Muckian v Hoey
| Jurisdiction | Ireland |
| Judge | Mr. Justice David Keane |
| Judgment Date | 25 November 2016 |
| Neutral Citation | [2016] IEHC 688 |
| Docket Number | [2015 No. 214SP] |
| Court | High Court |
| Date | 25 November 2016 |
[2016] IEHC 688
THE HIGH COURT
Keane J.
[2015 No. 214SP]
AND
AND
Wills and Probate – Art. 35 of the Wills and Administration Proceedings (Northern Ireland) Order 1994 – Grant of letters of administration of estate – S. 27 (2) of the Succession Act 1965 – Removal of administratix – Delay
Facts: Following the grant of an order by the Northern Ireland High Court for removing the first named respondent as administratix of the estate of her husband (deceased), the applicants being the daughter of the deceased and the first named respondent sought an order to that effect in the present jurisdiction. The applicants contended that there had been delay of more than 12 years for the first named respondent to take concrete steps for the administration of the estate. The applicants also objected to the transfer of estate lands by the first named respondent without obtaining consideration for those lands in the estate. The first named respondent averred that the alleged delay was attributable due to the range and extent of the estate.
Mr. Justice David Keane revoked the grant of administration of the deceased's estate to the first named respondent and appointed the named law firm as the administrator of the said estate. The Court held that an order for the removal of a person as an executrix would be justified only in case of serious misconduct or existence of special circumstances and not merely because it had frustrated one of the beneficiaries. The Court found that the special circumstances would constitute the acts endangering the estate or befitting the purposes for which the executrix was appointed. The Court found that in the present case, the inordinate delay coupled with the failure to act in accordance with law were the factors that called for the removal of the first named respondent as the administratix of the estate.
This is an action to remove an administratrix and to appoint in her place a firm of professional trustees.
The applicants are both daughters of Michael Hoey (“the deceased”), who died intestate on the 13th October 2003, and Albina Hoey, the first respondent.
The first respondent is the widow of the deceased. She is the present administratrix and personal representative of his estate, having been granted letters of administration on the 22nd May 2009, some five and a half years after his death.
The four additional respondents are the other children of the marriage between the deceased and the first respondent. They are the siblings of the applicants.
The evidence before the Court is quite limited. On the applicants' side, it comprises the averments contained in, and documents exhibited to, the relatively short affidavit that the first applicant swore on the 17th July 2015 to ground the special summons on foot of which the present application is brought. On the respondents' side, it amounts to the averments in, and exhibits to, a replying affidavit sworn by the first respondent on the 8th January 2016. From those affidavits, I gather that the following facts are not in dispute.
The first respondent swore an Inland Revenue affidavit on the 6th April 2009 in support of her application for a grant of administration intestate of the deceased's estate. It identifies the place of death of the deceased as Newry, County Down and his domicile at the time of his death as Northern Ireland. The real property of the deceased within the State was valued at €1,220,000, representing farmlands in Counties Monaghan and Louth valued at €860,000 and a commercial premises in the town of Dundalk, County Louth, valued at €360,000. Bank accounts held by the deceased with a financial institution within the State contained funds then totalling €628,891.78. The real property of the deceased in Northern Ireland was valued at €1,698,528. As disclosed in that affidavit, it comprised a house, shop and yard in or near the village of Crossmaglen in County Armagh, then valued at €551,470, and farmlands at Culloville, County Armagh then valued at €1,147,058.
It would appear that, at the time of his death, the deceased was entitled to a one quarter share in the estate of his late father, John Hoey, who held farmlands in County Monaghan, and to a share in the estate of a deceased sibling, Thomas Hoey, who owned a cottage and lands also in County Monaghan. At the time of John Hoey's death in 2000, the deceased had three surviving siblings: the said Thomas Hoey; Ann Ita Hoey; and Aimee Hoey. It seems that Thomas Hoey died in 2002, Aimey Hoey died in 2004, and Ita Ann Hoey died in 2013.
On the 13th May 2009, the High Court of Justice in Northern Ireland granted letters of administration of the deceased's estate in that jurisdiction to the first respondent.
On the 15th March 2011, the applicants issued proceedings in that court, seeking an Order under Article 35 of the Wills and Administration Proceedings (Northern Ireland) Order 1994, removing the first respondent as adminstratrix of that estate. In a judgment delivered on the 20th March 2014, the Northern Ireland High Court (in the person of Deeny J.) acceded to that application and appointed a firm of professional trustees, Cleaver, Fulton and Rankin Trustees Limited, as administrator of the estate in place of the first respondent. An approved copy of the text of that ex tempore decision is exhibited to the grounding affidavit of the first applicant. It is striking in its clear exposition and cogent analysis.
Deeny J. identified a number of points of serious concern regarding the first respondent's purported discharge of her duties as administratrix of her deceased husband's estate in Northern Ireland.
First, there was a considerable delay in the administration of the estate. It was then more than ten years after the death of Michael Hoey, and a draft distribution account had only recently been furnished by the first respondent in response to an express order of the court. The applicants had been prevailed upon to wait for some time after Michael Hoey's death to enable matters to be put in hand, but when they wrote to the first respondent's solicitors seeking details of the administration more than three years later, they received no reply. An inheritance tax account was not submitted to the appropriate authorities until January 2009, more than five years after Michael Hoey's death. Letters of administration were not obtained until March 2009. These delays prompted the applicants to register cautions against the lands of the deceased in Northern Ireland in September 2009.
Second, as the first respondent acknowledges, two sons of the family have been given a farm each, as well as the use of the yard in Crossmaglen for the purpose of continuing to conduct the business previously operated by the deceased there. That business involves the sale of coal, meal and, perhaps also, oil. Five weeks after the applicants moved to register cautions against the Northern Ireland lands, they were for the first time offered monies purportedly representing their proper share of the proceeds of the sale of those properties to their brothers by the first respondent as administratrix. They rejected the payment offered as unsatisfactory.
Third, the first respondent was directed to provide a full inventory of the Northern Ireland estate by the Master of the High Court there on the 7th May 2010. When she did so, eleven months later, it became apparent that there was no personal representative's bank account. It then transpired that the first respondent had not received payment as administratrix for the lands that the estate sold to certain of the other respondents but rather had determined that the relevant respondent in each case should pay the applicants a sum equivalent to the share of each in the notional proceeds of the relevant transaction. The first respondent attempted to justify that course by reference to the existence of waivers signed by certain of the respondents but Deeny J. found that those waivers did not cover all of the properties concerned and did not explain the failure properly to account to the applicants, neither of whom had signed any of those purported waivers, for their share of the proceeds.
Fourth, it would appear that the first respondent's solicitors in Northern Ireland received the sum of €732,650 that had by then...
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Muckian v Hoey
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The matter of the Estate of Mary Ann (Otherwise Maureen) Horan Deceased and Section 27 (4) of the succession Act, 1965
...difficulty can be found in the decisions of Macken J. in Flood v. Flood [1999] 2 IR 234 and the decision of Keane J. in Muckian v. Hoey [2016] IEHC 688. 30 However, the test laid down by the Supreme Court in Dunne v. Heffernan is not applicable to an application under s. 27 (4). This was ma......