Shaughnessy v Shaughnessy

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Gilligan
• Judgment Date: 25 May 2016
• Neutral Citation: [2016] IEHC 303
• Court: High Court
• Docket Number: [2014 No. 3103 P]
• Date: 25 May 2016

BETWEEN

HELEN SHAUGHNESSY

PLAINTIFF

AND

TERENCE SHAUGHNESSY

DEFENDANT

[2016] IEHC 303

[2014 No. 3103 P]

THE HIGH COURT

Estate – Beneficiaries of estate – negligent acts of executor of estate – The Succession Act 1965 – Setting aside of caveat – Damages

Facts: The plaintiff being the sister of the defendant sought various declaratory reliefs to the effect of declaring that the defendant was negligent and in breach of his duties as an executor of the estate of the deceased to the detriment of the plaintiff. The plaintiff contended that despite repeated requests to the defendant to grant and administer the estate of the deceased being their mother, the defendant had failed to take any step, which resulted in pecuniary losses to the plaintiff.

Mr. Justice Paul Gilligan awarded a specified amount of money in favour of the plaintiff for the loss suffered by her in relation to the transfer of a site, which had been bequeathed in her favour by the deceased and the sale of which could not be effected owing to the negligence of the defendant. The Court, however, refused to pay any damages suffered by the plaintiff for monetary loss suffered in relation to a foreign investment. The Court held that though an executor was bound to realise the assets of the testator within the specified time, a strict interpretation of that time period could not be imposed. The Court held that the plaintiff was required to put the executor/defendant on notice of her intended sale and financial obligations. The Court observed that under s. 62 (1) of the Succession Act, 1965, an executor would be liable for any devaluation of lands bequeathed to the beneficiaries under the will, if, the executor, had not administered the estate within the specified time span of one year from the date of the death of the testator. The Court held that if a caveat was lodged vexatiously without any basis and solely for the purpose of defeating the legal claims, the Court would set aside the caveat in those circumstances. The Court found that in the present case, the defendant had filed the caveat for impeding the administration of the estate and thus, it could have been set aside had the parties not agreed to settle the matter amicably, an option which had been explored and remained unsuccessful.

JUDGMENT of Mr. Justice Paul Gilligan on the 25th day of May, 2016.

1 The plaintiff in these proceedings seeks the following declarations and orders:

(i) A declaration that the defendant was negligent and in breach of his duties as executor for the estate of his mother Helen Shaughnessy Senior (deceased) to the detriment of the plaintiff;

(ii) Damages for negligence and/or breach of duty;

(iii) Insofar as may be necessary, such consequential orders as may be required;

(iv) Interest;

(v) Such further or other order as the court deems fit;

(vi) Costs.

2 Both the plaintiff and the defendant are self-representing.

3 The background to these proceedings is that the plaintiff and defendant are sister and brother and are both beneficiaries of the estate of their deceased mother, Helen Shaughnessy Senior, who died on the 7th of September, 2007, a widow and the mother of four children. The deceased Helen Shaughnessy Senior made her last will and testament on the 7th day of May, 2004, in which she appointed her son, the defendant, Terence Shaughnessy, her sole executor.

4 There is no doubt but that the deceased executed an unusual last will and testament in that she divided any monies standing to her credit in her sole name between her three daughters the plaintiff herein and her two sisters in addition to an entitlement to each daughter to a building site not to exceed ½ an acre on such part of her lands as maybe agreed with her son Terence, the defendant herein. The deceased further directed that her son, the defendant herein, was to pay the plaintiff a sum of €3,500.00 if she married.

5 The deceased left all her live stock, machinery and dead stock to her son Terence the defendant herein for his own use absolutely. She bequeathed her dwelling house and garden with contents to her three daughters being the plaintiff herein and her two sisters in equal shares as tenants in common.

6 The deceased then proceeded to bequeath her two holdings of land at Seskinryan together with the farm yard, farm buildings and out offices to her son the defendant herein for the term of his natural life and after his death in the event of her son the defendant herein dying leaving issue the deceased bequeathed such property to such issue of her son Terence the defendant herein as he may by will or deed appoint and in default of appointment to such issue in equal shares. This bequest however was subject to the proviso that should her son Terence Shaughnessy, the defendant herein, die without leaving issue then and in that event only she bequeathed her farm lands to her three daughters the plaintiff herein and her two sisters in equal shares as tenants in common and this bequest was subjected to the proviso that if any of her daughters predeceased her leaving issue then the share would pass to such issue in equal shares and provided always that if any of her daughters were to die without leaving issue that share would pass to the remaining daughters in equal shares or in the event that any daughter shall have predeceased her mother the deceased daughter leaving issue then her share shall pass to her issue.

7 Following the deceased's death the nominated executor the defendant herein proceeded to attend to the administration of the estate and retained the family solicitor and gathered details of the deceased's assets and liabilities for the purpose of preparing an Inland Revenue affidavit prior to admitting the last will and testament of his deceased mother to probate. The Inland Revenue affidavit was compiled by the solicitors and approved by the Revenue Commissioners on the 4th November, 2008. Then the family solicitor sought to have the oath of executor duly completed by the defendant but he declined to do so in circumstances where he expressed a number of reservations about the will but in particular that his mother had seen fit to bequeath to him a life interest only in the farmlands. As became evident during the course of the hearing a number of other difficulties surfaced. The first was that the defendant since he was a boy had farmed the lands previously with his father and subsequent to his death with his mother and he maintains that in effect he has had a very difficult life and really has not got very much out of the farm for all he has put into it and he cannot understand how his mother could simply not have bequeathed to him the farmlands to enable him to continue farming those lands in his own right and to have bequeathed them to his wife or some other party he not having any issue. Accordingly the proviso in the will of his late mother brought about a situation whereby he not having issue, the farmlands were going to pass on his death to his three sisters.

8 A further complication was that previously in time the deceased had given the defendant a site for a house which he had built on and which is now the family home of himself and his wife but no legal arrangement was ever made for the transfer of the land to him so in effect as matters stand he has no registered title or any other documentation in respect of title relating to the house where he lives with his wife on the farm.

9 To further complicate matters it was necessary for the defendant prior to the death of his mother to put in a perculation area and septic tank and this was all done on lands adjacent to the site upon which he lives.

10 A further complicating feature is that the deceased's house which was left to her three daughters is between the house where the defendant lives and the farm buildings and in order to access the farm buildings the defendant walks from his house across a passageway very close to his mother's house and into the farm outbuilding area. Unfortunately the parties' mother's house has no appropriate arrangement for a septic tank and perculation area and there is not adequate space within the area attached to that house for the installation of an appropriate sewage system.

11 Going back in time the defendant having begun to raise queries about the whole situation and stalling on taking out a grant moved from the family solicitor to another solicitor and sought senior counsel's advice as to the validity of his deceased mother's will and during this period time was simply dragging on with no move by the defendant to take out the grant and enable his mother's estate to be administered. Eventually the opinion of a counsel was obtained and this indicated to the defendant that he was unlikely to succeed in an action to set aside his mother's will.

12 The defendant was being repeatedly called upon to take out the grant and administer his mother's will because from 2007 onwards the value of property was falling drastically and the defendant's three sisters were very concerned about getting the sites agreed so that they could sell them as appropriate and getting the transfer of their mother's house into their names and in this regard the plaintiff has submitted valuations to the court of the residence bequeathed to herself and her two sisters in her mother's will. On the 7th of September, 2007, the property was valued by Seamus Somers, Auctioneer, Valuer & Livestock Salesman, at €300,000.00. Exactly one year later, the same valuer estimated the current market value of the property in question at €270,000.00. On the 21st of July, 2012, the value of the property was estimated at €125,000.00. Two years later, on the 21st of July, 2014, the value remained at €125,000.00. This marks a loss of €175,000.00 between the date of the plaintiff's...