Secondary Grants
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.
Cases
Thompson v Thompson
5 March 1910
[1910] 44 I.L.T.R 105
Cherry L.J.
Armagh, March 5, 1910
This case came up on appeal from a decree for possession, made by the County Court Judge of Armagh at Ballybot upon Oct. 14, 1909. The plaintiff, James Thompson, sued as administrator de bonis non of Samuel Thompson, deceased, and the plaintiff Mary Jane Livingston, as executrix of Joseph Livingston, deceased. The defendants were Jane Thompson, Elizabeth Thompson, and Samuel Thompson, junior, all next-of-kin of Samuel Thompson the elder. Samuel Thompson, junior, alone appealed.
Samuel Thompson the elder died in 1865, leaving a widow and seven children. Some of the children went to America, but the widow and others remained on the farm, the widow taking out administration to the deceased. In 1890 a second farm, known as White’s farm, was bought out of the assets. Subsequently disputes arose, and in 1897 the administratrix issued against Samuel Thompson, junior, an equity civil bill for administration, in which proceeding a decree was obtained. Upon Jan. 24, 1900, the parties came to a consent in the suit, which was signed by the administratrix and all the next-of-kin, and was made a rule of Court at the ensuing Easter Sessions. By this consent the defendant was to get White’s farm. As to the other assets, the consent provided:—“(2) The plaintiff is to have possession during her lifetime of all other lands of which Samuel Thompson, deceased, the intestate in this action, died possessed, together with the stock, crop, and chattels thereon, and upon her death the said lands to be valued by an arbitrator appointed by the defendant and another arbitrator by the other next-of-kin of the intestate herein, with an umpire to be selected by them, and a share as one of the next-of-kin of the intestate herein, to be paid to the said defendant upon the basis of such valuation. (3) The defendant to have no share as one of the next-of-kin or otherwise in the crop, stock, household furniture, farming implements, or other chattels and effects which may be upon the holding at plaintiff’s death, these to be divided among the other next-of-kin exclusive of the defendant. (4) The defendant to reside apart from the plaintiff, and in no way to molest her nor to interfere with her in the management of the home farm.” The defendant observed this agreement until the administratrix died upon April 16, 1905, whereupon he came back to the home farm and interfered anew. James Thompson took out administration de bonis non, and, after numerous letters asking for the arbitration had proved fruitless, issued a civil bill ejectment on the title. After the decree, and about a fortnight before the hearing of the appeal, the defendant served notice appointing an arbitrator, and calling on the other next of kin to appoint theirs.
C. Dromgoole, K.C., for the plaintiffs.
F. Redmond for S. Thompson, junior.—Mrs. Thompson, as administratrix, parted with the legal estate at the time of the consent. The administrator now has no title. In any case the plaintiff should have enforced arbitration. I ask for a stay of any decree for possession until the arbitration is held.
Cherry, L.J.
The administrator de bonis non represents the deceased, and is at present out of possession. He is entitled to the possession, for neither consent nor arbitration deals with the possession. The decree for possession will not interfere with the arbitration. In any view the defendant is not entitled to the farm, but only to his money, and I see no reason *105 for a stay. I affirm the decree with costs against Samuel Thompson.
Munster and Leinster Bank v. Murphy.
[1942] IR 176
Gavan Duffy J.
A curious question has arisen in the course of this suit, the two parties now before me are interested in receiving the same answer, and I regret that there is no one here to contend for the opposite view.
The Bank sues Mr. John Ring Murphy, its Manager at Borrisokane, Co. Tipperary, for an order for the administration of the estate of the late James Currie; Mr. Murphy is his administrator with the will annexed. The Bank is a creditor against the estate for a sum exceeding £800, due under a judgment of 20th July, 1929, registered against certain registered land, of which the testator was apparently owner, on 12th August, 1929; and this action was begun on 16th July, 1941, only a very short time before the Bank’s claim for relief would apparently have become statute-barred. Consequently, if the action be not properly constituted, the Bank will probably lose its money, and no amendment of parties made now could save the situation, because an amendment could not be allowed to disturb any right that has actually accrued to the beneficiaries under the will against the Bank.
The question is whether this action, as it now stands, is open to the objection that a man cannot sue himself, a principle well established in our Courts: see Galway County Council v. Galway Board of Health, (3) and Hicks v. Butler (4).
The grant to Mr. Murphy was made in these terms:”to John Ring Murphy of Borrisokane aforesaid, bank manager, the nominee lawfully appointed of the Munster and Leinster Bank, Limited, the registered office of which is situated at No. 66, South Mall, Cork, in the County of Cork, creditors of deceased and as such, the person appointed by the Court pursuant to 20 & 21 Vict., c. 79, s. 78, to be the administrator, with the will annexed, of the personal estate of deceased, limited for the use and benefit of the said Bank, the said John Ring Murphy having previously been sworn faithfully to administer the same according to the tenor of the said will.”
The grant was made to Mr. Murphy, because the Bank, as creditor asked the Court to appoint its nominee; he is the nominee of the Bank for the administration. But the motives which actuated the Court do not alter the fact that Mr. Murphy is constituted administrator by reason of his appointment by the Court, and not by reason of the Bank’s nomination. He has solemnly bound himself to the Court to do his duty by the persons having claims on the estate. And just as the Bank could take any proceedings open to a creditor, if, having the necessary assets, the administrator sought to defeat its claim, so it is entitled to sue him for an administration order, which incidentally will enure to the benefit of the other creditors, if any: see Eames v. Hacon (1),and the judgment of Kindersley V.C. in In re Dewell, Edgarv. Reynolds (2).
In truth this action is not brought by a plaintiff against his alter ego; if it were, I should have to dismiss it forthwith. But it is brought by the plaintiff Bank against the minister appointed by the Court and by the Court entrusted with the interests of all concerned in the estate, notwithstanding the limited form in which the grant is expressed: see Chambers v. Bicknell (3). As no other reason appears against the prayer of the originating summons, I must make the requisite order for administration.
But absent persons may be interested in the question as to the proper constitution of this suit, and I shall therefore make the order for administration without prejudice to the rights of any creditor or beneficiary under the will, who may seek to contest the question, and shall direct that the order made this day, together with a copy of these my reasons for it, be served by registered post on the principal persons appearing to be interested, to wit, the legatees (brothers of testator) John Currie and Andy Currie, who, I understand, survived him, and the parish priest of Clough-jordan, mentioned in the will, any one of whom is at liberty to contest the proper constitution of this suit, and so, the validity of the Bank’s claim under the Statutes of Limitation, if so advised; and this procedure will enable the matter eventually to be brought before the Supreme Court, if recourse to the final tribunal be desired.
In the Goods of Ryan
[1927] IR 174
HANNA J. granted the application.
The following is the material part of the order made:”It appearing to the Court that a grant of probate of the last will of the said deceased was, on the 24th March, 1881, granted to the Rev. Patrick Hanley and the said Rev. James Baxter, and that the original will of the said deceased and the said grant of probate have been lost or destroyed, and are not now forthcoming, and it further appearing that the said Rev. James Baxter, the surviving executor named in the said will, is now totally incapacitated from transacting the business of an executor, it is ordered by the Court that, notwithstanding the said grant of probate being on record, the said James O’Dwyer be at liberty to apply for a grant of letters of administration without the said will annexed, limited to a fund consisting of three shares in the National Bank, Ltd., together with the unclaimed dividends thereon standing in the name of the said deceased.”
In the Goods of Dyas
[1937] IR 479
Hanna J.
This is an unusual and complicated case. The facts are that the deceased, Walter Dyas, of Triangle, Vrede, Orange Free State, was the son of James Dyas of Milltown, Fordstown, Co. Meath, who, by his will, dated 24th April, 1884, left a life interest in £1,000, now invested in Consolidated 21/2 per cent. Stock, to his son, the said Walter Dyas, with a power in the latter to appoint the capital to whom he (Walter) might direct by his will. This sum of £1,000 was on the 25th January, 1909, paid into Court by the surviving executor of the will of James Dyas. Walter Dyas died, aged 76, on 16th September, 1933, having, in accordance with Roman Dutch law, made a mutual will with his wife, whereby, if she should survive him, she became his universal legatee and executrix. Probate of his will had been granted to the widow as executrix out of the appropriate Court of the Orange Free State.
The basis of the claim of the applicants is that in 1886 the deceased, who was carrying on business as a partner in the firm of McLeod and Dyas in Natal, gave personally what is described as a notarial bond to Messrs. Steel, Murray & Co. of Durban, to secure a debt of McLeod and Dyas to Messrs. Steel, Murray & Co. for the sum of £428 4s. 8d. with interest, and by this bond this debt was charged on the income of Walter Dyas from the Consolidated Stock. The dividends from this source were paid to the creditors until 1900, and, by order of the Court, from 1909 until 1934, to the firm of Messrs. Webster, Steel & Co., who were the assignees of the debt. Messrs. Webster, Steel & Co. were the owners of the business of Messrs. Steel, Murray & Co.
Messrs. Webster, Steel & Co., being unable, since the death of Walter Dyas, to obtain payment of the principal debt from the executrix in the Orange Free State, but without having taken any legal proceedings there, make the application to this Court by their nominee, Mr. Langford James, of 9 St. Helen’s Place, Bishopsgate, London, who is a partner in their firm, for a grant of administration with the will annexed to the estate of the deceased. The Court cannot, of course, give a general grant as asked for, since there is already a grant issued to the personal representative in the domicil. The widow and executrix was by my direction cited to take out the proper grant from this Court, but for some reason has declined to do so. There are no Irish creditors.
In the normal case, a creditor, where the personal representative or the next-of-kin decline to take out a grant, is given a grant on satisfying the Court that he is a creditor on the particular estate and that there is estate of the deceased in Ireland liable for the debt. But the Court must be always satisfied that there is a distinct and definite interest in the assets.
In principle, then, this is an application by an English nominee of an English firm claiming to be the assignees of a debt incurred in Natal to a Natal creditor by a debtor domiciled in Natal, now deceased, for a grant of letters of administration with the will annexed to the deceased’s estate in Ireland, claimed to be liable to the Natal debt, the estate consisting solely of the sum of £1,000 21/2 per cent. Consolidated Stock held in Court here under the trusts of a will in pursuance of which the deceased had, according to our law, a power of appointment to whomsoever he might direct; the application is made notwithstanding that there are no creditors in Ireland and that there is a properly constituted administrator or executrix in the Orange Free State with other assets and possibly other creditors; this executrix has declined to take out administration here. The deceased died domiciled in the Orange Free State, having been married in community of property to his wife in Cape Colony.
In the consideration of this case I have been greatly assisted by the affidavit of Mr. Robert L. Sandes, a Member of the Bar, of the English Bar, and also of the South African Bar, known to us as an authority on the Roman Dutch law as applied in the Courts of the Union of South Africa. He has satisfied me that there are questions arising possibly in this case which in my opinion should be considered by the appropriate Courts in South Africa.
When the case first came before me some months ago, no explanation could be given why the creditors, if their debt was valid, according to Roman Dutch law, had not pursued their remedy in the Courts of the domicil of the deceased, for they have not got any judgment in the domicil nor taken any legal steps to obtain payment out of the estate.
I am not in a position to decide whether the terms of this will would operate under Roman Dutch law on this £1,000, or whether the £1,000 is, under the Roman Dutch law, liable to debts, as the rights of the assignee of a foreign debt are determined by the law of the country of the original contract. The law in the Orange Free State may not recognise a power of appointment, and if it does, can the wife claim the proceeds absolutely, or are they under that law liable for debts, as against the wife who was married in community of property? Again, I am not able to decide what the law of the domicil is as to assignment of debts; it may not exist, as we understand it, nor do I know what rights other creditors may have in priority to this notarial bond, which Mr. Sandes advises operates only as an admission of liability and has priority only in the case of insolvency of the estate, when it ranks after secured creditors and is inoperative to hypothecate property outside the Union of South Africa. As this is a debt now over fifty years old, questions may arise under the equivalent, in Roman Dutch law, of our Statutes of Limitation.
Accordingly, I cannot with any authority decide these points or whether they do or do not arise.
Notwithstanding this, the applicants must be put in a position, where, whatever their rights, they will be protected, and their debt and the liability of the estate investigated (unless the executrix consents to payment) by the competent Court in South Africa. But the applicants are not entitled to get a grant issued to their nominee in such a form that without further inquiry and without the consent of the executrix they may get the payment of the £1,000 out of Court and discharge their own debt without inquiry. If the applicants provide an Irish nominee within the jurisdiction of this Court, I shall issue a grant ad colligenda bona to such nominee limited to applying to have this money, the £1,000, paid out to him and under an obligation to pay the sum (less the taxed costs of this application and of the application to pay out) into the appropriate Court of the domicil unless the executrix admits the debt and consents to its discharge out of the £1,000.
I shall also direct that a copy of my judgment and order be sent to the Master of the Supreme Court of the Orange Free State, who controls the administration of the estate.
Finnegan v. Richards & Anor
[2007] IEHC 134 (20 April 2007)
JUDGMENT of Mr. Justice William M. McKechnie delivered on 20th day of April, 2007.
The Parties
The plaintiff by trade is an electrician and he resides at Ivy Hill, Emyvale in the County of Monaghan. The defendants, Graham Richards and Paraic Madigan who are solicitors in the firm of Messrs Matheson Ormsby and Prentice of 30 Herbert St, Dublin 2, are sued as attorneys of one Barbara Allen and as the persons who, on her behalf, obtained Letters of Administration with will annexed to the estate of the late Emma Teresa Clancy who died on 13th May, 2004.
2. Reliefs Claimed
In the substantive action Mr. Finnegan claims, that in the circumstances pleaded, he became entitled to the beneficial ownership of the dwelling house and premises known as “Retreat Heights”, Glaslough, Co. Monaghan which was owned by the deceased at the time of her death. The defendants, after the delivery of the statement of claim issued a notice of motion dated 17th November, 2006 in which they seek from this court an order striking out the proceedings on the grounds that the same disclose no cause of action, are bound to fail, and otherwise constitute an abuse of process. They rely upon the courts inherent jurisdiction for this relief as well as calling in aid O. 19 r. 28 of the Rules of the Superior Courts. They make the application on two distinct grounds, the first being that at the date of the institution of the proceedings, no grant of administration had yet issued and accordingly the defendants lacked both the competence and capacity to be sued in a representative capacity. The second is the more conventional argument that the facts as pleaded fail to disclose any sustainable cause of action. This judgment deals solely with the matters raised by aforesaid notice of motion.
3. Background
On 22nd day of November, 1965, Emma Teresa Clancy made her last Will and Testament whereunder she appointed her husband, Padraic Clancy, as the sole beneficiary of her estate and also appointed him as the sole executor thereof. There was no issue of this marriage and her husband pre-deceased her. Accordingly, after her death on 13th May, 2004, one Barbara Allen, as her lawful niece became the person next entitled to obtain the right to administer her estate. This said lady duly appointed Graham Richards and Paraic Madigan to act as her attorneys in respect of all matters concerning the estate of the deceased person. Hence the naming of these individuals in the title of this action.
By letter, undated, but received on 22nd September, 2005, Messrs Daniel Gormley and Company, Solicitors, wrote on behalf of the plaintiff to Messrs Matheson Ormsby and Prentice, where the defendants are practicing solicitors. They alleged on behalf of Mr. Finnegan that by reason of “inter vivos” promises, made by the late Emma Clancy during the course of her life, the dwelling house and premises known as “Retreat Heights”, became, after her death, his property and accordingly did not form part of the estate of the deceased person. Having called for an acknowledgment of this situation the letter concluded by stating “if such confirmation is not forthcoming from your office we have instructions to issue proceedings against the estate without further notice and would be obliged if you would indicate whether you have instructions to accept same”.
On 2nd December, 2005, the plaintiff’s solicitors wrote once again complaining about what they described as a “further trespass” by servants or agents of the defendants to “Retreat Heights”. On 6th December, Matheson Ormsby and Prentice replied to that allegation, the details of which have no material bearing on the current application. In the said letter however they also stated “… notwithstanding that, you appear to be attempting to maintain that the matter has suddenly become urgent and requires injunctive relief, this is something which we simply do not accept. We confirm that we have authority to accept service of proceedings on behalf of our client. We also confirm that we will vigorously defend any proceedings that issue in this regard …”. (emphasis added)
Sometime in April or early May 2006, Daniel Gormley & Co. checked with the Probate Office and ascertained that Letters of Administration had still not by that date, been taken out to the estate of the late Emma Teresa Clancy. They also found out that the grant would not issue “prior to the 13th May, 2006”. The significance of this date and the potential problem of not having proceedings issued before then, were dealt with in their letter of the 5th May in the following matter:-
“The late Emma Teresa Clancy died on 13th May, 2004 and it is essential that we issue legal proceedings on behalf of our client within the period of two years from the date of her death.
Failing confirmation by return that you will accept service of proceedings on behalf of Graham Richards and Paraic Madigan as attorneys of your client Barbara Allen and also confirm by open letter that no point will be taken by your client on the statute of limitations having run before the grant of administration issues to your clients (sic)we are instructed to apply at the earliest possible date to the court to appoint an administrator ad litem without any further notice to you”.
On 8th May Messrs Matheson Ormsby and Prentice replied by confirming
“that we do have authority to accept service of proceedings on behalf of Graham Richards and Paraic Madigan. In relation to the issuing of the grant, we confirm that our client has responded to the queries raised with the Probate Office and that we are confident that the grant will issue in the near future”.
On the 9th May, the Plenary Summons was issued and on the 15th an unconditional appearance was entered to it.
On 26th June, Letters of Administration issued from the Probate Office and by letter of the same date Messrs. Matheson Ormsby and Prentice called for the delivery of the Statement of Claim. On 13th July, a copy of the will of the deceased was furnished to the plaintiff’s solicitors and again delivery of the Statement of Claim was requested. Further reminders in this regard were issued on 27th July, 2006 and on 20th September, 2006, of that year. Eventually on 27th September, the Statement of Claim was delivered. It was only some six weeks after this date that the relevant notice of motion was served.
8. The Statement of Claim
The following is pleaded in the Statement of Claim:-
(a) That since 1987 the plaintiff rendered various services to and expended various moneys for and on behalf of Emma Teresa Clancy as well as entertaining her for dinner every Christmas. Most of the expenses actually incurred were recouped to him by the deceased. In 1987 and 1988 she gave the plaintiff £100 each Christmas.
(b) At some unspecified date in 1989, Mr. Finnegan alleges that the plaintiff asked if he was wondering why she had not given him a Christmas gift that year as she had previously done. He answered that he was not and he then claims that the deceased said “The reason is I am going to give you this house, but that is between the two of us”, or words to that effect. As and from that date it is alleged that Mrs. Clancy frequently referred to the house “Retreat Heights” as “our house”, meaning of course to include Mr. Finnegan in the ownership thereof.
(c) A further conversation took place in April, 2004 when in the presence of Mrs. Finnegan it is alleged on behalf of the plaintiff that the deceased said “The house is yours. I am leaving it to you. It does not matter what anyone says. I don’t want you to sell it. I want you to give it to one of your boys”. Either then, or sometime shortly thereafter, the said Mrs. Clancy gave possession of the house to the plaintiff, including the title deeds and keys, and thereafter for the short period of her remaining life, she treated him with herself as the owner of the house.
(d) It is also pleaded that the plaintiff relied on the aforesaid promises and that thereafter he rendered services to the deceased without reward and expended moneys in respect of which he neither sought or obtained reimbursement. Finally he also claimed that he acted “to his detriment on foot of these reliances”.
9. Issues on this Application:
Against this background, and as set forth in para. 1 of this judgment, the defendants seek to have the plaintiff’s cause of action dismissed on two separate grounds. Firstly they claim that as of the 9th May, 2006, when the Plenary Summons issued, they lacked the capacity to be named as representative defendants in these proceedings as the letters of administration with the will annexed had not issued by that date. Accordingly the proceedings were a nullity and could not be maintained. Secondly they allege that the facts as pleased in the Statement of Claim do not constitute a cause of action and accordingly the proceedings are bound to fail. This allegation is put in a number of alternative ways including a suggestion that such pleaded facts, are frivolous and vexatious, are an abuse of process and therefore either under the inherent jurisdiction of the court or else under O. 19 r. 28 of the Rules of the Superior Courts, the proceedings should be dismissed.
10. Issue No. 1
There is no doubt but that the plaintiff, in his pursuit of this action, was faced with the time bar as provided for in s. 9 of the Civil Liability Act, 1961. Under s. 9(2) no proceedings are maintainable against the estate of a deceased person unless either
“(a) (the) 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, or
(b) (the) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, which ever period first expires”.
As no proceedings were in being at date of death, the two year reference is the relevant time period in this case. Accordingly in order to comply with this provision the plaintiff had to have his proceedings instituted within two years from the 13th May, 2004. Hence the relevance of and the urgency displayed in the letter of 5th May, 2006, from Daniel Gormley and Co. to Messrs. Matheson Ormsby and Prentice.
The other related matter of concern, also dealt with in that letter, was the fact that no grant of administration had issued or was likely to issue prior to the 13th May, 2006. The relevance of this is that administrators may not have been appointed by that date, on whom the proceedings could be served. Section 13 of the Succession Act, 1965 was not designed to overcome this difficulty but its provisions did ensure that the estate of an intestate person or a person dying without a surviving executor, always vested in some person even in the interval between death and the issuing of a grant. This section, like its predecessors which go as far back as s. 15 of the Court of Probate (Ireland) Act 1859, nominates the President of the High Court for that purpose.
As I have said such a provision is necessary so as to ensure that at all times the estate of a person, to whom the section applies, vests in some individual and is not left without protection or homeless. The reason why such a state of affairs may occur is that an administrator derives his title solely from the grant of administration, quite unlike an executor upon whom the real and personal estate of a deceased person vests immediately upon the death of the testator. See Woolley v. Clarke (1822) 5 B and Aid. 744 and Chetty v. Chetty (1916) 1 AC 603. A grant of probate is necessary only to confirm the authority of the executor or otherwise to offer formal proof of his status. See In Re Crowhurst Park (1974) 1 WLR 583. The position of an administrator however, is as matter of general law quite different and until such time as a grant of administration is obtained, that person has no rights or entitlement to and otherwise has no control over the estate. This proposition is however subject to the doctrine of “relation back” which I will refer to in a moment. That situation can quite evidently pose considerable difficulties for an intending plaintiff, who when faced with the time period specified in s. 9 of the 1961 Act, might find out that no grant of administration has or will be extracted in time, so that no administrator, as such, exists. This in turn begs the question of who to name as a defendant in the proceedings.
In such circumstances a plaintiff can of course seek the appointment of an administrator ad litem for the purposes of issuing his proceedings. The availability of this course of action was confirmed by Costello J. in Flack v. The President of the High Court, High Court, Unreported, 29th November, 1983 where the learned judge said:-
“Under the old law a person faced with the difficulties with which the plaintiffs in these proceedings were confronted was not without remedy: he could apply for and obtain the appointment of an administrator ad litem and join him as a defendant in this suit. The court has a similar power under s. 27 of the Succession Act, 1965 to make a grant limited to the defence of these proceedings”.
That approach, in the circumstances which existed, was not however pursued by the plaintiff in these proceedings. That case is also of general interest for outlining what the actual role of the President is under s. 13, of the Act.
Asserting these general principles of law and relying upon Ingall v. Moran (1944) KB 160 and the decision of Laffoy J. in Gaffney v. Faughnan, [2006] ILRM 481, the defendants submit that since the Plenary Summons were issued some six weeks prior to the grant of administration, then the proceedings are not maintainable in view of the fact that the estate had not vested in them at the relevant time. In response to this submission counsel on behalf of the plaintiff alleges that the decision in Gaffney v. Faughnan [2006] ILRM 481 was made in pen incuriam in that the decision of the Privy Council in Austin and Others v. Hart [1983] 2 WLR 866, was not open to the court, and accordingly the resulting decision cannot be relied upon as confirming what Ingall v. Moran would tend to suggest. He also referred to Allied Irish Coal Supplies Ltd v. Powell Duffyryn International Fuels Ltd [1998] 2 IR 519 but I do not quite see the relevance of this case.
In Ingall v. Moran (1944) KB 160, the plaintiff sued as the administrator of his son’s estate, seeking compensation for his wrongful death under the Law Reform (Miscellaneous Provisions) Act, 1934. There were two issues before the Court of Appeal, the first of which is the one of interest to us. It was alleged on behalf of the defendant in that case, that since the proceedings were a representative action they were never properly constituted in that Letters of Administration were not granted until 13th November, 1942, whereas in fact the writ issued on 17th September, of that year. Scott L.J., giving one of the judgments, pointed out that Mr. Ingall could only sue in a representative capacity but at the time of the writ he had no title to his son’s surviving chose in action. As the writ was not maintainable at date of origin it was “incapable of conversion by amendment into a valid action” (see p. 3 of the judgment). By this he meant that although the plaintiff had in fact obtained Letters of Administration by the date of the defendants application to strike out, that fact could not retrospectively render valid that which was a nullity ab initio. He therefore dismissed the action. This conclusion was endorsed in separate judgments by Goddard LJ and Luxmoore LJ.
During the course of his judgment Luxmoore LJ also touched upon the doctrine of “relation back” which in effect is an exception to the general proposition that an administrator cannot sue until Letters of Administration have issued. At p. 167 of the judgment the learned judge said the following
“It is, I think, well established that an executor can institute an action before probate of his testator’s will is granted, and that, so long as probate is granted before the hearing of the action, the action is well constituted, although it may in some cases be stayed until the plaintiff has obtained his grant. The reason is plain. The executor derives his legal title to sue from his testators will. The grant of probate before the hearing is necessary only because it is the only method recognised by the rules of court by which the executor can prove the fact that he is the executor … an administrator is of course in a different position, for his title to sue depends solely on the grant of administration. It is true that, when a grant of administration is made the intestate’s estate, including all choses in action, vests in the person to whom the grant is made, and that the title thereto then relates back to the date of the intestate’s death but there is no doubt that both at common law and in equity, in order to maintain an action the plaintiff must have a cause of action vested in him at the date of the issue of the writ”.
It appears therefore that whilst the doctrine of relation back applies, it does not legalise the maintenance of an action by an administrator if that action was commenced prior to the issue of Letters of Administration.
Before mentioning Austin and Others v. Hart [1983] 2 WLR 866, I should deal with Gaffney v. Faughnan, [2006] 1 ILR 482. In that case the deceased died intestate on 15th April, 2002, with Letters of Administration being granted to the defendant on the 16th November, 2004. On the 15th April, 2004, a Plenary Summons issued but the defendant refused to accept service until after the Grant had been taken out. In that Summons the plaintiff did not make it clear that he was suing the defendant in a representative capacity. After an appearance was entered and the Statement of Claim delivered, the defendant issued a motion seeking what was virtually identical relief to that which is sought in this application. Laffoy J. dealt with the general law and cited with approval Ingall v. Moran (1944) 1 KB 160. The learned judge also referred to Creed v. Creed [1913] 1 I.R. 48 where, on an application by the plaintiff to amend the summons and statement of claim to show that he was suing in a representative capacity, the court struck out the action on the basis that when issued the plaintiff had no title to sue. A consideration of that judgment does not contain any analysis of the reasons for the courts decision. In any event Laffoy J., at p. 485 then continued
“The court has not been referred to any authority in which, as here, it was the defendant who was a party in a representative capacity. However, in my view, the same principle must apply. When a summons is issued the person named as defendant must be competent at that time to answer the alleged wrongdoing and meet the remedy sought. If he is not the action is not maintainable. If he subsequently obtains a grant of administration this will not cure the fundamental defect and render the action maintainable”.
Accordingly it can be seen that the principles outlined in Ingall and the courts conclusion in Creed v. Creed, were applied by analogy and apparently for the first time, to a situation where the representative was not maintaining an action but was in fact named as a defendant in proceedings instituted by a third party.
The case of Austin and Others v. Hart [1983] 2 WLR 866 is heavily relied upon by the plaintiff in order to suggest that if the judgment of Lord Templeman had been brought to the attention of Laffoy J. she would have decided otherwise in Gaffney v. Faughnan and in any event for the reasons set out in that decision he strongly urged this court not to follow Ingall v. Moran. The facts of Austin v. Hart are not materially relevant and do not require repetition. The judgment of Lord Templeman is however of considerable importance for his general remarks on the rule outlined in Ingall: At p. 871 he said
“In the cited cases the plaintiff did not have any right to sue in the capacity claimed. In the present case the appellants were entitled to sue in the capacities in which they claimed, provided, as happened, no executor or administrator intervened to bring an action within six months of the death of the deceased. In Ingall v. Moran (1944) K.B. 160, 169 … Luxmoore LJ could not help “feeling some regret”. In Hilton v. Sutton Stream Laundry [1946] K.B. 65, 73 … Lord Greene MR was not “averse to discovering any proper distinction which would enable this unfortunate slip to be corrected”. In Finnegan v. Cementation Company Limited [1953] Q.B. 688, 699, Singleton LJ lamented “that these technicalities are a blot on the administration of the law, and everyone except the successful party dislikes them”. Accepting without approving, the decisions of the Court of Appeal which have been cited, their Lordship sees no reason to encourage any extension of their ambit.”
I respectfully agree with these observations which offer no support to a flourishing of this rule. In fact the very opposite is the case, with the Privy Council in Austin and Others v. Hart feeling distinctly uneasy about this principle.
In a further attempt (that is as well as s. 13 of the Succession Act, 1965) to overcome the potential harmful consequences for the estate of a deceased person, which result from a deferral of an administrator’s title until the date of grant, the courts have developed a rule known as the doctrine of “Relation Back”. This doctrine means that for limited purposes, a grant of administration will relate back to the date of death of the deceased person. See Thorpe v. Smallwood [1843] 5 M. and GR 760. The primary purpose of this rule is to protect the estate in the intervening period between death and the obtaining of a grant. B. Parke identified in Foster v. Bates [1843] 12 M. and W 266, at 233, what the justification for the rule was, namely that he the administrator, “may have recovery against the wrong doer who has ceased or converted the goods of an intestate after his death, in an action of trespass or trover”. Furthermore such an administrator may also sue for breaches of covenant occurring in the intervening period. See Long v. Burgess [1950] 1 KB 115. This rule however is not all embracing and does not on its face include the circumstances presenting in Ingall v. Moran [1944] 1 K.B. 160. Therefore as previously stated, actions commenced prior to the obtaining of a grant will not benefit from this rule even though the plaintiff subsequently obtains Letters of Administration. To date the doctrine has been thus so limited.
It seems to me that any rule of law, such as that espoused in Ingall v. Moran, which has such a rejectionist label attached to it by the English Court of Appeal and the Privy Council, should only be followed and applied where either this court is bound to so do or alternatively where the underlying reasons of justification so demand. Although I would always consider decisions of the Court of Appeal and of the Privy Council to be both persuasive and authorative, I am of course not bound by either. In addition whilst evidently I cannot speak for what Laffoy J. would have done, if Austin v. Hart had been opened to her, nevertheless could I offer the view that as a matter of probability she would have been impressed with the opinion of Lord Templeman and would have at least paused before extending the rule, by applying it, apparently without precedent, to a situation where the representative person was not seeking to maintain an action, but rather was being named as a defendant in such an action. In these unusual circumstances I cannot be sure that Gaffney v. Faughnan represents the conclusive views of Laffoy J. on the point. Therefore I feel free to consider the matter myself.
There is no doubt but that, subject to the second issue raised on this application, the plaintiff has a prima facie case against the estate of the deceased person. Equally so there is no doubt but that as of the 9th May, 2006 he was entitled to seek to enforce that claim by instituting proceedings. Moreover he did not require the existence of a grant to confer the status of a plaintiff, as such, on him. What therefore did he do wrong? It would appear, following Ingall v. Moran, that the Writ was premature and therefore irregular. Even if it was, why I ask, should that necessarily result in it being a nullity, where the defendants have assured the plaintiffs of their confidence in obtaining Letters of Administration imminently, and thus putting beyond question their capacity to be sued. In addition why should such a drastic result follow when the defendants raised no objection to the plaintiff suing and when prior to the grant, they entered an unconditional appearance. Again I ask why such a result in the absence of any prejudice, let alone substantial prejudice, and when the defendants involvement could only be for the benefit of the estate. How is the estate demnified by the institution of proceedings on the 9th May, 2006, when in fact no point could have been taken on and after the 26th June, 2006? What damage has been caused to it? In my view none. In fact the opposite is the position. The collection and preservation of the estate for those entitled is of the first importance and if a law suit exists which potentially jeopardises this process, it must be of equal importance that the estate is properly represented. In fact the only risk of instituting proceedings prior to the grant rests with a plaintiff in that he can never execute any award unless the named defendant had by that date obtained Letters of Administration. Moreover if such a defendant, for whatever reason, ultimately fails or refuses to extract a grant, then subject to any individual circumstances, the plaintiff may be liable for the costs of the proceedings. Likewise if a person, unconnected with the estate is wrongfully named, he can immediately so indicate and the court would surely make the required consequential order, including costs, virtually for the asking. Consequently I cannot identify any particular reason, consistent with the existence of this rule, which persuades me that in the circumstances of this case it is a good rule.
It seems to me that Singleton LJ, in Finnegan v. Cementation Company Limited was perfectly correct in suggesting that this technicality was “a blot in the administration of the law” and that equally so Lord Templeman was correct in saying that there should be no extension of the rules’ application. As of today’s date therefore, I would have little time for re-echoing the rigidity of technicalities within the law as was commonly the position at the time of Ingall v. Moran. Instead I would much prefer an approach based on justice where there are no compelling reasons to uphold and continue a rule capable of inflicting the opposite, namely injustice. For my part therefore if it became necessary for the purposes of this decision I would not extend the application of the rule to the facts of this case. In addition, even if I am wrong in this regard, I see no reason why circumstances like the present would not comfortably fall within the reasons which underline the doctrine of “relation back”. On either basis I would refuse the defendants application on this point.
Even if I should be incorrect in these conclusions there is another reason why I would refuse the defendants application. As appears earlier in this judgment Daniel Gormley and Co. Solicitors were fully alive to the twin difficulties arising by virtue of s. 9 of the Civil Liability Act, 1961 and the potential application of what I might call the rule in Ingall v. Moran. This is abundantly evident from their letter of the 5th May, 2006. That is why they sought confirmation, as they had previously done, that Matheson Ormsby and Prentice would accept service of the plaintiffs proceedings on behalf of the defendants and that no point would be taken on the two year period having run before the grant issued. In fact they went further and warned that in default of a response they would apply to have an administrator ad litem appointed. On 8th May Messrs Matheson Ormsby and Prentice replied with the contents of their letter being set out at para. 7 above. Therein they confirmed authority to accept service of the proceedings on behalf of the defendants and informed the plaintiffs solicitors of their confidence in obtaining a grant of administration in the near future. Whilst it is true to say that this letter did not specifically deal with the point about the statute of limitations and the date of the grant, nevertheless that letter, together with the subsequent unconditional appearance, (entered before obtaining the grant) the forwarding of the Letters of Administration to the plaintiff and the repeated calls for a Statement of Claim, all lead me firmly to the conclusion that the defendants, who had express notice of the point, had decided against raising it at any time prior to the delivery of the Statement of Claim. When or why in fact they decided to change their minds is unclear. Moreover and of crucial significance is the fact that in the absence of the letter of 8th May, Donal Gormley and Co. had sufficient time to apply for and obtain a grant of administration ad litem and thus could have put the present argument out of the defendants reach. In my opinion although very much aware of the pending difficulty, as it then was, they did not adopt such a course, because of their reliance, reasonably arrived at, on what they considered to be assurances from the defendants that they were safe in not so doing.
In my view therefore the letter of the 8th May, by reason of its contents and silence constituted a material representation by the defendants as duly authorised agents, which was intended to and in fact did influence the plaintiff to his detriment in refraining from applying for the appointment of an Administrator ad litem. See Halsbury 4th Ed Reissue Vol 16(2) 1052.
In such circumstances it would be entirely unconscionable to permit the defendants to now rely upon this point.
A not dissimilar situation was referred to by Henchy J. in Doran v. Thompson [1978] I.R. 223 where however on the facts of that case no such representation was found to have been made. At p. 225 of the judgment the learned judge said “Where in a claim for damages such as this a defendant has engaged in words or conduct from which it was reasonable to infer, and from which it was in fact inferred, that liability would be admitted, and on foot of that representation the plaintiff has refrained from instituting proceedings within the period prescribed by the statute, the defendant will be held estopped from escaping liability by pleading the statute. The reason is that it would be dishonest or unconscionable for the defendant, having misled the plaintiff into a feeling of security on the issue of liability and thereby, into a justifiable belief that the statute would not be used to defeat his claim, to escape liability by pleading the statute. The representation necessary to support this kind of estoppel need not be clear and unambiguous in the sense of being susceptible of only one interpretation. It is sufficient if, despite possible ambiguity or lack of certainty, on its true construction it bears the meaning that was drawn from it. Nor is it necessary to give evidence of an express intention to deceive the plaintiff. An intention to that effect will be read into the representation if the defendant has so conducted himself that, in the opinion of the court, he ought not be heard to say that an admission of liability was not intended”.
The principles outlined in that passage apply with equal force and directness to this case. Accordingly being satisfied that there is no question of the ultra vires doctrine applying, I would conclude that the defendants are estopped from raising what I have described as Issue No. 1 in this application.
The second and very much subsidiary point raised by the defendants was that the proceedings were bound to fail in that the pleaded facts disclosed no cause of action. They relied upon Barry v. Buckley [1981] I.R. 306 and Jodifern Limited v. Fitzgerald [2000] 3 IR 321 as disclosing the existence of the courts jurisdiction in this regard. Furthermore they have referred to the case of M.F. and E.F. v. J.D.F. [2005] 4 I.R. 155 as indicating what ingredients a plaintiff has to prove in order to establish a beneficial interest in property arising by way of proprietary or promissory estoppel.
There is no doubt but that the court has such a jurisdiction, with one of the earliest cases of real prominence in this regard being Barry v. Buckley [1981] I.R. 306. Since then there has been a multitude of cases in which this court and the Supreme Court have dealt with the ambit of the courts inherent jurisdiction when faced with an application to strike out an action in limine. Such jurisdiction “should be exercised sparingly and only in clear cases”. So said McCarthy J. in Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425. In that case the learned judge also felt that a statement of claim should not be struck out if it admitted of an amendment which would save the action. At p. 428 of the report McCarthy J. said “Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings: often times it may appear that the facts are clear and established but the trial itself will disclose a different picture”: See also para. 12.002 of Delaney and McGrath, Civil Procedure in the Superior Courts, where the authors cite some but by no means all, of the cases which have dealt with this topic in the past 25 years.
The case of Jodifern Limited v. Fitzgerald, which was referred to by the defendants is also useful, and in particular the judgment of Murray J. where at p. 334 of the report the learned judge said “The object of such an order is not to protect a defendant from hardship in proceedings to which he or she may have a good defence but to prevent the injustice to a defendant which would result from an abuse of the process of the court by a plaintiff. Clearly, therefore, the hearing of an application by a defendant to the High Court to exercise its inherent jurisdiction to stay or dismiss an action cannot be of a form of summary disposal of the case either on issues of fact or substantial questions of law in substitute for the normal plenary proceedings. For this reason, a primary precondition to the exercise of this jurisdiction is that all of the essential facts upon which the plaintiffs claim is based must be unequivocally identified. It is only on the basis of such undisputed facts that the court may proceed. Moreover, and this is the aspect which I wish to emphasise, where all the essential facts have been so identified, it must also be manifest that on the basis of those facts, the plaintiffs case have no foundation in law …”.
In applying these principles to the facts of this case I could not conceivably agree that the same is a fit or appropriate one to be dismissed at this juncture. In his affidavit grounding this application the second named defendant claims that there is no evidence of an expectation on behalf of the plaintiff of receiving this house or that the deceased encouraged such a belief on his part. Moreover it is suggested that the existence of a promise by the deceased is not evident and that the work done by the plaintiff on her behalf was of a voluntary nature and commenced before any conversation is alleged to have taken place. In addition the promise, such as it was, was not conditional upon the provision of services or the expenditure of money by the plaintiff on behalf of the deceased. For these and the other reasons contained within paras. 21 to 23 of the affidavit, it is claimed, as previously stated, that the proceedings are misguided and constitute an abuse of the court.
In my view this suggested conclusion is without substance and incorrect in law. As appears from the Statement of Claim the plaintiff alleges that the services which he carried out and the moneys which he expended, prior to any alleged representation, were largely made good to him by the deceased. After the first suggested representation was made in 1989 the plaintiff continued his commitment to the deceased but thereafter neither sought nor obtained recoupment. Moreover it is expressly pleaded that the reason why no gift was given to the plaintiff at Christmas 1989 was related to the deceased’s intention of leaving him her house and therefore inferentially one can also assume that that was the reason why the plaintiff continued providing services and expending moneys for a considerable time thereafter. His claim is also consistent with the fact that the deceased allowed him to so do without offering any consideration therefor. In my view whilst the Statement of Claim could be more thorough the same nevertheless adequately contains all essential ingredients, and accordingly, in my opinion discloses a prima facie cause of action.
In any event as McCarthy J. had warned in Sun Fat Chan v. Osseous the pleadings in the instant case are in their infancy in that no particulars have either been sought or delivered, no defence has been filed and no discovery has been obtained. In these circumstances it would be in my view an entirely unwarranted interference with the plaintiffs constitutional right of access to the courts to dismiss his action on the basis suggested by the defendants.
On this second issue therefore I would also dismiss the application.
Approved: McKechnie J.