Rennick and Another v Rennick and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Laffoy |
| Judgment Date | 21 December 2012 |
| Neutral Citation | [2012] IEHC 559 |
| Court | High Court |
| Date | 21 December 2012 |
[2012] IEHC 559
THE HIGH COURT
BETWEEN
AND
ELLIOTT v STAMP 2008 3 IR 387 2008 2 ILRM 283 2008/22/4840 2008 IESC 10
MORELLI, IN BONIS; VELLA v MORELLI 1968 IR 11
YOUNG v CADELL & ORS UNREP LAFFOY 13.2.2006 2006/59/12524 2006 IEHC 49
O'CONNOR v MARKEY 2007 2 IR 194 2006/45/9611 2006 IEHC 219
RSC O.3
RSC O.99
Administration of estates - Appointment of administrators - Costs - Survivorship - Trusts -Rules of the Superior Court - Determination of next of kin - Special summons
Facts: This matter concerned the administration of the estate of Thomas Henry Reburn (the "Deceased") who died on the 11th March 2005 intestate. The plaintiffs were first cousins of the Deceased and had received the related letters of administration intestate on the 20th November 2009. The first defendant was also a first cousin of the Deceased with his wife named as the second defendant. The first defendant had originally sought a grant of the letters of administration but the plaintiffs were favoured in this regard due to the second defendant seeking a claim as a creditor against the Deceased's estate for services rendered. The defendants and the Deceased also had a joint bank account.
Proceedings were issued on the 11th October 2011 by way of special summons by the plaintiffs to determine the administration of the Deceased's estate including determination of next of kin and whether the monies in the joint bank account were held on trust by the defendants for the Deceased or whether the defendants were entitled to the funds by right of survivorship. It was ordered by the court on the 31st April 2012 that the monies were indeed held on trust and so was to be considered part of the estate. All parties had consented to this approach by the time the order was made. These proceedings were held to determine the issue of liability for costs.
Held by Laffoy J that Order 3 of the Rules of the Superior Courts outlined how proceedings by way of special summons were appropriate in cases that involved determination of next of kin. This was a matter where ascertainment of next of kin was of crucial importance and so the issue of the special summons was deemed to have been appropriate. In relation to the joint bank account, it was eventually conceded by the defendants that the monies were in fact held on trust. The concession had effectively ended proceedings meaning that, subject to the overriding discretion of the court, the costs should follow the event.
It was therefore held to be fair and equitable for any costs and outlay arising out of the determination of next of kin should be paid out of the Deceased's estate. In relation to the remainder of the plaintiffs' costs, it was held that 25% should be paid out of the estate and 75% paid by the defendants. In relation to the costs application, 75% of the plaintiffs costs were to be paid by the defendants with the parties bearing their own costs thereafter to reflect the fact the plaintiffs had not been completely successful against the defendants in the proceedings.
Order as to costs directed accordingly.
Judgment of Ms. Justice Laffoy delivered on 21st day of December, 2012.
1. The issue which the Court has to address in this judgment is who shall bear the cost of these proceedings in which the Court made an order on 30 th April, 2012 by consent of the parties.
2. The proceedings relate to the administration of the estate of Thomas Henry Reburn (the Deceased) who died on 11 th March, 2005 intestate. Letters of administration intestate to the estate of the Deceased issued from the Principal Probate Registry to the plaintiffs on 20 th November, 2009. The plaintiffs were lawful first cousins of the Deceased, as was the first named defendant (Mr. Rennick). The second defendant (Mrs. Rennick) is the wife of Mr. Rennick, and she was not related to the Deceased.
3. Prior to the plaintiffs extracting the grant of letters of administration there had been correspondence passing between the solicitors acting for Mr. Rennick and solicitors acting for Mrs. Rennick, on the one hand, and solicitors acting for the plaintiffs on the other hand for approximately two and a half years. Initially, Mr. Rennick, for whom G. Jones & Co., Solicitors, acted at the time, intended extracting a grant of letters of administration to the estate of the Deceased and the first named plaintiff was informed of this by letter dated 17 th May, 2007 from G. Jones & Co. Mackey & Sullivan, Solicitors, who act for the plaintiffs in the proceedings, who originally acted for the first named plaintiff, commenced correspondence with G. Jones & Co. in May 2007. Ten months later, in response to a request for information as to the then current position in relation to the application for the grant of letters of administration from Mackey & O'Sullivan, G. Jones & Co. informed Mackey & O'Sullivan that the matter was complicated, in that they were in receipt of a claim from Mrs. Rennick, who alleged that she was owed money for work done and services rendered to the Deceased. Immediately, Mackey & O'Sullivan raised the issue that Mr. Rennick would be compromised if he extracted a grant, given that Mrs. Rennick was his wife.
4. The plot thickened a month later when, by letter dated 2 nd April, 2008, Pierce O'Sullivan & Associates, on behalf of Mrs. Rennick, submitted a claim for €67,560 against the estate of the Deceased to G. Jones & Co. In fact, a caveat was entered in the Probate Office on behalf of Mrs. Rennick, in her capacity as creditor, in September 2008. At that stage, G. Jones & Co. prudently decided that they should not continue to act for Mr. Rennick in extracting a grant of administration and so informed Mackey O'Sullivan. That led to the decision by the plaintiffs to apply to be appointed administrators of the estate of the Deceased. Mackey O'Sullivan who were acting for them sought the file in relation to the estate of the Deceased from G. Jones & Co., whose response was that they did not have the authority of Mr. Rennick to release the file. G. Jones & Co. then fell out of the picture and Pierce O'Sullivan & Associates informed Mackey O'Sullivan that they were acting for both Mrs. Rennick and Mr. Rennick by letter of 30 th April, 2009. Thereafter the correspondence passed between Mackey O'Sullivan, on behalf of the plaintiffs, and Pierce O'Sullivan & Associates, on behalf of the defendants. By June 2009 Mrs. Rennick had dropped her claim against the estate of the Deceased, save in respect of outlays which she alleged she had incurred on his behalf.
5. By late August 2009 a new issue had arisen in relation to a joint account with Irish Nationwide Building Society in the joint names of Mrs. Rennick, Mr. Rennick and the Deceased at the date of the death of the Deceased. The position of Mrs. Rennick was that the balance in the account passed to the surviving joint tenants on the death of the Deceased. One of the issues raised in the proceedings was the ownership of the monies in that account. The monies in question (€43,130.73) were returned as assets of the Deceased on the Inland Revenue Affidavit filed with the Revenue Commissioners by Mackey O'Sullivan. The only other asset of substance which the Deceased owned at the date of his death was a residence and farmland comprising approximately twenty four acres, which were valued at €230,000. Accordingly, the net value of the estate as shown on the Inland Revenue affidavit was only €270,733.24.
6. As I have already outlined, the grant of the letters of administration intestate issued to the plaintiffs on 20 th November, 2009.
7. The proceedings were initiated by special summons which issued on 25 th October, 2011. The proceedings were entitled "The High Court - Probate". The word Probate should not have appeared in the title. In the special summons the plaintiffs sought the determination of two questions arising on the administration of the estate of the Deceased, namely:
(a) whether all reasonable steps had been taken to identify the next of kin of the Deceased and, if not, what steps should be taken to identify the next of kin; and
(b) whether the defendants held the funds in the Irish Nationwide Building Society account in trust for the estate of the Deceased, or, alternatively, whether they were beneficially entitled to the funds by right of survivorship.
Further, the plaintiffs sought an order directing the defendants to provide an account of their dealings with, including rents, profits and income derived from, the property comprised in the estate of the Deceased.
8. The proceedings were grounded on the affidavit of the first named plaintiff, which was sworn on 25 th October, 2011. As regards the question as to the identity of the next of kin of the Deceased, there was exhibited in that affidavit a genealogical report furnished by Massey & King Ltd. with their letter of 23 rd February, 2010...
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