Governor and Company of the Bank of Ireland v Matthews


[2018] IEHC 335


Costello J.

[2016 No. 502 S. P.]


Possession order – Statute barred – Executrix – Plaintiff seeking an order for possession – Whether the plaintiff was entitled to sue the defendant as executrix of the deceased borrower when she had not taken out a grant of probate

JUDGMENT of Ms. Justice Costello delivered on the 8th day of June, 2018

Two principal issues arise for decision in this case:

(1) Is the plaintiff entitled to sue the defendant as executrix of the deceased borrower when she has not taken out a grant of probate?

(2) Are the proceedings statute barred?

The facts

The plaintiff is seeking an Order for Possession of the premises known as 16 The Glen, Inse Bay, Laytown, County Meath, registered as Folio 50183F of the Register of Freeholders for the County of Meath ('the Property'). The defendant is sued as executrix or, in the alternative, as executrix de son tort, of the late John Melsop (otherwise Melsopp) deceased, late of the Property; and in her own right as the occupant of the Property.


On the 24th March 2005, the deceased entered into a Mortgage Loan Agreement with the plaintiff's predecessor in title, the ICS Building Society ('the Society') under which the Society agreed to provide the deceased with a loan in the sum of €234,000.00 repayable monthly over 15 years, to be secured, inter alia, by way of a first legal Mortgage over the Property. The deceased executed a mortgage and charge on 27th April, 2005 securing the monies advanced under the loan agreement. The mortgage and charge was duly registered as a burden on the Folio on 23rd June 2005. On 4h May 2005, the full amount of the loan was drawn down by the deceased.


Between July 2009 and the deceased's death on 14 February 2013, the deceased defaulted in a number of monthly payments under the Mortgage Loan Agreement and, at the time of his death, there were arrears of €31,890.32 on the Mortgage Loan Agreement. However, notwithstanding the foregoing, the deceased had continued to make regular and substantial payments in respect of the Mortgage Loan Agreement up to the date of his death. The Society had accepted these and had not terminated or called in the loan prior to the deceased's death.


The deceased died testate and named his partner, the defendant, executrix in his will. The defendant held herself out as executrix of the estate of the deceased and engaged with the Society in respect of his affairs. She wrote to her solicitors on 25th February, 2013 authorising them to write on her behalf to the Society regarding the deceased's mortgage and asked them to clarify the position regarding arrears. She said ' as you are aware, I am the Executrix in the Will of my late partner John Melsopp and therefore entitled to make enquiries about his affairs'. She continued to reside in the Property. Following the death of the deceased, payments continued to be made by the defendant on foot of the Mortgage Loan Agreement. The last such payment was made on 28th January, 2014.


On 10th March, 2014, the defendant's solicitor wrote to the Society advising that the defendant had ' decided to agree to the extraction of the Grant of Probate and following on from that, the sale of the property at 16, The Glen, Inse Bay, Laytown'.


With effect from 1st September, 2014, the loan facility and associated security were transferred by statutory transfer from the Society to the plaintiff.


On 13th February, 2015 the defendant's solicitor wrote to the plaintiff stating that the defendant's son would be prepared to buy the Property at a particular price so as to enable the defendant to continue to reside in the Property. This offer was not accepted.


On 21st September, 2015, the defendant's solicitor wrote to the plaintiff and, inter alia, stated that: ' Ms Mathews has advised this office that she does not want to proceed with taking out a Grant of Probate in the estate of John Melsopp deceased and she intends to reside in the property for the foreseeable future.' The letter went on to explain that the solicitors firm hold ' the original Will of John Melsopp deceased and were prepared to act for Ms Mathews if she wished to extract a Grant of Probate, however as this is no longer the case we have no further involvement in the matter'.


On 16th August, 2016, the plaintiff made formal demand for full repayment of the loan facility and, when repayment was not forthcoming, by letter of 8th September, 2016, the plaintiff's solicitor demanded possession of the Property. The said demands were made upon the defendant in her capacity as Personal Representative of the deceased and, in relation to possession of the Property, also as occupant of the Property. The defendant continues to reside in the Property.


The within proceedings were commenced by Special Summons issued on 9th December, 2016, some 3½ years after the date of death of the deceased.

The first issue

The first issue to be determined is whether the plaintiff is entitled to sue the defendant as either the executrix or the executrix de son tort of the deceased.


The deceased died testate. The defendant confirms that she was named executrix in his last will and testament. Initially she was prepared to take out a grant of probate but she has not done so. In her replying affidavit in these proceedings she describes herself as the executrix of the deceased. She has not renounced her entitlement to take out a grant of probate. In a letter written by her solicitors to the plaintiff on the 21st September, 2015 it was indicated that she did not want to proceed with taking out a grant of probate in the estate of the deceased and she intends to reside in the Property for the foreseeable future.


As an executrix, her title to the estate of the deceased stems from the will and the estate vested in her immediately upon the death of the deceased. An executor's acceptance of the office may be implied by the performance of acts by the appointee which are referable to the functions of an executor. Acts of intermeddling in the estate of a deceased which make a stranger an executor de son tort are similar to those which imply acceptance of the office by an executor named in the will (see Brady's Succession Law in Ireland 2nd ed. 1995 para. 9.40).


In The Goods of Hanlon [1894] 1 I.R. 551 the court held that the executor named in the will of the deceased had interfered with the assets of the testatrix in such a way that he could not repudiate the office of executor and that he was bound to extract a grant of probate of the will. The court said:

'He was the person entitled; he knew that he was executor named in the will at the time, and he was acting in a way which he could not properly have done if he was not executor.'


The defendant is in the same position as the executor in Hanlon's case. She was the named executrix and she knew that she was the executrix named in the will at all times. She acted in a way which she could not properly have done if she was not the executrix of the deceased. By letter dated the 25thFebruary, 2013 she wrote to...

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