Bissessur and Another v McMillen

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Rory Mulcahy
• Judgment Date: 26 April 2024
• Neutral Citation: [2024] IEHC 235
• Docket Number: Record No: 2023/3172 P

Between:

Laksmee Bissessur

Plaintiff

and

Evelyn McMillen

Defendant

[2024] IEHC 235

Record No: 2023/3172 P

THE HIGH COURT

JUDGMENT of Mr Justice Rory Mulcahy delivered on 26 April 2024

Introduction

1 . Adeline Keppel died intestate on 25 April 2001. Her sister, Rita Keppel died, also intestate, on 7 January 2011. Prior to their deaths, the sisters lived at a property in East Wall in the City of Dublin, of which Adeline remains the registered owner. This property is the main asset in their estate.

2 . On 10 February 2020, the defendant made an ex parte application for an order pursuant to section 27(4) of the Succession Act 1965 granting her liberty to apply for and extract a grant of letters of administration intestate in the estate of Rita Keppel. The High Court (Hyland J) granted the order sought. On 8 February 2021, the High Court (Allen J) made a similar order in respect of the estate of Adeline Keppel on foot of a similar application by the defendant. The defendant made both applications on the basis that she had been identified as the daughter of a second cousin of Rita and Adeline Keppel. On foot of the orders made, the defendant extracted grants of letters of administration in both estates on 23 May 2022.

3 . When making the first application, the defendant relied on an affidavit of a professional genealogist, Stephen Smyrl, sworn on 10 February 2020. Mr Smyrl wasn't referred to in Ms McMillen's affidavit grounding the application for the grant, and in oral submissions before this court, counsel for the plaintiff queried whether his affidavit had been before the court when the application was made. Although counsel for the defendant confirmed that it had been opened to the court in the earlier application, the query was repeated in supplemental submissions filed on behalf of the plaintiff after the hearing of this motion. I can confirm, having listened to the Digital Audio Recording of the application on 10 February 2020, that the affidavit was before the court on that day and opened in full.

4 . The affidavit of Mr Smyrl explained that the genealogist had opened his file on the matter in response to an advertisement from the Chief State Solicitor's Office dated 29 February 2012 seeking next of kin in Rita Keppel's estate. The affidavit averred that Mr Smyrl was “ very familiar with the estate of Rita Keppel” and that her closest living relatives were second cousins, once removed, namely Florence Chambers and Grace Roberta McNally, who, he averred, shared common great grandparents, William Stone and Anne Wynne. He averred that Florence Chambers had died on 13 February 2016 and Grace McNally had died on 27 April 2018. He averred that Ms Chambers' daughter, Evelyn McMillen, the defendant, was the closest living next of kin that he had identified.

5 . In both section 27(4) applications, the court was informed that time was of the essence as the East Wall property, the only known asset in the sisters' estates, was being occupied by squatters and it was the intention of the estate to issue proceedings to protect this asset. Circuit Court proceedings were commenced in June 2022, as described below.

6 . These proceedings were commenced on 29 June 2023. The plaintiff seeks an order setting aside the High Court orders referred to above, and annulling the grants of the letters of administration, on the basis that, at the time that the defendant applied for the grants, she “ well knew” that there were second cousins of the Keppel sisters who remained alive and therefore had priority of entitlement to extract the grants, pursuant to Order 79, Rule 5(9) of the Rules of the Superior Courts. Five such second cousins are named in the Plenary Summons. No basis for the plea that the defendant “well knew” of the existence of surviving second cousins is set out in the Plenary Summons, nor has any been identified in the course of this application. The plaintiff, therefore, seeks to set aside orders of the High Court on the basis that they were, in effect, obtained by fraud but has not to date set out in her pleadings, or anywhere else, an evidential basis for that claim.

7 . The most striking aspect of these proceedings, however, is that the plaintiff is not one of the second cousins who, it is contended, had priority over the defendant. She does not claim to be a relation of either Keppel sister, to have any entitlement to have extracted grants of letters of administration herself, or any entitlement as a beneficiary of either sister's estate. She doesn't claim any interest in the administration of the estate at all. Her only interest in the matter is that she, together with another individual, are currently occupying the property in East Wall, which is the main asset in the estate of the Keppel sisters. She is, in fact, one of the squatters referred to in the applications pursuant to section 27(4).

8 . It seems that neither the plaintiff nor the other individual have any legal entitlement to be in the property. As noted above, on 21 June 2022, the defendant, as personal representative of the estates of Rita and Adeline Keppel, commenced proceedings in the Circuit Court by Equity Civil Bill entitled McMillen v Smith and Bissessur, Record No. 002298/2022, seeking vacant possession of the East Wall property. On 14 November 2023, the Circuit Court made an order in those proceedings, directing the defendants in those proceedings, including the plaintiff herein, to vacate the premises within fourteen days. That order was the subject of judicial review proceedings, which were dismissed in a judgment of the High Court (Farrell J) delivered on 24 April 2024.

9 . Prior to the determination of those Circuit Court proceedings, the defendant issued this application to strike out the plaintiff's case, pursuant to Order 19, Rule 28 of the Rules of the Superior Courts or, in the alternative, pursuant to the inherent jurisdiction of the Court.

The Plaintiffs' Case

10 . The only pleading in the case thus far is the plaintiff's Plenary Summons, which contains the bare pleas described above. The plaintiff has, however, sworn two affidavits in response to this motion in which she elaborates somewhat on her claim. In addition, her solicitor has sworn an affidavit exhibiting the transcript of the Circuit Court proceedings referred to above.

11 . In her affidavits, the plaintiff contends that she “ has caused enquiries to be made” which, she says, establish that there are second cousins of Rita and Adeline Keppel still alive, who have priority over the defendant in the administration of the estates. She says and believes that there were approximately twenty second cousins alive at the date of Rita Keppel's death, which is “ established from materials in the public domain.” Notably, given her criticisms of the defendant's affidavits grounding the section 27(4) applications, she didn't initially explain the nature of the enquiries that had been made, by whom they had been made, or the materials in the public domain upon which she relies. In her final affidavit, she refers to her information as having been provided by Timeline Genealogy Ireland but provides no documentation from that organisation. In that affidavit, she names two living relatives of the Keppel sisters who, she claims, have priority over the defendant regarding the administration of the estate.

12 . The plaintiff's affidavits claimed that she had been in occupation of the East Wall property since the death of Rita Keppel. She raised queries about whether Rita Keppel and Adeline Keppel were, in fact, sisters by reference to the fact that their birth certificates record them as having different mothers. The plaintiff appears to accept that they both lived at the East Wall property. She also queried whether the defendant and the Keppel sisters shared a common ancestor. She contends that the common ancestry depends on the defendant's great grandfather, William Stone, being a brother of Adeline Keppel's grandmother, Rachel Stone, but claims that the marriage records for William and Rachel indicate that their father's names were John and William, respectively, thus creating a doubt about the common ancestry. The plaintiff does not assert that her enquiries with Timeline Genealogy Ireland cast any doubt on whether the Rita and Adeline were sisters, or whether they shared a common ancestor with the defendant.

13 . The plaintiff criticises the affidavits sworn by the defendant in the applications for the grants of letters of administration for not making clear that her means of knowledge for her relationship to the Keppel sisters was the information provided by Mr Smyrl. The defendant is also criticised for having described Grace McNally as still living in her affidavit sworn in the first section 27(4) application, despite the fact that she had already died by the time the affidavit was sworn. In fact, the defendant's solicitor had confirmed in a further affidavit sworn prior to the making of the first application that he had contacted Ms McNally's solicitor shortly after the defendant's affidavit was sworn and was advised then that Ms McNally had passed away the previous year. Mr Smyrl's affidavit also refers to Ms McNally as having passed away.

14 . As noted above, the defendant issued proceedings in the Circuit Court against, inter alia, the plaintiff seeking possession of the East Wall property. The plaintiff's defence to those proceedings sought to put in issue the defendant's entitlement to bring the proceedings on the basis that she hadn't been entitled to take out the grants of the letters of administration and therefore was not entitled to maintain those proceedings as personal representative of the sisters' estates. It also included a claim that the proceedings were barred by sections 13 and 14 of the Statute of Limitations Act 1957, i.e. that she had a claim to adverse possession of the East Wall...