The Estate of George Moore Deceased
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 14 January 2022 |
| Neutral Citation | [2022] IEHC 14 |
| Court | High Court |
| Docket Number | [Record No. 19/8896] |
[2022] IEHC 14
[Record No. 19/8896]
THE HIGH COURT
PROBATE
Wills and probate – Succession Act 1965 s. 27(4) – Costs – Parties seeking costs – Whether the probate motion was necessary, reasonable and proportionate
Facts: The applicant, Ms Doherty, by notice of motion dated 10th October, 2019 applied in the non-contentious probate list for an order pursuant to s. 27(4) of the Succession Act 1965 granting liberty to Ms Coghlin, solicitor, to apply for a grant of letters of administration of the estate of the deceased, Mr Moore, limited for the purpose of substantiating proceedings which the applicant wished to bring against the estate for declaratory relief and orders under ss. 117 and 121 of the 1965 Act. The applicant’s motion was heard on 20th January, 2020. Mr Mortimer, the deceased’s nephew and executor, said that he would prove the will and a grant of probate was issued on 5th June, 2020. The applicant submitted that her motion was rendered moot by the undertaking given by Mr Mortimer to prove the will and/or that the giving of the undertaking was an “event” which should carry the costs. The probate motion, it was said, was necessary, reasonable and proportionate. It was variously said that the applicant’s solicitors were misled as to the existence of a personal representative of the deceased and that the notice parties’ solicitors failed to provide them with a copy of the will. It was argued that the notice parties acted unreasonably in insisting on two court hearings before giving the undertaking which Mr Mortimer gave. The applicant submitted that the court should make a wasted costs order against the notice parties’ solicitors. Citing Zhong He v Governor of Castlerea Prison [2015] IEHC 854, the applicant submitted that the notice parties’ solicitors were bound to seek all reasonable and necessary instructions in order to ensure that the facts of the case were fully disclosed to the court. In essence the argument was that the solicitors should have to pay the costs because they failed to inform the applicant’s solicitors of the existence of the will sooner than they did. This, it was said, would have avoided unnecessary litigation. On the one hand, the notice parties submitted that liability for the costs of the motion could not justly be adjudicated upon in advance of the conclusion of the substantive proceedings, which the notice parties said they would fully defend, and which they said they would win. On the other hand, the notice parties submitted that they were entitled and obliged to defend their position and that there should be an order for costs against the applicant and/or the applicant’s solicitors.
Held by the High Court (Allen J) that the motion was necessary to allow the applicant to advance her claim and her purpose had been achieved. Allen J held that the motion could and would have been avoided if the executor had proved the will in the two and a half years or so between the date of death and the date on which the applicant acknowledged the infirmity in the 2017 proceedings. Allen J held that the probate application could also have been avoided if the executor had proved the will, or even said that he would prove the will, in the six or seven months between the time the applicant’s solicitors said that they would move to appoint an administrator and the time when the executor eventually said that he would apply for a grant. Allen J held that the root cause of the costs which had been incurred in connection with the motion was the failure of the executor to be forthcoming as to the existence of the will, and the costs had been greatly increased by his opposition to it which was abandoned at the last minute.
Allen J held that the applicant should have her costs from the estate and that there should be no order as to the notice parties’ costs of the motion.
Costs awarded to applicant.
JUDGMENT of Mr. Justice Allen delivered on the 14th day of January, 2022
George Moore, late of Ballyboe, Manorcunningham, County Donegal, died on 19th November, 2016.
The deceased was a widower and was survived by one child, the applicant. The deceased's parentage of the applicant was declared by order of the Circuit Court made on 20th October, 2006 and affirmed by the High Court on 26th April, 2007.
On 10th January, 2006 the deceased transferred the lands comprised in Folios DN16657 and DN16660, County Donegal, to his nephew, Lexie Mortimer. On 17th January, 2006 the deceased transferred the lands comprised in Folio DN13747 County Donegal, to his nephew, Clarke Moore. There was some suggestion along the way that the deceased might have transferred property to his brother, Noble Moore, who has since died. As far as I can see, that suggestion appears to have been mistaken but nothing turns on it. The applicant suggests, and her cousins deny, that the deceased remained in possession of those properties until his death. It is acknowledged that the deceased continued to live in the house, but it is contested that he continued to work the land.
By a Succession Civil Bill issued on 21st July, 2017 the applicant commenced proceedings against “ The Personal Representative of the Estate of the late George Moore, Deceased” and her cousins and uncle claiming, variously, a declaration that the properties were part of the estate of the deceased; an order pursuant to s. 117 of the Succession Act, 1965; and a declaration that the transfers of the properties were dispositions made for the purpose of disinheriting the applicant.
Objection was taken that the Circuit Court action was not properly constituted. Specifically, what was said in a letter of 30th November, 2017 written by the solicitors for the applicant's cousins was that the proceedings were fundamentally flawed “ as there is no locus standi/representation on behalf of the estate of the deceased against whom relief is sought.” In their defence, delivered on 8th March, 2018 the applicant's cousins pleaded that the applicant had “ failed to appoint a legal personal representative to the estate of the late George Moore deceased prior to the issuing of these proceedings.” The defence made no reference to the existence of a will. The Civil Bill action went into abeyance for a while and after the applicant had changed her solicitor, it was discontinued on 25th November, 2019.
By notice of motion dated 10th October, 2019 the applicant applied in the non-contentious probate list for an order pursuant to s. 27(4) of the Act of 1965 granting liberty to Ms. Geraldine Coghlin, solicitor, to apply for a grant of letters of administration of the estate of the deceased, limited for the purpose of substantiating proceedings which the applicant wished to bring against the estate for declaratory relief and orders under ss. 117 and 121 of the Act of 1965. The motion was not directed to but was served on the applicant's uncle and cousins, who were the defendants in the Circuit Court proceedings.
The premise of the motion before the High Court was (as the premise of the Civil Bill proceedings had been) that the deceased had died intestate. In her affidavit grounding the motion the applicant averred, on the advice of her solicitor, that the deceased had died without making a will. The applicant exhibited a copy letter sent by her solicitors to the second and third notice parties' solicitors on 31st May, 2019 and reminders of 4th July, 2019 and 24th July, 2019. In the second reminder they had asked whether the deceased had ever made a will.
The fact that the probate motion had been issued before the Civil Bill action had been discontinued, the fact that the grounding affidavit made no reference to the Civil Bill action, and the fact that the proposed proceedings for which the s. 27(4) order was sought were substantially the same as the existing proceedings, caused confusion. By letter dated 1st November, 2020 the solicitors for the second and third notice parties acknowledged receipt of the motion papers, protested that the application was misleading, and asserted that the deceased had died testate.
The applicant's solicitors, by letter of 25th November, 2019, explained that the proposed new proceedings were intended to be in substitution for the 2017 proceedings and enclosed the notice of discontinuance. They also asked for a copy of the will.
The applicant's motion first came...
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