Gunning v Brian Sherry Solicitors
| Jurisdiction | Ireland |
| Judge | Ms. Justice Laffoy |
| Judgment Date | 08 October 2015 |
| Neutral Citation | [2015] IESC 76 |
| Docket Number | [Appeal No. 103/12] |
| Court | Supreme Court |
| Date | 08 October 2015 |
[2015] IESC 76
[Appeal No. 103/12]
THE SUPREME COURT
Wills & probate – Executrix – Dispute with widow of testator – Cottage – High Court finding for widow and dismissing executrix”s claim for cottage as abuse of proceedings – Appeal
Facts: The plaintiff had been appointed as executrix by her father”s will. The father had left his estate in shares for his widow and daughters. The plaintiff and the widow had been in dispute regarding a cottage, and the High Court had found that the plaintiff”s conduct was in breach of her duties as executrix. She was accordingly removed and the defendant confirmed as the personal representative of the testator. Following further litigation, the plaintiff had issued a claim in the High Court alleging wrongdoing on the part of the defendant. The High Court had found that the plaintiff”s claim was an abuse of process and issued an Isaac Wunder order prohibiting any further action in the matter by the plaintiff without the leave of the court. The plaintiff now appealed that decision.
Held by Laffoy J, the other Justices concurring, that the appeal would be dismissed. Far from showing bias as alleged by the plaintiff, the trial judge had demonstrated patience of biblical proportions with her claim and conduct. No evidence had been submitted by the plaintiff that supported her allegation that she had been treated unfairly, or that the decision to dismiss her claim as an abuse of process was incorrect. The ‘Isaac Wunder’ order would also continue. Wunder v Hospitals Trust (1940) Ltd 1966 WJSC-SC 371 considered.
The appellant on this appeal (Ms. Gunning) was the plaintiff in plenary proceedings which were initiated in the High Court on 8th November, 2010 (Record No. 2010/ 10220P). The respondent on the appeal and the defendant in the High Court proceedings is named as ‘Brian Sherry Solicitors’. Brian Sherry (the Personal Representative) is a solicitor. In the circumstances outlined later, he became, and is, the Personal Representative of James Gunning (the Testator), Ms. Gunning's late father. In an affidavit sworn by him on 18th February, 2011, which grounded the application which is the subject of this appeal, he pointed out that the proceedings as brought against him are silent as to the capacity in which he is sued. He further averred that his only association with Ms. Gunning has been in his capacity as Personal Representative of the Testator. The only conclusion which can be drawn from Ms. Gunning's participation in the High Court proceedings and, in particular, in the application which is the subject of this appeal, is that the Personal Representative was being sued in that capacity.
By his will dated 25th June, 1982 the Testator appointed Ms. Gunning to be executrix thereof. The effect of his will was that he devised a half interest in all his property, both real and personal, to his widow, Sarah Gunning (the Widow), and the remaining half interest to his daughters, Ms. Gunning and her sister, Mary Gunning. The Testator died on 10th October, 1984. A grant of probate of the said will issued to Ms. Gunning, as executrix named in the will, on 3rd September, 1985.
The asset of the Testator which became the subject of contention between Ms. Gunning and the Widow around the year 2000 was a dwelling house standing on in excess of three quarters of an acre at Blacklion, Greystones, County Wicklow, which was, and is, known as Chrysanthemum Cottage (the Cottage). At the time of his death the Testator held the Cottage under a lease dated 9th January, 1936 (the Lease) made between Isabel Jane Orpen and Florinda Kingdon Ward (both with addresses in the United Kingdom) of the one part and Patrick Gunning of the other part, which created a term of fifty years from the 1st day of November, 1935 at the yearly rent of £5. Patrick Gunning was the father of the Testator and the Testator succeeded him as lessee under the Lease. Accordingly, the term of the Lease expired just in excess of a year after the death of the Testator. Notwithstanding that, the Widow continued in possession of, and to reside in, the Cottage. Ms. Gunning, who had been living abroad for some years, returned with her daughter to live in the Cottage around 1991.
From late 1985 onwards, obviously the title of the Testator's estate to the Cottage was anything but satisfactory. It appears from the documentation furnished to this Court that an attempt had been made by the Testator to acquire the fee simple under the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 (the Act of 1978) in or around 1980. However, that application was not successful. In 1998 an application was made to the Land Registry in the name of the Widow and Ms. Gunning to be registered as owners of the Cottage. The basis of that application was that the applicants had acquired a possessory title by adverse possession against the freehold owner, whoever the freehold owner was. That application (reference D98KW10103P) was eventually treated as abandoned in May 2000, when the Widow's solicitors, Ferrys, lodged an application in the name of the Widow claiming to be sole full owner of the Cottage on the basis of adverse possession. That application (reference D00KW06927Y) was subsequently treated by the Land Registry as having been abandoned in June 2001, when, despite reminders, the Land Registry did not get a response from Ferrys in relation to rulings issued.
In 2001 the Widow adopted a different approach to get possession of the Cottage from Ms. Gunning. She instituted ejectment proceedings on the title (Record No. 154/01) in the Circuit Court, County Wicklow, on 5th March, 2001 claiming that she was in sole and exclusive occupation and possession of the Cottage until around 1990 when, at her invitation, Ms. Gunning and her daughter had moved into the Cottage under licence from, and with the permission of, the Widow. The outcome of those proceedings was an order made in the Circuit Court by His Honour Judge O'Hagan on 29th July, 2002 in which he ordered that the Widow had acquired no claim by adverse possession and dismissed her claim.
The next step the Widow took was to institute proceedings in the High Court by special summons (Record No. 2003/ 122SP) in 2003 against Ms. Gunning (named as Eileen Gunning Hameed) as defendant, invoking s. 26(2) of the Succession Act 1965 (the Act of 1965) to have the grant of probate of the will of the Testator to Ms. Gunning revoked and to have an order granting administration of the estate of the Testator to the Personal Representative made under s. 27(4) of the Act of 1965. The special summons proceedings were heard in the High Court by Smyth J., who delivered judgment on 31st July, 2003. One of the matters adverted to in that judgment was that there was no evidence before the Court that the Widow had ever been given or served with notice under s. 56(1) of the Act of 1965 informing her of her right to have the Cottage appropriated to her in satisfaction of her share of the estate of the Testator. Further, Smyth J. stated in his judgment that the plaintiff had not ‘observed her duties as a trustee’. In that regard, he was referring to s. 10(3) of the Act of 1965, which provides that a personal representative shall hold the estate of the deceased person as trustee for the persons by law entitled thereto. That finding was based on the facts recorded earlier by Smyth J. in which he stated that the evidence established that Ms. Gunning, unknown to the Widow and undisclosed to His Honour Judge O'Hagan in the Circuit Court, had set in train a line of inquiry as to the successors in title to the owners of the freehold in the premises and had sought to acquire the freehold for her own benefit and to be registered as sole owner of the premises in the Land Registry. Smyth J. concluded his judgment as follows:
‘In the instant case [Ms. Gunning's] intention to have herself registered as owner of the premises is in complete conflict with her role as executrix. In my judgment it is a very necessary and serious step to take to remove [Ms. Gunning] from her role – but on the evidence I am satisfied that it must be done. It is the only way in which this matter can be dealt with properly and impartially.
Accordingly, [Ms. Gunning] will cease to be as and from this judgment as executrix to the estate of the [Testator]; the Court hereby recalls and cancels the grant of probate of 3rd September, 1985 handed in to Court during the course of the hearing; and pursuant to s. 27(4) of the [Act of 1965] appoints Brian Sherry, solicitor … to be the administrator of the estate of the [Testator].’
The order of the High Court made pursuant to the judgment of Smyth J. was dated 31st July, 2003. Two components of the curial part of the order are relevant for present purposes. First, an order was made pursuant to s. 26(2) of the Act of 1965 removing Ms. Gunning as executrix of the will of the Testator. The second was that an order was made pursuant to s. 27(4) of the Act of 1965 that letters of administration of the estate of the Testator be granted to the Personal Representative. It is appropriate to record at this juncture that s. 26(2) of the Act of 1965 provides that the High Court shall have power to revoke, cancel or recall any grant of probate. While the effect of s. 26(2) was not set out in the order in the terms provided in the sub-section, clearly the intention in the order was to give effect to the statement in the judgment recalling and cancelling the grant of probate of 3rd September, 1985 which had issued to Ms. Gunning.
Pursuant to the order of the...
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SP v UG
...necessary and previously litigated.’ 17 She drew the attention of the judgment of the Supreme Court in Gunning v. Brian Sherry Solicitors [2015] IESC 76 were the Supreme Court approving the Isaac Wunder order at issue ordered that ‘Ms. Gunning be restrained from initiating any further proce......