S1 v R (P)1 & R (P)2

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 23 August 2013
• Neutral Citation: [2013] IEHC 407
• Court: High Court
• Docket Number: [2011 No. 7826 P]
• Date: 23 August 2013

[2013] IEHC 407

THE HIGH COURT

[No. 7826P/2011]

S1 v R (P)1 & R (P)2

IN THE MATTER OF THE ESTATE OF F. DECEASED

BETWEEN

S. 1

PLAINTIFF

AND

P.R. 1 AND P.R. 2

DEFENDANTS

S. 2

AND

P.R. 1 and P.R. 2

CIVIL LIABILITY ACT 1961 S9

SUCCESSION ACT 1965 S117

SUCCESSION ACT 1965 S27(4)

SUCCESSION ACT 1965 S117(6)

SUCCESSION ACT 1965 S109(1)

SUCCESSION ACT 1965 S117(1)

SUCCESSION ACT 1965 PART IX

FAMILY LAW (DIVORCE) ACT 1996 S46(6)

SUCCESSION ACT 1965 S3(1)

SUCCESSION ACT 1965 PART IV

D (M P) & ORS v D (M) 1981 ILRM 179

STATUTE OF LIMITATIONS 1957 S49

SUCCESSION ACT 1965 S117

LAW REFORM CMSN REPORT ON LAND LAW & CONVEYANCING LAW GENERAL PROPOSALS (LRC 30-1989)

MARTYN & CADDICK WILLIAMS MORTIMER & SUNNUCKS ON EXECUTORS ADMINISTRATORS & PROBATE 20ED 2013 PARA 58.13

INHERITANCE (PROVISIONS FOR FAMILY & DEPENDANTS) ACT 1975 S4 (UK)

INHERITANCE (PROVISIONS FOR FAMILY & DEPENDANTS) ACT 1975 S23 (UK)

SUCCESSION ACT 1965 S62

SALMON (DECEASED), IN RE 1980 3 AER 352 1980 3 WLR 748 1981 CH 167

JOHNSON (PAUL ANTHONY) (DECEASED) 1987 CLY 3882

B (D) v MIN FOR HEALTH & HEPATITIS C COMPENSATION TRIBUNAL 2003 3 IR 12 2003/4/812

HOWARD & ORS v CMSRS OF PUBLIC WORKS 1994 1 IR 101 1993/3/683

MULCAHY v MIN FOR MARINE UNREP KEANE 4.11.1994 1995/4/1198

INTERPRETATION ACT 2005 S5

CHILDRENS UNIVERSITY HOSPITAL TEMPLE STREET v D (C) & F (E) 2011 1 IR 665 2011 2 ILRM 262 2011/8/1953 2011 IEHC 1

SUCCESSION ACT 1965 S3

MCCABE v IRELAND & ORS 1999 4 IR 151 2000 1 ILRM 410 1999/17/5177 1999 IESC 52

CIVIL LIABILITY ACT 1961 S8(1)

CIVIL LIABILITY ACT 1961 S6

BANK OF IRELAND v O'KEEFFE 1987 IR 47 1986/5/28

CIVIL LIABILITY ACT 1961 S9(2)

REIDY v MCGREEVEY UNREP BARRON 19.3.1993 1993/9/2615

MOYNIHAN v GREENSMYTH 1977 IR 55

CIVIL LIABILITY ACT 1961 S9(2)(B)

PRENDERGAST v MCLAUGHLIN 2011 1 IR 102 2009/46/11638 2009 IEHC 250

PROBATE

Limitation of actions

Administration of estates - Succession for purposes of time limit in s 117 of Succession Act 1965 - Application under s 117 of Succession Act 1965 - Definition of first taking out of representation of estate of deceased - Causes of action subsisting against an estate - Administrator ad litem - Whether grant to administrator ad litem regarded as effective grant for purposes of time limit in s 117 of Succession Act 1965 - Prendergast v McLaughlin [2009] IEHC 250, [2011] 1 IR 102 followed - Reidy v McGreevy (Unrep, Barron J, 19/3/1993) and Bank of Ireland v O'Keeffe [1987] IR 47 distinguished - Children's University Hospital Temple St v CD [2011] IEHC 1, [2011] 1 IR 665; DB v Minister for Health [2003] 3 IR 12; Howard v. Commissioners of Public Works [1994] 1 IR 101; McCabe v Ireland [1999] 4 I.R. 151; Moynihan v Greensmyth [1977] I.R. 55; MPD v MD [1981] ILRM 179; Mulcahy v Minister for the Marine (Unrep, Keane J, 4/11/1994); Re J Brown's Estate, Brown v Brown [1893] 2 Ch 300; Re Johnson (Paul Anthony) (Deceased) [1987] CLY 3882; Re Salmon (Deceased) [1981] Ch 167; Statute of Limitations 1957 (No 6), s 49 - Civil Liability Act 1961 (No 41), ss 8 and 9 - Succession Act 1965 (No 27), ss 3, 27, 109, 117 and 127 - Family Law (Divorce) Act 1996 (No 33), s 46 - Interpretation Act 2005 (No. 23), s 5 - Finding that certain reliefs statute barred (2011/7826P - Laffoy J - 23/8/2013) [2013] IEHC 407

S1 v PR1

Facts: These proceedings concerned the will of the father of the plaintiff, S.1. The defendants were appointed as executors and trustees of the will along with the plaintiff. Under the terms of the will, and as a consequence of the death of the Testator"s wife, the six children of the Testator were to become the beneficial owners of his estate in equal shares upon his death. The testator died on the 6 ^th July 2008. On the 30th August 2011, the plaintiff initiated proceedings by plenary summons, the relief sought being declarations that he was entitled to beneficial ownership of the shareholding in F. Co. Limited, held by the Testator at the date of his death; that insofar as the defendants were trustees of the shareholding in F. Co. Limited, the plaintiff was the sole beneficiary; and that the estate of the Testator was obliged to honour the Testator"s guarantee to the plaintiff that he would discharge the latter"s debt to the plaintiff"s bank which was derived from borrowings that had been secured to purchase land from F. Co Limited. The plaintiff claimed that in July 2000, the plaintiff agreed to work for his father on the basis of these promises. Alternatively, the plaintiff sought, pursuant to s. 117 of the Succession Act 1965 ('the 1965 Act'), a declaration that the Testator had 'failed in his moral duty to make proper provision for the Plaintiff in accordance with his means' and an order of the court remedying same.

The defendants argued that the plaintiff"s claims for the first three declarations were statute-barred pursuant to s. 9 of the Civil Liability Act 1961 ('the 1961 Act'). In regards to the alternative relief, it was averred that the Court did not have jurisdiction to grant the relief sought because the proceedings were initiated more than six months after the first taking out of representation to the estate of the Testator – this was said to be the grant of administration ad litem granted on the 15th October 2010. These two points were raised as preliminary objections, and on the 16 ^th July 2012, the High Court ruled that the two issues should be determined at a preliminary stage. The second issue also applied to related proceedings where S. 2, the brother of the plaintiff and son of the Testator, was the plaintiff, and the defendants were also P. 1 and P. 2. In that case, the S. 2 also sought, pursuant to pursuant to s. 117 of the 1965 Act, a declaration that the Testator had 'failed in his moral duty to make proper provision for the Plaintiff in accordance with his means' and an order of the court remedying same. Once again, the defendants argued that the Court did not have jurisdiction to grant to relief sought for the same reasons.

Held by Laffoy J that pursuant to s. 117(6) of the 1965 Act, an order to remedy a Testator"s failure in his moral duty to make proper provision for a child in accordance with his means could only be made if the application for same was made within six months of 'the first taking out of representation of the deceased"s estate'. The Court therefore had to determine whether the first taking out of representation of the deceased"s estate was when the grant of administration ad litem issued on the 15th October 2010, as suggested by the defendants, or when the grant of probate issued on the 28th March 2011, as suggested by the plaintiff (and S. 2 in the related proceedings). It was held that on review of the whole of the 1965 Act, it was obvious that the Oireachtas could not have intended that a grant limited for a purpose, such as a grant of administration ad litem, would start time running against a prospective applicant under s. 117. This was evident in the fact that if it was determined that time began running upon the grant of the administration ad litem, such an application under s. 117 of the 1965 Act may not have been possible because the guardian ad litem may not have had authority to defend the action. For these reasons, it was determined that the date that time began to accrue was the date of the grant of probate, and that the plaintiff (and S. 2) had therefore made their applications for relief under s. 117 of the 1965 Act in time.

In regards to the issue under s. 9 of the 1961 Act, it was said by the defendants that because the plaintiff"s action had not been commenced within two years of the Testator"s death, the claims for the first three declarations were statute barred. In regards to the first two declarations, it was held that the claims were statute barred for the reasons advanced by the defendants. It was said that pursuant to s. 8(1) of the 1961 Act, all causes of action would subsist against a Testator"s estate upon his death. The cause of action would then have a limitation period of two years, pursuant to s. 9(2)(b) of the 1961 Act. The plaintiff"s cause of action was clearly covered by s. 8(1) therefore it was confined to a limitation period of two years following the Testator"s death. As this had not been brought in time, these claims for declarations were statute barred.

Finally, in regards to the third declaration sought by the plaintiff, it was held that it was not possible to determine whether that claim was statute barred at that juncture because there was insufficient clarity in the material before the court to determine the issue. The Court therefore declined to determine this issue at the preliminary stage.

1 Judgment of Ms. Justice Laffoy delivered on 23rd day of August, 2013.

A - PROCEDURAL AND FACTUAL BACKGROUND

Preliminary issues/Related proceedings

2 1. By order of the High Court (McGovern J.) made on 16 ^th July, 2012 in these proceedings (the Plenary Proceedings) it was directed that certain preliminary issues be tried, namely:

3 (a) whether the plaintiff is statute-barred from the reliefs at paras. (1), (2) and (3) of the prayer in the statement of claim by virtue of the provisions of s. 9 of the Civil Liability Act 1961 (the Act of 1961), these proceedings having been issued more than two years after the date of the death of F. Deceased (the Testator) on 6 ^th July, 2008; and

4 (b) whether the Court has jurisdiction to grant the relief sought by the plaintiff pursuant to s. 117 of the Succession Act 1965 (the Act of 1965) at paras. (5) and (6) of the prayer in the statement of claim, these proceedings "having issued more than six months after the first taking out of representation to the estate of the [Testator] which occurred on 15 ^th October, 2010 and whether the said grant of representation was a valid one for the...