A. v T.D.
|Miss Justice Laffoy
|16 April 2010
| IEHC 530
|16 April 2010
|[2002 No. 22
 IEHC 530
THE HIGH COURT
SUCCESSION ACT 1965 S117
SUCCESSION ACT 1965 S121
SUCCESSION ACT 1965 S10(1)
SUCCESSION ACT 1965 S10(3)
SUCCESSION ACT 1965 S60(8)
SUCCESSION ACT 1965 PART V
SUCCESSION ACT 1965 S60(8)(E)S21
TRUSTEE ACT 1893 S21(2)
SUCCESSION ACT 1965 S117(1)
SUCCESSION ACT 1965 S117(2)
X C v R T
TRUSTEE ACT 1925 S15(1)(F) (UK)
EARL OF STRAFFORD DECD, IN RE 1980 1 CH 28
HOUGHTON HAWLEY v BLAKE, IN RE 1904 1 CH 622
SUCCESSION ACT 1893 S21 (UK)
RICHARD v MACKAY 1987 11 TRU LI 23
PUBLIC TRUSTEE v COOPER 2001 WTLR 901
X v A 2006 1 WLR 741
SPIERIN & FALLON ON SUCCESSION ACT 1965 & RELATED LEGISLATION 2003
LAND & CONVEYANCING LAW REFORM ACT 20092009 PART 5
Powers - Settlement of proceedings - Children - Proper provision -Settlement of proceedings to detriment of beneficiary under will - Power of personal representatives to compromise proceedings - No consent from beneficiary under will - Powers of personal representatives at common law - Statutory powers of personal representatives - Jurisdiction of court to approve settlement - Whether personal representatives had power to compromise proceedings where no consent from beneficiary - Whether court had jurisdiction to approve settlement - Whether power to compromise proceedings at common law - Whether statutory power to compromise proceedings - XC v RT (Succession: Proper provision)  1 Ch 28 followed; Richard v Mackey (1897) 11 Tru LI 23 distinguished; Chapman v Chapman  AC 429 considered - Succession Act 1965 (No 27), ss 60 and 117 - Application to approve settlement dismissed (2002/22Sp - Laffoy J - 16/4/2010)  IEHC 530 applied; In Re Earl of Strafford, Decd
A v D(T)
Facts: The testator was survived by his children who were the plaintiffs in the proceedings. The testator had separated from M., their mother. The testator had devised a house site on his lands for P. who he had lived with until his death and a house had later been transferred to P. who became solely entitled to the house after his death. The testator was the owner of agricultural land and commercial units. The plaintiffs initiated proceedings pursuant to s. 117 Succession Act 1965. Earlier proceedings had considered liabilities in respect of an AIB account, finding P liable for a contribution of half the amount and the remittal of the application to the Circuit Court, an issue left in abeyance pending the outcome of the present proceedings. The personal representatives sought directions in relation to the administration of the estate and the Court's approval of the settlement of the proceedings, including inter alia that the personal representatives abandon any claims against P. for a contribution arising out of the settlement with AIB, that non -cash assets be sold and the net estate divided. The Court considered the powers of the personal representative pursuant to s. 60 of the Succession Act 1965 to settle the plaintiffs' application.
Held by Laffoy J that the trustees did not have power to compromise the plaintiffs' claims under s. 117 in the manner envisaged. The Court had no jurisdiction to give directions in relation to the proposed settlement. The Court would make various orders accordingly.
Judgment of Miss Justice Laffoy delivered on the 16th day of April, 2010.
1. M.K. (the testator) died testate on 30 th December, 1999. By his will dated 16 th September, 1997 he had appointed the first and second defendants (the personal representatives) to be executors and trustees thereof. On 22 nd November, 2001 the grant of probate of the will of the testator issued to the personal representatives.
2. The testator was survived by two sons A. and B., and one daughter, C, who are the plaintiffs in these proceedings. All of the plaintiffs were of full age at the date of the testator's death. However, C. has had severe epilepsy since infancy. Dr. Norman Delanty, Consultant Neurologist, has certified that she is a person of unsound mind and incapable of managing her affairs. She lives with her mother, M.
3. The testator and M. had separated prior to the testator's death. Separation proceedings between them were compromised on 11 th July, 1996, whereupon M.'s entitlement to any interest in the estate of the testator was extinguished. No issue arises as to M. having a claim against the estate of the testator.
4. The evidence put before the Court by P. is that she was the testator's partner and that she was in a relationship with him since 1983. P. lived with the testator during the last three years of his life. P.'s evidence is that the deceased had two strokes in 1997, as a result of which she took time off work and ultimately left work to take care of him on a full-time basis.
5. For the purposes of the issue now before the Court I consider it sufficient to outline the testator's assets and the provision he made for them in his will under four broad headings as follows:
(a) The testator devised a house site on his lands to P. for her absolute use and benefit. Subsequent to the making of his will, on 14 th November, 1997, the testator transferred a house site to himself and P. as joint tenants and subsequently a house was built on that site in which the testator and P. resided. On the death of the testator P. became solely entitled to the house, which was subject to a mortgage to secure a home loan, by right of survivorship.
(b) The testator was the owner of approximately eleven acres of agricultural land. Prior to his death he had entered into a contract to sell a site comprising approximately a half an acre to a third party. The sale was completed after his death. By his will the testator devised a house site of half an acre out of the agricultural land to each of his sons A. and B., together with all necessary easements for the enjoyment of the sites for private dwelling houses. However, he expressly provided that the devise was to be subject to his sons procuring planning permission for the erection of one private dwelling house, with out-offices if required, on each site within twenty four months of the date of his death. While there was a complicated planning history in relation to the sites on the agricultural land after the testator's death, suffice it to say for present purposes that the planning permission stipulated by the testator has not been obtained. The testator devised the agricultural land, which he described as his "field" to P. absolutely, subject to all necessary rights of way or other easements for the enjoyment of the sites.
(c) The testator was the owner of three commercial units and a yard. In his will he devised this property, which he described as his "commercial yard", to his sons, A. and B., his daughter C, and P. in equal shares absolutely.
(d) The testator's residuary estate consisted of household contents and machinery and tools of fairly nominal value and money, including the proceeds of the sale of the site, which was eventually completed. There were debts, primarily, an overdraft on a current account with AIB and a term loan with AIB, both accounts being in the joint names of the testator and P., both being jointly and severally liable to AIB on the accounts. The testator devised the residue of his estate "be the same real or personal and wheresoever situate" to P.
6. These proceedings were initiated by special summons which issued on 17 th January, 2002. Initially, the plaintiffs' claim was under s. 117 of the Succession Act 1965 (the Act of 1965) solely. However, subsequently, by order dated 13 th May, 2002 made by Smyth J., the plaintiffs were given liberty to amend the special summons by including a claim under s. 121 of the Act of 1965 for an order that the transfer of the house to P. be deemed to be a devise or bequest made by the testator by will and to form part of its estate. Subsequently, by order of 26 th October, 2005 made by the Master of the High Court, P. was joined as a co-defendant, the time for doing so being subsequently extended by a further order of the Master made on 21 st March, 2006. While there is some dispute about this, I am of the view that the purpose of joining P. as a co-defendant in the proceedings was to afford her the opportunity to answer the claim under s. 121.
7. The proceedings made slow progress during the seven years from the beginning of 2002 to the end of 2008. This Court's involvement commenced in December 2008. On 17 th December, 2008, P. applied in these proceedings for an order directing or permitting the personal representatives to pay out of monies belonging to the estate of the testator €15,000 to P. on the basis that she required the money for her ongoing needs. P. had been unemployed since August 2008 and was in receipt of a weekly social welfare payment. The Court refused that application on the basis that it did not have jurisdiction to make the order. However, the Court underlined the necessity of the case being heard as soon as possible and, in view of the escalating costs, that it be case managed.
8. The case management process was tortuous, but was delayed to some extent by the death of the solicitor for the plaintiffs, who was a sole practitioner, and obtaining the...
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O. v M
...of court time; the trial of this action will itself take the about a week at hearing. As Laffoy J. observed in A et al v T.D. et al  IEHC 530:- “Indeed, it frequently happens that a personal representative, with the approbation of the beneficiaries affected, settles the claim of a s. ......