Re Estate of Hannon: Browne applicant

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 30 July 2018
• Neutral Citation: [2018] IEHC 482
• Docket Number: [2016] No. 5270],[Record No. 16/5270]
• Court: High Court
• Date: 30 July 2018

IN THE MATTER OF THE ESTATE OF JAMES PATRICK HANNON, LATE OF HIGHFIELD HEALTHCARE, SWORDS ROAD, WHITEHALL, DUBLIN 9, FORMERLY OF OUR LADY'S MANOR, BULLOCK HARBOR, DALKEY, CO. DUBLIN, A ROMAN CATHOLIC PRIEST (RETIRED) DECEASED.

IN THE MATTER OF SECTION 27(4) OF THE SUCCESSION ACT, 1965.

AND

IN THE MATTER OF AN APPLICATION BY PAUL BROWNE TO HAVE SUSAN HALPENNY, SOLICITOR APPOINTED AS ADMINISTRATRIX OF THE ESTATE OF THE DECEASED.

[2018] IEHC 482

[Record No. 16/5270]

THE HIGH COURT

PROBATE

Wills and probate – Succession Act 1965 s. 27(4) – Special circumstances – Applicant seeking to have a solicitor be given liberty to apply for and extract a grant of letters of administration without will annexed to the estate of the deceased – Whether special circumstances existed

Facts: The deceased, James Patrick Hannon, died on 3 March 2015 having executed a testamentary document on 28 January 2014 (the 2014 Will), under the terms of which he appointed Susan Halpenny, solicitor to be his sole executrix, and, after making a number of specific bequests, devised and bequeathed the rest, residue and remainder of his estate to the Roman Catholic Archbishop of Dublin for his charitable purposes. The deceased had executed an earlier testamentary document on 20 July 1999, (the 1999 Will), in which he appointed John Moran and William Hannon as executors, and after making certain pecuniary bequests, gave, devised and bequeathed the rest, residue and remainder of his estate to his sisters, Margaret Browne and Vera O'Connor in equal shares. Doubt having arisen as to the testamentary capacity of the deceased to execute the 2014 Will, an application was made to Baker J in the High Court for an order admitting the 2014 Will to proof in common form of law. In an ex tempore ruling on 23 January 2017, Baker J declined to make the order. With a view to avoiding the necessity of further litigation in relation to the testamentary capacity of the deceased, and in the light of the likely costs of such litigation, the persons entitled to the estate of the deceased under and by virtue of the provisions of both the 2014 Will and the 1999 Will agreed terms of compromise (the Compromise) upon which the estate of the deceased was to be distributed. Baker J directed judgment to the application pursuant to s. 27(4) of the Succession Act 1965, that Ms Halpenny be given liberty to apply for and extract a grant of letters of administration without will annexed to the estate of the deceased, limited for the purpose of implementing the terms of the Compromise.

Held by Baker J that: (i) there was no reason in the plain language of the Succession Act that an order under s. 27(4) may not be made where there exists an unresolved dispute as to the validity of a testamentary document of a deceased, or as to whether he or she died testate or intestate; (ii) the court should exercise its discretion under s. 27(4) of the Succession Act in a cautious manner having regard to the fact that the legislation requires "special circumstances" in order that it may be invoked, but such circumstances to be special do not have to be extraordinary or highly unusual and can include a determination that assists the resolution of a bona fide dispute; (iii) the circumstances must be more than the mere convenience of the parties, but the making of the order must be worthwhile or appropriate having regard to all of the circumstances. Baker J was satisfied that special circumstances did exist which made it expedient that Ms Halpenny be permitted to extract a grant in the estate of the deceased limited for the purposes of giving effect to the Compromise.

Baker J held that she would make the order sought.

Application granted.

JUDGMENT of Ms. Justice Baker delivered on the 30th day of July, 2018

1 James Patrick Hannon died on 3 March 2015 having executed a testamentary document on 28 January 2014 (the '2014 Will'), under the terms of which he appointed Susan Halpenny, solicitor to be his sole executrix, and, after making a number of specific bequests, devised and bequeathed the rest, residue and remainder of his estate to the Roman Catholic Archbishop of Dublin for his charitable purposes.

2 The deceased had executed an earlier testamentary document on 20 July 1999, ('the 1999 Will'), in which he appointed John Moran and William Hannon as executors, and after making certain pecuniary bequests, gave, devised and bequeathed the rest, residue and remainder of his estate to his sisters, Margaret Browne and Vera O'Connor in equal shares.

3 Doubt having arisen as to the testamentary capacity of the deceased to execute the 2014 Will, an application was made to me in the High Court sitting in the Monday non-contentious probate list for an order admitting the 2014 Will to proof in common form of law.

4 In an ex tempore ruling on 23 January 2017, I declined to make an order admitting the 2014 Will to proof in common form of law, as I considered did not have sufficient evidence of the capacity of the deceased. In the hope of avoiding a contentious testamentary suit, the matter was adjourned generally and liberty was given to re-enter the application in the Monday list.

5 With a view to avoiding the necessity of further litigation in relation to the testamentary capacity of the deceased, and in the light of the likely costs of such litigation, the persons entitled to the estate of the deceased under and by virtue of the provisions of both the 2014 Will and the 1999 Will have agreed terms of compromise ('the Compromise') upon which the estate of the deceased is to be distributed.

6 This judgment is directed to the application pursuant to s. 27(4) of the Succession Act 1965 ('the Succession Act'), that Ms. Halpenny be given liberty to apply for and extract a grant of letters of administration without will annexed to the estate of the deceased, limited for the purpose of implementing the terms of the Compromise.

7. The question arising is whether such an order may be made without admitting either the 2014 or 1999 Will to probate.

The legislative provisions

8 Section 27 of the Succession Act provides as follows:

'(1) The High Court shall have power to grant administration (with or without will annexed) of the estate of a deceased person, and a grant may be limited in any way the Court thinks fit.

(2) The High Court shall have power to revoke, cancel or recall any grant of administration.

(3) Subject to subsection (4), the person or persons to whom administration is to be granted shall be determined in accordance with rules of the High Court.

(4) Where by reason of any special circumstances it appears to the High Court (or, in a case within the jurisdiction of the Circuit Court, that Court) to be necessary or expedient to do so, the Court may order that administration be granted to such person as it thinks fit.

(5) On administration being granted, no person shall be or become entitled without a grant to administer any estate to which that administration relates.

(6) Every person to whom administration is granted shall, subject to any limitations contained in the grant, have the same rights and liabilities and be accountable in like manner as if he were the executor of the deceased.

(7) Where any legal proceedings are pending touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any grant, the High Court may grant administration of the estate of the deceased to an administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the estate of the deceased, and every person to whom such administration is granted shall be subject to the immediate control of the Court and act under its direction.

(8) The Court may, out of the estate of the deceased person, assign to an administrator appointed under subsection (7) such reasonable remuneration as the Court thinks fit.

(9) This section applies whether the deceased died before or after the commencement of this Act.'

9 The relief sought by the applicants is under s. 27(4) that Ms. Halpenny be permitted to extract a limited grant for all purposes to give effect to the Compromise. The difficulty that presents is that the deceased died leaving the 2014 Will and the 1999 Will, neither of which is proposed to be admitted to probate, and the last in time of which was the subject of a capacity challenge which was has not been definitively determined.

10 The estate of the deceased consists wholly of personalty in the form of bank accounts, the net value whereof is estimated to be €317,000. The Compromise provides that Ms. Halpenny shall apply for liberty to extract a grant of administration to the estate of the deceased for the purpose of giving effect to its terms. The relevant terms provide for the payment by Ms. Halpenny of the lawful debts of the estate, payment of the pecuniary bequests made in the 2014 Will and the 1999 Will, and the distribution of the estate equally between the persons entitled under the 1999 Will and the 2014 Will. The Compromise has achieved a satisfactory means of dealing with the estate in a practical way and for the avoidance of the costs of a full probate action which would have absorbed a substantial amount of the estate.

11 The question engaged in the present case is whether an order under s. 27(4) by which a person is given liberty to extract a full grant is to be made while the question as to whether the deceased died testate or intestate remains undecided.

The authorities

12 It is clear that the jurisdiction of the court under s. 27(4) permits the court to give liberty to a person other than the person who would be entitled with under a will or on death intestate to extract a grant, and that a full grant may issue under s. 27(4). The grant may be limited and a court can and often does make an order under this section notwithstanding that the court is aware that...