High Court: Appeal in ‘proper provision’ action dismissed

About this case:

• Citation:
  [2023] IEHC 561
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Siobhán Phelan

Delivering judgment for the High Court, Ms Justice Siobhan Phelan that the six-month time limit to institute proceedings under s.117(6) of the Succession Act 1965 (as amended) was a jurisdictional bar, stating that the “court has either been vested with jurisdiction or it has not.”

Background

The appellant sought to join his sister as a co-plaintiff to seeking “proper provision” from their late father’s will under s.117 of the Succession Act 1965. The deceased died testate, but excluded his children in his will and left his property to extended family (nieces and grandnieces).

The deceased appeared to the court to have separated from his former wife (the appellant’s and proposed co-plaintiff’s mother) whilst the appellant and proposed co-plaintiff were still children, leaving them to travel abroad with his new partner.

The deceased’s estate consisted of four medium-sized houses, which together still fell within the rateable valuation of the Circuit Court’s jurisdiction.

The appellant sued the defendant solicitor in his capacity as the sole executor of the deceased’s will. A grant of representation was extracted by him in respect of the deceased’s estate on 5th May 2021. The appellant issued proceedings in the Circuit Court on 1st June 2021.

However, proceedings did not issue on behalf of the proposed co-plaintiff at that time, or within six months of 5th May 2021, as it was represented by the defendant no less than three times in open correspondence that that he had decided to renounce representation.

The appellant and the proposed co-plaintiff’s solicitor relied upon the correspondence to conclude that there was no need to issue proceedings to protect the co-plaintiff’s interest, as it was understood that renunciation would suspend the six-month time limit applying to extracting grants of representation under s.117(6) of the 1965 Act, and that new proceedings could issue when new representation was determined.

Ultimately, the defendant solicitor did not renounce representation and remained as executor, but did not communicate this decision until after the six-month period had expired.

The Circuit Court refused to join the co-plaintiff to the appellant’s proceedings, and the appellant appealed to the High Court.

The parties’ submissions

The appellant submitted that the test for joining a co-plaintiff to existing proceedings is that such a party may be joined if the court believes it necessary to enable it to adjudicate upon and settle all questions involved in the cause or matter.

As both the claims arose from the deceased’s will and the failure to make provision for the appellant and proposed co-plaintiff, the appellant suggested that a common question of law or fact arose and the claims should be joined in one action.

The appellant further contended that as s.117 proceedings can only be brought where the defendant holds a valid grant of probate or administration, by implication, that means that if the grant is renounced, the time stops running. The appellant placed reliance on the representations of the defendant’s promise of an imminent intention to renounce, to argue that the defendant was estopped from relying on s.117(6) to frustrate the proposed co-plaintiff’s claim.

The defendant argued that a jurisdictional impediment precluded the maintenance of a claim on behalf of the proposed co-plaintiff due to the failure to commence proceedings within six months of extracting the grant of representation, and that the proposed co-plaintiff erred in law as to the effect of renunciation, and that no provision is made for suspending time in the event that a grant is renounced.

The High Court

Ms Justice Phelan considered that proceedings under s.117 must be instituted within six months from first taking out a grant of representation as per s.117(6), which provides that “an order under this section shall not be made except on an application made within six months from the first taking out of representation of the deceased’s estate”.

The court noted that it was not suggested in the correspondence between the parties that the appellant’s and proposed co-plaintiff’s solicitor should refrain from issuing further proceedings due to the intended renunciation, nor did it indicate that time would cease to run if representation was renounced.

Ms Justice Phelan was satisfied from the correspondence that whilst an intention existed to bring proceedings on behalf of the proposed co-plaintiff within the six-month period, there was no evidence that they were induced into believing this to be the case by the defendant.

The appellant relied upon SI v PR1 & PR2 [2013] IEHC 407 to support the alleged suspensory effect of the renunciation of representation, in view of Ms Justice Mary Laffoy’s interpretation of the event starting time running under s.117(6) as being the extraction of a full rather than a limited grant of representation. The appellant argued that by extension, where the full grant is renounced, time must stop running.

Ms Justice Phelan considered that this argument found no support from the judgment having regard to the “express and unambiguous terms” of s.117 and pointing out that the purpose of requiring a full grant “as expressed by Laffoy J., was to allow for the terms of the last will, including any codicils, of the Testator to be proved and to identify the estate.”

Finding that the proposed co-plaintiff was led into error by mistake of law which did not derive from any representation by the defendant, the court nonetheless considered whether if the proposed co-plaintiff had been induced by an incorrect representation of the defendant, estoppel could operate to prevent reliance being placed on the time limit in s.117(6).

Highlighting that compliance with s.117(6) was found to be a jurisdictional requirement in MPD v MD [1981] ILRM 179, Ms Justice Phelan determined that authorities relating to reliance on the Statute of Limitations 1957 were not on point, as “to my mind, an important difference between s.117(6) and a plea that a claim is statute-barred is that parties cannot elect not to rely on a jurisdictional bar”.

Stating that the “court has either been vested with jurisdiction or it has not”, Ms Justice Phelan decided that in circumstances where the jurisdictional difference arising between the appellant’s and proposed co-plaintiff’s proceedings was not satisfactorily addressed, different questions arose for determination between the two proceedings.

The High Court concluded that “where, as a matter of law, the court has no jurisdiction to entertain an application under s. 117 on the part of the co-plaintiff then her joinder would be entirely futile and pointless” and would result in additional costs depleting an already small estate, disadvantaging the beneficiaries under the will and the siblings who had commenced s.117 proceedings in time.

Conclusion

Accordingly, the High Court dismissed the appeal and refused the application for relief.

MB v PD [2023] IEHC 561