what manner are the proceeds of the policy to be distributed?
There is inherent in the first issue an acceptance by the plaintiff that the testator by his will gave a bequest of IR£100,000 in trust for the fourth defendant. No question as to the proper construction of the will arises. The case made is that by operation of the equitable doctrine of satisfaction the fourth defendant is not entitled to both the provision made in the 1993 Trust in relation to the trust fund and also the bequest.
In Williams on Wills, 8th Ed., 2002, the various situations in which the doctrine of satisfaction comes into play are identified as follows in para. 44.1.
“Satisfaction is the donation of a thing with the intention that it shall be taken either wholly or partly in extinguishment of some prior claim of the donee. It may occur (i) when a covenant to settle property is followed by a gift by will or settlement in favour of the person entitled beneficially under the covenant, (ii) when a testamentary disposition is followed during the testator’s lifetime by a legacy or settlement in favour of the devisee or legatee, and (iii) when a legacy is given to a creditor. In all these cases the question of satisfaction is one of the intention of the settlor or testator; and, if he expressly declares that the latter disposition is to be in satisfaction of the earlier obligation or disposition the matter will be governed by this expression of his intention and effect is given to the later disposition accordingly. In the absence of such expression, certain presumptions as to his intention are raised in equity, and evidence, intrinsic and, in certain cases, extrinsic, may be used to rebut or support such presumptions. … The three cases above are shortly described as (i) satisfaction of portions by legacies or subsequent portions; (ii) ademption of legacies by portions; and (iii) satisfaction of debts by legacies. In the first two cases the court leans in favour of satisfaction; in the third case it leans against it.”
Counsel for the plaintiff submitted that circumstances which have arisen in this case fall within the first classification of the doctrine – satisfaction of a portion by a legacy. He acknowledged that the sequence here was that there was a portion followed by a legacy and, accordingly, when the portion was created there was no legacy to adeem. The species of the doctrine of satisfaction on which the plaintiff relies is an aspect of the so called “rule against double portions”.
Counsel for the third and fourth defendants submitted that, as traditionally applied, the rule against double portions is discriminatory and is inconsistent with both the Constitution and the European Convention on Human Rights. The criticisms which may be made of the rule are outlined in Delaney on Equity and the Law of Trusts in Ireland, 3rd Ed., at p. 703, where it is pointed out that it has been expressly preserved by s. 63(9) of the Succession Act, 1965, which provides that nothing in s. 63 shall affect any rule of law as to the satisfaction of portion debts. Accordingly, there is express recognition of the rule in a post 1937 statute. Aside from that, neither the question whether the rule was carried over in 1937 on the coming into force of the Constitution nor whether it is compatible with the European Convention on Human Rights was raised in the pleadings, either generally or by reference to the facts of the case. In the circumstances I consider it inappropriate to express any view on those questions in these proceedings.
The presumption of satisfaction of a portion by a legacy has traditionally been applied in this jurisdiction where the settlor or testator is the father of, or in loco parentis, to the donee, the first gift is a portion and both gifts are substantially of the same nature and in favour of the same person. In this case, I am satisfied that the provision made in 1993 was a portion in the sense of being a gift of a substantial nature relative to the means of the testator and intended to set up the fourth defendant in life. Moreover, I am satisfied that the provision made in the 1993 Trust and the provision made by the testator in his will for the fourth defendant were substantially of the same nature. They were both, essentially, dispositions of money to which the fourth defendant was to be absolutely entitled, albeit in the case of the bequest in the will the trustees would have control until she attained 25 years of age. Although the provision in the will was substantially smaller than what the policy yielded, the doctrine of satisfaction admits of a lesser provision in a will being satisfaction pro tanto of an earlier portion.
There is a helpful commentary on the strength of the presumption of satisfaction in relation to the different classes of satisfaction in para. 44.9 of Williams. It is pointed out that the strength of the presumption against double portions, and what it takes to rebut the presumption, varies according to the nature of the instruments and the order in which they are executed. Presumption is strongest in the case where a testamentary provision for a child is followed by a settlement, which does not arise in this case. The rationale for that proposition is that both provisions are still under the testator’s control when he executes the later instrument. The presumption is less strong where a settlement, which creates an obligation remaining unperformed, is followed by a testamentary provision. I would surmise that the editors of Williams are referring there to an irrevocable settlement. The rationale of the weaker presumption in that situation is that the testator is not free from the obligation of the settlement when he makes the will, and it is not so readily presumed that he meant the latter to take the place of the former. The strength of the presumption is further reduced when the double provision is contained in consecutive settlements, since, in the case of a will, the testator is supposed to be disposing of the whole of his property and distributing it among the different objects of his bounty, but not so in the case of a settlement. Further, if the first settlement contains a power of revocation which is not exercised, this will be an indication that the provisions are intended to be cumulative.
In this case the testator did not expressly declare his intention. Accordingly, it is necessary to consider whether the presumption applies. In relation to the two instruments at issue in this case, and considering the evidence they afford intrinsically without the aid of extrinsic evidence other than evidence of what the personal circumstances of the testator, his age and marital status, were when they were executed, the following seem to be the relevant factors:
(1) When he was a single man aged 28, in the 1993 Trust, the testator put in place an arrangement to provide for the fourth defendant in default of him exercising the power of appointment in relation to the trust funds. The exercise of the power of appointment would have overridden the default provision, so that the trust fund was still under the testator’s control.
(2) In 1998, after he had married, and when he was aged 33, the testator made a will in which he disposed of his entire estate and made provision for the fourth defendant. A will is ambulatory, so that the testator’s estate was still under his control after he made his will.
(3) After he made his will the testator neither revoked the will nor did he exercise the power of appointment under the 1993 Trust. The fourth defendant was his only child.
(4) On his death the entitlement of the fourth defendant to the trust fund under the default provision in the 1993 Trust took effect. At the same time, the testator’s will took effect and the entitlement of the fourth defendant to the provision made for her in it took effect.
In my view, the foregoing circumstances give rise to a presumption that the testator did not intend the fourth defendant to take both provisions. The issue which remains is whether extrinsic evidence is admissible to either support or rebut that presumption and, if it is, what is the effect of the evidence.
Section 90 of the Succession Act, 1965 provides that extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will. It is well settled that extrinsic evidence may only be adduced pursuant to s. 90 if it assists in the construction of a will or resolves a contradiction in the will and, in either case, the purpose of its admission is to show what the intention of the testator was in the particular context (O’Connell v. Bank of Ireland [1998] 2 IR 596). As I said at the outset, it is accepted by the plaintiff that the bequest in favour of the fourth defendant contained in the testator’s will is a valid bequest. No question arises as to the admission of extrinsic evidence to construe the will. In any event, the will is unquestionably clear and unambiguous.
What the plaintiff asserts is that extrinsic evidence is admissible in support of the presumption that the testator did not intend to make double provision for the fourth defendant. In this connection, counsel for the plaintiff relied on the following passage from Williams at 14.14:
“Parol Evidence cannot be admitted to add to or vary a written instrument; but where from two written instruments, taken in conjunction with the surrounding circumstances, the court raises a presumption of satisfaction, then parol evidence is admissible to rebut the presumption, and therefore also to support it. In the case of a will and a settlement the rule is the same whether the will precedes or follows the settlement.”
The evidence adduced by the plaintiff which it is contended supports a presumption of satisfaction is as follows:
(a) In her grounding affidavit, having earlier averred that prior to and after her marriage she discussed with the testator the provision he had made for the fourth defendant, the plaintiff averred that it was always her clear understanding from the testator that it was his understanding that he had settled his affairs in such a manner that IR£100,000 from the life assurance policy would be held for the benefit of the fourth defendant but that thereafter the balance of the estate would devolve to herself, the plaintiff. In relation to that averment, the factual position is that the proceeds of the policy were not part of the estate of the testator.
(b) Apropos of the averment at (a), the first defendant, in his affidavit filed in response to the summons, averred that he admitted that it was the deceased’s understanding that he had settled his affairs in such a manner that IR£100,000 from the policy would be held for the benefit of the fourth defendant and that thereafter the balance of the estate would devolve to the plaintiff. The first defendant did not identify his means of knowledge as to the testator’s understanding. In relation to the general approach adopted by the first and second defendants on this application, in the same affidavit the first defendant averred that he and the second defendant were willing to abide by any decision of the court in respect of the plaintiff’s application.
(c) The solicitor who acted for the testator in the drawing and execution of his will gave oral testimony to prove the notes of his attendance on the testator on 6th March, 1998 when he took instructions from the testator for the drawing of the will. The attendance notes record the following in relation to provision for the fourth defendant:
“100K to Nicole in trust.
This is available through life policy on J.H.’s life – approx. 280K.
Trust [?] 25 yrs.”
The third and fourth defendants did not seek to cross-examine the plaintiff or the first defendant on their respective affidavits.
In my view, neither the averment of the plaintiff nor the averment of the first defendant is of a probative quality to either support or rebut the presumption. In relation to the evidence of the solicitor, that goes no further than to prove the instructions recorded by the solicitor when he took instructions for the drafting of the testator’s will almost three months before it was executed.
The position adopted by the third defendant in her affidavit was that the attendance notes of the solicitor were not admissible. Further, she averred that she visited the testator in hospital on the Friday afternoon prior to his death, when he assured her that the fourth defendant would be well looked after. She further averred that at all material times she understood that the policy was in place and also that the fourth defendant had been provided for under the terms of the testator’s will. The source of her understanding is not identified. In my view, those averments are not of a probative quality to rebut the presumption.
The only other evidence which might be relevant to rebutting or supporting the presumption is the evidence of the testator’s assets when he made his will. There is no direct evidence of this, but, as he died just eight months after making his will, this can be inferred. The only asset of any substance which the testator had was his dwelling house, which was valued at €114,176.43 (IR£90,000) as of the date of his death on the Inland Revenue affidavit filed with the Revenue Commissioners. The dwelling house was mortgaged but there was a mortgage protection policy in place which would, if it was kept up, and in fact did, clear off the mortgage on the death of the testator. The testator was a member of his employer’s pension plan. Following his death the plaintiff, as the nominated beneficiary, received €69,537.19 on foot of the pension plan, but this did not form part of his estate.
The totality of the relevant evidence in relation to the testator’s age, marital status and personal circumstances and the state of his assets when he made his will, in my view, support the presumption that the testator did not intend that the fourth defendant should receive both the entirety of the proceeds of the policy and the bequest contained in his will. In other words, the presumption stands.
Before answering the questions raised on the special summons in relation to the first issue, it is necessary to explain the consequence of the conclusion that the doctrine of satisfaction applies. It is that an election must be made on behalf of the fourth defendant, who is still a minor, between the provision contained in the 1993 Trust and the provision under the will. On the facts of this case, it must be assumed that the election would be to take the provision under the 1993 Trust the trust fund represented by the proceeds of the policy.
Finally, by way of clarification, it is stated in Delaney at p. 703 that, if the father has actually advanced the portion to the child, a subsequent legacy will not be regarded as satisfaction, the reasoning being that, if the father has already given the child the gift in the nature of a portion, he would undoubtedly intend that child to benefit in addition from any provision made for him under a subsequent will. There is authority for that proposition in Smyth v. Gleeson [1911] 1 I.R. 113 at p. 119. On the facts of this case, the prior portion had not been actually transferred or paid to or on behalf of the fourth defendant when the will was made. The provision in the 1993 Trust was liable to be displaced by the exercise of the power of appointment.
Answers to questions in relation to the first issue
The answers in relation to the first issue are as follows:
(a)(i) The testator did not by his will execute the power of appointment in relation to the proceeds of the policy. By virtue of the terms of the 1993 Trust the power of appointment was exercisable by deed only.
(a)(ii) The fourth defendant is entitled to elect to take the proceeds of the policy or the bequest contained in the will.
(a)(iii) The interest of the plaintiff in the proceeds of the policy depends on the election made by the fourth defendant. On the assumption that she will elect to take the proceeds of the policy and, indeed, the proceeds have already been paid to trustees on her behalf, the plaintiff has no interest in the proceeds.
(a)(iv) The provision in the testator’s will in favour of the fourth defendant was intended to be in part satisfaction of the proceeds of the policy the subject of the 1993 trust.
(a)(v) The distribution of the proceeds of the policy depends on the election to be made on behalf of the fourth defendant. On the assumption that the election is to take the proceeds of the policy, the distribution of the proceeds to trustees on behalf of the fourth defendant will stand.
The second issue
At the date of his death the testator was the sole legal owner of the dwelling house, 9 The Dell, Huntsfield, Dooradoyle, Limerick, which has a current value of €265,000. The testator purchased the dwelling house, as a newly constructed house, around 1994. He financed the purchase price, which was in excess of IR£60,000, by a loan of IR£4,000 from his then employer to pay the deposit, the State grant of IR£3,000 and a mortgage for the balance. On completion of the purchase the testator and the plaintiff moved into the dwelling house and they resided there until the date of his death.
The questions raised on the special summons in relation to the dwelling house are as follows:
(b)(i) At the date of the death of the testator did the testator and the plaintiff own it in all the circumstances in equity as joint tenants?
(b)(ii) Is the plaintiff entitled to a beneficial interest in the dwelling house?
(b)(iii) If the answer to (ii) above is in the affirmative, what is the extent of the plaintiff’s beneficial entitlement?
The basis of the plaintiff’s claim to a beneficial interest is that she made financial contributions to the cost of the acquisition of the dwelling house. It is not in issue that the principles of law to be applied in determining whether the plaintiff’s claim is well-founded are those set out in the judgment of Finlay P., as he then was, in W v. W [1981] I.L.R.M. 202.
The factual basis of the plaintiff’s claim is as follows. The testator purchased the dwelling house “from the plans”. When it was completed the testator and the plaintiff decided to live together there. They considered that they were moving into their “home”. It was decided to leave the house in the testator’s name, the intention being that the plaintiff could buy a house as well. Some time after they moved in, the testator changed his employer, whereupon the loan he had obtained for the deposit became repayable. The plaintiff borrowed a sum of IR£4,000 on a term loan and gave that sum to the testator so that the testator could repay his employer. The testator and the plaintiff had a joint account before they were married. Their respective salaries were paid into the joint account and the mortgage and mortgage protection policy instalments were paid out of the joint account. The mortgage debt was discharged out of the proceeds of the mortgage protection policy.
The basis on which a court will decide that a wife is entitled to an equitable interest in a property in the sole name of her husband on the basis of a contribution of money to the purchase or on the basis of a contribution, either directly or indirectly, towards repayment of the mortgage instalments is subject to the overriding requirement that such a decision will be made only “in the absence of evidence of some inconsistent agreement or arrangement” per Finlay J. in W v. W at p. 204. In this case, the evidence is not consistent with an understanding by the testator and the plaintiff that the plaintiff would have a beneficial interest in the house. First, the assistance the plaintiff gave the testator in relation to repayment of the loan he had borrowed to pay the deposit cannot be construed as a contribution to the purchase price of the dwelling house. Secondly, on the plaintiff’s own evidence, the understanding between them was that each would own and have title to a house, the house in issue here being the testator’s. In fact, the plaintiff did acquire a house in her own name later, which she rented out.
Apart from that the court has been furnished with very little concrete evidence to support the plaintiff’s claim. Copies of the bank statements on the joint account of the testator and the plaintiff dating from 30th October, 1997 to 4th February, 1999 have been put in evidence. From the pagination of the statements I would surmise that the joint account was opened very shortly before 30th October, 1997. Over the period for which statements have been furnished there are gaps. Even if I was satisfied that the plaintiff’s claim for a beneficial interest based on the principles set out in W v. W. had been made out, I would find it impossible to calculate the contribution on the basis of the evidence before the court.
Answers to questions in relation to the second issue:
My answers in relation to the second issue are as follows:
(b)(i) The testator and the plaintiff did not own the dwelling house in equity as joint tenants at the date of the death of the testator.
(b)(ii) The plaintiff was not entitled to a beneficial interest in the dwelling house at the date of the testator’s death.
(b)(iii) This does not arise.
Cleary v Sibley
Set off
Supreme Court of Judicature.
Court of Appeal.
29 April 1909
[1912] 46 I.L.T.R 25
Sir Samuel Walker Bart., L.C., FitzGibbon, Holmes L.JJ.
Sir Samuel Walker, Bart., L.C.
The question I put to myself is whether there was any evidence that there existed a mutual contract between Cleary and the deceased during the twenty years he was about him that Cleary should receive during the lifetime of the deceased payment for services. If there had been a verdict to that effect upon reasonable evidence which pointed to it, I should not feel able to set it aside, however I might differ from it. But I think all the evidence given that Cleary did work and made himself generally useful, is referable to expectation of payment in the future by prospective benefits. The plaintiff’s son says: “I told him (the defendant) that my father had befriended the deceased and looked after his property.” Then Cleary (the plaintiff) says: “I regarded him as a member of my family. He used to give presents to my family, never to me. He always said he would leave me some of his property.” In that connection he claimed the three houses and the furniture given to him. Two sons were directly benefited, and the daughters did the marketing. There was a paid servant all along in the house. The statement, “He said he would settle up with me, and it would be better for me to get it when I was old,” really points, I think, to expectations. Did the plaintiff understand that Polson had a claim on him for his services? I think the evidence as a whole negatives the idea of personal pecuniary obligation, and the fact of no demand having been made for twenty years is only consistent with that view.
FitzGibbon, L.J.
Not only is there here no evidence of a contractual obligation upon Polson sufficiently definite in its terms to form the basis of a verdict for a liquidated sum upon indebitatus assumpsit, but the evidence of the plaintiff is inconsistent with the mind of Polson being conscious of a contractual liability which could satisfy the English authorities cited. To entitle the plaintiff to sue for wages he must have shown, on his own side, that he had undertaken an obligation to render; and that he had rendered, definite services corresponding in price or value to the obligation of Polson to pay the wages for which the action was brought, and of such obligation on either side there is, in my opinion, no evidence.
Holmes, L.J.
The claim indorsed on this writ of summons, in addition to other causes of action, finally disposed of at the trial, seeks to recover from the defendant, as personal representative of Thomas Polson, deceased, £300 for six years’ wages due to the plaintiff for attending on the deceased and for acting as bailiff over his property and as his servant day and night. The first difficulty the case presents is to find any evidence of such regular and systematic service as would be given in consideration of continuous wages. Although the claim is, by reason of the Statute of Limitations, limited to work done during the six years before action, it must be remembered that the plaintiff’s case is that he had been rendering similar services for at least twenty years, and the only approach to specific evidence of any acts of service relates to a period more than six years before action. I understand it to be admitted he is an uneducated man, unable to write or read, and that the only work he can do is what is known as unskilled labour. The first work he did for Polson was a small job in connection with a sewer, for which he was paid £2, and this was the only money given him by the deceased. This must have happened twenty years ago, and it was at that time the work for which he was to receive wages regularly began. All the personal wants of the deceased were attended to by his indoor servant and Mrs. Cleary and her daughters. Part of Polson’s property consisted of twenty-one small houses in Enniskillen occupied by tenants, and the only services suggested by the defendant for which wages were payable were connected with these houses. The only evidence given by Cleary of the nature of his work was:—“I employed contractors for the deceased, and I kept the keys of the houses and acted as his agent. I did any repairs I could myself.” Mr. Patchell stated that he thinks the word “agent” came, not from the plaintiff, but from counsel. It is quite certain the defendant had nothing to do with rent collecting. I cannot assume in the absence of specific evidence that a man who could not keep accounts or write a receipt was hired to collect the rents of twenty-one houses. There only remains the employment of contractors, the keeping of the keys of the vacant house, and an occasional small job such as an unskilled labourer could perform, and the evidence shows they were *26 rare and slight. In the absence of evidence of an express contract that the work should be paid for, the only inference that can be drawn from its nature is that the services were rendered voluntarily, partly in return for acts of kindness of the deceased and partly in expectation of further benefits. It is said, however, that there is some proof of an express contract. It consists of the following evidence given by the plaintiff:—“He said he would settle up with me and pay me, but my money was running on.” It does not appear at what period this conversation occurred, and it is not suggested that any rate of remuneration was spoken of. This evidence must be taken in connection with further statements made by the plaintiff on cross-examination. “He said my money was going on, and that it would be better for me to have it when I was old. … He always said he would leave me some of his property when he died;” and in connection with the fact that he claimed three houses, which he alleged were given to him by Polson previous to his death. The plaintiff, in his evidence, shows that if this gift had been carried out there would have been no demand for wages. Being unable to find any evidence from which it can be inferred that he did work for the deceased under a contract for payment, or that the deceased was even a “contracting” party with the plaintiff for continuous service and continuous pay, I am obliged to hold that the appeal ought to be allowed. I do not differ from Andrews, J., in his observations about corroborative evidence, or in the proposition laid down by him that if there was evidence from which a jury could infer the existence of a contract such as this—if you do the work I will pay you for it—and if there be evidence to show the work was done, then the case cannot be withdrawn from the jury. The ground of any decision is that, taking the plaintiff’s own evidence as a whole, it was not evidence from which a jury could infer the existence of such a contract as that suggested, and that therefore Madden, J., who tried the case, ought to have yielded to the defendant’s requisition to direct a verdict from him on the claim for wages.
In re Carey, deceased
Carey v Carey
Executor Stat Barred Debt
Chancery Division.
26 July 1915
[1915] 49 I.L.T.R 226
O’Connor M.R.
Motion on Notice. This was a suit to administer the estate of one James Carey, deceased. The plaintiff, who was his widow and administratrix, filed an affidavit alleging that in the year 1896, on the treaty for the marriage between her and the deceased, it was arranged that a sum of £220, the property of the plaintiff, should be lodged on deposit receipt in the joint names of the plaintiff and the deceased in trust for the plaintiff; that accordingly on February 7, 1896 (the day before the marriage was celebrated), the said sum of £220 was lodged in their joint names in the Munster and Leinster Bank, Kilmallock; that the said sum was to remain the absolute property of the plaintiff and that the deceased was to have no claim thereto; that in the year 1897, on the occasion of the purchase by the deceased of a farm at Ballyshonikin for the sum of £350, he requested the plaintiff to lend him the said sum of £220 to make up the purchase money as he had only £130, and that by way of security the deceased promised the plaintiff that the deed of conveyance of the said farm would be made out in the joint names of the deceased and of the plaintiff; that on this understanding the plaintiff went with the deceased to the said bank, and they drew out the said sum of £220 and £3 12s. 10d. interest thereon, and the said two sums were paid to the deceased; that the plaintiff afterwards discovered that the deceased had not kept his promise to her, as he had taken the conveyance of the said farm in his name alone; that on several occasions afterwards, when asked about the same by the plaintiff, he had put her off with some excuse. The plaintiff’s brother also filed an affidavit, in which he corroborated her story, and the defendant, who was the deceased’s son by a former marriage, did not offer any evidence on the subject. The deceased died on December 9, 1913, intestate, and on February 17, 1914, letters of administration of his estate were granted to the plaintiff. In the account lodged by the plaintiff she claimed to be allowed to retain the sum of £222 as “the amount of a loan advanced by her to the deceased about March 31, 1897.” The Chief Clerk allowed the said claim, and the defendant moved to have the said claim disallowed. The estate of the deceased was solvent.
Michael Comyn, K.C., for the defendant.—In the circumstances of this case the administratrix should not be allowed to retain this statute-barred debt. Where administration is granted to a creditor whose right of action is barred by the Statute of Limitations, the Court will make it a condition that he shall give a bond to distribute the assets pro rata amongst all the creditors, Coombs v. Coombs, (1866) L. R. 1 P. & D. 288. A creditor should not be allowed to take out administration merely for the purpose of getting paid a statute-barred debt. No doubt an executor may retain a statute-barred debt, but the case of a creditor-administrator is very different. In Shewen v. Vanderhorst, (1831) 1 Russ. & M. 347, in an administration action a creditor sought to prove for a statute-barred debt; the executors refused to interfere, but the plaintiff, who was a residuary legatee, insisted on setting up the statute, and it was held that it was competent for him or any other person interested in the fund to take advantage of the statute. In re Wenham ; Hunt v. Wenham, [1892] 3 Ch. 59, is to the same effect. I ask your Lordship to apply the principle of those decisions to the present case. [He also cited Davies v. Parry, [1899] 1 Ch. 602; 15 T. L. R. 186; In re Belham ; Richards v. Yates, [1901] 2 Ch. 52; In re Morley ; Morley v. Saunders, (1869) L. R. 8 Eq. 594.]
Philip White, for the plaintiff, contra.—There is no reason why the plaintiff should not be allowed to retain the amount of this debt owing to her. Shewen v. Vanderhorst (ubi sup.) and In re Wenham (ubi sup.) are clearly distinguishable. In those cases an outside creditor was trying to get paid a statute-barred debt against the wishes of a residuary legatee. Here it is the administratrix who is seeking to retain the amount of a debt owing to her against the wishes of one of the next-of-kin. The decision in In re May ; Crawford v. May, (1890) 45 Ch. D. 499, is an absolute answer to the objection made by the de *227 fendant, as in that case a widow-administratrix was held entitled to retain out of her deceased’s husband’s estate the amount of a debt due to her from him.
The Master of the Rolls held that the decision of the Chief Clerk must be affirmed, but decided that as the allowance to the plaintiff was properly brought before the Court for consideration the costs of both parties should be allowed out of the estate.
Daly v Murphy
Duty on Sale
[2017] IEHC 650
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 1st day of February, 2017
1. The plaintiff, who is one of seven beneficiaries in the estate of the late Mrs. Emily White, complains that the defendant’s personal representatives have failed in their duty to the beneficiaries by not obtaining the best price on the sale of the deceased’s home. The primary legal issue presented is whether the personal representatives are bound by the view of the majority of the beneficiaries in relation to how the estate is to be realised or whether they may be liable in negligence despite following the views of the majority.
2. As well as the oral and documentary evidence I had the benefit of submissions from Mr. Desmond Murphy S.C. Q.C. for the plaintiff and Mr. George Brady S.C. and Mr. Ciaran Foley S.C. (with Mr. Conor Cahill B.L.) for the defendants.
Procedural issues arising during the hearing
Admission of documentary material
3. In response to a request on behalf of the plaintiff, Mr. Brady agreed that a booklet of discovery documents relating to discussions regarding the possible sale of the property to Mr. Niall Mellon could be admitted in evidence as prima facie proof of their contents, although reserving the right to call evidence to correct certain points. In that regard it is worth mentioning that at least some of the documents have dates or figures that are either not completely accurate or are slightly ambiguous, but the thrust of the admitted documentation largely speaks for itself. Furthermore, the oral evidence on behalf of the defendants paints a broader and on occasion different picture than might be thought to emerge from some of the documents taken in isolation. In addition, on 14th October, 2016, Mr. Brady extended the concession so that two further documents which the plaintiff sought to rely on could be admitted on the same basis, as prima facie evidence of their contents, namely a minute of a meeting on 14th March, 2007, by Mr. Maurice Kelly and a memorandum of Mr. Stephen Maher of 9th March, 2007.
Amendment of pleadings
4. An unusual issue arose in relation to the relationship of the plaintiff to the White family. The plaintiff is one of seven children of the late Mrs. Emily G. White, but at some point developed the clearly delusional belief that she was not their biological child. Hence she appears to have adopted the alias of “Aideen Doyle” rather than her given name of Clodagh White.
5. Paragraph 1 of the statement of claim as originally delivered pleaded only that she was treated as a daughter of the deceased, rather than that she actually was a daughter.
6. It seems questionable whether this could be said to comply with O. 19 r. 3 of the Rules of the Superior Courts which requires pleadings to “contain…a statement in a summary form of the material facts on which the party pleading relies for his claim”. A statement that one had been treated as a child of the deceased and that the defendants were estopped from denying that status does not seem to me to be a sufficient basis to ground a claim such as this in the absence of any legal submission that there is a legal doctrine whereby such past treatment gives rise to an entitlement to similar continuing future treatment irrespective of the true biological status of the plaintiff; or in other words that the defendants are obliged to keep giving the plaintiff money just because they made the mistake of wrongly giving her money before. Mr. Murphy made clear he was making no submission that merely having been treated as a daughter in the past would suffice to ground the action. It seemed to me therefore that in order to pursue the claim properly, the plaintiff would have to seek to amend para. 1 of the statement of claim to positively plead her status as a daughter of the deceased. Unless she is such a daughter, her claim must be dismissed.
7. Mr. Murphy duly applied for this amendment which was made on consent. No amended defence was required because the defence as originally delivered had already admitted that the plaintiff was a daughter of the deceased (a curious formulation given that this had not been originally pleaded).
8. The document produced to me as an amended statement of claim did not however comply with what Delaney and McGrath (in Civil Procedure in the Superior Courts (3rd ed.), pp. 310-311) call “the universal practice”, whereby the new matter be underlined, the old matter struck through and an appropriate heading inserted identifying the pleading as an “Amended” statement of claim pursuant to an identified order of a particular date. I agree with the view of Delaney and McGrath as to the appropriate form of amended pleadings so I allowed the plaintiff liberty to deliver a further amended statement of claim to comply with this practice.
9. However, despite the unanimity of view on the pleadings that the plaintiff was the daughter of the deceased, the plaintiff’s oral evidence did not come up to the mark. In reply to a direct question from her own counsel she only stated that she was the “registered daughter” of the deceased. I will return to this issue below.
The position of Mr. Mellon
10. By way of replying submissions after the close of evidence Mr. Murphy suggested that I should allow Mr. Mellon to intervene in the proceedings in order to vindicate his rights having regard to In re Haughey [1971] I.R. 217, by reference to the suggestion made on behalf of the defendants that he was lacking in funds and a maverick, and by reference to a stray comment by Mr. Foley in submission that inappropriately characterised Mr. Mellon’s work in South Africa as “building mud huts”. While I corrected the latter remark and it was promptly withdrawn, Mr. Murphy drew my attention to the fact that the remark was given some publicity in a newspaper report on Saturday, 26th November, 2016 (after the close of evidence). The allegation regarding his lack of funds arose in the context of the evidence and the appropriate time to deal with that allegation was during the evidence.
11. The newspaper article is headed “Mellon was away ‘building mudhuts’” and gives prominence in the second paragraph to the suggestion that Mr. Mellon was a maverick and in the fourth paragraph to a suggestion that he was away building mud huts. The next paragraph refers to my having sought to correct this.
12. But the plaintiff cannot enforce the rights of a third party. In the absence of any application by Mr. Mellon (even assuming arguendo the perhaps questionable proposition that he could intervene in some fashion), In re Haughey does not arise. All I can do is emphasise again that the reference to Mr. Mellon building mud huts was inappropriate but Mr. Foley accepts this and withdrew it. The suggestions that he was a maverick or lacked funds are well within the legitimate arena of points that could be advanced by the defendants and would have had to be dealt with by the plaintiff in the course of the trial. “Maverick” is in any event not much of an insult and could be a compliment depending on your point of view. The mud huts issue is best dealt with by a gentlemanly apology; but my declining to invite Mr. Mellon to appear, as sought, does not infringe any rights of the plaintiff.
Findings of fact
13. In addition to the documentary materials referred to above I have heard oral evidence from the plaintiff and from the first named defendant and Mr. Barry White. I set out under this and subsequent headings of this judgment my findings of fact having heard and seen the witnesses, and having had regard to the documentary evidence and submissions.
Background and run-up to the decision
14. The late Emily G. White married Kevin White on the 11th February, 1942. Between 1943 and 1962, seven children of the marriage were born: Hilary, Barry, Niamh, Aideen, Derval, Clodagh and Cliodhna. The family home was a property known as “Chimes” on Mount Anville Road. In 1955 a family company, Robins White and Company was established, and became the owner of a property named “Thendara” adjacent to the family home.
15. The plaintiff was born in 1957 although as noted above she appeared to be of the view that the birth certificate produced for her was not her real birth certificate. She produced a copy of a certificate dated 5th August, 1966, and contended that her birth was not registered until then. Unfortunately there is no rational basis for that belief. The date in 1966 is simply the date on which that particular copy of the birth certificate was generated.
16. The plaintiff exhibited symptoms of epilepsy from around 1974 (aged 17).
17. In 1982 Kevin White had a stroke and in 1984 the plaintiff was looking after his property on his behalf.
18. The plaintiff suffered a first grand mal seizure in 1991. There were further seizures thereafter.
19. In 2000 she had treatment in Beaumont Hospital which involved the removal of a portion of her brain in the frontal lobe.
20. In terms of the material given in evidence, the plaintiff’s history of complaint and allegation against a wide spectrum of parties appears to begin after these events. She subsequently launched personal injury proceedings against the hospital [2007 No. 41 P]. She also made a complaint to the medical council against various parties including her sister Aileen. The medical council did not take that complaint further, although the plaintiff implausibly denies that it was rejected.
21. At some point, not identified precisely, the plaintiff developed the delusion that she was not the child of her parents. The epistemological basis for this belief was idiosyncratic and obscure but was related to alleged conversations she had with shadowy advisers in particular a “registered solicitor”, “an artist in Shanganagh” and an unnamed staff member in the Coombe who allegedly told her that her father was not her father, and that she was not the child on her birth certificate. On foot of this position, the plaintiff then adopted the alias of Aileen Doyle.
22. Emily White died intestate on 8th April, 2001. Her husband having predeceased her, the beneficiaries of her estate were the seven children in equal shares.
23. The plaintiff was let go from her job as a researcher in 2002 and left the family home Chimes in February, 2004. She went to live at an address in Dundela Haven which was rented accommodation.
24. In June or July, 2004 she made a complaint (never substantiated) to the Gardaí about Cliodhna in relation to how Mr. Kevin White’s assets had been handled. Two Gardaí called to Chimes to interview Cliodhna on Christmas Eve as a result.
25. The plaintiff also wrote a letter to the Minister for Justice, copied to the cabinet, complaining about her brother Mr. Barry White. She also wrote a work of fiction, “Web of Deceit”, whose characters bear some resemblance to her siblings, and where further scandalous suggestions of fraud are imputed to those characters.
26. In addition she maintains a blog which she says includes “a combination” of complimentary and derogatory matters in relation to her siblings. That is too innocuous a description because the blog propagates further scandalous allegations including a suggestion that a family member escaped bankruptcy proceedings through fraud.
27. At Christmas 2004, the plaintiff says Ms. Hilary White contacted her to invite her to Christmas dinner, which she refused as she said she was going away. She said that Hilary called her at other times.
28. The inland revenue affidavit was sworn on 24th September, 2005. (A later corrective affidavit relating to UK assets was sworn on 6th July, 2007.)
29. In November, 2005 Hilary and Barry White called to her house. She says she met Barry twice there and once in his own house “at the suggestion of the Guards”.
30. On 16th February, 2006, letters of administration were issued to the defendants Niamh and Derval White.
31. On 27th February, 2006, the plaintiff wrote a letter to the probate office, liberally copied to various parties, complaining about the management of the estate and referring to “my natural mother Louise Doyle/ Louise Walsh”, a mysterious presence in the case, being a person who she said in evidence was a director of FÁS while she was there. In reply to a direct question she said in evidence “she is, I believe, my natural mother”. She identified further shadowy advisers, a Garda, a politician’s spouse and a jewellery shop owner, as the sources of this information. The letter made absurd and scandalous allegations regarding what would amount to fraud in the administration of the estate and included fantastical allegations regarding non-existent assets in National Toll Roads and a company called Baillie Gifford. I accept Ms. Niamh White’s evidence that there were no assets of the estate in any such entity.
32. The plaintiff said that Ms. Hilary White came to see the plaintiff in Dundela Haven accompanied by Dr. Maureen Boyd. The plaintiff clearly did not welcome this visit and called the Gardaí while the visitors were at the door. The shadowy figure of a Mr. Tony Smaille, who the plaintiff describes as a “lay litigant” then enters the scene. She says that he advised her to take a private prosecution against Ms. Hilary White, which she did. One of the recurrent themes of the plaintiff’s evidence was a denial of personal responsibility and a deflection onto other people of authorship of events and developments, of which pinning the idea for the private prosecution on Mr. Smaille was one example. Her evidence in this regard was evasive and contradictory and while she initially denied that it was a private prosecution she subsequently admitted this. The prosecution involved Ms. Hilary White having to attend the District Court for two days and having bail conditions. The plaintiff’s recollection of this matter was selective and self-serving.
33. In August, 2006 Hilary White then made a second visit for the purposes of having the plaintiff afforded mental treatment. As a result the plaintiff became a patient in St John of God’s from 8th August to 29th September, 2006.
34. A DNA test was conducted during her committal on 4th September, 2006, which showed, according to a letter from DNA Ireland to a doctor at St. John of God’s Hospital dated 19th September, 2006, that Clodagh and Hilary White were full biological siblings to a 99.9987% probability. The plaintiff implausibly claimed in evidence that there was a second page to this document which contradicted this finding and further that the finding was contradicted by a document of instructions for the test, but neither document was produced. Again a shadowy adviser, “a lecturer in DCU”, emerged in the plaintiff’s evidence to allegedly say that the test is not proof.
35. Sometime after the plaintiff left St. John of God’s she discovered that Hilary had been kind enough to pay her VHI for the period without her knowledge. The plaintiff phoned VHI to complain about this.
36. The plaintiff says that her “former bank manager” then suggested that she stop paying rent on her accommodation and “see what happens”. That the plaintiff stopped paying rent appears clear; that she implausibly pins responsibility on a third party is all too characteristic of her evidence and mind-set. In terms of seeing what happened next, what happened was that landlord and tenant proceedings took place in relation to the matter. The plaintiff claims that her landlord brought a case to a tribunal; thereafter further proceedings took place in the Circuit Court on 20th December, 2006. She claims that the case was listed for 10:00 a.m. and she arrived at 10:07 a.m. to find it had already been dealt with. There then appears to have been an appeal to the High Court.
37. The upshot was that locks were changed and she was evicted on 16th January, 2007. She made no effort to contact her family. She denied that she did not want them to contact her and said they were obliged to do so.
38. It was decided to place “Chimes” and “Thendara” on the market, which was done on 21st February, 2007. The advisers to the personal representatives were Jones Lang LaSalle (JLL), principally Mr. Des Lennon of that firm, and the legal advisers to the personal representatives were Messrs. Daniel C. Maher and Co. (in particular Mr. Steven Maher) and Mr. Ciaran Foley S.C.
39. Around this time the plaintiff said she was living in bed and breakfasts and youth hostels. She said she was aware of the sale but was not told of a date. She said her solicitor, Daniel Montgomery of Thomas Montgomery & Son, was in contact with the estate. As of 29th January, 2007, she spent a couple of nights in a B & B on the Meath Road, Bray. She then spent two weeks in another B & B also on the Meath Road. Then she went to a B & B in Ulverton Road Dalkey for 7 to 10 days. After that she went to a youth hostel in Monkstown up to around 17th March, 2007. She ultimately accepted in cross-examination that with all this moving about, her family did not know where she was or have her phone number (having initially claimed in evidence that they had it). She did not contact them. Her solicitors did not make contact until their letter of 9th March which would have been received on Monday 12th March.
Tenders open – Mr. Mellon’s interest
40. On or about 6th March, 2007, tender documents were sent out to approximately ten to twelve potential bidders.
41. On the same date a meeting took place between Mr. Lennon and Mr. Niall Mellon and his wife, at which Mr. Mellon indicated he wanted to put in an offer before the tender date. He stated (for whatever reason) that he never tendered in Dublin. Mr. Lennon said that the vendors expected strong bids on the day, that eight tender packs had been issued already and there were at least six serious runners.
42. Mr. Mellon offered €17m on the basis of a contract being signed within 24 hours. Mr. Lennon indicated that his clients had rejected an offer for €15m before the tendering process had begun. Eventually Mr. Mellon offered €18m which was to be open until 11am the following Friday. On 7th March, 2007, Mr. Steven Maher wrote a memo to file broadly to this effect.
43. A phone call took place on 7th March, 2007, between Mr. Lennon and Mr. Mellon during which Mr. Mellon indicated he “might go to €18.5m”.
44. On 8th March, 2007, Mr. Maurice Kelly on behalf of the defendants wrote a memo indicating that he had spoken to Mr. Paul O’Connor, an employee of Mr. Mellon, who indicated that Mr. Mellon would not be “running on the site”, which was understood to mean that he would not be tendering.
45. At 2.46pm on 8th March, 2007, Mr. Lennon wrote to Mr. John Mulcahy, also of Jones Lang LaSalle, indicating that Mr. Foley believed that Mr. Mellon was “bluffing”. He indicated that he was due to meet the Whites at 5.30pm that day to put a “recommendation that they deal”.
46. At 4.20pm on the same day Mr. Lennon wrote a memorandum indicating that Mr. Mellon was offering €18.5m on condition that there would be no media coverage and that there would be a decision by that evening. Ultimately Mr. Mellon then reverted to 11 a.m. on the Friday.
47. Mr. Maher also wrote a memo on 8th March, 2007, in advance of a meeting of the White family, indicating that Mr. Lennon had phoned, was going to the meeting of the Whites which took place in Chimes, and was “concerned” if it would transpire that the Mellon offer was rejected and the tenders turned out to be lower. Insofar as such a concern was expressed I find that not in any way to establish actionable wrong on the part of the administrators in not accepting Mr. Mellons’ offer. It was simply a concern. If fears as to weaknesses in one’s position were to be elevated to evidence of actionable negligence, then only those possessed with absolute certainty and self-belief could put up a defence.
The meeting of 8th March, 2007
48. In preparation for the meeting in Chimes, the firm of Jones Lang LaSalle prepared a document entitled “marketing update” in which they stated expressly that “it does not appear likely that we are likely to get a clean unconditional offer in excess of €18m from the othe[r] parties who have expressed interest”.
49. They stated that reverting to Mr. Mellon after the tendering process would result in the €18m offer going off the table. The document referred to a “significant change of sentiment recently” in relation to residential property prices, and also to the “lower demand, and in some cases falling values, of residential units”.
50. The recommendation of the defendants professional advisers at that point was “to immediately engage with [Mr. Mellon] in an effort to secure a signed contract within the next 48 hours at an acceptable level on acceptable terms”. A draft letter was prepared asking him to increase his offer, provide proof of funds, and sign a contract and pay a deposit immediately.
51. A family meeting then took place in Chimes from 5.30 p.m. until 11 p.m. The plaintiff was not present. Mr. Mellon’s offer was received with scepticism.
52. There was some difference in the documentary material as to what, if anything, was decided at this meeting, but the best guide to answering that question is to see what happened after the meeting.
53. The following day, 9th March, 2007, Mr. Maher wrote a memo indicating that at 10 a.m. Mr. Foley had phoned and stated that in discussing the Mellon offer of €18.5m, Jones Lang LaSalle had noted “the lack of interest of other parties”. According to the memo, the offer was rejected and the family wanted an offer in excess of €20m. The only reason for the rejection appearing in the memo was a belief that Mr. Mellon was acting in concert with O’Malley Construction, who were proposing development of another site in the vicinity. The memo noted that Jones Lang LaSalle were obliged “to follow clients instructions”, suggesting that the course of action being taken was not one they had recommended.
54. A slightly different account of the meeting was set out in a memo of a conversation between Mr. Lennon and Mr. Foley also dated 9th March, 2007, which stated that the meeting was “inconclusive” and that the family wished to confer with the two missing family members before deciding.
55. On 9th March, 2007, Ms. Derval White phoned Mr. Lennon at approximately 9:15 a.m. stating that the family were agreed that they would consider stopping the tendering process if the offer from Mr. Lennon was for over €20m. Mr. Lennon (who wrote a memo of the call) advised Mr. Foley of this, who indicated that he was disappointed because “he had advised them…to take €18/18.5m”.
56. The really crucial point as to what was decided at the meeting is not so much the “fog of war” of the various memos but what actually happened as a result. What actually happened was that a letter was sent by fax at 10:24 a.m. on 9th March, 2007, in accordance with the draft in the Jones Lang LaSalle marketing update.
57. In the light of the fact that a letter as recommended by JLL was ultimately and indeed fairly promptly sent, I find that the administrators did in fact follow professional advices in relation to this matter. If one had to reconcile the memos with what did in fact happen I consider the most likely course of events was that the administrators may not have immediately given instructions to follow the JLL advice to send a letter, and may have needed time overnight to consider it, but they did so in the course of the following morning and therefore there was no failure to follow advice and no breach of duty in this regard.
The ball back in Mr. Mellon’s court
58. Later that day, a conversation took place between Mr. Lennon and Mr. Mellon, in which Mr. Lennon proposed the subject of a €20m offer and Mr. Mellon said he was “all out” at €18.5m. The only sweetener offered was to pay the engineer’s fee.
59. Mr. Lennon reported to Mr. Foley who expressed disappointment. He also phoned Derval White and told her that Mr. Mellon was out of the running and wished them well.
60. At 2:15pm, Mr. Foley phoned Mr. Maher and stated that Niamh White was “now very worried” and was of the view that “everything that [Mr. Foley] had predicted has come true”. She was “very worried about the position that Dodo [i.e. Derval] has now taken”. Mr. Foley advised her to resign immediately as personal representative and Mr. Maher stated that he concurred in this advice. The memo expressed concern that “they have made a serious error”, and feared concerns that “Dodo” had made a decision without contacting all of the parties and had put the personal representatives in “a position of recklessness”. Mr. Foley was also noted as expressing concern that there had been no board decision in relation to the rejection of the offer, given that the board of directors of Robbins White and Company also had an interest in the transaction. Again however this material does not establish negligence or breach of duty on behalf of the defendants. All it indicates at most is concern and nervousness at a particular point in time on the defendant’s side. Such concerns do not undermine a party’s case. “There are many cases you cannot win; there is no case you cannot lose” (C. Michael Abbott, in Ron Liebman, Shark Tales (New York, 2000), p. 95). Unless counsel are sweetly oblivious of litigation risk, concerns as to real or apparent weak points in one’s case will always be part of one’s thinking. That may give rise to giving written expression to such concerns and considering or taking measures by way of defensive risk-reduction, but the giving of thought to such measures does not go anywhere near establishing that a party’s case is in fact weak or unfounded.
61. The plaintiff then enters the picture. By letter dated Friday, 9th March, 2007, Mr. Montgomery, the plaintiff’s solicitor, wrote to Mr. Maher objecting to any suggestion that the plaintiff was unable to manage her affairs and complaining that she had not been consulted in relation to the company. This letter, posted on a Friday, would not have arrived until the following Monday, 12th March, 2007. The letter contained a threat to issue proceedings under s. 205 of the Companies Act 1963. The plaintiff accepted that this could have jeopardised the sale but stated that she gave no such instructions and the letter was issued without her knowledge (another example of her deflection of responsibility on to other parties). It is implausible that a letter threatening legal action would have been sent without instructions, especially where the action would have held up sale of a property that was at an advanced stage of tendering. I am of the view that the probability is that the letter was indeed based on instructions. The instructions so given by the plaintiff were clearly seriously inaccurate in that the letter claims that a substantial asset, a house in Galway, had not been included in the inland revenue affidavit. This house was included in the affidavit.
62. On Monday, 12th March, 2007, at 12 p.m., Mr. Mellon and Mr. Lennon had a further phone conversation during which Mr. Mellon indicated he would increase the offer to €19m but would not tender. Mr. Foley discussed the idea of asking Mr. Mellon to sign a contract at that point. Ms. Derval White was of the view that it was “too late and too difficult to get everybody together at this late stage”.
63. At 2:05 p.m., Mr. Lennon was in telephone contact with Mr. Maher. He stated that he had spoken to Mr. Foley. “Dodo” White was of the view that the offer “should be utterly rejected”.
64. At 3:50 p.m. that day, Ms. Cliona White left a message for Mr. Lennon. Mr. Lennon spoke to Mr. Foley about 6 p.m. who advised him not to reply because the family were meeting later as a group.
65. At around 4:30 p.m., Mr. Mellon unilaterally signed a contract to purchase the property for €19m and handed over a cheque for a deposit. He enclosed a letter from the Irish Nationwide Building Society confirming that funds “will be made available” subject to general terms and conditions. A post-it note on the contract stated that it was subject to acceptance by 7 p.m. that day. It was also signed “in trust” for an unidentified principal.
66. Subsequent to receipt of this document, Mr. Lennon and Mr. Foley had a discussion during which Mr. Foley expressed certain concerns, namely that the letter from the building society was not proof of funds, the contract was signed “in trust” and the deadline condition was not witnessed.
67. Mr. Foley spoke to Mr. Barry White around this time who noted that they would probably reject it and wait as Mr. Mellon “was the only person who really wanted to buy it”.
The meeting of 12th March, 2007
68. A further family meeting then took place on the evening of Monday, 12th March, 2007. Again, the plaintiff was not present.
69. Ms. Niamh White gave evidence that she followed the advice of her solicitor Mr. Maher in not accepting the Mellon offer and I accept her evidence. I find as a fact that the administrators did properly follow professional advice given to them in this respect. Insofar as it was suggested by Mr. Murphy that the administrators disregarded JLL advice (as opposed to legal advice) on the 12th, by not following the original marketing update, that suggestion fails to have regard to the fact that the administrators were in constant communication with JLL in the evolving situation. The marketing update of the 8th was not the totality of the advice from JLL and it has not been shown that the administrators failed to apply the advice given on the 12th. In any event the legal advice was clear and was followed and that had priority over any contrary advice from JLL, if there was any.
70. Furthermore Mr. Barry White gave evidence that another factor was the plaintiff’s history of allegations against family members; and that in effect it was better to play the tender process by the book, because if it was derailed in favour of Mr. Mellon there would probably be an allegation of impropriety made. I accept the reasonableness of that approach and, while this evidence was given by Mr. White rather than the administrators, I consider that to the extent that it could have influenced the decision-making process of the latter by reinforcing the conclusion they were led to by legal advice, that was a reasonable and lawful concern to have had. The plaintiff by her own conduct in her history of outrageous false allegations against family members had made it significantly more likely that the defendants would adopt a risk-averse approach.
71. One of the mysteries of the case is as to why Mr. Mellon did not actually submit a tender. I consider as a matter of probability that it was because he did not in fact have the funds immediately available, which is consistent with the terms of the letter provided and with his seeking further time to get proof of funds. But even if I am wrong about that, I find that it was reasonable for the administrators and their advisers to have suspected that to be the case and to not have accepted his offer on that basis.
72. While some of the documentary material suggested that the decision adverse to Mr. Mellon was 4:2 amongst the beneficiaries, having heard the witnesses I accept the evidence on behalf of the defendants that it was in fact unanimous.
Fallout from meeting of 12th March, 2007
73. On Tuesday, 13th March at 9:03 a.m., Ms. Niamh White informed Mr. Lennon that the decision was not to accept the offer.
74. On 13th March, 2007, Mr. Maher advised Ms. Derval White that he had had a call from the plaintiff’s then solicitors and had advised them that that day was the tender date and he should wait and see what happened rather than proceed with some form of High Court application as being threatened at that point (as set out in a letter dated 13th March from Mr. Maher to Ms. Derval White). Mr. Montgomery did in fact take up that suggestion and did wait and see. So the plaintiff was in fact informed of the situation with the tender process prior to the opening of tenders. As noted above, the plaintiff in the witness box denied instructing Mr. Montgomery to threaten s. 205 proceedings. I find her evidence unconvincing and characteristic of the ducking and weaving of the plaintiff’s account.
75. Mr. Lennon made a note of a phone conversation with Mr. Foley at 7:45 a.m. on 13th March, 2007, indicating that the time factor did not help with the offer, the letter from the building society was insufficient, and the signature “in trust” was not accompanied by a declaration of trust. The view was that Mr. Mellon should tender for the property and Mr. Foley advised Mr. Lennon to contact Mr. Mellon and inform him of the situation. Thus there was a decision to actually revert to Mr. Mellon before the tender process was completed. That would have given him an opportunity to make a further intervention if he saw fit.
76. Subsequent to this, Mr. Lennon wrote to Mr. Mellon returning the cheque.
77. Tenders were opened at 12:00 p.m. on 13th March, 2007, at which point one tender had been received for €15.3m. On foot of this, Mr. Mulcahy and Mr. Lennon reported to the personal representatives indicating that “the market continues to soften” and current levels of value “may not be available in the future”. The recommendation was to negotiate with the highest bidder.
78. A further family meeting took place on 14th March, 2007, at 7 p.m. Mr. Maurice Kelly of JLL wrote a minute of this meeting in which it was noted that Mr. Mulcahy of JLL had indicated that it was not unusual that only one tender would be received from 10 sent out, and that “market sentiment and uncertainty about the road” [i.e., the proposed Eastern by-pass at the back of the lands] had the effect of causing a significant shortfall from the asking price.
79. The JLL advice was to engage with the tenderer and see if the position could be improved and only if the tender failed should they revert to Mr. Mellon. Thus the failure to revert to Mr. Mellon after the 14th March was on foot of professional advice.
80. Ultimately, the sale was concluded at €16.45m, the vendors having negotiated up with the successful tenderers.
81. The plaintiff learned of the sale after the event, not having been invited to meetings. In direct evidence she said that “they had my mobile number” but under cross-examination she admitted that her number had changed from time to time. It is clear that the family did not have her number although they did know of the most recent of a number of solicitors acting for her and had corresponded with them.
82. In late 2007, Mr. Mellon bought the property from the successful bidders.
83. The shareholding of the company at this time was 999 shares held by the estate of Emily White and 1 share each held by each of the 7 children. The directors were all of the children except Aideen and Clodagh.
84. Towards the end of 2007 or early 2008, the company was wound up and the assets distributed to the shareholders.
85. These proceedings were instituted on 7th February, 2012.
What needs to be established for a verdict in favour of the plaintiff?
86. It seems to me that the plaintiff needs to establish the following in order to succeed:
a. that the plaintiff is a daughter of the deceased (and therefore entitled to an equal share with the other children in the estate of the deceased);
b. that the defendants failed in their fiduciary duty to the plaintiff to maximise the value of the estate;
c. that any such failure is not excused in the circumstances by reference to the defendants having acted in accordance with the wishes of a majority of the beneficiaries;
d. that the plaintiff suffered loss thereby.
The plaintiff’s status as a daughter of the deceased
87. As noted above, in this case the plaintiff only stated in evidence that she was the “registered” daughter of the deceased but at the same time she maintained in evidence that her birth registration was inaccurate.
88. When asked if she was the actual daughter of the deceased, she evaded the question and ultimately professed not to know. She conveyed to me in a myriad of ways the clear impression that she does not believe herself to be the daughter of the deceased despite expressly denying having a belief one way or another, and I consider her expression of open-minded uncertainty is more likely than not to be a convenient dilution of her actual beliefs; a dilution which I infer is due to some form of awareness of the possible legal consequences of stating those actual beliefs. She referred, distastefully, to the Whites as “that family”, “those people” or “the White family”, very much putting herself outside that group. “I lived with those people” is the rather repugnant way in which she described her childhood. In any event, the onus of proof being on the plaintiff, the issue arises as to whether it is sufficient to say “I don’t know” in response to a question as to whether an essential proof in order to succeed exists – in this case whether she is the daughter of the deceased. Under cross-examination she went further and stated that the basis of her case was that she was treated and regarded as a daughter, and inferentially that the basis was not that she actually was a daughter. That effectively amounts to a repudiation of the case as pleaded.
89. In correspondence she stated that another person was her birth mother and at one point in her oral evidence she positively gave it as her belief that another person named Walsh/ Doyle was her “natural mother”. Overall, it seems to me that a party carrying the onus of proof cannot equivocate on whether an essential element of their case exists, and a fortiori cannot deny that element. But for the fact that the defendants did not appear to wish to take this particular point against her, I would have dismissed the action on that ground alone.
Whether the defendants failed in their duty to the estate
90. Personal representatives have a number of fiduciary duties to the beneficiaries (see e.g., In re Tebbs [1976] 1 W.L.R. 92, Shaughnessy v. Shaughnessy [2016] IEHC 303 (Unreported, High Court, Gilligan J., 25th May, 2016)) including due diligence (In re Tankard [1942] 1 Ch. 69), the duty to act with the care that might reasonably be expected from a careful person in the prudent discharge of his or her own business (In re Gunning; Little v. Governors of Co. Down Infirmary [1918] 1 I.R. 221) and a duty to maximise the value of the estate. In the course of a very able submission on behalf of the plaintiff, Mr. Murphy contends that there are a number of failures in duty by the personal representatives as follows.
91. The first complaint is failure to take the advice of the estate agents and lawyers in relation to not accepting Mr. Mellon’s offer on 8th March, 2007. Mr. Murphy submits that the JLL advice was to deal with Mr. Mellon’s offer and they did not do that. As set out above I have found as a fact that there was no failure to take and appropriately follow legal and JLL advice on the 8th March.
92. It should also be noted that the argument was not based on the proposition that the advices given were themselves negligent (which they did not appear to me to be on the evidence in any event). The issue was whether the advices were followed. I am satisfied on the balance of probabilities that it is not the case that there was a failure to heed or follow professional advice. As regards the first allegation, on the evidence before me it is not the case that the advice of professional advisers was rejected. The advice on 8th March, 2007, was essentially to engage with Mr. Mellon and to seek proof of funds and a higher offer; but that is what happened. The advice in the JLL marketing report of 8th March was not rejected. There was no breach of duty.
93. The second complaint is, having been advised on 8th March of the market difficulties (advice Mr. Murphy says “was still in force”) and having had only one tender offer by that stage and no updated evidence that an additional tender was likely to appear, the personal representatives decided to gamble on 12th March, 2007, by “concocting reasons” to reject Mr. Mellon, their views being “coloured by the obsession that the property was worth €20m”. As set out above I have found as a fact that the administrators did follow professional advice on the 12th March.
94. No “gambling” has been established. The plaintiff’s case is merely an exercise in hindsight. I am satisfied on the balance of probabilities that, on the evidence, the defendants were acting on legal advice in rejecting the Mellon offer based on the fact that the contract was signed in trust and that funds were not actually in place. This was a reasonable approach and was not negligent or in breach of duty. Mr. White referred in evidence to the possibility that Mr. Mellon could be buying the property on behalf of a company with no assets and that the estate could be left high and dry in those circumstances. No declaration of trust was produced. I accept that evidence and that it was reasonable for the administrators to have been concerned about such a contract. The 8th March advice was not “in force” in the sense in which Mr. Murphy submits because the defendants were in constant touch with JLL and legal advisers. In any event legal advices had priority. The allegation that the defendants were concocting reasons or obsessed with a belief in the property’s value of €20m is not made out in evidence.
95. The third complaint is failing to go back to Mr. Mellon after the tender was received on 13th March, 2007. This breach was not in fact pleaded and therefore the plaintiff cannot succeed under this heading but in any event the professional advice from JLL on 14th March, 2007 was to pursue matters with the successful tenderer and to go back to Mr. Mellon only if that failed. Thus there was no breach of duty relating to a failure to follow advice. Furthermore, on 13th March, 2007, JLL decided to revert to Mr. Mellon to inform him of the situation which would have allowed him to make a further intervention if he was so minded.
96. The fourth complaint is the suggestion that the personal representatives failed in a duty to consult the plaintiff although Mr. Murphy accepted in submissions that this did not give rise to a cause of action as such but rather was a factor to be taken into account in relation to the other matters. As the other matters do not establish a breach of duty, the failure to consult the plaintiff does not arise; but even if it did, the plaintiff’s history of scandalous allegations against family members meant that any failure to consult her in such circumstances was reasonable. The plaintiff by her conduct detached herself from the family by a course of conduct over a period of years, including but not limited to writing scandalous letters, publishing a book with scandalous innuendo, and making frivolous and vexatious complaints against family members. I accept Mr. White’s evidence that none of her complaints had any substance. The plaintiff’s evasive and misleading evidence given initially that the other family members had her mobile number was later resiled from. The plaintiff did not furnish contact details to family members and insofar as she was not consulted I find that she effectively locked herself out of the situation. The administrators cannot be faulted in the circumstances for not seeking to contact her through Mr. Montgomery who was but one of a series of solicitors through whose hands the plaintiff has passed over the years.
97. Having seen and heard the witnesses and having regard to the nature of their answers I accept the evidence of Ms. Niamh White and Mr. Barry White as honest and reliable. Insofar as the oral evidence on behalf of the defendants could be seen to differ in any way from the position that could emerge from the documentary materials considered in isolation I prefer the oral evidence on behalf of the defendants because it explained and contextualised the broad situation in a manner that isolated concerns recorded in a limited number of documents do not accurately represent. Overall, and in particular where it conflicts with that on behalf of the defendants, I reject the plaintiff’s evidence as not only frequently evasive and unreliable but unfortunately deluded in many respects. Regrettably I am satisfied that her lengthy history of launching allegations is the work of a fantasist.
98. There was no breach of duty by the administrators as alleged or at all.
Is any conduct of the administrators protected by section 50?
99. If I am wrong as to the foregoing, the issue arises as to the inter-relationship between s. 50 of the Succession Act 1965 and the fiduciary duties of personal representatives and in particular whether any possible breach of duty by the administrators is excused by reference to their acting on the basis of the wishes of a majority of the beneficiaries.
100. Mr. Murphy submits that s. 50 amounts merely to a duty to consult and does not involve a duty to follow the wishes of the majority. However that is not what the section says.
101. Mr. Brady relies on s. 50 of the 1965 Act as a complete defence to the proceedings. The section requires that the personal representatives are to comply with the wishes of the beneficiaries, by majority of value, as far as practicable.
102. When does this become impracticable? Mr. Foley relied on P.P. v Health Service Executive [2015] 1 I.L.R.M. 324 in relation to the use of that phrase in Article 40.3.3° of the Constitution, although that was a case where there was no real possibility of vindicating the interests of the (unborn) rights-holder in question so it is not hugely illuminating in the present case.
103. In the s. 50 context, M.K. v. J.B. [1999] IEHC 117 (Unreported, High Court, Carroll J., 26th February, 1999) is one such case, where an underage beneficiary who objected to the sale of his childhood home was overruled by Carroll J. who held that it was not “appropriate or practicable to give effect to [his] wishes.” One can note in this phrase a stealthy expansion of s. 50 to cover the view that upholding such wishes was not “appropriate”. The child’s aunt, who wanted to sell the house over the wishes of the child and his father, had a litany of reasons for doing so which do not seem hugely convincing in the cold light of retrospect. Particularly unimpressive was her objection that “if he has an attachment to the property it is unhealthy” (because of his allegedly troubled childhood therein). If Dante were writing today he might well reserve a special circle for those who launch objections to other people’s attachments to particular real or personal property. To be attached to a particular house for example is a part of what social geographers and urban planners would now call a sense of place. To be attached to a particular location and property is a prerequisite for an advanced society, because “civilization can never grow up on the move” (Dr. Jacob Bronowski, The Ascent of Man (London, 1973) p. 60). The attachment to particular real or personal property is part of the emotional identity of the individual and deserves to be respected as such. One cannot help feeling that the views of the beneficiary were too readily overridden in M.K., particularly because it was not at all clear that giving effect to those wishes was impracticable, that is, incapable of being put into practice. M.K. is not a decision from which huge assistance can be derived for present purposes and does not provide a basis in principle to override the views of beneficiaries of full age and capacity, or a majority by value of them.
104. In Kennedy v. Kennedy [2007] IEHC 77 (Unreported, High Court, 26th January, 2007), O’Neill J. emphasised that beneficiaries who are also personal representatives cannot favour their own interests over an individual beneficiary (p. 19). Of course that is not what happened here in the sense that all the siblings got an equal slice, albeit that we now have at best the speculative possibility in retrospect that the pie could have been bigger if the personal representatives made a different decision.
105. Thus, the majority of beneficiaries cannot act in a manifestly unreasonable way which has the effect of diluting the size of the estate. Such situations could arise in cases of conflict of interest, bad faith, or negligence.
106. Personal representatives must act in good faith and should not follow the majority wishes if they consider that to do so would be negligent (for example, by not resulting in maximum value for the non-consenting beneficiaries). But if they incorrectly but in good faith think that following the majority view would not be negligent, the mandate to comply with the majority as set out in s. 50 seems to me to provide an implicit protection for the personal representatives unless the negligence is gross. However I emphasise that there is no protection under the section in the absence of good faith.
107. Thus mere negligence without more that arises due to following in good faith and without conflict of interest the wishes of a majority of beneficiaries by value seems to me to be protected by s. 50 as long as it is not so manifestly unreasonable as to constitute gross negligence.
108. In the present case I am satisfied on the evidence that even if there was some form of breach of duty by the administrators (which I do not accept), it was not so manifestly unreasonable as to oust the protection of s. 50. Nor was there any absence of good faith.
109. Re Weiner’s Will Trusts [1956] 2 All E.R. 482 illustrates the limits of the doctrine that one can follow the views of the majority. That however dealt with a quite different situation, namely where a particular beneficiary was unconditionally entitled to have certain assets transferred to him. The wishes of a majority of the other beneficiaries not to do so (because the transfer would dilute the value of the shareholding in the company) could not prevail against such a right. A comparable situation does not arise here.
Proof of loss
110. If I am wrong about all of the foregoing, the question of loss arises. Most of the alleged breaches of duty could not be said to have given rise to loss anyway because Mr. Mellon was never closed off from competing; he came again on a couple of occasions, and the defendants communicated with him right through to the 13th March, 2007. More fundamentally, the plaintiff has failed to prove any loss emerging from the matters complained of because it has not been established in evidence that Mr. Mellon was actually in a position to complete the contract or would have been someone from whom damages could have been recovered had he signed but not completed it. The fact that he ultimately bought the property at a later time is not something from which such a conclusion could be drawn without positive evidence as to his financial condition at the time of the offer to which this action relates. There was no such evidence.
Order
111. For the reasons explained, and leaving aside the plaintiff’s status as a beneficiary (with which no issue was taken), the action fails under each of the headings which the plaintiff is required to prove: breach of duty by the defendants, ouster of the protection afforded by s. 50, and proof of loss. Any one of those failures independently would have been fatal to the action. An accumulation of such failures in combination reinforces that result. Accordingly I will order that the action be dismissed.
Gunning, Deceased
Wilful Default
; Little v Governors, County Down Infirmary
High Court of Justice.
Chancery Division.
5 February 1918
[1918] 52 I.L.T.R 38
Ross J.
This case was brought nominally on an administration summons, but all parties agreed that the real question at issue was whether the executors were to pay a lost legacy out of their own pockets. Adjourned into court. The lost legacy was payable to John Gibson. The executors inquired of legatee’s sister, Mrs. Helen Woods, as to legatee’s address. She said that she was in the habit of corresponding with John Gibson, and that she addressed her letters to Portland, Oregon. On Feb. 15, 1916, the executors got a bank draft for the legacy, less expenses, the net amount being £134 5s. They sent this draft to their solicitors, Messrs. Bell & Co., who enclosed it in a registered letter, and addressed it to John Gibson, Portland, Oregon. This was the only address. The draft was crossed, and the crossing would have been sufficient protection in the United Kingdom. Before it reached the United States, Ewart Gibson gave the correct address in Portland, and on March 2, 1916, Messrs. Bell wrote to this address advising legatee of the dispatch of the draft, and telling him to enquire at the post office. Ultimately it was found that the draft was cashed on March 15, 1916. The question was: Must the executors refund the amount lost through addressing the bank draft to an insufficient address, or must the amount come out of the residue?
H. Wilson, K.C., for defendants.—We raise no question of law. It is very doubtful if the bank could be held liable, and we are certainly not going to maintain an action against them out of an estate of £350. As regards assets in the hands of executors, they cannot be held liable for their loss, except through wilful default. We must show that executors were guilty of wilful default. They took no precautions whatever. Their action was such that the American bank was perfeetly justified in paying any John Gibson whatever. After getting John Gibson’s address, they should first have had communication with him, which would have drawn a reply. Then they would have been justified in forwarding this valuable draft. If they had done all that prudence dictated, why did they write subsequently to the address given by Ewart Gibson?
Harrison, K.C. (with him Megaw ), for plaintiffs (the executors).—The bank could have asked if the identification was enough. They got the address from legatee’s sister, who said she was in correspondence with him. That hardly suggested negligence. Mr. Wilson has not established wilful default; even if he has, he has not shown that it caused the loss. Sending the letter to the indefinite address may be a causa sine qua non, but it is not a causa causans.
Ross, J., in delivering judgment, said:—The law on this subject is very well settled. Before the Judicature Act, executors were liable for the loss of the assets of the estate—that is, when once they had come into their custody: Cross v. Smith, 7 East. 246. This was not the rule in equity. The rule is laid down by Lord Hardwicke as follows:—“If a trustee is robbed, the robbery, properly proved, shall be a discharge, provided he keeps the goods as he would keep his own. This rule has been constantly upheld in courts of equity. The executors in this case are in the position of gratuitous bailees. The law affecting such bailees is, that they are not to be charged without default on their part: Williams on Executors, Vol. II., p. 1444. Therefore, the executors cannot be charged with the loss of the testator’s assets without wilful default. It is the rule of the courts of equity, and is laid down by statute (22 & 23 Vict., c. 35), that the onus is on those seeking to charge the executors with the loss of assets fraudulently abstracted: In re Brier ; Brier v. Evison, 26 Ch. D., at p. 243. The executor must be proved to have acted without ordinary prudence. He must display the degree of prudence which an ordinary prudent business man would display in his own affairs. An ignorant, uneducated trustee cannot escape from liability on account of his want of education. But a highly educated man is not to be held to stricter accountability on account of his good education. These are the principles on which we must decide the matter in question. In this case the executors acted with the approval of an experienced bank manager, one of themselves, and a respectable firm of solicitors. This circumstance, though in their favour, is not sufficient to excuse them. If the advice so obtained does not, when acted on, come up to the court’s standard of prudence, the executors are liable for the resulting loss. Were it otherwise, a delegation of trust would be sanctioned by the court, and this cannot be done. The law, as I have stated it, is not contested, and I now apply it to this case. In doing so I find, with great regret, that the executors have not acted with the required degree of prudence. In favour of the executors, I assume that Mrs. Woods told them that “Portland, Oregon,” was sufficient address, and that she had received replies to letters sent by her to that address. None of these replies were produced, I suspect that Mrs. Woods *39 made a mistake in saying that this vague address would find her brother. It would at once occur to the mind of a prudent business man that such an address would be clearly insufficient. If the executors had made any reasonable inquiry, or looked at a map, they would have found Portland, Oregon, to be a large and important city; and they would naturally conclude that such a city would be very likely to have many inhabitants of the name John Gibson. They did not ask Ewart Gibson, a brother of Mrs. Woods, for the address. He knew the address, and later on he supplied it. They made no effort to obtain the address. They obtained a bank draft in the name of John Gibson, as if there were only one John Gibson in America. If they had done what they ought to have done—namely, obtained the correct address from Ewart Gibson—they should in common prudence have written there and obtained a reply. The signature to the reply they could have verified. To my mind it was a very rash proceeding to send off the draft immediately to such a vague address, without taking any proper precaution. There was no necessity whatever for such haste. There was no hint that the legatee was in urgent need of money. They had no reason to believe that the American bank would be bound to refuse payment till they had identified the payee as the legatee. Dealing with this valuable draft, they showed less care than might reasonably have been expected from the render of an ordinary letter or a newspaper. The chances were fifty to one against the legatee receiving the draft, and once it reached a stranger, loss must be expected. Their writing, through Messrs. Bell, on March 2nd to the particular address given by Ewart Gibson appears to indicate that they were uneasy as to the fate of the legacy. It only remains to consider—was the loss the natural result of the executors’ carelessness? It is clear to my mind that such carelessness could lead to nothing but loss. I must, therefore, declare that the executors are liable, and must make good the loss out of their own moneys. I arrive at this conclusion with great regret, because I am sure the plaintiffs were anxious to perform their duties punctually and exactly. There is not the smallest stain upon them in connection with the matter. They acted in this instance rashly and impulsively, as ever a very capable and prudent business man may do at times, and I accordingly dismiss the summons.
Kearns & Ors -v- Mc Cann Fitzgerald
Statute Limitation
[2008] IEHC 85 (02 April 2008)
Ua
Judgement of Mr Justice Michael Peart delivered on the 2nd day of April 2008:
In these proceedings the plaintiffs sue as the three surviving beneficiaries of the last Will of Dr Daniel Kearns, their father, who died on the 12th December 1979, and as the beneficiaries of the estate of his widow, their mother, who in turn died on the 28th February 1990, and who was also a beneficiary under that Will. The plaintiffs are also the beneficiaries of their mother’s estate. For the purpose of this judgment, I shall refer to the plaintiffs’ late father as “the deceased”.
The defendants are the firm of solicitors engaged by the executors of their late father’ s Will for the purpose of extracting a Grant of Probate, and distributing the estate in accordance with the terms thereof.
The plaintiffs claim that as a result of negligence on the part of the defendants they have suffered a financial loss, and they seek damages as a result.
The plaintiffs’ claim arises from the fact that, while the defendants in the course of carrying out their instructions became aware that certain monies forming part of their late father’s estate were held on deposit as Allied Irish Banks, and included this sum in the Inland Revenue Affidavit which was sworn for the purposes of extracting that grant of probate, they failed, following in the issue of that Grant of Probate, to gather in that sum and distribute same to the beneficiaries entitled to it, being these plaintiffs and their late mother.
The Defence delivered by the defendants on the 29th July 2004 contains the usual traverse, but in addition, contains a plea that the plaintiffs’ claim is statute-barred by reason of the provisions of the Statute of Limitations in 1957 and/or the Statute of Limitations (Amendment) Act 1991.
At the hearing of this action before me, it was agreed by the parties that the Court should decide the issue in relation to the Statute of Limitations as a preliminary issue.
Background facts:
The deceased, as I have stated already, died on the 12th December 1979, leaving a Will dated the 14th January 1977 in which he, in effect, left all the rest and residue of his property both the real and personal as to one half thereof to his wife, and the remaining half to his three children [the plaintiffs].
Within less than one month from the date of death of the deceased, the defendants set about the task of establishing the assets comprising the deceased’s estate, and, in due course, ascertained that there were two sums on deposit with Allied Irish Banks at their branch at Lower O’Connell Street, Dublin, totalling at the sum of IR£3968 .99. Those sums are included, along with details of some other assets, in the Inland Revenue Affidavit sworn by the plaintiffs’ late mother in her capacity as one of the Executors named in the deceased’s Will, the second Executor having renounced his rights as executor.
Grant of Probate issued on the 16th July 1980. By letter dated 3rd February 1981 the defendants wrote to the third named plaintiff informing her that the administration of the deceased’s estate was almost complete, apart from the sale of some Australian company shares, and enclosed a cheque for £720.46 being the share of the estate due to her, a copy of the Executor’s cash account and, finally, their own bill of costs. The letter indicated that the bill of costs could be paid from the balance of money which they were holding in their client account. This letter concluded by stating that if she had any queries in relation to the matter, she should make contact with the author of that letter.
It can be inferred from this letter that the third named plaintiff was the point of contact with the defendants, otherwise one would have expected that letter to be addressed to the plaintiffs’ mother, who was the acting Executrix. The Court understands from what was stated in court that for some years prior to her death in 1990, the plaintiff’s mother was in poor health and was living with the first and third named plaintiffs.
The cash account referred to set out certain items of expenditure consisting of the solicitor’s costs and legacies paid out, as well as sums received. The sums of money held at Allied Irish Banks are not included among the “receipts”. It is accepted by the defendants that these monies were not gathered in from Allied Irish Banks following the issue of the Grant of Probate, and therefore were not distributed at that time during the course of the administration of the estate of the deceased by the defendants.
These sums remained on deposit at Allied Irish Banks. However, on the 24th June 2002 Allied Irish Banks wrote to the first named plaintiff informing her that they had received her name from the defendants, after they had written to them regarding the Dormant Accounts Act 2001 which, they stated, required them to identify all accounts which had been dormant for 15 years or more, and if these accounts were still dormant as at the 31st March 2003, the balances would be transferred to the National Treasury Management Agency. They advised the first named plaintiff that they still held an account in her late father’s name and requested her to contact them so that they could finalise matters. They informed her also that that they had written to her sister, the third named plaintiff, in similar terms.
By letter dated August 2002, Allied Irish Banks wrote to the first named plaintiff confirming that her late father’s accounts had been closed and that they had disbursed the funds in accordance with her instructions.
It is accepted by the defendants that the letter dated 24th June 2002 from Allied Irish Banks was the first occasion upon which the plaintiffs became aware that these monies existed, since they were not privy to the details contained in the Inland Revenue Affidavit. I have already referred to the fact that their mother, who had sworn the Inland Revenue Affidavit, had died on 28 February 1990.
The plaintiffs commenced the within proceedings by the issue of a Plenary Summons on the 26th February 2004, being well within a period of six years from the date of the said letter, but quite clearly well outside a period of six years from the 3rd February 1981, being the date of the letter from the defendants which enclosed the executor’s cash account.
Statutory provisions:
Section 11 (2) (a) of the Statute of Limitations Act, 1957, as amended by Section 3 (2) of the Statute of Limitations (Amendment) Act, 1991 provides:
” subject to paragraph (c) of this subsection and to section 3 (1) of the Statute of Limitations (Amendment) Act, 1991, an action founded on tort shall not be brought after the expiration of six years from the date on which the course of action accrued.”
Section 11, subsection (2) (c) is not relevant to the plaintiff’s claim. Neither is section 3 (1) of the 1991 Act relevant to the present claim since it is not a personal injuries action.
Since the plaintiffs rely upon the provisions of section 72 of the Act, I should set out in that provision which provides as follows:
“72. — — (1) where, in the case of any action for which a period of limitation is fixed by this Act, the action is for relief from the consequences of mistake, the period of limitation shall not begin to run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered.” (my emphasis)
Reference has also been made to section 45 of the Act, and that section provides:
“45. — — (1) subject to section 46 of this Act, no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such a state, whether under a will or on intestacy, shall be brought after the expiration of 12 years from the date when the right to receive the share or interest accrued.
(2) and subject to section 46 of this Act, no action to recover arrears of interest in respect of any legacy or damages in respect of such arrears shall be brought after the expiration of six years from the date on which the interest became due.”
However, this claim is not to a claim to a share in an estate of a deceased person. It is a claim in negligence, and s. 45 has no releance.
Submissions:
The plaintiffs contend in relation to the limitation period that time should run only from 24th June 2002, being the date on which they first became aware of the fact that these monies existed and had not been paid to the beneficiaries as part of the administration of the deceased’s estate. They submit that this is the date upon which this cause of action accrued for the purposes of section 11 (2) (a) of the Act.
The defendants on the other hand contend that the cause of action accrued on or about the 3rd February 1981, being the date on which they wrote to the third named plaintiff informing her that the Administration of the estate of her late father was almost complete and when they enclosed a copy of the Executor’s cash account. They submit that it was on that date that the fact that monies on deposit with Allied Irish Banks had not been gathered in and distributed should have been apparent to the Executrix, the plaintiffs’ mother, who had sworn the Inland Revenue Affidavit. In answer to that, the plaintiffs state on the other hand that their mother by then was aged and in failing health, and would not have been in a position to appreciate and understand the contents of the Executor’s cash account, even if she had seen it. As I have already stated it appears that at that stage the plaintiff’s mother was living with and being looked after by the first and third named plaintiffs.
In support of their submission that the period of limitation should be deemed to have commenced only from the date upon which they actually discovered the “mistake” by the
defendants in failing to gather in and disperse the AIB monies, the plaintiffs have referred to the court to the judgement of Pearson J. in Phillips-Higgins v. Harper [1954] All ER.116 where on the facts of that case, which are very different to the present case, a similar provision in the English Limitation Act, 1939 to section 72 of the Act here, was considered. Without going into the facts of that case, I am satisfied that it has no relevance to the present case, and, indeed, even in that case, the mistake upon which that plaintiff relied was found not to be the type of mistake intended to be covered by the section. Section 72 of the Act here is clearly intended to apply to a situation where a plaintiff seeks relief from the consequences of a mistake in the context for example of a contract entered into as a result of a mistake and where the action is seeking relief by way of rescission or rectification. The present action by the plaintiffs is an action for damages arising from an alleged negligent act by the defendants, and is clearly only an action in tort to which the case referred to has no relevance. The alleged error by the defendants cannot be equated with a mistake in the context of s. 72 of the Act.
The plaintiffs also submit that if their claim is held to be statute barred this would constitute a breach of their property rights guaranteed by Article 1 of the first protocol to the European Convention on Human Rights. In my view, this right under the Convention is not engaged in the present application, since what is at stake is not a right to property, but a right to claim damages for negligence. The fact is that the money in question has been paid to the plaintiffs, including deposit interest on that sum from the date on which it was placed on deposit. What the plaintiffs are seeking is damages on the basis that if they had received this money earlier, they would have been able to use it in a manner which would have benefited them more than the interest earned on that sum while it remained on deposit.
The plaintiffs’ right to litigate is not an absolute right. Certain statutory controls are in place by virtue of the Statute of Limitations Act 1957, as amended, as to the time within which a plaintiff must commence his/her action. The plaintiffs’ action must be considered by reference to the provisions of section 11 (2) (a) of the Act, as amended which is very specific. That section makes it absolutely clear that where the cause of action arises from a tort, and in this case negligence, the proceedings must be issued not later than six years from the date upon which the action accrued. There is no provision within that section, such as applies in the case of a personal injuries claim, where the date of the plaintiff’s knowledge is a relevant matter for consideration in relation to the time within which proceedings must be commenced. The fact that certain amendments in relation to personal injuries actions alone were incorporated in the amending legislation in 1991 is an important indication that in relation to other actions founded on tort, a plaintiff’s state of knowledge is not a relevant consideration.
It is relevant also that the constitutionality of section 11 of the 1957 Act, as amended, was upheld by the Supreme Court in Tuohy v. Courtney [1994] 3 IR. 1. In his judgement, at page 47, Finlay CJ stated:
“It cannot be disputed that a person whose right to seek a legal remedy for a wrong is barred by a statutory time limit before he, without fault or neglect on his part, becomes aware of the existence of that right, has suffered a severe apparent injustice and would be entitled reasonably to entertain a major sense of grievance.
So to state however does not of itself solve the question as to whether a statute which in a sense permits that to occur is by that fact inconsistent with the Constitution.”
From the plaintiff’s standpoint, it is understandable that they would feel a sense of grievance that they are barred from pursuing a claim in circumstances where they feel that they had no opportunity within the limitation period to realise that they had a cause of action against the defendants. They are however not in a unique position in that respect. There have been other plaintiffs in their situation who have been unable to pursue an action for damages in similar circumstances. A case in point is Irish Equine Foundation Ltd v. Robinson [1999] 2 ILRM 289. In that case, the plaintiff had engaged a firm of architects to design and supervise the construction of a premises. In 1986 a certificate of completion was signed. In 1991 there was an ingress of water through the ceiling of the premises causing damage. The plaintiffs commenced proceedings in January 1996, being within six years of the date of that ingress of water. The plaintiff contended that it was not until that damage was caused that it became aware of the alleged defects giving rise to the action in negligence. That claim was found to be statute barred on the basis that the alleged negligent design of the premises would have been discoverable upon an examination of the premises by an expert when the premises were completed. One can draw an analogy between the situation of that plaintiff and the plaintiffs in the present case, since the alleged error on the part of the defendants herein could have been discovered when the executor’ s cash account was enclosed with the defendant’s letter dated the 3rd February 1981.
While I have every sympathy for the plaintiffs’ predicament, in the circumstances where they themselves did not know that part of their late father’s estate comprised the monies on deposit in Allied Irish Banks until they heard about it in June 2002, there is no doubt in my mind that, given the provisions of section 11 to which I have referred, the cause of action accrued upon receipt of the letter from the defendants dated 3rd February 1981. In these circumstances, their claim is statute barred, and these proceedings must be dismissed.
Shaughnessy v Shaughnessy
Executor Duty of Care
[2016] IEHC 303
JUDGMENT of Mr. Justice Paul Gilligan on the 25th day of May, 2016.
1. The plaintiff in these proceedings seeks the following declarations and orders:
(i) A declaration that the defendant was negligent and in breach of his duties as executor for the estate of his mother Helen Shaughnessy Senior (deceased) to the detriment of the plaintiff;
(ii) Damages for negligence and/or breach of duty;
(iii) Insofar as may be necessary, such consequential orders as may be required;
(iv) Interest;
(v) Such further or other order as the court deems fit;
(vi) Costs.
2. Both the plaintiff and the defendant are self-representing.
3. The background to these proceedings is that the plaintiff and defendant are sister and brother and are both beneficiaries of the estate of their deceased mother, Helen Shaughnessy Senior, who died on the 7th of September, 2007, a widow and the mother of four children. The deceased Helen Shaughnessy Senior made her last will and testament on the 7th day of May, 2004, in which she appointed her son, the defendant, Terence Shaughnessy, her sole executor.
4. There is no doubt but that the deceased executed an unusual last will and testament in that she divided any monies standing to her credit in her sole name between her three daughters the plaintiff herein and her two sisters in addition to an entitlement to each daughter to a building site not to exceed ½ an acre on such part of her lands as maybe agreed with her son Terence, the defendant herein. The deceased further directed that her son, the defendant herein, was to pay the plaintiff a sum of €3,500.00 if she married.
5. The deceased left all her live stock, machinery and dead stock to her son Terence the defendant herein for his own use absolutely. She bequeathed her dwelling house and garden with contents to her three daughters being the plaintiff herein and her two sisters in equal shares as tenants in common.
6. The deceased then proceeded to bequeath her two holdings of land at Seskinryan together with the farm yard, farm buildings and out offices to her son the defendant herein for the term of his natural life and after his death in the event of her son the defendant herein dying leaving issue the deceased bequeathed such property to such issue of her son Terence the defendant herein as he may by will or deed appoint and in default of appointment to such issue in equal shares. This bequest however was subject to the proviso that should her son Terence Shaughnessy, the defendant herein, die without leaving issue then and in that event only she bequeathed her farm lands to her three daughters the plaintiff herein and her two sisters in equal shares as tenants in common and this bequest was subjected to the proviso that if any of her daughters predeceased her leaving issue then the share would pass to such issue in equal shares and provided always that if any of her daughters were to die without leaving issue that share would pass to the remaining daughters in equal shares or in the event that any daughter shall have predeceased her mother the deceased daughter leaving issue then her share shall pass to her issue.
7. Following the deceased’s death the nominated executor the defendant herein proceeded to attend to the administration of the estate and retained the family solicitor and gathered details of the deceased’s assets and liabilities for the purpose of preparing an Inland Revenue affidavit prior to admitting the last will and testament of his deceased mother to probate. The Inland Revenue affidavit was compiled by the solicitors and approved by the Revenue Commissioners on the 4th November, 2008. Then the family solicitor sought to have the oath of executor duly completed by the defendant but he declined to do so in circumstances where he expressed a number of reservations about the will but in particular that his mother had seen fit to bequeath to him a life interest only in the farmlands. As became evident during the course of the hearing a number of other difficulties surfaced. The first was that the defendant since he was a boy had farmed the lands previously with his father and subsequent to his death with his mother and he maintains that in effect he has had a very difficult life and really has not got very much out of the farm for all he has put into it and he cannot understand how his mother could simply not have bequeathed to him the farmlands to enable him to continue farming those lands in his own right and to have bequeathed them to his wife or some other party he not having any issue. Accordingly the proviso in the will of his late mother brought about a situation whereby he not having issue, the farmlands were going to pass on his death to his three sisters.
8. A further complication was that previously in time the deceased had given the defendant a site for a house which he had built on and which is now the family home of himself and his wife but no legal arrangement was ever made for the transfer of the land to him so in effect as matters stand he has no registered title or any other documentation in respect of title relating to the house where he lives with his wife on the farm.
9. To further complicate matters it was necessary for the defendant prior to the death of his mother to put in a perculation area and septic tank and this was all done on lands adjacent to the site upon which he lives.
10. A further complicating feature is that the deceased’s house which was left to her three daughters is between the house where the defendant lives and the farm buildings and in order to access the farm buildings the defendant walks from his house across a passageway very close to his mother’s house and into the farm outbuilding area. Unfortunately the parties’ mother’s house has no appropriate arrangement for a septic tank and perculation area and there is not adequate space within the area attached to that house for the installation of an appropriate sewage system.
11. Going back in time the defendant having begun to raise queries about the whole situation and stalling on taking out a grant moved from the family solicitor to another solicitor and sought senior counsel’s advice as to the validity of his deceased mother’s will and during this period time was simply dragging on with no move by the defendant to take out the grant and enable his mother’s estate to be administered. Eventually the opinion of a counsel was obtained and this indicated to the defendant that he was unlikely to succeed in an action to set aside his mother’s will.
12. The defendant was being repeatedly called upon to take out the grant and administer his mother’s will because from 2007 onwards the value of property was falling drastically and the defendant’s three sisters were very concerned about getting the sites agreed so that they could sell them as appropriate and getting the transfer of their mother’s house into their names and in this regard the plaintiff has submitted valuations to the court of the residence bequeathed to herself and her two sisters in her mother’s will. On the 7th of September, 2007, the property was valued by Seamus Somers, Auctioneer, Valuer & Livestock Salesman, at €300,000.00. Exactly one year later, the same valuer estimated the current market value of the property in question at €270,000.00. On the 21st of July, 2012, the value of the property was estimated at €125,000.00. Two years later, on the 21st of July, 2014, the value remained at €125,000.00. This marks a loss of €175,000.00 between the date of the plaintiff’s mother’s death and July, 2014. In relation to the half acre building site left to the plaintiff, a valuation by ERA Donoghue Properties put the open market value of the site at €70,000.00 in September, 2008. In October, 2012, Douglas Newman Good valued the site at €25,000.00, showing a loss of €45,000.00.
13. Furthermore, the plaintiff contends that she lost €46,000.00 on a property she had purchased in Estonia in 2005. Due to interest rate increases and a lack of tenants, the plaintiff found herself in default on her mortgage repayments by June, 2008, and by the 24th of September, 2008, the Bank foreclosed the loan. With arrears of €6,203.000, the plaintiff was liable for the full amount of the Bank loan borrowed, being €128,116.00. The plaintiff lost the deposit of €46,000.00. By March, 2010, following a transfer of ownership of the apartment to the Bank, the apartment was sold for €76,677.00. The plaintiff maintains that had she received the money bequeathed to her and her two sisters under the terms of the will (circa €20,000.00 each) she would have been able to service the mortgage on her property in Estonia and the bank would not have foreclosed her loan. However, the plaintiff could not give a definite answer to the question the Court asked in relation to whether she ever specifically put the defendant on notice that his actions or lack thereof would lead to her losing her deposit on the apartment in Estonia. The plaintiff indicated that due to the fraught relationship between herself and her brother, she would not have wanted to aggravate the situation or give her brother any more leverage over her. The defendant maintains that he was never made aware of the financial situation of the plaintiff in relation to this foreign investment.
14. The plaintiff gave evidence to the Court to the effect that she has been out of work due to the personal stress that her financial situation has caused her. Correspondence from her employer submitted to the Court sets out that on the 10th of August, 2015, the plaintiff had reached the maximum paid sick leave entitlement of 183 days in a four year period and that her paid sick leave would cease at that point in time. It has been recommended to her by her employer that she should apply for early retirement on medical grounds. The plaintiff also submitted that she has suffered from bouts of depression which could have been avoided had her monetary problems not occurred due to the negligence of the defendant. A psychiatrist’s report was submitted to the Court and its content was accepted by the defendant. The defendant, however, disputes that the personal and medical issues of the plaintiff have anything to do with the administration of their mother’s will and that the plaintiff’s psychological problems began long before the death of their mother.
15. The plaintiff and her two sisters in or about August, 2009, took legal advice and made a formal application to have Terence Shaughnessy set aside as executor and that the plaintiff and her two sisters would proceed to be appointed executors and administer the estate.
16. In particular it was averred in an affidavit as sworn by the plaintiff and her two sisters on the 17th August, 2009, that they believed it was no longer appropriate that Terence Shaughnessy should act as executor in the estate of Helen Shaughnessy deceased given the clear and unambiguous reservations he had expressed about the deceased’s last will and testament and that further his failure to act has led to a loss to the plaintiff and her two sisters in that certain financial bequests had not been realised as directed in the deceased’s last will and that the inaction of the defendant as executor has brought about a situation that they have been unable to obtain title to the properties bequeathed to them in their mother’s last will and that they have suffered financial detriment as a result of the executor’s failure to attend to his lawful obligations. Accordingly a citation issued from the Probate office on the 20th August, 2009, and the defendant did not enter an appearance to the citation and on the 30th September, 2009, the Probate office made an order under O. 79 r. 57 of the Rules of the Superior Courts deeming him to have renounced his rights by virtue of his non-appearance to the citation. The legal position was now such that the plaintiff and her two sisters were in a position to apply for a grant of letters of administration with will annexed in their mother’s estate by virtue of being legatees and devisees under her will and this they proceeded to do but on the 6th November, 2009, a caveat was lodged in the Kilkenny District Probate Registry by solicitors on behalf of the defendant and this caveat impeded the issue of a grant to the estate. The caveat was warned on the 24th February, 2010, and an appearance was entered on the 26th February, 2010, and the status quo remained in place until June, 2012, when Terence Shaughnessy withdrew all objection and the plaintiff and her two sisters were appointed to administer the estate and take out the grant.
17. The Court heard evidence from Mr. John Foley solicitor who advised the plaintiff and her two sisters at different stages of these proceedings, and is generally referred to as the family solicitor. Mr. Foley explained to the Court that although the executor generally has one year from the date of death to administer the will, this is not a fixed rule, and that often preparing an inventory of assets and completing the Inland Revenue Affidavit can be a time consuming exercise which requires time and attention. As a result, he submitted that the one year rule is not rigidly applied and indeed it would be unfair to rigidly apply it on the facts of this case. He told the Court that once the defendant had lodged the caveat in November, 2009, the plaintiff and her sisters instructed him to take action and a warning was lodged in February, 2010. Instead of filing a motion to remove the caveat, Mr. Foley informed the Court that everybody thought it prudent to try to reach an agreement on the administration of the will and nobody wished to go to Court and undertake potentially costly litigation. As a result, it took until June, 2012, for consent to be obtained from the defendant and for the caveat to be lifted.
18. A sister of the plaintiff, Sheila Ryan, who is not a party to these proceedings, told the Court that she supports her sister in these proceedings and that she believes the defendant has been extremely unreasonable in his handling of the estate. In relation to the dwelling house which was left to the three sisters, Mrs. Ryan indicated that she wanted to keep it as a family holiday home for her children and nieces and nephews in the summertime. It is very clear to the Court that relations between the plaintiff and her two sisters and their brother Terence are extremely strained and it is a very unfortunate situation. All attempts to resolve matters amicably have failed for one reason or another.
19. While it is understandable, against the background facts and familial nature of these proceedings, that the plaintiff and the solicitors acting on her behalf were reluctant to incur further legal costs and risk further aggravation by applying to Court to set aside the caveat lodged by the defendant on the 6th of November, 2009, the reality of the situation is that such an application is simply done by notice of motion, and is generally heard on affidavit evidence in the Monday Motion List. As set out recently by this Court (Baker J.) in In The Matter of the Estate of Charles (otherwise Cathal) Gillespie Late of Stranarva, Crolly County Donegal, Batchelor, Labourer, Retired, And In the Matter of An Application by Patrick Joseph Boyle, [2015] IEHC 462, at para. 34:
“34. The purpose of entering a caveat is to prevent the issue of a grant of probate, but a caveator cannot indefinitely hold up the issue of a grant merely on account of suspicion. As is stated at para. 221 of Spierin, The Succession Act 1965 and Related Legislation: A Commentary, 4th Ed, (2011, Bloomsbury):-
“A caveator who has or claims no interest, but has reason to oppose a grant being made to an applicant, may commence action to show cause.”
35. In Re Nevin deceased (unreported, High Court, 13th March, 1997) Shanley J. at p. 4 pointed to the fact that the effect of s. 38 of the Succession Act 1965, and O. 79, r. 41 to 51 of the Rules of the Superior Courts is:
“… that the warning in response to the Caveat obliges the person entering the Caveat either to abandon his claim to a grant or to take contentious proceedings in furtherance of his claim….”
36. Later Shanley J. at p.5 noted that the purpose of the caveat is
“…merely to ensure that no grant issues unknown to the Caveator: its presence does not restrain the Court from ordering a grant where a Caveator is on notice of the application of the grant.” (Emphasis in original)
37. I adopt that statement of the law, and also the statement contained in p. 243 of Miller’s Irish Probate Irish Practice (1900, Maxwell) that the effect of warning a caveat is “to compel the caveator either to take contentious proceedings or to abandon his claim to a grant”.
20. There are two central issues in this case the first being as to whether or not the defendant in his capacity as executor of his late mother’s estate failed in the duty of care which he owed in this instance in these proceedings to the plaintiff as a beneficiary under the will and if he did so fail is the plaintiff entitled to an award of damages for any loss she has proven to have sustained and the second aspect is as to whether or not the caveat lodged on the 6th November, 2009, in the Kilkenny District Registry by the solicitors then acting on behalf of Terence Shaughnessy was frivolous and vexatious and designed to impede and delay the administration of the estate of the deceased to the detriment in this instance of the plaintiff and as to whether or not if she suffered any loss and damage as a result thereof as proven by her is she entitled to an award of damages.
21. The defendant particularly in his closing submissions to the Court clarifies his situation emotionally by indicating to the court that he always farmed the lands, that he got very little recompense for all his work, that he is an innocent party in that he did not understand what being appointed an executor meant and that if he had known he could have renounced he would have done so and not got involved and his main complaint to this day is as to how his mother could have brought herself to leave him only a life interest in the farmlands and buildings which he has worked on all his life. He complains that nothing was fully explained to him and that it was all in the hands of his solicitors. He submits to the Court that he did not even know what was meant by a caveat and that he never gave instructions that it should be lodged and that if it was and delayed the administration of the estate it is not his fault.
22. As a point of clarification, it is important to note that the defendant was entitled not to accept his appointment as executor of his mother’s will. It is clear that an unwilling executor should be allowed the opportunity to renounce, as the functions of an executor can prove to be onerous and may also entail a risk of personal liability. In my view, it does not absolve a personal representative of their liabilities if they simply state that they were unaware of the attendant duties and responsibilities or that they did not know that they could renounce their executorship. The onus is on them to understand the legal situation and the responsibilities attached to the role, and to seek legal advice if they are unsure as to their duties. As is set out by Keating in Keating on Probate, at page 221 and 222:
“After the death of the testator an executor must decide whether to accept the office of executor or renounce it. An executor of course may accept the office by applying for a grant of probate, but where he renounces he must do so in writing and the renunciation will then be included in the papers when a co-executor applies for a grant of probate. If there is no other executor of the will, as a result of a renunciation the type of grant that must be sought by the person next entitled by virtue of Order 79 of the Rules of the Superior Courts will not be that of probate but rather of letters of administration with will annexed. Once an executor renounces his right to probate, his rights as executor will wholly cease and he will not be given representation in another character unless by order of the Court (Section 17, Succession Act, 1965; Order 79, rule 38, RSC.)
It was said by Sir J. P. Wilde in In the Goods of Russell L.R. 1 P. 380 that: “Where a man under a will occupies in reference to the testator two different characters he shall not select either one he pleases as the basis of the grant, but must take administration on the largest ground – he cannot throw aside probate and take a more limited grant.” An executor’s right to renounce will cease, however, once he has obtained probate of the will because the grant of probate not only proves the will of the testator but also confirms the executor in his office and “once an executor, always an executor” (In the Goods of Veiga 32 L.J.P.M. & A.9.) An executor may also by his own acts be prevented from renouncing probate where, for instance, he carries out acts in relation to the estate of the deceased that would normally be carried out by an executor (Re Stevens [1897] 1 Ch 422.) In other words, the form of behaviour that renders a person executor de son tort similarly prevents an executor from renouncing as executor (Long and Feaver v Symes and Hannam 3 Hagg. Ecc. 771) unless the court orders otherwise (In the Goods of Hanlon [1894] 1 IR 551) or all the interested parties consent to a court order discharging him as executor (In the Goods of Fitzpatrick 26 ILTR 125). In In the Goods of Keller [1955-1956] Ir Jur Rep 69, the Court allowed the executor to file a renunciation where the applicant was the sole person interested in the assets of the deceased. Generally, a renunciation by an executor de son tort will not be accepted (In the Goods of Badenach 3 Sw & Tr 465; Mordant v Clarke LR 1 P&D 592) even though his intermeddling is confined to property situated abroad (Re Lord and Fullerton’s Contract [1896] 1 Ch 228.)”
23. If an executor does not wish to renounce his or her executorship, then they have a number of duties which they must attend to. The first duty of the personal representative is to gather in the assets of the deceased, and once this is done they will be in a position to ascertain the solvency of the estate. This exercise will also determine the nature of the administration to be undertaken and the order of application of the assets of the deceased. Once all debts and liabilities have been discharged, the personal representatives will be in a position to commence the distribution of the estate among the beneficiaries in accordance with the provisions of the will or, in the case of intestacy, in compliance with the rules of intestacy.
24. The important aspect is that the personal representatives in whom the whole estate vests must perform their duties diligently (Re Tankard [1942] Ch. 69; Re Gunning [1918] 1 IR 221) and if they fail to do so the beneficiaries may bring an action against them (Re Hayes WT [1971] 2 All ER 341). A beneficiary will also have a right to take legal action against the personal representatives for their failure to distribute the estate after the expiration of the executor’s year (section 62(1) Succession Act 1965):
“62.—(1) The personal representatives of a deceased person shall distribute his estate as soon after his death as is reasonably practicable having regard to the nature of the estate, the manner in which it is required to be distributed and all other relevant circumstances, but proceedings against the personal representatives in respect of their failure to distribute shall not, without leave of the court, be brought before the expiration of one year from the date of the death of the deceased.
(2) Nothing in this section shall prejudice or affect the rights of creditors of a deceased person to bring proceedings against his personal representatives before the expiration of one year from his death.”
25. The law relating to the duties of an executor are well summarised by the following treatises:
Michael Ryan: Executorship & Administration (3rd Edition, 1995), at page 147:
“It is generally accepted that after a period of one year from the date of death the personal representative should have realised the estate assets and settled the liabilities; while this should not be taken as a fixed rule, the onus lies on him to substantiate reasons for delay. All of the assets in which the deceased had a beneficial interest may be used to settle the liabilities. Personal representatives are not liable if there is any loss caused by their having postponed a sale beyond the period of one year after the death, if they acted in their reasonable discretion. The personal representative is under no obligation to distribute the estate of the deceased before the expiration of a year from the date of death, but after that period has elapsed, a legatee or other person interested in the estate may call on the personal representative to give an account of his actions to date. Any legacies which remain unpaid twelve months after the date of death become eligible for interest from that date up to the date of payment.”
Albert Keating: Keating on Probate (3rd Edition, 2007), at page 271 and 272:
“The personal representatives are not only obliged to perform their duties but to perform them diligently or at least prudently. Where the estate sustains a loss owing to a breach of duty by a personal representative, he may be personally liable for the devastavit. A devastavit by a personal representative renders him personally liable to creditors and beneficiaries of the deceased alike. The duty of diligence that a personal representative owes to creditors and beneficiaries commences from the date of the grant, and continues while gathering in and preserving the assets and when administering and distributing the estate among the persons entitled…
During the administration of the estate the personal representative owes a duty of diligence not only to creditors but also to beneficiaries. It was stated by Uthwatt J. in Re: Tankard [1942] Ch. 69 that: “the duty is owed, not only to creditors, but also to beneficiaries, for the ultimate object of administration of an estate is to place the beneficiaries in possession of their interest, and that cannot be fully achieved unless all debts are satisfied.” While a personal representative is required to act diligently and save the estate from all unnecessary expenditure, he must also act prudently to ensure that the beneficiaries receive their share in the estate, and if as a result of his carelessness a beneficiary does not receive his share, he may be liable accordingly (Re Gunning, [1918] 1 IR 221.)”
James C. Brady: Succession Law in Ireland (2nd Edition, 1995), at page 323:
“The Succession Act incorporates the long established rule that personal representatives have one year from the death of the deceased in which to administer the estate and beneficiaries under a will may not initiate action against the executors until the end of the so-called ‘executor’s year.’ There is nothing to prevent the personal representatives distributing the estate within the executor’s year if they so choose and indeed failure to do so may leave them open to the charge that they have failed to administer the estate with due diligence. This is particularly the case with regard to payment of the deceased’s debts, since failure to do will invariably mean that interest on the debt grows, and it may grow to a point where it threatens the interests of beneficiaries.
The court has jurisdiction to make an order directing the personal representatives to transfer land to the person entitled. Such jurisdiction may be exercised at any time after the expiration of one year from the death of an owner of land. If the personal representatives have failed to respond to the request of the person entitled, to transfer the land to such person, the court may, if it thinks fit on the application of the person entitled, and after notice to the personal representatives make an order that such transfer be made (Section 52(4) of the Succession Act.) If such order is not complied with within the time specified by the court the court may make a further order vesting the land in the person entitled as fully and effectually as might have been done by a transfer thereof by the personal representatives.
Thus, a beneficiary who has failed to make the personal representatives transfer to him, by assent or otherwise, land to which he is entitled is not without legal redress on the expiry of one year from the death of the owner of the land.
Section 52(4) of the Succession Act is worded as follows:
52 (4) At any time after the expiration of one year from the death of an owner of land, if the personal representatives have failed on the request of the person entitled to transfer, by assent or otherwise, the land to the person entitled, the court may, if it thinks fit, on the application of the person entitled and after notice to the personal representatives, order that the transfer be made, and, in default of compliance with that order within the time specified therein by the court, may make an order vesting the land in the person entitled as fully and effectually as might have been done by a transfer thereof by the personal representatives.”
Citizen’s Information sets out the following on their public website:
“Duties of Executor/Administrators: Generally, you are obliged to distribute the assets as soon as possible after the death (within a year if possible – you may be sued by the beneficiaries if you do not distribute the estate within a year). This may not be possible if there are legal issues to be decided.
You are under a duty to preserve the assets of the deceased until they are distributed and to protect the assets from devaluation. For example, you should make sure that all assets required to be insured are insured for their market value.”
26. The following was stated by Uthwatt J in Re: Tankard [1942] Ch. 69, in relation to the non-payment of debts by the executor within one year –
“With respect to the period within which debts should be paid, there is, in my opinion, no rule of law that it is the duty of executors to pay such debts within a year from the testator’s death. The duty is to pay with due diligence. Due diligence may, indeed, require that payment should be made before the expiration of the year, but the circumstances affecting the estate and the assets comprised in it may justify non-payment within the year, but, if debts are not paid within the year, the onus is thrown on the executors to justify the delay.”
27. Ross J. in Re: Gunning [1918] 1 IR 221 also sets out the following:
“There must be one standard for all… and the standard is this: that the executor in managing the trust must take al1 those precautions which an ordinary prudent man in business would take in managing similar affairs of his own. lt is allowed to him to employ proper agents. He is not bound to scrutinize with suspicion each step taken by such agents or to deal with them as if they were dishonest; but he must not expose the trust funds to unreasonable or unnecessary risks. An ignorant, uneducated trustee cannot escape from liability by reason of his shortcomings. On the other hand, a highly educated man is not to be held to stricter accountability by reason of his superior training. Each must act up to the Court’s standard of prudence. No more is required, and no less can be accepted. These are the well-settled principles applicable to the matter in question.”
28. In view of the foregoing and having regard to section 62(1) of the Succession Act 1965, it seems appropriate to come to the conclusion that where there are no justifiable reasons why an estate has not been administered within one year from the date of death of the testator, then the executor may be liable for any devaluation in lands bequeathed to the beneficiaries under the will. If there are reasonable justifications for the delay then these will be taken into account by the Court in the exercise of its discretion in any proceedings on foot thereof, and the Court shall have regard to all of the relevant circumstances. If it appears to the Court that the executor acted with due diligence in carrying out their duties then they shall be absolved of their liabilities. However, if the Court finds that the executor simply sat on his hands, out of idleness or for personal gain, as the value of assets bequeathed under the will fall, to the detriment of the beneficiaries, then the Court may form a view that the executor is liable for any losses incurred. Of course, the normal rules of reasonable foreseeability of loss shall apply. The circumstances of this case must impress upon executors of an estate the onus that lies upon them to carry out their legal duties in accordance with the will, in a reasonable and prudent manner and in a reasonable period of time.
29. I am satisfied that the defendant in his capacity as the nominated executor of his mother’s estate failed in the duty of care which he owed to the estate and to the plaintiff as a beneficiary thereof. The reality of the situation is that it was a straight forward situation to pay the funeral and testamentary expenses, pay out the amounts that were due to each of his three sisters in accordance with his mother’s will, transfer the title to his mother’s house to his three sisters and agree a site of ½ acre each with them and transfer the lands to them and finalise matters relating to his own bequest but clearly he prevaricated and wanted to obtain advice in respect of the will and in effect as of September, 2009, he still had not advanced the situation. He should have renounced as executor so as to enable his three sisters as beneficiaries and devisees under the will to have taken his place and administered the estate and he did not do so. Accordingly, in my view, in his capacity as executor he was guilty of negligence and breach of duty.
30. The Court would normally set aside a caveat if the caveator has no interest in the estate or that the caveat was entered vexatiously with the Court being satisfied that the lodgement of the caveat amounted to conduct which in all the circumstances no reasonable person could properly treat as bona fide. This was reaffirmed by the recent Supreme Court decision (Dunne J.) in Estate of O’Connell (deceased); and Estate of Reen (deceased) [2014] IESC 55. In the instant case, the defendant had a clearly defined interest in the estate but this interest was not disputed by any third party. I am satisfied on the evidence that the caveat was entered vexatiously and for the sole purpose and with no basis other than to prevent the defendant’s three sisters taking out the grant of administration. As was set out by Shanley J in Re: Nevin and reiterated by Dunne J in Estate of O’Connell (deceased), where a caveat is warned then a caveator must either “abandon his claim to a grant or take contentious proceedings in furtherance of his claim.” A caveator cannot simply lodge a caveat indefinitely in order to stymie the administration of a will.
31. It has to be accepted that an application could have been made to the Monday probate list to have the caveat set aside against the existing background but a preference appears to have been opted for attempting to resolve the matter by negotiation but in the end this proved impossible. It is appropriate I believe to state that the Court tried to facilitate the parties with a view to try to resolve the various side issues namely the perculation areas for the defendant house and the appropriate additional land to be ceded in respect of the parties mother’s house so that the necessary facilities could be put in place to make the house habitable but unfortunately despite the Court’s intervention in this regard and that of Mr. Foley the family solicitor it became apparent that the deceased’s three daughters and in particular her son the defendant herein could not reach an agreement and to this day since 2012 apart from the payment of the relevant cash sums each in the region of approximately €20,000.00 no further steps have been taken to finalise the transfer of the three ½ acre sites to the plaintiff and her two sisters, the transfer of the deceased house to the plaintiff and her two sisters, and the transfer to the defendant of his entitlement to the farm under the will. A further issue not relevant to these proceedings is that the defendant’s own position as regards the site that his mother gave him and the house that he built thereon remains un-regularised.
32. It thus appears to the Court that without the immediate agreement and consent of the plaintiff’s sisters to sell the deceased’s property in 2008, or to buy the plaintiff’s share, the plaintiff would have had to apply to the Court under Section 31 of the Land and Conveyancing Law Reform Act 2009 and seek an order to sell or partition the property. Bearing in mind the court process and the time involved in preparing and litigating proceedings of that nature, on the balance of probabilities obtaining an order of the Court would have taken at least a year or two even if the plaintiff acted with immediate haste. As a result, even if the defendant’s solicitors had not lodged a caveat to the estate on the 6th of November, 2009, and the plaintiff and her sisters had taken out a Grant of Letters of Administration with Will Annexed on the 30th of September, 2009 (at which point in time they were entitled to do so following the defendant’s failure to enter an appearance to their citation) it appears to the Court, on the balance of probabilities, that it would have taken until well into 2011 before an order of the Court under Section 31 of the 2009 Act could have been obtained. Legal costs would also have been incurred by this stage. This timeframe also does not take into consideration the time it may take to find a buyer and finalise a sale. As outlined, on the 21st of July, 2012, the value of the property was estimated at €125,000.00. Two years later, on the 21st of July, 2014, the value remained at €125,000.00. Without evidence from all three sisters that they were each willing to sell their mother’s house after her death I cannot accept that the plaintiff has suffered any real identifiable loss. Since 2012 the care and upkeep of the property rests with the three executors including the plaintiff and it appears they have done little or nothing to maintain the property and there is the added difficulty of a sewerage system and perculation area. The plaintiff, despite the bequest, had a number of hurdles to clear before the house could be sold and in my view these have become intermingled with the delay involved. The plaintiff does not satisfy me that any loss suffered can be attributed directly and solely to the defendant and his behaviour in respect of the administration of the estate and the lodging of the subsequent caveat.
33. The Court now turns to consider the €46,000.00 the plaintiff lost on the apartment in Estonia. It is clear from the text messages as exhibited which were sent from the plaintiff to the defendant between the 15th of March, 2009, and the 24th of July, 2009, that the defendant was put on notice that the value of the properties was depreciating and that this was causing distress to the plaintiff. At this point in time, the defendant had written to John Foley Solicitors indicating an intention to challenge the will, and the plaintiff makes clear to him that he must renounce his executorship if he intends to go down that route. The will has never been challenged and thus the will stands. However, it is not borne out by the correspondence as submitted to the Court by the plaintiff that the defendant was ever put on notice that the plaintiff was at risk of losing her apartment in Estonia. As such an issue arises as to the reasonable foreseeability of the plaintiff’s loss. While it is true that the money (circa €20,000.00) bequeathed to the plaintiff could have been released by the executor, being the defendant, relatively easily and quickly, it is also true that the bank foreclosed the plaintiff’s loan in relation to the Estonian property on the 24th of September, 2008. That is just short of one year and three weeks after the date of death of the deceased. It is the Court’s view that to impose such a strict interpretation of the “executor’s year” would be unfair on the facts of this particular case, and the Court is assisted in this regard by the evidence of John Foley, the family solicitor. I also bear in mind that the plaintiff never specifically put the defendant on notice of her difficulty with continuing financial repayments on the apartment in Estonia and this was an arrangement and commitment she entered into prior to her mother’s death and her mother’s will only speaks from the date of death. I take the view any loss or damage suffered was not foreseeable to the defendant and in any event is too remote.
34. The transfer of a ½ acre site to the plaintiff was always a relatively simple and straight forward matter and I take the view that any reasonable executor abiding by his mother’s wishes as expressed in her last will and testament should at least within two years of the date of his mother’s death have executed the necessary transfer. The defendant was on notice of falling land prices. The plaintiff could then either have obtained planning permission and sold her site with planning, or sold the site subject to planning. At the date of death in 2007 the site was valued at €90,000.00. As of September, 2008, the value was €70,000.00, and by June, 2009, the site was valued at €50,000.00. As of October, 2012, the value was €25,000.00. Allowing time for a sale and some leeway for the exigencies of the market I take the view that if a sale could have been effected within a reasonable period of time after the death of the deceased the plaintiff would have obtained a price in the region of 50 – 60,000.00 Euro and in October, 2012, a price of €25,000.00, and thus the plaintiff’s loss can be ascertained at €30,000.00.
35. I accept that the plaintiff suffers from a number of medical complaints and the situation has not been helped by the circumstances surrounding the administration of her mother’s estate. I am not satisfied on the balance of probabilities that the medical complaints of the plaintiff can be linked to the actions of the defendant, and in any event since 2012 the plaintiff is one of the executors of her late mother’s estate and it has been within her power to complete the administration of the estate since that time. In the circumstances I am not satisfied on the balance of probabilities that there is a sufficient nexus between the personal injuries as complained of and the actions of the defendant.
36. The overall situation is extremely unsatisfactory and it is clearly now incumbent on the plaintiff and her two sisters to administer the estate of her late mother and to take legal advice from Mr. Foley the family solicitor or another solicitor and sufficient funds to finalise the estate and pay all the necessary legal costs will have to be raised from within the estate by the sale of machinery, cattle, land or other property goods and chattels which form part of the estate.
37. There will be judgment for the plaintiff against the defendant in the sum of €30,000.00.
Doyle v White [2017] IEHC 44
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 1st day of February, 2017
1. The plaintiff, who is one of seven beneficiaries in the estate of the late Mrs. Emily White, complains that the defendant’s personal representatives have failed in their duty to the beneficiaries by not obtaining the best price on the sale of the deceased’s home. The primary legal issue presented is whether the personal representatives are bound by the view of the majority of the beneficiaries in relation to how the estate is to be realised or whether they may be liable in negligence despite following the views of the majority.
2. As well as the oral and documentary evidence I had the benefit of submissions from Mr. Desmond Murphy S.C. Q.C. for the plaintiff and Mr. George Brady S.C. and Mr. Ciaran Foley S.C. (with Mr. Conor Cahill B.L.) for the defendants.
Procedural issues arising during the hearing
Admission of documentary material
3. In response to a request on behalf of the plaintiff, Mr. Brady agreed that a booklet of discovery documents relating to discussions regarding the possible sale of the property to Mr. Niall Mellon could be admitted in evidence as prima facie proof of their contents, although reserving the right to call evidence to correct certain points. In that regard it is worth mentioning that at least some of the documents have dates or figures that are either not completely accurate or are slightly ambiguous, but the thrust of the admitted documentation largely speaks for itself. Furthermore, the oral evidence on behalf of the defendants paints a broader and on occasion different picture than might be thought to emerge from some of the documents taken in isolation. In addition, on 14th October, 2016, Mr. Brady extended the concession so that two further documents which the plaintiff sought to rely on could be admitted on the same basis, as prima facie evidence of their contents, namely a minute of a meeting on 14th March, 2007, by Mr. Maurice Kelly and a memorandum of Mr. Stephen Maher of 9th March, 2007.
Amendment of pleadings
4. An unusual issue arose in relation to the relationship of the plaintiff to the White family. The plaintiff is one of seven children of the late Mrs. Emily G. White, but at some point developed the clearly delusional belief that she was not their biological child. Hence she appears to have adopted the alias of “Aideen Doyle” rather than her given name of Clodagh White.
5. Paragraph 1 of the statement of claim as originally delivered pleaded only that she was treated as a daughter of the deceased, rather than that she actually was a daughter.
6. It seems questionable whether this could be said to comply with O. 19 r. 3 of the Rules of the Superior Courts which requires pleadings to “contain…a statement in a summary form of the material facts on which the party pleading relies for his claim”. A statement that one had been treated as a child of the deceased and that the defendants were estopped from denying that status does not seem to me to be a sufficient basis to ground a claim such as this in the absence of any legal submission that there is a legal doctrine whereby such past treatment gives rise to an entitlement to similar continuing future treatment irrespective of the true biological status of the plaintiff; or in other words that the defendants are obliged to keep giving the plaintiff money just because they made the mistake of wrongly giving her money before. Mr. Murphy made clear he was making no submission that merely having been treated as a daughter in the past would suffice to ground the action. It seemed to me therefore that in order to pursue the claim properly, the plaintiff would have to seek to amend para. 1 of the statement of claim to positively plead her status as a daughter of the deceased. Unless she is such a daughter, her claim must be dismissed.
7. Mr. Murphy duly applied for this amendment which was made on consent. No amended defence was required because the defence as originally delivered had already admitted that the plaintiff was a daughter of the deceased (a curious formulation given that this had not been originally pleaded).
8. The document produced to me as an amended statement of claim did not however comply with what Delaney and McGrath (in Civil Procedure in the Superior Courts (3rd ed.), pp. 310-311) call “the universal practice”, whereby the new matter be underlined, the old matter struck through and an appropriate heading inserted identifying the pleading as an “Amended” statement of claim pursuant to an identified order of a particular date. I agree with the view of Delaney and McGrath as to the appropriate form of amended pleadings so I allowed the plaintiff liberty to deliver a further amended statement of claim to comply with this practice.
9. However, despite the unanimity of view on the pleadings that the plaintiff was the daughter of the deceased, the plaintiff’s oral evidence did not come up to the mark. In reply to a direct question from her own counsel she only stated that she was the “registered daughter” of the deceased. I will return to this issue below.
The position of Mr. Mellon
10. By way of replying submissions after the close of evidence Mr. Murphy suggested that I should allow Mr. Mellon to intervene in the proceedings in order to vindicate his rights having regard to In re Haughey [1971] I.R. 217, by reference to the suggestion made on behalf of the defendants that he was lacking in funds and a maverick, and by reference to a stray comment by Mr. Foley in submission that inappropriately characterised Mr. Mellon’s work in South Africa as “building mud huts”. While I corrected the latter remark and it was promptly withdrawn, Mr. Murphy drew my attention to the fact that the remark was given some publicity in a newspaper report on Saturday, 26th November, 2016 (after the close of evidence). The allegation regarding his lack of funds arose in the context of the evidence and the appropriate time to deal with that allegation was during the evidence.
11. The newspaper article is headed “Mellon was away ‘building mudhuts’” and gives prominence in the second paragraph to the suggestion that Mr. Mellon was a maverick and in the fourth paragraph to a suggestion that he was away building mud huts. The next paragraph refers to my having sought to correct this.
12. But the plaintiff cannot enforce the rights of a third party. In the absence of any application by Mr. Mellon (even assuming arguendo the perhaps questionable proposition that he could intervene in some fashion), In re Haughey does not arise. All I can do is emphasise again that the reference to Mr. Mellon building mud huts was inappropriate but Mr. Foley accepts this and withdrew it. The suggestions that he was a maverick or lacked funds are well within the legitimate arena of points that could be advanced by the defendants and would have had to be dealt with by the plaintiff in the course of the trial. “Maverick” is in any event not much of an insult and could be a compliment depending on your point of view. The mud huts issue is best dealt with by a gentlemanly apology; but my declining to invite Mr. Mellon to appear, as sought, does not infringe any rights of the plaintiff.
Findings of fact
13. In addition to the documentary materials referred to above I have heard oral evidence from the plaintiff and from the first named defendant and Mr. Barry White. I set out under this and subsequent headings of this judgment my findings of fact having heard and seen the witnesses, and having had regard to the documentary evidence and submissions.
Background and run-up to the decision
14. The late Emily G. White married Kevin White on the 11th February, 1942. Between 1943 and 1962, seven children of the marriage were born: Hilary, Barry, Niamh, Aideen, Derval, Clodagh and Cliodhna. The family home was a property known as “Chimes” on Mount Anville Road. In 1955 a family company, Robins White and Company was established, and became the owner of a property named “Thendara” adjacent to the family home.
15. The plaintiff was born in 1957 although as noted above she appeared to be of the view that the birth certificate produced for her was not her real birth certificate. She produced a copy of a certificate dated 5th August, 1966, and contended that her birth was not registered until then. Unfortunately there is no rational basis for that belief. The date in 1966 is simply the date on which that particular copy of the birth certificate was generated.
16. The plaintiff exhibited symptoms of epilepsy from around 1974 (aged 17).
17. In 1982 Kevin White had a stroke and in 1984 the plaintiff was looking after his property on his behalf.
18. The plaintiff suffered a first grand mal seizure in 1991. There were further seizures thereafter.
19. In 2000 she had treatment in Beaumont Hospital which involved the removal of a portion of her brain in the frontal lobe.
20. In terms of the material given in evidence, the plaintiff’s history of complaint and allegation against a wide spectrum of parties appears to begin after these events. She subsequently launched personal injury proceedings against the hospital [2007 No. 41 P]. She also made a complaint to the medical council against various parties including her sister Aileen. The medical council did not take that complaint further, although the plaintiff implausibly denies that it was rejected.
21. At some point, not identified precisely, the plaintiff developed the delusion that she was not the child of her parents. The epistemological basis for this belief was idiosyncratic and obscure but was related to alleged conversations she had with shadowy advisers in particular a “registered solicitor”, “an artist in Shanganagh” and an unnamed staff member in the Coombe who allegedly told her that her father was not her father, and that she was not the child on her birth certificate. On foot of this position, the plaintiff then adopted the alias of Aileen Doyle.
22. Emily White died intestate on 8th April, 2001. Her husband having predeceased her, the beneficiaries of her estate were the seven children in equal shares.
23. The plaintiff was let go from her job as a researcher in 2002 and left the family home Chimes in February, 2004. She went to live at an address in Dundela Haven which was rented accommodation.
24. In June or July, 2004 she made a complaint (never substantiated) to the Gardaí about Cliodhna in relation to how Mr. Kevin White’s assets had been handled. Two Gardaí called to Chimes to interview Cliodhna on Christmas Eve as a result.
25. The plaintiff also wrote a letter to the Minister for Justice, copied to the cabinet, complaining about her brother Mr. Barry White. She also wrote a work of fiction, “Web of Deceit”, whose characters bear some resemblance to her siblings, and where further scandalous suggestions of fraud are imputed to those characters.
26. In addition she maintains a blog which she says includes “a combination” of complimentary and derogatory matters in relation to her siblings. That is too innocuous a description because the blog propagates further scandalous allegations including a suggestion that a family member escaped bankruptcy proceedings through fraud.
27. At Christmas 2004, the plaintiff says Ms. Hilary White contacted her to invite her to Christmas dinner, which she refused as she said she was going away. She said that Hilary called her at other times.
28. The inland revenue affidavit was sworn on 24th September, 2005. (A later corrective affidavit relating to UK assets was sworn on 6th July, 2007.)
29. In November, 2005 Hilary and Barry White called to her house. She says she met Barry twice there and once in his own house “at the suggestion of the Guards”.
30. On 16th February, 2006, letters of administration were issued to the defendants Niamh and Derval White.
31. On 27th February, 2006, the plaintiff wrote a letter to the probate office, liberally copied to various parties, complaining about the management of the estate and referring to “my natural mother Louise Doyle/ Louise Walsh”, a mysterious presence in the case, being a person who she said in evidence was a director of FÁS while she was there. In reply to a direct question she said in evidence “she is, I believe, my natural mother”. She identified further shadowy advisers, a Garda, a politician’s spouse and a jewellery shop owner, as the sources of this information. The letter made absurd and scandalous allegations regarding what would amount to fraud in the administration of the estate and included fantastical allegations regarding non-existent assets in National Toll Roads and a company called Baillie Gifford. I accept Ms. Niamh White’s evidence that there were no assets of the estate in any such entity.
32. The plaintiff said that Ms. Hilary White came to see the plaintiff in Dundela Haven accompanied by Dr. Maureen Boyd. The plaintiff clearly did not welcome this visit and called the Gardaí while the visitors were at the door. The shadowy figure of a Mr. Tony Smaille, who the plaintiff describes as a “lay litigant” then enters the scene. She says that he advised her to take a private prosecution against Ms. Hilary White, which she did. One of the recurrent themes of the plaintiff’s evidence was a denial of personal responsibility and a deflection onto other people of authorship of events and developments, of which pinning the idea for the private prosecution on Mr. Smaille was one example. Her evidence in this regard was evasive and contradictory and while she initially denied that it was a private prosecution she subsequently admitted this. The prosecution involved Ms. Hilary White having to attend the District Court for two days and having bail conditions. The plaintiff’s recollection of this matter was selective and self-serving.
33. In August, 2006 Hilary White then made a second visit for the purposes of having the plaintiff afforded mental treatment. As a result the plaintiff became a patient in St John of God’s from 8th August to 29th September, 2006.
34. A DNA test was conducted during her committal on 4th September, 2006, which showed, according to a letter from DNA Ireland to a doctor at St. John of God’s Hospital dated 19th September, 2006, that Clodagh and Hilary White were full biological siblings to a 99.9987% probability. The plaintiff implausibly claimed in evidence that there was a second page to this document which contradicted this finding and further that the finding was contradicted by a document of instructions for the test, but neither document was produced. Again a shadowy adviser, “a lecturer in DCU”, emerged in the plaintiff’s evidence to allegedly say that the test is not proof.
35. Sometime after the plaintiff left St. John of God’s she discovered that Hilary had been kind enough to pay her VHI for the period without her knowledge. The plaintiff phoned VHI to complain about this.
36. The plaintiff says that her “former bank manager” then suggested that she stop paying rent on her accommodation and “see what happens”. That the plaintiff stopped paying rent appears clear; that she implausibly pins responsibility on a third party is all too characteristic of her evidence and mind-set. In terms of seeing what happened next, what happened was that landlord and tenant proceedings took place in relation to the matter. The plaintiff claims that her landlord brought a case to a tribunal; thereafter further proceedings took place in the Circuit Court on 20th December, 2006. She claims that the case was listed for 10:00 a.m. and she arrived at 10:07 a.m. to find it had already been dealt with. There then appears to have been an appeal to the High Court.
37. The upshot was that locks were changed and she was evicted on 16th January, 2007. She made no effort to contact her family. She denied that she did not want them to contact her and said they were obliged to do so.
38. It was decided to place “Chimes” and “Thendara” on the market, which was done on 21st February, 2007. The advisers to the personal representatives were Jones Lang LaSalle (JLL), principally Mr. Des Lennon of that firm, and the legal advisers to the personal representatives were Messrs. Daniel C. Maher and Co. (in particular Mr. Steven Maher) and Mr. Ciaran Foley S.C.
39. Around this time the plaintiff said she was living in bed and breakfasts and youth hostels. She said she was aware of the sale but was not told of a date. She said her solicitor, Daniel Montgomery of Thomas Montgomery & Son, was in contact with the estate. As of 29th January, 2007, she spent a couple of nights in a B & B on the Meath Road, Bray. She then spent two weeks in another B & B also on the Meath Road. Then she went to a B & B in Ulverton Road Dalkey for 7 to 10 days. After that she went to a youth hostel in Monkstown up to around 17th March, 2007. She ultimately accepted in cross-examination that with all this moving about, her family did not know where she was or have her phone number (having initially claimed in evidence that they had it). She did not contact them. Her solicitors did not make contact until their letter of 9th March which would have been received on Monday 12th March.
Tenders open – Mr. Mellon’s interest
40. On or about 6th March, 2007, tender documents were sent out to approximately ten to twelve potential bidders.
41. On the same date a meeting took place between Mr. Lennon and Mr. Niall Mellon and his wife, at which Mr. Mellon indicated he wanted to put in an offer before the tender date. He stated (for whatever reason) that he never tendered in Dublin. Mr. Lennon said that the vendors expected strong bids on the day, that eight tender packs had been issued already and there were at least six serious runners.
42. Mr. Mellon offered €17m on the basis of a contract being signed within 24 hours. Mr. Lennon indicated that his clients had rejected an offer for €15m before the tendering process had begun. Eventually Mr. Mellon offered €18m which was to be open until 11am the following Friday. On 7th March, 2007, Mr. Steven Maher wrote a memo to file broadly to this effect.
43. A phone call took place on 7th March, 2007, between Mr. Lennon and Mr. Mellon during which Mr. Mellon indicated he “might go to €18.5m”.
44. On 8th March, 2007, Mr. Maurice Kelly on behalf of the defendants wrote a memo indicating that he had spoken to Mr. Paul O’Connor, an employee of Mr. Mellon, who indicated that Mr. Mellon would not be “running on the site”, which was understood to mean that he would not be tendering.
45. At 2.46pm on 8th March, 2007, Mr. Lennon wrote to Mr. John Mulcahy, also of Jones Lang LaSalle, indicating that Mr. Foley believed that Mr. Mellon was “bluffing”. He indicated that he was due to meet the Whites at 5.30pm that day to put a “recommendation that they deal”.
46. At 4.20pm on the same day Mr. Lennon wrote a memorandum indicating that Mr. Mellon was offering €18.5m on condition that there would be no media coverage and that there would be a decision by that evening. Ultimately Mr. Mellon then reverted to 11 a.m. on the Friday.
47. Mr. Maher also wrote a memo on 8th March, 2007, in advance of a meeting of the White family, indicating that Mr. Lennon had phoned, was going to the meeting of the Whites which took place in Chimes, and was “concerned” if it would transpire that the Mellon offer was rejected and the tenders turned out to be lower. Insofar as such a concern was expressed I find that not in any way to establish actionable wrong on the part of the administrators in not accepting Mr. Mellons’ offer. It was simply a concern. If fears as to weaknesses in one’s position were to be elevated to evidence of actionable negligence, then only those possessed with absolute certainty and self-belief could put up a defence.
The meeting of 8th March, 2007
48. In preparation for the meeting in Chimes, the firm of Jones Lang LaSalle prepared a document entitled “marketing update” in which they stated expressly that “it does not appear likely that we are likely to get a clean unconditional offer in excess of €18m from the othe[r] parties who have expressed interest”.
49. They stated that reverting to Mr. Mellon after the tendering process would result in the €18m offer going off the table. The document referred to a “significant change of sentiment recently” in relation to residential property prices, and also to the “lower demand, and in some cases falling values, of residential units”.
50. The recommendation of the defendants professional advisers at that point was “to immediately engage with [Mr. Mellon] in an effort to secure a signed contract within the next 48 hours at an acceptable level on acceptable terms”. A draft letter was prepared asking him to increase his offer, provide proof of funds, and sign a contract and pay a deposit immediately.
51. A family meeting then took place in Chimes from 5.30 p.m. until 11 p.m. The plaintiff was not present. Mr. Mellon’s offer was received with scepticism.
52. There was some difference in the documentary material as to what, if anything, was decided at this meeting, but the best guide to answering that question is to see what happened after the meeting.
53. The following day, 9th March, 2007, Mr. Maher wrote a memo indicating that at 10 a.m. Mr. Foley had phoned and stated that in discussing the Mellon offer of €18.5m, Jones Lang LaSalle had noted “the lack of interest of other parties”. According to the memo, the offer was rejected and the family wanted an offer in excess of €20m. The only reason for the rejection appearing in the memo was a belief that Mr. Mellon was acting in concert with O’Malley Construction, who were proposing development of another site in the vicinity. The memo noted that Jones Lang LaSalle were obliged “to follow clients instructions”, suggesting that the course of action being taken was not one they had recommended.
54. A slightly different account of the meeting was set out in a memo of a conversation between Mr. Lennon and Mr. Foley also dated 9th March, 2007, which stated that the meeting was “inconclusive” and that the family wished to confer with the two missing family members before deciding.
55. On 9th March, 2007, Ms. Derval White phoned Mr. Lennon at approximately 9:15 a.m. stating that the family were agreed that they would consider stopping the tendering process if the offer from Mr. Lennon was for over €20m. Mr. Lennon (who wrote a memo of the call) advised Mr. Foley of this, who indicated that he was disappointed because “he had advised them…to take €18/18.5m”.
56. The really crucial point as to what was decided at the meeting is not so much the “fog of war” of the various memos but what actually happened as a result. What actually happened was that a letter was sent by fax at 10:24 a.m. on 9th March, 2007, in accordance with the draft in the Jones Lang LaSalle marketing update.
57. In the light of the fact that a letter as recommended by JLL was ultimately and indeed fairly promptly sent, I find that the administrators did in fact follow professional advices in relation to this matter. If one had to reconcile the memos with what did in fact happen I consider the most likely course of events was that the administrators may not have immediately given instructions to follow the JLL advice to send a letter, and may have needed time overnight to consider it, but they did so in the course of the following morning and therefore there was no failure to follow advice and no breach of duty in this regard.
The ball back in Mr. Mellon’s court
58. Later that day, a conversation took place between Mr. Lennon and Mr. Mellon, in which Mr. Lennon proposed the subject of a €20m offer and Mr. Mellon said he was “all out” at €18.5m. The only sweetener offered was to pay the engineer’s fee.
59. Mr. Lennon reported to Mr. Foley who expressed disappointment. He also phoned Derval White and told her that Mr. Mellon was out of the running and wished them well.
60. At 2:15pm, Mr. Foley phoned Mr. Maher and stated that Niamh White was “now very worried” and was of the view that “everything that [Mr. Foley] had predicted has come true”. She was “very worried about the position that Dodo [i.e. Derval] has now taken”. Mr. Foley advised her to resign immediately as personal representative and Mr. Maher stated that he concurred in this advice. The memo expressed concern that “they have made a serious error”, and feared concerns that “Dodo” had made a decision without contacting all of the parties and had put the personal representatives in “a position of recklessness”. Mr. Foley was also noted as expressing concern that there had been no board decision in relation to the rejection of the offer, given that the board of directors of Robbins White and Company also had an interest in the transaction. Again however this material does not establish negligence or breach of duty on behalf of the defendants. All it indicates at most is concern and nervousness at a particular point in time on the defendant’s side. Such concerns do not undermine a party’s case. “There are many cases you cannot win; there is no case you cannot lose” (C. Michael Abbott, in Ron Liebman, Shark Tales (New York, 2000), p. 95). Unless counsel are sweetly oblivious of litigation risk, concerns as to real or apparent weak points in one’s case will always be part of one’s thinking. That may give rise to giving written expression to such concerns and considering or taking measures by way of defensive risk-reduction, but the giving of thought to such measures does not go anywhere near establishing that a party’s case is in fact weak or unfounded.
61. The plaintiff then enters the picture. By letter dated Friday, 9th March, 2007, Mr. Montgomery, the plaintiff’s solicitor, wrote to Mr. Maher objecting to any suggestion that the plaintiff was unable to manage her affairs and complaining that she had not been consulted in relation to the company. This letter, posted on a Friday, would not have arrived until the following Monday, 12th March, 2007. The letter contained a threat to issue proceedings under s. 205 of the Companies Act 1963. The plaintiff accepted that this could have jeopardised the sale but stated that she gave no such instructions and the letter was issued without her knowledge (another example of her deflection of responsibility on to other parties). It is implausible that a letter threatening legal action would have been sent without instructions, especially where the action would have held up sale of a property that was at an advanced stage of tendering. I am of the view that the probability is that the letter was indeed based on instructions. The instructions so given by the plaintiff were clearly seriously inaccurate in that the letter claims that a substantial asset, a house in Galway, had not been included in the inland revenue affidavit. This house was included in the affidavit.
62. On Monday, 12th March, 2007, at 12 p.m., Mr. Mellon and Mr. Lennon had a further phone conversation during which Mr. Mellon indicated he would increase the offer to €19m but would not tender. Mr. Foley discussed the idea of asking Mr. Mellon to sign a contract at that point. Ms. Derval White was of the view that it was “too late and too difficult to get everybody together at this late stage”.
63. At 2:05 p.m., Mr. Lennon was in telephone contact with Mr. Maher. He stated that he had spoken to Mr. Foley. “Dodo” White was of the view that the offer “should be utterly rejected”.
64. At 3:50 p.m. that day, Ms. Cliona White left a message for Mr. Lennon. Mr. Lennon spoke to Mr. Foley about 6 p.m. who advised him not to reply because the family were meeting later as a group.
65. At around 4:30 p.m., Mr. Mellon unilaterally signed a contract to purchase the property for €19m and handed over a cheque for a deposit. He enclosed a letter from the Irish Nationwide Building Society confirming that funds “will be made available” subject to general terms and conditions. A post-it note on the contract stated that it was subject to acceptance by 7 p.m. that day. It was also signed “in trust” for an unidentified principal.
66. Subsequent to receipt of this document, Mr. Lennon and Mr. Foley had a discussion during which Mr. Foley expressed certain concerns, namely that the letter from the building society was not proof of funds, the contract was signed “in trust” and the deadline condition was not witnessed.
67. Mr. Foley spoke to Mr. Barry White around this time who noted that they would probably reject it and wait as Mr. Mellon “was the only person who really wanted to buy it”.
The meeting of 12th March, 2007
68. A further family meeting then took place on the evening of Monday, 12th March, 2007. Again, the plaintiff was not present.
69. Ms. Niamh White gave evidence that she followed the advice of her solicitor Mr. Maher in not accepting the Mellon offer and I accept her evidence. I find as a fact that the administrators did properly follow professional advice given to them in this respect. Insofar as it was suggested by Mr. Murphy that the administrators disregarded JLL advice (as opposed to legal advice) on the 12th, by not following the original marketing update, that suggestion fails to have regard to the fact that the administrators were in constant communication with JLL in the evolving situation. The marketing update of the 8th was not the totality of the advice from JLL and it has not been shown that the administrators failed to apply the advice given on the 12th. In any event the legal advice was clear and was followed and that had priority over any contrary advice from JLL, if there was any.
70. Furthermore Mr. Barry White gave evidence that another factor was the plaintiff’s history of allegations against family members; and that in effect it was better to play the tender process by the book, because if it was derailed in favour of Mr. Mellon there would probably be an allegation of impropriety made. I accept the reasonableness of that approach and, while this evidence was given by Mr. White rather than the administrators, I consider that to the extent that it could have influenced the decision-making process of the latter by reinforcing the conclusion they were led to by legal advice, that was a reasonable and lawful concern to have had. The plaintiff by her own conduct in her history of outrageous false allegations against family members had made it significantly more likely that the defendants would adopt a risk-averse approach.
71. One of the mysteries of the case is as to why Mr. Mellon did not actually submit a tender. I consider as a matter of probability that it was because he did not in fact have the funds immediately available, which is consistent with the terms of the letter provided and with his seeking further time to get proof of funds. But even if I am wrong about that, I find that it was reasonable for the administrators and their advisers to have suspected that to be the case and to not have accepted his offer on that basis.
72. While some of the documentary material suggested that the decision adverse to Mr. Mellon was 4:2 amongst the beneficiaries, having heard the witnesses I accept the evidence on behalf of the defendants that it was in fact unanimous.
Fallout from meeting of 12th March, 2007
73. On Tuesday, 13th March at 9:03 a.m., Ms. Niamh White informed Mr. Lennon that the decision was not to accept the offer.
74. On 13th March, 2007, Mr. Maher advised Ms. Derval White that he had had a call from the plaintiff’s then solicitors and had advised them that that day was the tender date and he should wait and see what happened rather than proceed with some form of High Court application as being threatened at that point (as set out in a letter dated 13th March from Mr. Maher to Ms. Derval White). Mr. Montgomery did in fact take up that suggestion and did wait and see. So the plaintiff was in fact informed of the situation with the tender process prior to the opening of tenders. As noted above, the plaintiff in the witness box denied instructing Mr. Montgomery to threaten s. 205 proceedings. I find her evidence unconvincing and characteristic of the ducking and weaving of the plaintiff’s account.
75. Mr. Lennon made a note of a phone conversation with Mr. Foley at 7:45 a.m. on 13th March, 2007, indicating that the time factor did not help with the offer, the letter from the building society was insufficient, and the signature “in trust” was not accompanied by a declaration of trust. The view was that Mr. Mellon should tender for the property and Mr. Foley advised Mr. Lennon to contact Mr. Mellon and inform him of the situation. Thus there was a decision to actually revert to Mr. Mellon before the tender process was completed. That would have given him an opportunity to make a further intervention if he saw fit.
76. Subsequent to this, Mr. Lennon wrote to Mr. Mellon returning the cheque.
77. Tenders were opened at 12:00 p.m. on 13th March, 2007, at which point one tender had been received for €15.3m. On foot of this, Mr. Mulcahy and Mr. Lennon reported to the personal representatives indicating that “the market continues to soften” and current levels of value “may not be available in the future”. The recommendation was to negotiate with the highest bidder.
78. A further family meeting took place on 14th March, 2007, at 7 p.m. Mr. Maurice Kelly of JLL wrote a minute of this meeting in which it was noted that Mr. Mulcahy of JLL had indicated that it was not unusual that only one tender would be received from 10 sent out, and that “market sentiment and uncertainty about the road” [i.e., the proposed Eastern by-pass at the back of the lands] had the effect of causing a significant shortfall from the asking price.
79. The JLL advice was to engage with the tenderer and see if the position could be improved and only if the tender failed should they revert to Mr. Mellon. Thus the failure to revert to Mr. Mellon after the 14th March was on foot of professional advice.
80. Ultimately, the sale was concluded at €16.45m, the vendors having negotiated up with the successful tenderers.
81. The plaintiff learned of the sale after the event, not having been invited to meetings. In direct evidence she said that “they had my mobile number” but under cross-examination she admitted that her number had changed from time to time. It is clear that the family did not have her number although they did know of the most recent of a number of solicitors acting for her and had corresponded with them.
82. In late 2007, Mr. Mellon bought the property from the successful bidders.
83. The shareholding of the company at this time was 999 shares held by the estate of Emily White and 1 share each held by each of the 7 children. The directors were all of the children except Aideen and Clodagh.
84. Towards the end of 2007 or early 2008, the company was wound up and the assets distributed to the shareholders.
85. These proceedings were instituted on 7th February, 2012.
What needs to be established for a verdict in favour of the plaintiff?
86. It seems to me that the plaintiff needs to establish the following in order to succeed:
a. that the plaintiff is a daughter of the deceased (and therefore entitled to an equal share with the other children in the estate of the deceased);
b. that the defendants failed in their fiduciary duty to the plaintiff to maximise the value of the estate;
c. that any such failure is not excused in the circumstances by reference to the defendants having acted in accordance with the wishes of a majority of the beneficiaries;
d. that the plaintiff suffered loss thereby.
The plaintiff’s status as a daughter of the deceased
87. As noted above, in this case the plaintiff only stated in evidence that she was the “registered” daughter of the deceased but at the same time she maintained in evidence that her birth registration was inaccurate.
88. When asked if she was the actual daughter of the deceased, she evaded the question and ultimately professed not to know. She conveyed to me in a myriad of ways the clear impression that she does not believe herself to be the daughter of the deceased despite expressly denying having a belief one way or another, and I consider her expression of open-minded uncertainty is more likely than not to be a convenient dilution of her actual beliefs; a dilution which I infer is due to some form of awareness of the possible legal consequences of stating those actual beliefs. She referred, distastefully, to the Whites as “that family”, “those people” or “the White family”, very much putting herself outside that group. “I lived with those people” is the rather repugnant way in which she described her childhood. In any event, the onus of proof being on the plaintiff, the issue arises as to whether it is sufficient to say “I don’t know” in response to a question as to whether an essential proof in order to succeed exists – in this case whether she is the daughter of the deceased. Under cross-examination she went further and stated that the basis of her case was that she was treated and regarded as a daughter, and inferentially that the basis was not that she actually was a daughter. That effectively amounts to a repudiation of the case as pleaded.
89. In correspondence she stated that another person was her birth mother and at one point in her oral evidence she positively gave it as her belief that another person named Walsh/ Doyle was her “natural mother”. Overall, it seems to me that a party carrying the onus of proof cannot equivocate on whether an essential element of their case exists, and a fortiori cannot deny that element. But for the fact that the defendants did not appear to wish to take this particular point against her, I would have dismissed the action on that ground alone.
Whether the defendants failed in their duty to the estate
90. Personal representatives have a number of fiduciary duties to the beneficiaries (see e.g., In re Tebbs [1976] 1 W.L.R. 92, Shaughnessy v. Shaughnessy [2016] IEHC 303 (Unreported, High Court, Gilligan J., 25th May, 2016)) including due diligence (In re Tankard [1942] 1 Ch. 69), the duty to act with the care that might reasonably be expected from a careful person in the prudent discharge of his or her own business (In re Gunning; Little v. Governors of Co. Down Infirmary [1918] 1 I.R. 221) and a duty to maximise the value of the estate. In the course of a very able submission on behalf of the plaintiff, Mr. Murphy contends that there are a number of failures in duty by the personal representatives as follows.
91. The first complaint is failure to take the advice of the estate agents and lawyers in relation to not accepting Mr. Mellon’s offer on 8th March, 2007. Mr. Murphy submits that the JLL advice was to deal with Mr. Mellon’s offer and they did not do that. As set out above I have found as a fact that there was no failure to take and appropriately follow legal and JLL advice on the 8th March.
92. It should also be noted that the argument was not based on the proposition that the advices given were themselves negligent (which they did not appear to me to be on the evidence in any event). The issue was whether the advices were followed. I am satisfied on the balance of probabilities that it is not the case that there was a failure to heed or follow professional advice. As regards the first allegation, on the evidence before me it is not the case that the advice of professional advisers was rejected. The advice on 8th March, 2007, was essentially to engage with Mr. Mellon and to seek proof of funds and a higher offer; but that is what happened. The advice in the JLL marketing report of 8th March was not rejected. There was no breach of duty.
93. The second complaint is, having been advised on 8th March of the market difficulties (advice Mr. Murphy says “was still in force”) and having had only one tender offer by that stage and no updated evidence that an additional tender was likely to appear, the personal representatives decided to gamble on 12th March, 2007, by “concocting reasons” to reject Mr. Mellon, their views being “coloured by the obsession that the property was worth €20m”. As set out above I have found as a fact that the administrators did follow professional advice on the 12th March.
94. No “gambling” has been established. The plaintiff’s case is merely an exercise in hindsight. I am satisfied on the balance of probabilities that, on the evidence, the defendants were acting on legal advice in rejecting the Mellon offer based on the fact that the contract was signed in trust and that funds were not actually in place. This was a reasonable approach and was not negligent or in breach of duty. Mr. White referred in evidence to the possibility that Mr. Mellon could be buying the property on behalf of a company with no assets and that the estate could be left high and dry in those circumstances. No declaration of trust was produced. I accept that evidence and that it was reasonable for the administrators to have been concerned about such a contract. The 8th March advice was not “in force” in the sense in which Mr. Murphy submits because the defendants were in constant touch with JLL and legal advisers. In any event legal advices had priority. The allegation that the defendants were concocting reasons or obsessed with a belief in the property’s value of €20m is not made out in evidence.
95. The third complaint is failing to go back to Mr. Mellon after the tender was received on 13th March, 2007. This breach was not in fact pleaded and therefore the plaintiff cannot succeed under this heading but in any event the professional advice from JLL on 14th March, 2007 was to pursue matters with the successful tenderer and to go back to Mr. Mellon only if that failed. Thus there was no breach of duty relating to a failure to follow advice. Furthermore, on 13th March, 2007, JLL decided to revert to Mr. Mellon to inform him of the situation which would have allowed him to make a further intervention if he was so minded.
96. The fourth complaint is the suggestion that the personal representatives failed in a duty to consult the plaintiff although Mr. Murphy accepted in submissions that this did not give rise to a cause of action as such but rather was a factor to be taken into account in relation to the other matters. As the other matters do not establish a breach of duty, the failure to consult the plaintiff does not arise; but even if it did, the plaintiff’s history of scandalous allegations against family members meant that any failure to consult her in such circumstances was reasonable. The plaintiff by her conduct detached herself from the family by a course of conduct over a period of years, including but not limited to writing scandalous letters, publishing a book with scandalous innuendo, and making frivolous and vexatious complaints against family members. I accept Mr. White’s evidence that none of her complaints had any substance. The plaintiff’s evasive and misleading evidence given initially that the other family members had her mobile number was later resiled from. The plaintiff did not furnish contact details to family members and insofar as she was not consulted I find that she effectively locked herself out of the situation. The administrators cannot be faulted in the circumstances for not seeking to contact her through Mr. Montgomery who was but one of a series of solicitors through whose hands the plaintiff has passed over the years.
97. Having seen and heard the witnesses and having regard to the nature of their answers I accept the evidence of Ms. Niamh White and Mr. Barry White as honest and reliable. Insofar as the oral evidence on behalf of the defendants could be seen to differ in any way from the position that could emerge from the documentary materials considered in isolation I prefer the oral evidence on behalf of the defendants because it explained and contextualised the broad situation in a manner that isolated concerns recorded in a limited number of documents do not accurately represent. Overall, and in particular where it conflicts with that on behalf of the defendants, I reject the plaintiff’s evidence as not only frequently evasive and unreliable but unfortunately deluded in many respects. Regrettably I am satisfied that her lengthy history of launching allegations is the work of a fantasist.
98. There was no breach of duty by the administrators as alleged or at all.
Is any conduct of the administrators protected by section 50?
99. If I am wrong as to the foregoing, the issue arises as to the inter-relationship between s. 50 of the Succession Act 1965 and the fiduciary duties of personal representatives and in particular whether any possible breach of duty by the administrators is excused by reference to their acting on the basis of the wishes of a majority of the beneficiaries.
100. Mr. Murphy submits that s. 50 amounts merely to a duty to consult and does not involve a duty to follow the wishes of the majority. However that is not what the section says.
101. Mr. Brady relies on s. 50 of the 1965 Act as a complete defence to the proceedings. The section requires that the personal representatives are to comply with the wishes of the beneficiaries, by majority of value, as far as practicable.
102. When does this become impracticable? Mr. Foley relied on P.P. v Health Service Executive [2015] 1 I.L.R.M. 324 in relation to the use of that phrase in Article 40.3.3° of the Constitution, although that was a case where there was no real possibility of vindicating the interests of the (unborn) rights-holder in question so it is not hugely illuminating in the present case.
103. In the s. 50 context, M.K. v. J.B. [1999] IEHC 117 (Unreported, High Court, Carroll J., 26th February, 1999) is one such case, where an underage beneficiary who objected to the sale of his childhood home was overruled by Carroll J. who held that it was not “appropriate or practicable to give effect to [his] wishes.” One can note in this phrase a stealthy expansion of s. 50 to cover the view that upholding such wishes was not “appropriate”. The child’s aunt, who wanted to sell the house over the wishes of the child and his father, had a litany of reasons for doing so which do not seem hugely convincing in the cold light of retrospect. Particularly unimpressive was her objection that “if he has an attachment to the property it is unhealthy” (because of his allegedly troubled childhood therein). If Dante were writing today he might well reserve a special circle for those who launch objections to other people’s attachments to particular real or personal property. To be attached to a particular house for example is a part of what social geographers and urban planners would now call a sense of place. To be attached to a particular location and property is a prerequisite for an advanced society, because “civilization can never grow up on the move” (Dr. Jacob Bronowski, The Ascent of Man (London, 1973) p. 60). The attachment to particular real or personal property is part of the emotional identity of the individual and deserves to be respected as such. One cannot help feeling that the views of the beneficiary were too readily overridden in M.K., particularly because it was not at all clear that giving effect to those wishes was impracticable, that is, incapable of being put into practice. M.K. is not a decision from which huge assistance can be derived for present purposes and does not provide a basis in principle to override the views of beneficiaries of full age and capacity, or a majority by value of them.
104. In Kennedy v. Kennedy [2007] IEHC 77 (Unreported, High Court, 26th January, 2007), O’Neill J. emphasised that beneficiaries who are also personal representatives cannot favour their own interests over an individual beneficiary (p. 19). Of course that is not what happened here in the sense that all the siblings got an equal slice, albeit that we now have at best the speculative possibility in retrospect that the pie could have been bigger if the personal representatives made a different decision.
105. Thus, the majority of beneficiaries cannot act in a manifestly unreasonable way which has the effect of diluting the size of the estate. Such situations could arise in cases of conflict of interest, bad faith, or negligence.
106. Personal representatives must act in good faith and should not follow the majority wishes if they consider that to do so would be negligent (for example, by not resulting in maximum value for the non-consenting beneficiaries). But if they incorrectly but in good faith think that following the majority view would not be negligent, the mandate to comply with the majority as set out in s. 50 seems to me to provide an implicit protection for the personal representatives unless the negligence is gross. However I emphasise that there is no protection under the section in the absence of good faith.
107. Thus mere negligence without more that arises due to following in good faith and without conflict of interest the wishes of a majority of beneficiaries by value seems to me to be protected by s. 50 as long as it is not so manifestly unreasonable as to constitute gross negligence.
108. In the present case I am satisfied on the evidence that even if there was some form of breach of duty by the administrators (which I do not accept), it was not so manifestly unreasonable as to oust the protection of s. 50. Nor was there any absence of good faith.
109. Re Weiner’s Will Trusts [1956] 2 All E.R. 482 illustrates the limits of the doctrine that one can follow the views of the majority. That however dealt with a quite different situation, namely where a particular beneficiary was unconditionally entitled to have certain assets transferred to him. The wishes of a majority of the other beneficiaries not to do so (because the transfer would dilute the value of the shareholding in the company) could not prevail against such a right. A comparable situation does not arise here.
Proof of loss
110. If I am wrong about all of the foregoing, the question of loss arises. Most of the alleged breaches of duty could not be said to have given rise to loss anyway because Mr. Mellon was never closed off from competing; he came again on a couple of occasions, and the defendants communicated with him right through to the 13th March, 2007. More fundamentally, the plaintiff has failed to prove any loss emerging from the matters complained of because it has not been established in evidence that Mr. Mellon was actually in a position to complete the contract or would have been someone from whom damages could have been recovered had he signed but not completed it. The fact that he ultimately bought the property at a later time is not something from which such a conclusion could be drawn without positive evidence as to his financial condition at the time of the offer to which this action relates. There was no such evidence.
Order
111. For the reasons explained, and leaving aside the plaintiff’s status as a beneficiary (with which no issue was taken), the action fails under each of the headings which the plaintiff is required to prove: breach of duty by the defendants, ouster of the protection afforded by s. 50, and proof of loss. Any one of those failures independently would have been fatal to the action. An accumulation of such failures in combination reinforces that result. Accordingly I will order that the action be dismissed.