High Court: Application to appoint administrator ad litem refused as capacity of executrix in question

About this case:

• Citation:
  [2023] IEHC 720
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Siobhán Stack

Delivering judgment for the High Court, Ms Justice Siobhán Stack stated that “the appointment of the proposed person pursuant to s. 27 (4) would, in these circumstances, merely increase the costs by introducing another party to the proceedings, when a person would in any event have to be appointed to represent G. in those proceedings”.

Background

An application was brought pursuant to s.27(4) of the Succession Act 1965 to appoint an administrator ad litem for the purpose of defending a challenge to the will of E.F., deceased, who died on 19 February 2014.

The Deceased’s 2014 will appointed one of her daughters, G, as sole executrix and beneficiary of the main asset in the estate, a substantial house in a major city, as well as the contents of the house and any car that she owned on the date of her death. The Deceased was survived by three other children, the applicants. All of the children were entitled to share equally in the residue of the Deceased’s estate.

The applicants sought to challenge the will based upon an alleged lack of capacity on part of the Deceased at the time that she made the will, due to vascular dementia arising from a stroke in 2011. The applicants contended that the Deceased’s earlier 2011 will was materially different and provided that the family home was to be sold and divided equally amongst all of the children, with one of her sons and her other daughter to be the executors.

The High Court

Despite the motion having originally issued on the basis that the executrix was of unsound mind, on 4 December 2023 the applicants contended that the executrix was of sound mind. The court felt that there were “at the very least, serious grounds” for believing that the executrix was of unsound mind, and that an application pursuant to the Assisted Decision-Making (Capacity) Act 2015 would be appropriate.

The court highlighted Order 79 of the Rules of the Superior Courts as providing for situations where there is doubt as to the capacity of a person entitled to take out a grant of representation, observing that “It does not therefore follow that, simply because a nominated executor is lacking in capacity, an order pursuant to s. 27 (4) of the 1965 Act (other than that envisaged by O. 79, r. 27) should automatically follow.”

Ms Justice Stack considered that it is “difficult to attempt to set out in any comprehensive way the factors which might be relevant to the consideration of an application under s. 27 (4) in circumstances where the capacity of the executor chosen by a deceased is in doubt and the proposed personal representative is not a decision-making representative appointed pursuant to the 2015 Act.”

Considering the applicants’ averments that the executrix had returned home from living abroad for years and was subsequently detained on numerous occasions pursuant to the Mental Health Act 2001, the court noted that the affidavit appeared to state that the decision to bring the application was somewhat predicated on the probability that the executrix would never extract a Grant of Probate.

The court recounted that on the hearing of the application, the first concern which arose was how the executrix was to be represented, where the effect of the order sought would be to remove her as executrix contrary to the will.

Ms Justice Stack confirmed that following a series of adjournments, she granted liberty to the proposed administrator ad litem to apply for and to extract a Grant of Letters of Administration limited to preserving the assets of the estate pending the determination of the application and the challenge to the will, and thereafter appointed a guardian ad litem to communicate the executrix’s wishes so far as the application was concerned.

Being satisfied on the basis of the executrix’s interactions with the guardian ad litem that she did not understand the significance of the application or of the proposed challenge to the will, Ms Justice Stack decided that the executrix did not have capacity to give instructions in connection with the application or with the proposed challenge to the will.

The court continued, “It is G. alone who stands to lose from the institution and possible success of those proceedings, but she does not appear to be capable of instructing a solicitor or making any of the decisions which would be necessary in order to defend those proceedings. In that event, it seems to me that someone needs to be appointed in order to look after her interests and to discharge the role of legitimus contradictor in the proceedings to be instituted. In the ordinary course, it is the executor who would discharge that role.”

Finding that Order 79, rule 27 “specifically contemplates that, where a person of unsound mind is entitled to take out a grant, someone can be appointed in order to discharge that role on their behalf, it seems to me that, in the circumstances of this case, the procedure envisaged for in O.79, r. 27 should be used and that it is neither necessary nor expedient that the applicant would be passed over in the manner contemplated by this application.”

In response to the applicants’ assertion that the executrix could be represented by a guardian ad litem in the proceedings challenging the will, the court emphasised that “I do not see how that would simplify the steps to be taken by the applicants in order to progress their proceedings as they would first have procured, by way of this application, the appointment of an independent solicitor to act as personal representative, and they would then, in any event, have to appoint someone to act on behalf of G.”

Finding that the appointment of the proposed administrator ad litem pursuant to s.27(4) would only increase costs, the judge felt the next step should be an application for a declaration as to the executrix’s capacity pursuant to the 2015 Act, and if appropriate, “by the appointment of a decision-making representative who should then apply pursuant to s. 27 (4) of the 1965 Act to take out letters of administration or, prior to the extraction of a grant, should defend the challenge to the 2014 Will on behalf of G. or take such other steps as are necessary in G.’s best interests.”

Conclusion

Accordingly, the court refused the application.

In the matter of the Succession Act, 1965, and in the matter of the Estate of E.f., Deceased and in the matter of Section 27(4) of the Succession Act, 1965 and in the matter of an Application by H.f., J.f. and K.f. to appoint an Administrator Ad Litem [2023] IEHC 720