Flood v Flood
| Jurisdiction | Ireland |
| Judge | Mrs. Justice Fidelma Macken |
| Judgment Date | 14 May 1999 |
| Neutral Citation | [1999] IEHC 232 |
| Court | High Court |
| Docket Number | [1998 No. 376 Sp] |
| Date | 14 May 1999 |
[1999] IEHC 232
THE HIGH COURT
Probate — Trusts — Executor's duties — Conflict of interest — Jurisdiction to remove executor — Defendant executor of will of deceased — Plaintiffs allege defendant received loan from deceased — Defendant claimed monies received were a gift — Defendant would not return monies to estate — Whether defendant acknowledged debt — Whether conflict exists between duty of executor and alleged liability to estate — Whether claim if established would be statute barred — Whether prudent administrator would embark on claim for return of monies — Whether serious matter to be considered — Whether circumstances would justify removal of executor.
Without resolving the substance of the dispute between the parties it is clear that the plaintiffs have raised a serious matter and therefore there is a conflict between the defendant's role as executor and his possible position as a debtor to the estate having regard to the fact that he is not prepared to return the monies to the estate. The High Court so held in removing the defendant as executor.
Mrs. Justice Fidelma Macken delivered on the 14th day of May 1999.
The Special Summons served in these proceedings seeks an order that the Court should remove the Defendant from his position as Executor of the estate of the late Christopher Flood, and appoint an alternative in his place because the Plaintiffs are dissatisfied with his administration of the estate.
Christopher Flood, of Borris, in County of Carlow, died on the 28th July 1996. He had made a will on the 11th July 1989, and probate issued on the 27th November 1997. While the will named three executors, two declined to act and probate issued to the Defendant as Executor.
Both the Plaintiffs and the Defendant are brothers and all three are children of the late Christopher Flood. There are several affidavits filed in the matter, all or almost all by children of the late Christopher Flood, and it is obvious that there is a clear dispute and what I might call a regrettable dividing line between several siblings on the one hand and other siblings (or their spouses) on the other hand.
Although there are reliefs listed in the Special Summons, for the moment, what I am asked to decide is whether at this stage, it is proper or appropriate that the Defendant should continue to act as Executor of the estate of the late Christopher Flood in circumstances where it is alleged the Defendant borrowed money from his late father. It is alleged by the Plaintiffs that the repayment of this loan is money now due to the estate, and that the Defendant has refused to acknowledge this. In the circumstances, it is said by the Plaintiffs that this stance of the Defendant is in conflict with his role as executor, because as such executor he is obliged to get in all the assets for the estate, being a trustee thereof for the beneficiaries.
The Plaintiffs submit that, if the Defendant were removed and another person appointed to act as administrator, it is the case that such person would then seek to recover the monies alleged by the Plaintiff to be due to the estate from the Defendant.
Mr. Howard submits for the Plaintiff that the authorities on misconduct are sufficient to remove an executor, and cites In re: Loveday (1900) P. 155 in support of the same, and the Irish cases of Spencer v. Kinsella (1996) 1 ILRM 401 and Arnott v. Arnott, 58 ILTR 145.Under this latter decision, it is open to the court to remove a trustee if his position is detrimental to the beneficiaries.
Mr. Howard submits that the Plaintiff's position is prejudiced by the Executor's current position, and the stance he has adopted, and he relies on S. 10(3) of the Succession Act 1965.
Essentially, the dispute between the Plaintiffs and the Defendant boils down to this. In early 1989 or thereabouts, it is alleged that the late Christopher Flood transferred money to the Defendant. It amounted to a sum of more than 40,000.00 in total. It is not disputed that a sum of money passed from him to the Defendant, and the exact sum is not significantly in dispute.
What is certainly in dispute is the nature of the transaction between the Defendant and his late father Christopher Flood. It is claimed by the Defendant that the money was given as a gift, not as a loan, and that it is not money recoverable by the estate at all. In the circumstances, it is said by the Defendant, no conflict could exist.
Numerous affidavits have been filed, all from the several children of the late Christopher Flood, together with one affidavit from a Father Nicholas Moore, on behalf of the Plaintiffs, as to certain matters which arose in 1994.
Leaving aside altogether the question as to whether the monies were a loan or a gift for the moment, the following factual matters can be gleaned from the affidavits and from the additional information which I sought as to the purchase of lands referred to by the Defendant:
1. The late Christopher Flood had a bank account with The Bank of Ireland, in. I believe. Borris, Co. Carlow.
2. In 1988 Mr. Flood was discussing with his then Solicitors, John J. Duggan & Co., of Carlow, his entitlement, if any, to secure a State pension.
3. Mr. Flood had apparently spoken to his then bank manager as to the possible options which he might consider if he wished to pursue his claim to a pension. Among these was one by which his money would remain "mine" and would be released to the siblings (his children) on death.
4. In early January 1989, according to a copy of a withdrawal docket, he withdrew the sum of 37,000.
5. That 37,000 was then immediately lodged into a joint account in the names of Flood/Parsons bearing account number"-- 33921". This docket seems to me to be one which was written by a bank official because of the manner in which it was completed.
6. A duplicate statement of that account, being number 82033921, and in the name of "Mary Parsons" but headed (in hand) "A/C Jack Flood & Mary Parsons" discloses that that account existed since 1984, and by the end of 1988 there was no money in the account. This statement shows the following additional information:
(a) an additional sum was transferred from Mr. Christopher Flood's account in the amount of £5432.42, making a total transfer by the end of January 1989 (including interest) of £42687.36.
(b) from that account a sum of 40,000 was debited, and withdrawn or transferred in late 1989.
(c) the remaining sum continued to have interest accruing on it, and no withdrawals took place, at least until the end of 1994, the last date appearing on the statement.
7. Of the £40,000. £10,000 was lodged into an account in the name of "Jack Flood", at the end of 1989, at the Bank of Ireland, where it remained, untouched but accruing interest until 1991, when the entire sum together with interest, was withdrawn. It amounted to £11,271.80.
8. The balance of 30,000 was sent to The Investment Bank of Ireland, by the Defendant, for investment into an IBI Lifetime Portfolio. Receipt for this was acknowledged by letter of the 25th October 1989 from the Bank.
9. The affidavits do not disclose when, if ever, this money was redeemed or realised, though this appears to have happened at some time prior to the death of the late Christopher Flood.
10. The Defendant purchased certain lands in Carlow. The date of the contract for the purchase of this was the 29th October 1991, and the date of closing was March 1993. The price was 177,000.
11. The Inland Revenue Affidavit filed on behalf of the Defendant avers to the fact that in 1989 the late Christopher Flood gave, by way of gift, the sum of £18,500 to each of the Defendant and Mary Parsons.
I now return to the affidavits. There is a conflict of fact on the affidavits. For the Plaintiffs, affidavits have been filed by Sylvester Flood, Brian Flood, Elizabeth Sheehan and Fr. Nicholas Moore, and on behalf of the Defendants, by Jack Flood, Michael Flood, Mary Parsons, James Flood and Thomas Flood.
On behalf of the Plaintiff it is said that the true interpretation of the events which have occurred is that the monies were placed in an account where the late Christopher Flood had access to them, although in the names of two children, that there was no independent use of the funds for all the time they were in the joint names of the Defendant and his sister Mary Parsons, that there was never a gift to the Defendant, but that when the Defendant wanted to purchase lands in 1991 or in 1993, he sought and obtained a loan of the monies in question, and that this is due to the estate. It is also said by the Plaintiffs that the Defendant acknowledged, on more than one occasion, that the monies were a loan, both to his siblings - or some of them - and also to Father Nicholas Moore, who has sworn an affidavit to that effect.
The acknowledgement to Father Moore came in 1994, prior to the death of the late Christopher Flood in 1996 and not long after the closing of the sale of lands to the...
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