Young v Cadell and Others

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 13 February 2006
• Neutral Citation: [2006] IEHC 49
• Docket Number: No. 277 SP/2004
• Court: High Court
• Date: 13 February 2006

[2006] IEHC 49

THE HIGH COURT

No. 277 SP/2004

YOUNG v CADELL & ORS

IN THE ESTATE OF WILLIAM YOUNG

IN THE ESTATE OF SAMUEL YOUNG

IN THE ESTATE OF JOSEPHINE YOUNG

BETWEEN/

SAMUEL YOUNG

PLAINTIFF

AND

PADDY CADELL. TERESA DOYLE, MARY COURTNEY, DONAL YOUNG, PATRICK YOUNG, MARY YOUNG, MICHAEL YOUNG, PAUL YOUNG AND CATHERINA MOCKLER

DEFENDANTS

MORELLI, IN RE 1968 IR 11

MILLER PROBATE PRACTICE 1900 ED

PROBATE

Administration of estates

Costs- Whether general rule that costs to be paid out of estate has application to administration suit even where conducted bona fide and with reasonable basis - Whether reasonable basis for litigation - Whether costs to be paid out of personal estate - In Bonis Morelli; Vella v. Morelli [1968] IR 11 distinguished - Claim dismissed, no order as to costs (2004/277SP - Laffoy J - 13/2/2006) [2006] IEHC 49In Bonis Young; Young v Cadell

Facts: the plaintiff was willed a dwelling house by his deceased brother, whose estate was being administered by the first defendant. The first defendant initially refused to vest the said property in the plaintiff as he was of the view that the fourth defendant had rights in relation thereto which precluded him from vesting in the plaintiff any greater estate than the testator had to bequeath. The plaintiff then brought an action by way of special summons claiming, inter alia, that the first defendant had failed to execute a deed of assent transferring the said property to him. The plaintiff claimed that he was entitled to the costs of the action.

Held by Laffoy J in dismissing the plaintiff’s claim and making no order as to costs that the plaintiff’s claim was misconceived as the dispute between the plaintiff and the fourth defendant was a title dispute, the genesis of which was anterior to the death of the testator and which could not be resolved by proceedings initiated by special summons. Accordingly, the general rule that costs in probate actions be paid out of the personal estate save where the suit was not conducted bona fide or brought on reasonable grounds, did not apply.

Reporter: P.C.

Miss Justice Laffoy

1 The special summons in this matter was issued on 7th July, 2004.

2 Samuel Young and Josephine Young mentioned in the title were the parents of the plaintiff and of William Young, first mentioned in the title, whom I will call "the Testator", and also of the second, third, fourth and fifth defendants. They both died in 1970.

3 The Testator, who was the son of Samuel and Josephine Young, and the brother of the plaintiff and the second, third, fourth and fifth defendants, died on 28th October, 2000, having made his last will and testament on 8th August, 2000. Probate of his will was granted to the first defendant, who is a solicitor and one of the executors named in the will, on 8th November, 2001.

4 Apparently, the plaintiff's parents, Samuel Young and Josephine Young, died intestate. Representation has not been raised to the estate of either of them.

5 The only provisions of the will of the Testator which are relevant to the issues raised in the special summons are the provisions contained in clauses 4 and 5 in the following terms:

6 2 "4. I leave my dwelling house together with a garden field (which are currently used by my brother Donal) to my brother Sam for his own absolute use and benefit.

7 5. I leave all the out-offices, yard, hayshed etc. and the remainder of my land situate at Barnane, formerly owned by my parents, to my brother Pat Young, his wife Mary Young and to each of their four children in equal shares."

8 The lands referred to in clauses 4 and 5 were the lands registered on Folio 25344, County Tipperary. Clause 5 is relevant only insofar as the lands to which it relates were registered in Folio 25344.

9 The allegations made by the plaintiff in the special endorsement of claim in the special summons were:

10 ••that the defendants had failed, refused or neglected to communicate with the plaintiff and attempted to deny him his share under the will of the testator.

11 ••that the first defendant had failed, refused or neglected to execute a deed of assent transferring to the plaintiff the dwelling house together with a garden field comprising an area of 0.5 hectares at Barnane as contained in Folio 25344 to and for his own absolute use and benefit, and

12 ••that the first defendant had failed to distribute the assets of the estate of Samuel Young and the estate of Josephine Young pursuant to the rules of intestacy.

13 When the matter came into the Chancery List on 17th October, 2005, counsel for all of the defendants other than the fourth defendant, applied that the proceedings against his clients should be struck out. The basis of the application was that in his replying affidavit sworn on 8th November, 2004, with regard to the dwelling house and the garden field comprising approximately 0.5 hectares, the first defendant averred as follows:

"Neither I nor the second named defendant have any difficulty with regard to executing an Assent in favour of the Plaintiff with regard to the said property. However, in doing so, I say that I have been advised that I cannot vest in the Plaintiff any better title to the dwelling house and garden than the Estate of William Young deceased has in the said property. If Donal Young is entitled to the entirety of that property by virtue of survivorship upon the death of William Young, the execution of the Assent is a meaningless exercise. Clearly, this is an issue which will have to be determined as between the Plaintiff and Donal Young the fourth named defendant who is separately represented in these proceedings by Messrs. Nash, McDermott & Company, Solicitors. I say that there is no basis for continuing or maintaining these proceedings against any of the defendants other than the fourth defendant and it would be the intention of the remaining defendants to seek their costs from the Plaintiff if he persists with this action against them."

14 There was no appearance on behalf of the fourth defendant, Donal Young, on 17th October, 2005.

15 The implicit offer of the first defendant to execute an assent in favour of the plaintiff of the interest of the Testator in the dwelling house and land specifically devised to the plaintiff should have been taken up in November, 2004 and that should have been the end of the matter. The offer was not pursued by the plaintiff. On the other hand, an assent was not executed by the first defendant. On 17th October, 2005 I adjourned the proceedings, indicating that I intended to strike out the proceedings against all of the defendants except the fourth defendant, if an assent was executed by the first defendant. I also indicated that I would deal with the question of costs on the adjournment but that the plaintiff and the defendants, other than the fourth defendant, should put their respective cases in relation to costs on affidavit. On 17th October, 2005 I explained the basis on which I was adopting that course, stating:

16 ••That as the personal representative of the Testator was prepared to assent to the specific devise to the plaintiff of the dwelling house...