Davies v Hutchinson
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 20 November 2017 |
| Neutral Citation | [2017] IEHC 693 |
| Docket Number | [RECORD NO 2017 212 SP] |
| Court | High Court |
| Date | 20 November 2017 |
[2017] IEHC 693
THE HIGH COURT
O'Regan J.
[RECORD NO 2017 212 SP]
AND
Estate – Termination of settlement agreement – S. 26 (2) and s. 27 (1) of the Succession Act, 1965 – Removal of an executor Administration of estate by third party – Grant of probate – Serious grounds for overruling the wishes of the testator – Payment to estate
Facts: The plaintiffs sought an order under s. 26 (2) of the Succession Act of 1965 for revoking or cancelling the grant of probate issued to the defendant and removing the defendant as executrix from the estate of the deceased. The plaintiffs also sought an order under s. 27 (1) of the 1965 Act for granting administration of the estate of the deceased to a third party. The plaintiffs contended that they had resiled from the settlement agreement entered into by the parties because the defendant failed to comply with the agreement.
Ms. Justice O'Regan refused to grant an order for the removal of the executrix of the estate and postponed the matter for making appropriate orders in relation to the administration of the estate. The Court held that it was not satisfied that the plaintiffs had met the high threshold required to remove the defendant as executrix from the estate of the deceased. The Court observed that in order to remove some one as an executor, serious grounds had to be shown for overruling the wishes of the testator. The Court noted that the asserted conflicts did not amount to special circumstances or serious grounds for removing the testator.
The plaintiffs herein are seeking four substantial reliefs against the defendant in respect of the administration of the estate of Daphne Conlon, deceased who died on 4th December 2004 (herein after referred to as the deceased). The reliefs include an order under s. 26 (2) of the Succession Act of 1965 revoking or cancelling the grant of probate which issued to the defendant on 13th December 2005, thereby removing her as executrix in the estate of the deceased, together with an ancillary order under s. 27 (1) of the 1965 Act granting administration to a third party.
In addition, the plaintiff seeks the relief of a direction to the defendant to render within a specified time, a true and perfect inventory and account of the estate and in the alternative an order compelling the defendant within a specified time to complete the administration and distribution of the estate.
The contention between the parties in the matter that came before the Court on 6th November 2017 was relative to the removal of the defendant under s. 26 (2) of the 1965 Act, aforesaid.
Written submissions were not tendered to the Court by either party.
To ground the special summons of the 12th May 2017 seeking the aforesaid relief, Philip Davies swore an affidavit bearing the date 3rd of May 2017 which included various exhibits. The defendant swore an affidavit of 1st November 2017, in resisting the application of the plaintiffs wherein she also referred to various exhibits.
It is common case that following the extraction of the grant of probate a claim was made pursuant to s. 117 of the Succession Act 1965 by the estranged son of the deceased and proceedings in this regard commenced in January 2006. These proceedings were ultimately settled in June 2010 for the total sum including costs of €92,500. The plaintiffs first consulted Messrs Ronan Daly Jermyn Solicitors in August 2009 (which solicitors have continued to advise the plaintiffs in respect of the distribution of the deceased's estate to the date of the within hearing) as they were concerned as to the delay in the dealing with the s. 117 proceedings. On the 18th March 2010 the plaintiffs through their solicitors authorised the settlement thereof for the inclusive figure of €100,000, however the plaintiffs complained, and the defendant does not address this complaint in the replying affidavit, that the defendant did not react constructively to the plaintiffs' suggestion.
Following the settlement of the s. 117 proceedings, in January 2011, the defendant raised a bill of costs in excess of the sum of €306,000 and as a consequence, the plaintiffs made a complaint to the Law Society. However, the Law Society did not intervene as the defendant had submitted her fees for taxation.
The taxation process dragged on and according to the plaintiffs this was effectively because of various obstacles presented by the defendant. In any event an agreement in principle was reached between the parties on 29th May 2015 which was subsequently recorded in a written agreement on 3rd February 2016 (although the written agreement records a date of 3rd February 2015 the parties accept that this agreement was signed on 3rd February 2016).
At para. 18 of the grounding affidavit of Mr. Davies, the plaintiffs complained that the defendant failed to comply with the agreement and the plaintiffs reserve their position. During submissions the plaintiffs suggested that the defendant had resiled from the agreement and subsequently Counsel for the plaintiffs suggested that as a result of the failure on behalf of the defendant in complying with the agreement, the plaintiffs were resiling from same. When asked how the plaintiffs communicated this intimation of termination by the plaintiffs, the plaintiffs suggested same was by virtue of the grounding affidavit of Mr. Davies, however, notwithstanding that the grounding affidavit of Mr. Davies ran to eight pages, nowhere therein is it suggested that the plaintiffs were thereby claiming that the plaintiffs were thereby resiling from the agreement of the 3rd February 2016 because same was abandoned or frustrated by the defendant.
At para. 12 of the replying affidavit of the defendant of the 1st November 2017 the defendant complained that she heard nothing in respect of the cash account furnished to the plaintiffs. In this regard the terms of settlement of 3rd February 2016 records that there was an agreement that the beneficiaries would authorise payment of the total sum of €135,000 to the executrix by way of all costs. But insofar as their agreement contemplated a possible termination thereof, same is contained in the condition no. 2 thereof and not in any other condition.
Condition no. 2 reads:
'The executrix has furnished to the beneficiaries full cash account and distribution account. The beneficiaries have one month from the date of this agreement to approve the cash account and if they do not, then this agreement is at an end in its entirety.'
In inter-party correspondence exhibited in the affidavits, the defendant under cover letter of 4th July 2017 furnished completed CAT returns 'in accordance with the agreement signed and dated the 3rd February 2016'.
In a response letter on behalf of the plaintiffs of the 12th July 2017 it was indicated that the foregoing letter of 4th July 2017 was being reviewed and the plaintiffs reserved their position in relation to the proceedings. In a follow up letter from the plaintiff's solicitors of 13th July 2017 the plaintiffs called for a distribution of monies held by the defendant in the sum of approximately €400,000, immediately without prejudice to any claim right and remedies against the defendant. Thereafter and as and from the 18th July 2017 until ultimate payment in late October 2017 the defendant attempted to link the distribution of the €400,000 to agreement that seemingly would resolve all outstanding issues between the parties. The plaintiffs rejected this condition of payment or distribution and continued to rely on the contents of the aforesaid letters of the 12th and 13th of July 2017.
In a letter of the 5th October 2017 the defendant's solicitors sought confirmation from the plaintiffs that the relevant distribution would be in full compliance with the terms of the agreement entered into between the two parties and the payment would be a full and final settlement of all or any claims.
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