Eastwood and Another v Richards and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Rory Mulcahy |
| Judgment Date | 12 June 2023 |
| Neutral Citation | [2023] IEHC 307 |
| Court | High Court |
| Docket Number | Record No.: 2021/5113 P |
In the Matter of the Estate of Mary Eastwood, Deceased, Late of “Lyttleton” Coolock Lane in the City of Dublin,
And in the Matter of the Succession Act, 1965,
And in the Matter of an Application by Robert Eastwood of “Lyttleton” Coolock Lane in the City of Dublin
and
[2023] IEHC 307
Record No.: 2021/5113 P
THE HIGH COURT
PROBATE
JUDGMENT of Mr. Justice Rory Mulcahy delivered on the 12 th day of June 2023
This judgment concerns two motions. The first motion was issued by the Defendants in the context of their counterclaim on 20 March 2022. The motion is directed towards the third counterclaim Defendant, Mr Brian Bohan, who is the Administrator Ad Colligenda Bona of the estate of Mary Eastwood. The Defendants seek Orders requiring Mr Bohan to provide an account of his appointment as administrator and, in particular, in relation to his collection of rents. The Defendants no longer pursue those Orders and the sole remaining dispute between the parties on that motion relates to costs.
The second motion was issued by the Plaintiffs on 5 January 2023 and seeks to strike out the Defendants' counterclaim or, in the alternative, seeks a separate trial of that counterclaim.
These proceedings have their genesis in an application made before this Court seeking to prove the will of Mary Eastwood in terms of a copy. The two Plaintiffs and three Defendants are the children of Mary and James Eastwood.
On 30 November 2020, on the application of the first Defendant, Mr Bohan was granted liberty to apply for and extract a Grant of Letters of Administration Ad Colligenda Bona in the estate of Mary Eastwood, limited for the purpose of collecting rents in respect of the properties of the deceased. Mr Bohan was appointed as administrator for this purpose on 1 February 2021.
On the same day, on the application of the first Defendant, Mr Bohan was granted liberty to apply for and extract a Grant of Letters of Administration in the estate of Mary Eastwood, limited for the purpose of defending proceedings which the first Defendant intended instituting against the estate of Mary Eastwood. Mr Bohan was appointed administrator for this purpose on 8 December 2020.
On the same day, also on the application of the first Defendant, Mr Bohan was granted liberty to apply for and extract a Grant of Letters of Administration in the estate of James Eastwood, the husband of Mary Eastwood, who had pre-deceased her, and died intestate.
Separately, an application was made in the so-called non-contentious Monday probate list, grounded on the affidavit of the first Plaintiff, with the support of the second Plaintiff, to have Mary Eastwood's will proved by a copy of that will dated 29 November 2016. The Defendants each filed replying affidavits to that application which came on for hearing before Allen J. on 15 March 2021.
The circumstances leading to that application are set out in the written judgment of Allen J. dated 4 June 2021 ( [2021] IEHC 387). Allen J. concluded that it was not an application which could be decided by reference to those matters which were not seriously in dispute and that it would be necessary to hear oral evidence.
As a consequence, the Plaintiffs issued plenary proceedings in which, in effect, the only relief sought was to prove Mary Eastwood's will by a copy of that will.
The Defendants delivered a defence to this claim, denying that the copy will was Mary Eastwood's will. In addition, the Defendants counterclaimed in relation to rents received from properties comprising the estates of both Mary Eastwood and James Eastwood, claiming that the Plaintiffs had received rents from these properties which they had not accounted for to the administrator of those estates. For this purpose, the Defendants sought to join Mr Bohan as a co-defendant to the counterclaim.
In the context of this counterclaim, the Defendants issued the motion the subject of this judgment.
The Defendants' motion sought Orders requiring Mr Bohan to provide an account in respect of his appointment as Administrator Ad Colligenda Bona. The motion was issued against a background of correspondence issuing on behalf of the Defendants calling on the Administrator to ensure that all rents from the properties belonging to the estate of James Eastwood and the estate of Mary Eastwood were collected by him.
The properties in question comprise 6 properties forming part of the estate of James Eastwood. The first Plaintiff resides in one of those properties, the third Defendant in another, the other four are tenanted. In addition, there is one property forming part of the estate of Mary Eastwood, which is also tenanted. Prior to the appointment of the administrator, the second Plaintiff collected rent from four of the five tenanted properties and the second Defendant collected rent from the other.
Over a period of time, the solicitors for the Defendant wrote to Mr Bohan regarding the steps he was taking in his role as administrator and, in particular, the steps he was taking to take over the collection of the rents which were being collected by the second Plaintiff and to have her account for the rents she had already collected.
Ultimately, the Defendants were not satisfied with the steps which Mr Bohan had taken or the amount of progress made by him in his role as Administrator Ad Colligenda Bona. In particular, they became concerned when Mr Bohan threatened to give up his role as administrator. Accordingly, they issued the within motion.
However, having issued the motion, the Defendants elected not to proceed with their application. The Defendants explain that they are now satisfied with the progress being made, which they argue is a consequence of their having brought the motion. In the circumstances, the only issue outstanding is that of costs.
The Defendants say that the costs should be made costs in the estate of Mary Eastwood or, in the alternative, reserved.
The Plaintiffs and the Administrator both argue that the motion is improperly constituted. They explain that these proceedings relate only to proving the will of Mary Eastwood in the context of the administration...
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