Court of Appeal: Son of farmer reinstated as legal personal representative of father’s estate

About this case:

• Judgment:
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Justice Peart stated that the siblings’ speculation of future interference with the administration of their father’s estate was not enough to prove that replacing their brother as legal personal representative was necessary, and reinstated him in this role.

The nine plaintiffs (Arthur Dunne and others) and the defendant (William Dunne) comprised ten of the fourteen children of Cecil Dunne who died intestate on the 29th March 1994, and Eileen Dunne who died testate on 20th October 2010.

Upon the death intestate of her husband, Eileen Dunne was entitled to 2/3 of the estate of her late husband, and the remaining 1/3 was divisible equally between their fourteen children (a 1/42 share).

Prior to her death, Eileen Dunne had not completed the administration of her late husband’s estate, and had not vested in each child the share to which each was entitled.

In her Will she named her son, William Dunne, as her sole executor, her sole residuary devisee, and legatee.

After Eileen’s death, William took out a grant of administration intestate de bonis non to the estate of his late father, enabling him to complete the administration of that estate.

High Court

In 2014, the plaintiffs made a claim for the order of the administration of their late fathers estate, and pleaded that despite being called upon to do so, William failed and neglected to distribute their share to them.

They complained that in his capacity as legal personal representative of their late mother’s estate he failed to properly account for her administration of their late father’s estate prior to her death.

Within his defence, William Dunne pleaded that the plaintiffs’ were no longer entitled to their 1/42 share in their father’s estate because their claims were statute-barred under s.45 of the Statute of Limitations 1957 (substituted by s. 126 of the Succession Act 1965) and/or that since he farmed the lands in question without interruption since the death of their father, he acquired a possessory title as against the plaintiffs under s. 125 of the Succession Act 1965. Accordingly any claim to a share in the lands arising from the intestacy of their father had been lost.

Arising from the contents of William’s aforementioned defence, in March 2015 the plaintiffs’ issued a motion seeking a declaration that William was conflicted in his role as legal personal representative, and an order revoking his role and replacing him with a solicitor (David Osborne).

The High Court granted:

(1) the declaration sought, that William Dunne was conflicted in his role as legal personal representative of their late father’s estate;

(2) an order revoking, cancelling and recalling the grant of administration de bonis non issued to William Dunne;

(3) an order, pursuant to s. 27(4) of the Succession Act 1965, giving liberty to David Osborne solicitor to extract a new grant of administration de bonis non of that estate.

An order for costs of the motion was also made against William Dunne.

Court of Appeal

It was common case that William Dunne, a legal personal representative under a de bonis non grant, was legally obliged to gather in the assets that remain unadministered, and to distribute them – however this obligation was to administer the estate “in accordance with law”.

Justice Peart highlighted that “it may not be in accordance with law for the legal personal representative to vest the lands in the 14 siblings where the title of 13 of those siblings has been extinguished by operation of law, thereby entitling just one… to be registered as full owner because of either his adverse possession of the lands, or by the operation of the statute of limitations.”

Whether the representative is a family member or not, the laws as to devolution of property and distribution remains the same.

Necessity

Turning to the issue of necessity in replacing William, Justice Peart considered Flood v. Flood IR 234, in which it was stated: “A court should not remove an executor from his role, unless it is satisfied that it is necessary to do so… It is not justified because one of the beneficiaries appears to have felt frustrated and excluded, but requires serious misconduct and/or serious special circumstances on the part of the executor to justify such a drastic step.”

The plaintiffs submitted that it was necessary to replace William since they would be at a litigious disadvantage or prejudice should William remain in situ. One example provided by the plaintiffs was that if William Dunne did not cooperate in relation to the handing over of any relevant documents that he may possess on the issue of adverse possession, this could leave them at a disadvantage.

Justice Peart found the plaintiffs’ fear to be speculative only – William wished to have the issue determined by the High Court and emphasised he would abide by whatever Court order and administer the estate accordingly.

Justice Peart would not accept that this speculation could be a basis for his removal, however he emphasised that if William was not true to his word, and failed to co-operate appropriately, the question of whether he ought to be replaced as legal personal representative could be revisited.

Decision

Allowing William’s appeal, including the appeal against the order for costs made against him personally, Justice Peart stated that the trial judge took too narrow a view of the question of conflict of interest, and failed to give sufficient weight to the question of necessity.

The replacement of William Dunne as legal personal representative was not necessitated in the circumstances, and an order for costs would require a finding of some misconduct or other culpable behaviour on the part of William Dunne.