Dunne v Dunne

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 11 October 2016
• Neutral Citation: [2016] IECA 269
• Docket Number: Appeal No. 2015/403
• Court: Court of Appeal (Ireland)
• Date: 11 October 2016

[2016] IECA 269

THE COURT OF APPEAL

Peart J.

Peart J.

Birmingham J.

Moriarty J..

Appeal No. 2015/403

IN THE MATTER OF THE ESTATE OF CECIL DUNNE DECEASED, LATE OF MILLICENT CROSS, CLANE IN THE COUNTY OF KILDARE, FARMER, DECEASED

BETWEEN:

ARTHUR DUNNE, DYMPNA DORMON (NEE DUNNE), JAMES DUNNE, GERRY DUNNE, CECIL DUNNE JUNIOR, DOMINIC DUNNE, ANN RYAN (NEE DUNNE), PATRICK DUNNE

AND

MARTIN DUNNE

PLAINTIFFS/RESPONDENTS

- AND -

WILLIAM DUNNE

DEFENDANT/APPELLANT

Administration of estate - Legal personal representative - Administration de bonis non - Respondents seeking a declaration that the appellant was conflicted in his role as legal personal representative of their late father's estate - Whether appellant should have been removed as legal personal representative

Facts: The plaintiffs/respondents, Mr A Dunne, Ms Dormon, Mr J Dunne, Mr G Dunne, Mr C Dunne Jr, Mr D Dunne, Ms Ryan, Mr P Dunne and Mr M Dunne issued a motion on the 19th March 2015 seeking: (a) a declaration that the defendant/appellant, their brother, Mr W Dunne, was conflicted in his role as legal personal representative of their late father's estate; (b) an order revoking the grant of administration de bonis non by which he became the legal personal representative of the unadministered estate of their late father; and (c) an order pursuant to s. 27(4) of the Succession Act 1965 allowing an independent person to extract new letters of administration de bonis non so that the administration of the estate may be fully and properly completed. The reason why the plaintiffs contended that their brother was conflicted in his role as legal personal representative was that within his defence to the plaintiffs' claim for an order for the administration of their late father's estate, and other reliefs, he pleaded that the plaintiffs' were no longer entitled to their 1/42nd share in their father's estate because their claims in that regard were statute-barred under s. 45 of the Statute of Limitations 1957 and/or that since both he, and his mother until her death in 2010 farmed the lands in question without interruption since the death of their father, they acquired a possessory title as against the plaintiffs under s. 125 of the 1965 Act, and accordingly that any claim that they would have to a share in the lands arising from the intestacy of their father had been lost. The plaintiffs' motion was heard by Cregan J, and on the 28th July 2015 he granted: (a) the declaration sought; (b) an order revoking, cancelling and recalling the grant of administration de bonis non dated 31st August 2011 which issued to the defendant; and (c) an order, pursuant to s. 27(4) of the 1965 Act, giving liberty to Mr Osborne solicitor to extract a new grant of administration de bonis non of that estate. Mr W Dunne appealed to the Court of Appeal against that order, submitting that the trial judge erred in: 1) characterising the circumstances of the case as being a serious, obvious and indefensible conflict of interest requiring his removal; 2) not applying the restrictive test; 3) failing to take into account the additional and needless expense of having the defendant replaced by an independent administrator; 4) failing to follow a line of authority which establishes that there is nothing untoward about a beneficiary pleading the statute even where he is also a personal representative, and stands to gain from doing so; 5) making a personal costs order against the defendant in respect of the motion.

Held by Peart J that the trial judge was wrong to conclude that such conflict of interest as did arise by virtue of the pleaded defence on the statute was such as to require that Mr W Dunne be removed as legal personal representative, and replaced by an independent person as ordered. Peart J held 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. In Peart J's view, the replacement of the defendant as legal personal representative was not necessitated in the circumstances of the case.

Peart J held that the appeal should be allowed, so that the action could proceed as presently constituted.

Appeal allowed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 11TH DAY OF OCTOBER, 2016:

1 Arising from the contents of a defence delivered by William Dunne on the 10th November 2014 to the plaintiffs' claim for an order for the administration of their late father's estate, and other reliefs, they issued motion on the 19th March 2015 seeking:-

(a) a declaration that their brother, William, is conflicted in his role as legal personal representative of their late father's estate,

(b) an order revoking the grant of administration de bonis non by which he became the legal personal representative of the unadministered estate of their late father, and

(c) an order pursuant to s. 27(4) of the Succession Act, 1965 ('the Act of 1965') allowing an independent person to extract new letters of administration de bonis non so that the administration of the estate may be fully and properly completed.

2 Briefly stated, the reason why the plaintiffs contend that their brother William is conflicted now in his role as legal personal representative of their late father's estate is that within his defence he pleaded that the plaintiffs' are no longer entitled to their 1/42nd share in their father's estate because their claims in that regard are statute-barred under s.45 of the Statute of Limitations,1957 (as substituted by s. 126 of the Succession Act, 1965) and/or that since both he, and his mother Eileen Dunne until her death in 2010, farmed the lands in question without interruption since the death of their father, they acquired a possessory title as against the plaintiffs under s. 125 of the Succession Act, 1965, and accordingly that any claim that they would have to a share in the lands arising from the intestacy of their father had has been lost.

3 That motion was heard by Mr Justice Cregan, and on the 15th July 2015 he delivered a written judgment setting out his reasons for granting:-

(a) the declaration sought,

(b) an order revoking, cancelling and recalling the grant of administration de bonis non dated 31st August 2011 which issued to the defendant, and

(c) an order, pursuant to s. 27(4) of the Act of 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 made also against William Dunne. The order appealed against was made on the 28th July 2015 and was perfected on the 30th July 2015.

4 For reasons which I hope will become clear, I consider that the trial judge was wrong to conclude that such conflict of interest as does arise by virtue of the pleaded defence on the statute was such as to require that William Dunne be removed as legal personal representative, and replaced by an independent person as ordered. In my view, this appeal should be allowed, so that the action can proceed as presently constituted.

Background

5 The nine plaintiffs and the defendant are siblings, and together comprise ten of the fourteen children of the late Cecil Dunne (the deceased) who died intestate on the 29th March 1994 and the late Eileen Dunne who survived him and died testate on 20th October 2010.

6 Following the death of Cecil Dunne, letters of administration (intestate) issued to his widow Eileen Dunne. Upon the death intestate of her husband, she was entitled to two thirds of the estate of her late husband, and the remaining one third was divisible equally between each of fourteen children of the marriage, being a 1/42nd share.

7 The litigation which has arisen has done so largely because prior to her death Eileen Dunne had not completed the administration of her late husband's estate, and in particular had not vested in each child the share to which each was entitled in c. 62 acres of farm lands known as Moatfield.

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

9 On the 31st August 2011, William took out a grant of administration intestate de bonis non to the estate of his late father which would enable him to complete the administration of that estate. On the 12th October 2011 he extracted a grant of probate in the estate of the late Eileen Dunne.

10 The plaintiffs have pleaded that despite being called upon to do so, and despite his acknowledgement of their entitlement to their share in their late father's estate, failed and neglected to distribute their share to them. They complain also that in his capacity as legal personal representative of their late mother's estate he has failed to properly account for her administration of their late father's estate prior to her death.

11 The defendant's opening salvo in his defence was to plead the statute as already indicated, and without prejudice to that plea, to plead that the plaintiffs were guilty of inordinate and inexcusable delay in the commencement of these proceedings, and further in the alternative that they have been guilty of laches to the extent that it would be now unfair and unreasonable that their claims should be allowed to proceed and should be dismissed. He went on to plead that his mother had not in fact intermeddled in the estate of her late husband at all as alleged, and pleads certain facts to substantiate his claim that the plaintiffs' claims have been lost by virtue of s. 125 of the Succession Act, 1965, and he further denies that he ever acknowledged the entitlement of the plaintiffs to a share in their father's estate as alleged by them. The defence contains other pleas such as that the plaintiffs have suffered no losses as alleged, but that if they have it is on account of their own inordinate and inexcusable delay.

12 In the normal course of events, one...