The Estate of the Late Bernard Casey, Deceased, Late of Threadneedle Road, Salthill, Galway Deceased, and the Succession Act, 1965, and Sections 27(4) of the Succession Act and an Application by John Casey, Bramley, Oranmore, County Galway Between John Casey and Yvonne Casey and Michelle Casey

• Jurisdiction: Ireland
• Judge: Ms. Justice Stack
• Judgment Date: 10 November 2023
• Neutral Citation: [2023] IEHC 643
• Court: High Court
• Docket Number: Record No. 2022/7810PO

In the Matter of the Estate of the Late Bernard Casey, Deceased, Late of Threadneedle Road, Salthill, Galway Deceased,

And in the Matter of the Succession Act, 1965, and

In the Matter of Sections 27(4) of the Succession Act

And in the Matter of An Application by John Casey, Bramley, Oranmore, County Galway

Between

John Casey

Applicant

and

Yvonne Casey and Michelle Casey

Respondents

[2023] IEHC 643

Record No. 2022/7810PO

[2022] IEHC

THE HIGH COURT

PROBATE

Executors – Grant of probate – Succession Act 1965 s. 27(4) – Applicant seeking to have an independent person appointed to extract a grant of letters of administration with will annexed in place of the respondents as executrices – Whether there were “special circumstances” within the meaning of s. 27(4) of the Succession Act 1965 which would justify overriding the deceased’s wishes as to who his personal representatives should be

Facts: The applicant, Mr J Casey, applied to the High Court pursuant to s. 27(4) of the Succession Act 1965 to pass over the respondents, Ms Y Casey and Ms M Casey, who were named as executrices in the will of their father, Mr B Casey, late of Threadneedle Road, Salthill, Co. Galway (the deceased), and to appoint instead an independent person to act as legal personal representative in the estate of the deceased. Because the respondents had yet to extract a grant of probate, there was a dispute between the parties as to the correct legal test which applied where the persons sought to be passed over had been chosen by the deceased himself as executrices. The factual bases on which the applicant contended that the respondents should be passed over were, in essence: (a) that they had delayed in extracting a grant of probate; (b) that they had failed to protect the assets of the estate, notably a commercial property at 22/25 Quay Street, Galway, to which the applicant was entitled under the will; and (c) that they were unfit persons to be executrices as they misappropriated significant funds from the deceased and his wife during the period in which they acted as attorneys. A number of allegations were made under the latter heading including: that during the lifetime of the deceased, Ms Y Casey purchased two motor vehicles with the deceased’s money for her own benefit; that a sum of €30,000 was withdrawn from the deceased’s bank account after his death and retained by the executrices for their own use; and that very significant cash sums had been expended both before and after the death of the deceased and his wife which could not be accounted for and which, again, the applicant asserted were used by the executrices for their own benefit.

Held by Stack J that what is required to pass over an executor pursuant to s. 27(4) may not differ in substance from the circumstances in which a grant of probate will be revoked pursuant to s. 26(2) of the 1965 Act, as in either case a high bar has to be met. She held that the “special circumstances” which require to be shown under s. 27(4) must be sufficiently serious in nature to justify departing from the testator’s wishes and, in particular, where it is alleged that the executor is unfit to act, the threshold set by the Supreme Court in Dunne v Heffernan [1997] 3 I.R. 431 must be met. Having considered the evidence, she was satisfied that no impropriety on the part of the executrices had been shown. She held that there were no “special circumstances” within the meaning of s. 27(4) which would justify overriding the deceased’s wishes as to who his personal representatives should be. She thought it was imperative that the executrices were permitted to get on with the task of gathering in the assets of the estate and proceeding to administration of it, without further interference.

Stack J refused the application.

Application refused.

JUDGMENT of Ms. Justice Stack delivered on the 10 ^th day of November, 2023 .

Introduction

1 . This is an application pursuant to s. 27(4) of the Succession Act, 1965 (“the 1965 Act”) to pass over the respondents who are named as Executors in the Will of their father, Bernard Casey, late of Threadneedle Road, Salthill, Co. Galway (“the Deceased”) and to appoint instead an independent person to act as legal personal representative in the estate of the Deceased.

2 . The Deceased died on 24 November, 2020, leaving a Will made 15 September, 2015. His wife predeceased him only a short time earlier, on 25 September, 2020, having also made her will on 15 September, 2015.

3 . Pursuant to the Will, the Deceased appointed his daughters, the respondents herein as Executrices of his estate. Along with the applicant, they are beneficiaries under the terms of the Will, which contained the following specific bequests:

The residue was left to Yvonne, Michelle and John in equal shares. (For clarity, throughout this judgment I will refer to the parties by their first names, though where appropriate, I will refer and Yvonne and Michelle together as “the Executrices”.)

• a. the family home of the Deceased and his wife was left to Yvonne and Michelle as tenants in common, with Yvonne to enjoy a three quarters share and Michelle to enjoy a one quarter share (“the Salthill Property”);

• b. a commercial property at 22/25 Quay Street, Galway, together with the yard at the rear, was left to John (“the Quay Street Property”);

• c. a holiday apartment in Clifden, County Galway, which was left to the Michelle (“the Clifden Property”).

4 . John in his grounding affidavit estimates the values of those properties at €1.4m, €1.2m, and €400,000, respectively. They have been valued for probate purposes, though neither the SA2 nor the valuations have been exhibited. Nothing turns on the values other than that on the face of it, this perhaps suggests that the Deceased was attempting to divide the various properties equally between his children. However, if that was his intention, it may not in fact be achieved, as the monies used to buy the Quay Street property were borrowed from AIB and those monies were secured by way of charges over both the Quay Street Property and the Clifden Property. As of May, 2020, a sum of over €700,000 was owing in respect of this debt.

5 . It is common case that no grant was extracted within the “executor's year”, that is, during the year from the date of death, but it was exceeded only by a number of days as papers were lodged in the Probate Office on 30 November, 2021. Nevertheless, the Grant has still not issued because John wrote through solicitors on 2 December, 2021, making serious allegations against Yvonne and Michelle and suggesting that an independent person be appointed. He then lodged a caveat on 22 December, 2021, which has the effect of preventing the Probate Office from issuing the Grant. Yvonne and Michelle were only informed of the existence of the caveat on 21 June, 2022, when the Grant was due to issue, and they served a warning to the caveat on 29 June, 2022. The applicant entered an appearance on 15 July, 2022, and this motion then issued.

6 . The Deceased's death certificate states that he suffered from dementia for a period of six years prior to his death, and both he and his wife had previously executed enduring powers of attorney in favour of the Yvonne and Michelle. Unfortunately, it is necessary to say something about the application made to the President of the High Court in 2018 to register Yvonne and Michelle as attorneys of the Deceased, as the affidavits filed in that application were placed in evidence in these proceedings.

7 . Essentially, John objected very strongly to the registration of Yvonne and Michelle as attorneys before ultimately withdrawing his objection and allowing the registration to be effected without contesting it. The basis of his initial objection is material to this application as his affidavit objecting to the registration of the power of attorney was put in evidence in this application and, in that affidavit, John made a litany of allegations of misappropriation of funds against both Yvonne and Michelle.

8 . Clearly, had there been a basis for such allegations, they would have been entirely unfit to act as attorneys of their parents and there would be, to say the least, very significant question marks as to their fitness to act as executrices of the estate of the Deceased.

9 . For good practical reasons, the exhibits to the affidavits filed in the 2018 application have not been put in evidence. However, in his first affidavit, John asserted that the sale proceeds of a considerable number of properties had been misappropriated by Yvonne and Michelle. One of these was an investment property in the form of student accommodation in Galway. It was asserted, without giving any details whatsoever, that Yvonne and Michelle had helped themselves to the rental income from this property, resulting in a default and consequent sale at the behest of the bank, and had then misappropriated the proceeds of sale also.

10 . Yvonne replied to that affidavit, pointing out that the loan used to purchase that property was “interest only” until 2012 and, for that period, the rent covered the mortgage repayments. But once the loan repayments reverted to full repayments, the rental could no longer cover the mortgage and it had to be sold. The bank, unsurprisingly, requested that the proceeds of sale be used to repay the loan. This is, of course, entirely normal and, while this is not on affidavit, the usual conveyancing practice is that a lending institution usually protects itself by only consenting to the sale and discharge of the security by insisting on a solicitor's undertaking to utilise the net proceeds to discharge the loan. The proceeds of sale were not in fact sufficient to pay off the loan and the Deceased and his wife were left with a small repayment to discharge that balance. Yvonne has also stated on affidavit that she had used €4,500 of her own money to...