Irish Court of Appeal

THE COURT OF APPEAL

APPROVED

NO REDACTION NEEDED

PROBATE

 

Court of Appeal Record Number: 2024/176

 

                                                                        Neutral Citation Number [2025] IECA 79

Whelan J.

Faherty J.

Butler J.

 

 

 

IN THE MATTER OF THE ESTATE OF FRANCIS FALLON LATE OF 'ABBEYVIEW' 23 GRANGE ROAD RATHFARNHAM IN THE COUNTY OF DUBLIN, DECEASED

 

AND

 

IN THE MATTER OF THE SUCESSION ACT, 1965

 

AND

 

IN THE MATTER OF SECTION 27(4) OF THE SUCESSION ACT, 1965

 

AND

 

IN THE MATTER OF AN APPLICATION BY JAMES FALLON AND VERONICA (VERA) WALSH FOR LIBERTY TO EXTRACT A GRANT OF LETTERS OF ADMINISTRATION WITH WILL ANNEXED DE BONIS NON IN THE ESTATE OF FRANCIS FALLON DECEASED

 

 

 

 

 

 

JUDGMENT of Ms. Justice Máire Whelan delivered on the 2nd day of April 2025

Introduction

 

 

1.               This is an appeal against the order of the High Court (Non-Contentious Probate), made on 24^th June 2024 and perfected on 25^th June 2024, refusing an application pursuant to s.27(4) of the Succession Act, 1965 for liberty to extract a grant of letters administration with will annexed de bonis non in the estate of Francis Fallon deceased (the testator) together with other declarations and directions  sought in regard to the administration of the said estate. The applicants are two of the testator's children.

 

Background

2.              The Testator, late of Abbeyview, Rathfarnham, Dublin, (Abbeyview), a dairy farmer, died on 21^st April 1959. Under the terms of his will, made on the 4^th January 1957, he appointed his wife Ellen Fallon as sole Executrix and Trustee (the Executrix/Trustee).  He devised all his property both real and personal to her as Trustee. She was entitled to receipt of the income therefrom during her lifetime.  She was granted an express power of appointment by deed or will over same to take effect from and after her death. The will contained the following provision:

"After the death of my said wife I direct that my Trustee shall hold the balance of my estate in trust for all or any of my children on their attaining the age of twenty one years in such share or shares as my wife shall by deed or will appoint and in default of appointment, I direct that my Trustee shall hold the balance of my estate for all of my children in equal shares."

 

3.             A key asset in the testator's estate comprised the leasehold interest in the lands of Abbeyview, Co. Dublin held for the residue of the term granted under a lease dated 9^th September 1909 (the 1909 lease) made between George Philip Farran, Edward Chomley Farran, Elizabeth Mary Farran and Ann Lambert Farran as lessors of the one part and the Testator's predecessor Maurice Fallon, as lessee, of the other part.   The term of the lease was for sixty years from 1^st May 1909 subject to a yearly rent of £19.11s 10d (19 pounds, 11 shillings and 10 pence), subsequently commuted to £19.60.  At the date of  death of the testator a residue of over ten years remained, the term of the 1909 lease was due to determine by effluxion of time on 30^th April 1969. The estate which the Testator held at the date of his death under the 1909 Lease was an unregistered leasehold interest.   It was impressed with a trust in accordance with the tenor of his will and a power of appointment was conferred upon the Executrix/Trustee.

 

4.             The Executrix/Trustee extracted a grant of probate in the testator's estate on 26^th September 1959. The Testator had eleven children him surviving. Several are now deceased.

 

5.             It is common case that the Executrix/Trustee did not exercise the power of appointment by deed during her lifetime. Neither did she explicitly exercise it under the terms of her own will made on the 16^th February, 1962, which is considered hereafter. The respondents suggest that the power of appointment was implicitly exercised under the terms of the Executrix's will. It is argued that by virtue of the terms of her will the Executrix/Trustee implicitly intended to exercise her power of appointment in favour of her executor and sole beneficiary Leo Fallon. That is fully contested by the applicants. No persuasive authority was identified in support of this proposition. In any event it was not possible to form any concluded view on that legal issue at a non-contentious hearing heard on affidavit and where that specific issue was not for determination.

 

6.             As stated above, if the power of appointment was not validly exercised by the Executrix/Trustee, then the testator's will provided that the balance of his estate was to be held "for all of my children in equal shares".  Since all eleven children survived the Testator and attained the age of 21 years, in such an eventuality, each would have become beneficially entitled to one-eleventh undivided share in his estate.

 

 

7.             It is noteworthy that at the date of death of the Testator on 21^st April 1959 the Administration of Estates Act, 1959 Act was not yet in force. In any event, Section 3 of that Act provided:

"Parts II and III of this Act shall not apply to the estate of any person dying before the 1st day of June, 1959".

Part II of the 1959 Act (Sections 6-10) pertained to the devolution of real estates on death Part III (Sections 11-23) pertained to executors and administrators. Section 11 substantially codified, and was essentially declaratory of, the law as it previously existed in this jurisdiction as regards the chain of executorship and executorship by representation - at least insofar as it is relevant to the issues arising in this application and appeal. [1]

 

8.              The Executrix/Trustee, Ellen Fallon died on 29^th February 1966, over four years after the execution of her own will on 16^th February, 1962. Her death occurred prior to the coming into operation of the Succession Act of 1965 on 1^st January 1967.  It is noteworthy that the chain of executorship would not have operated had she died on or after 1^st January 1967. S.19 (1) of the Succession Act abolished executorship by representation. [2]  Section 19 was only applicable if the Executrix of the testator died after the commencement of the Act.

 

9.             Since the Executrix died prior to the commencement of the Succession Act, s.19 had no application  and that provision abolishing executorship by representation could not have been availed of by Leo Fallon once he probated the will of the executrix.  From the perspective of the legal regime governing administration of estates, at common law, the executor of a sole or last-surviving executor of a testator, the administration of whose estate remained incomplete, was automatically, the executor of such a testator.

 

10.         By her own last will and testament the Executrix/Trustee, Ellen Fallon, appointed her son Francis Leo Fallon (Leo Fallon) to be her sole executor. She devised and bequeathed onto him "all my property both real and personal and of every description of which I die possessed or entitled to absolutely...".  She purported to confer certain limited rights, inter alia, on her daughter Mary Molloy and any children remaining alive and unmarried at the time of her death to reside "in the said premises known as 'Abbeyview' free from rent and rates ... but only for so long as each of them shall remain unmarried...".

 

11.         The Executrix/Trustee did not herself hold any devisable estate or interest in Abbeyview at the time of her death as would entitled her to grant or devise any share or interest therein to any of her children. 

 

12.         Leo Fallon extracted a grant of probate in the estate of  the Executrix/Trustee, his mother Ellen Fallon, on 12^th July 1967. He did so against a legal backdrop whereby, 11(1)(a) of the Administration of Estates Act 1959 did not apply in light of s.3 since his father,  the testator, had died before 1^st of June 1959. However, the legal principles at common law as obtained prior to 1^st of June 1959,  including the Statute 25 Edw.3.st.5.c. 5  1351-2  and the extensive jurisprudence  on the doctrine of executorship by representation, from which the principles in s.11 are broadly derived, did apply. Accordingly, Leo Fallon the proving executor of the sole surviving Executrix (Ellen Fallon) was automatically constituted executor by representation of his father Francis Fallon's  estate on 12 July 1967 by act and operation of law. The 1959 Act, incidentally, was abolished by Part IV  of the Second Schedule to the Succession Act, 1965.

 

Historic evolution of the Chain of Executorship and Executorship by Representation

 

13.          As Professor J. C. W. Wylie in the text "Wylie on Irish Land Law" 6^th Ed. Bloomsbury Professional, 2020 at 1.23 observes:

"In 1495 the famous Poynings' Law, an Act of the Irish Parliament,  provided that 'all estatutes; late made within England, concerning or belonging to the common and publique weal of the same, from henceforth be deemed good and effectual in the law, and over that be accepted, used, and executed within Ireland in all points at all times requisite according to the tenor and effect of the same ...'. [3]

The said statute, otherwise known as the Statute 10 Hen 7, c 22 (IR), brought into force in this jurisdiction, inter alia, the provisions of  the  Administration of Estates Act , 1285 13 Edw. 1 c. 19,  the "Executors of executors shall have the same rights and duties as the first executors" (1351-2) 25 Edw.3.st.5.c. 5. and the Administration of Estates Act, 1357 , 31 Edw. 3. st. 1. C. 11. The latter Act was repealed by virtue of s.8 and the Second Schedule of the Succession Act 1965 with effect from 1^st January 1967.

 

14.          The statute 25 Edw.3.st.5.c. 5.; "Executors of Executors shall have the same rights and duties as the first Executors" (1351-2), was considered in the case of Thomas v Baker, Prerogative Court [1753] 1 Lee 341 where the doctrine was applied by Sir George Lee. [4]

 

15.         25 Edw.3.st.5.c. 5. of 1351-52 was one of the enactments repealed by the Administration of Estates Act 1959. Its repeal was limited by the Second Schedule to the Act "...only as Respects Estates Of Persons Dying On Or After 1st June, 1959." Therefore, it operated and applied to bind Leo Fallon. He automatically became executor to Francis Fallon when he extracted the grant to the Executrix's/Trustee's estate on 12^th July 1967. [5]

 

 

16.         The 1965 Succession Act applied to wills of all testators dying after 1^st January 1967 whether the will was made prior or subsequent to the said date.  Both the testator and his executrix, however, died prior to that date.

 

Operation of the Doctrine of Executorship by Representation prior to 1^st June 1959

17.         Prior to the coming into operation of the Administration of Estates Act 1959 at common law only personal property (including chattels real) passed to the personal representative on death.   Real property vested directly in the devisee under the will or, in the case of intestacy, directly in the heir at law.  

 

18.         At common law, as Halsbury's Laws of England [6] makes clear, an executorship was an office of personal trust and as such incapable of assignment. It exclusively devolved by act and operation of law. Authors such as Mellows [7] suggest that the reasoning which underpinned the Doctrine of Executorship by Representation by the Ecclesiastical/Prerogative Courts was that a testator was deemed to have had full confidence in his original choice of executor/s, and accordingly, ought to be deemed to repose like confidence in their choice, in turn, of executor for themselves. The Probates and Letters Administration Act (Ireland) 1857, abolished the jurisdiction of the Diocesan Courts in Ireland which were hitherto operated by the Church of Ireland in testamentary and intestate business establishing instead the "Court of Probate".

 

 

19.         Section 11 of the 1959 Act broadly adopted the common law principles and consolidated same. Section 11(1)(a) reflects the principle enshrined in the (1351-2)  Statute 25 Edw.3.st.5.c. 5., as considered in cases such as Brooke v Haymes [1868] L.R. 6 Eq. 25 and Re Perry's Goods (post). S.11 (1)(b) reflected decisions such as Eyre v Countess of Shaftesbury, 1725 2 P.W.M.S. 103 [1588-1774] All E.R. 129.

 

20.         At common law an executor by representation once having accepted the executorship of the executor cannot renounce executorship of the earlier testator. That principle is of very long standing and illustrated by decisions such as In the Goods of John Perry, Prerogative Court, December 1840 , 2 Curt. 653, the dictum of Sir Herbert Jenner is authority for the proposition that;

"...an executor, taking probate of the will of an executor, becomes executor of the will of the first testator , and is not permitted to renounce probate of the first will and take probate of the second."

 

21.         Re Rayner's Goods [1908] 52 Sol Jo 226 further illustrates the doctrine's operation. The rule was consolidated in s.11(2) of the 1959 Act. The doctrine did not arise unless the original executor/executrix had proved the will of her testator and died testate without having completed the administration of the testator's estate and where the executor to the original executor/executrix extracts a grant of probate to the latter's estate. The doctrine was engaged automatically at common law once the executor of the original executor/ executrix - or even their attorney -  obtained a grant with will annexed: Re Bayard [1849] 1 Rob. Eccl. 768. Where a second executor reserved his rights to prove a will when the original grant was being extracted in the estate of the proving executor/executrix, the chain of executor passed to him and first had to be dealt with before the court would proceed to  grant letters of administration de bonis non with will annexed to a third party under the "special circumstances" principle: In Re Reid's Goods 1896 P 129.

 

22.         At common law the chain of representation is broken by an intestacy. When such occurs the usual means of obtaining representation to the estate of the original testator was by a grant of administration  de bonis non. Hence the chain of representation does not devolve upon the administrator of an executor: Re Morrison's Goods [1861] 2 Sw. & Tr. 129, nor the executor of an administrator: Larence v. Larence [1911]  17 WLR 197 [8]. This is reflected in s.11(3) of the 1959 Act.

 

Conduct of the Executor by Representation, Leo Fallon

 

23.         Leo Fallon, the Executrix's executor having extracted the grant of probate in her estate on 12^th July 1967, fifteen months later on 26^th October 1968 entered into a conveyance with the freehold owners and purchased for himself the freehold reversionary interest in Abbeyview. The  1909 lease term was due to expire on 30 April 1969. The recitals in the Deed of Conveyance are noteworthy and inter alia state:

"The purchaser is in actual possession of the said lands and premises described in the Second Schedule hereto under and by virtue of an indenture of lease dated the 29^th September 1909..."

The appellants emphasise that the recital in substance implicitly represented that he was in exclusive occupation and was the beneficial owner of the leasehold estate. Such was not so as of 1968. The evidence suggests that as of that date a number of his siblings at least including James, Joan and Mary (otherwise Maura) were also resident at the property.  As such it is claimed his title was impressed with a trust for the use and benefit of himself and his siblings in equal shares in accordance with the terms of the will of the testator.  

 

The Deed of Confirmation

24.         There is a Deed of Confirmation dated 2^nd May 1983 made between ten of the testator's children, as grantors of the one part and Francis Fallon (i.e. Leo Fallon) as grantee of the other part. It is a somewhat unusual instrument said to have been created at the premises of a solicitor where Leo Fallon  at that time worked as a legal executive. It is dated almost fifteen years after he had purchased for himself the freehold reversion in Abbeyview.  It recites the leasehold interest but inaccurately identifies the lease as having been granted in "1901" for a term of sixty years from 1^st May "1901" - rather than "1909".  There are several such  curious infelicities in the said instrument. At least one individual who appears to have executed same, James Fallon, disputes his signature. In the habendum  the grantors grant unto the grantee Leo Fallon the property ;  " TO HOLD  any interest therein which might have survived the expiration of the period of sixty years granted by the Lease..."  Surprisingly, the Deed of Confirmation fails to recite the Conveyance of  26^th October 1968 whereby Francis Fallon  privately purchased the freehold reversion of Abbeyview on his own behalf.

 

25.          In essence the applicants contend that the executor by representation, Leo Fallon, in 1983 suppressed and concealed from the next of kin the existence of the 1968 deed whereby he had purchased the freehold reversionary interest in the property for himself and that had otherwise procured their execution of the Deed of Confirmation by acts of deception.  Many years have now elapsed since its execution and many of the parties who executed same including Leo Fallon, who procured the drafting of same and may possibly have been the author of its recitals, are now deceased. 

 

 

Estate of Leo Fallon

 

26.         Leo Fallon, the executor by representation, died without issue on 22^nd November 2016 and at the time of his death was a ward of court having been admitted to wardship on 7^th December 2015.  His widow Mary Gertrude Fallon (otherwise Trudy)  was admitted to wardship on or about 12^th January 2016.  She subsequently died intestate  on 20^th August 2023. The first notice party Brendan Dempsey is her administrator and sole next of kin.

 

27.          The applicants, two of the testator's surviving children Veronica (Vera) Walsh and James (Jimmy) Fallon, on notice to all their surviving siblings and the next of kin of those who are now deceased, applied by Notice of Motion for leave to extract a grant of letters of administration de bonis non in the estate of the testator Francis Fallon pursuant to s.27(4) of the Succession Act. None of the surviving siblings or the next of kin of deceased siblings of the applicants object to the application. Most supported it. Significantly, the notice parties, did not oppose the application in court. The application was returnable before the High Court Non-Contentious Probate List and was determined on 24^th June 2024.

 

Decision of the High Court

 

28.          In the first instance the court observed that it was not convinced that the application was even necessary:

"...there doesn't seem to have been regard to Order 79 and what happens when an Executrix dies, the Executrix in this case died in 1966 which is 58 years ago.  The row was about her husband's will which is, which was admitted to probate on 26^th September 1959, ... almost 65 years ago..."

"Despite the resonance of these dates I am asked to accept and I realise its on affidavit and the threshold for establishing facts which are not disputed on affidavit is clear but one of the clearer things about establishing facts on affidavits is you can't just make bare assertions, implausible statements in affidavit don't miraculously transform into evidence just because nobody else has come to contradict them.  Especially when there is nobody else that can contradict them. So, for example, in this case I am asked to believe that ten siblings of Francis Leo Fallon didn't know that his father made a will, I don't believe that.  I don't believe that for the very good reason that there was a Deed of Confirmation signed in 1983.  The only person who says he doesn't (sic)sign it and I'll come back to that is Jimmy Fallon who now puts himself forward as applicant.  On the face of that Deed, ten people signed it, their signatures were witnessed, they were all said to have signed it in the presence of other people." 

 

29.         Of the Deed of Confirmation, the court observes that same said that the Executrix "... exercised a power of appointment in favour of Francis Fallon, the deceased we are talking about here and it makes very clear statements."   The court expressed dissatisfaction with the affidavit evidence.  The court was of the view that it was "not either necessary expedient that I would issue a grant in the estate and the reason for that is while it's not strictly opposed by the Notice parties, it is clear that the purpose of the application is to assert rights of the children under the Will of Francis Fallon deceased.  And ultimately if necessary to bring possession proceedings against those who are in possession of the lands which were dealt with in his Will.  That is Abbeyview Grange Road ...".   The judge asserted, citing a decision Mary Dooley Deceased 2024 IEHC 57,  that "The litigation contemplated by an application under s.27(4) should at least be stateable".  She opined that:  "... The usual freedom to litigate can be withheld in the very limited circumstances where a court is satisfied that there is absolutely no prospect of success and that includes because the Statute will be raised and is likely to be successful.  The relevant statutory period here is six years from the date the cause of action accrued. ... at best the right accrued either on her death on the 25^th (sic) February 1966 without, on the face of a will  making an appointment... without executing any deed of appointment in her lifetime or perhaps when James the youngest turned 21 on 11^th February 1968. ... I think it is abundantly clear that the Statute long since ran.  If I am wrong in the application of the six years period because it could be the case that the logic of Gleeson v. Feehan (No. 2) ... that would be a twelve-year limitation period."

30.         The court rejected arguments based on non est factum and s.71 of the Statute of Limitations.  The court refused the orders sought but made no order as to costs. The applicants appeal.

Notice of Appeal

31.          The essential grounds of appeal are as follows:

(1)          The judge erred in refusing to grant the order pursuant to s.27(4) on the basis that the affidavits filed and submissions the applicants had "failed to establish that leave to make the said application was necessary and/or expedient."

(2)          That the court erred in refusing to grant the application "In the absence of there being any issues in substantive contention. Alternatively, if the court believed there were matters in substantive contention then the application ought to have been referred for plenary hearing."

(3)          The court erred in assessing the merits of the application for leave by treating the application as determinative of the substantive issues which were not relevant to the application.

(4)          The court erred in  purporting to determine substantive issues where the respondents had made it clear they were not opposing the application for leave.

(5)          The judge erred in deciding that documents of title, copies of which were exhibited, could be relied upon as "determinative of all the issues in the application for leave".

(6)          The judge "gave undue weight to issues of a hypothetical nature which did not apply to the application for leave".

(7)          The judge erred in concluding that the signature of James Fallon on the 1983 Deed was similar to that on his grounding affidavit in the absence of any averment by the respondents challenging what he stated on affidavit in respect of his signature.

(8)          That the judge erred in admitting unsworn evidence and assertions made by one Mr. Patrick Cusack, solicitor for the second named respondent about an original Deed of Confirmation.

(9)          The judge "erred in concluding that the intention of the testator may have included an intention to make an appointment under the terms of the trust where there was no contemporaneous or extraneous evidence to justify such a contention." 

 

32.          The net issue in this appeal concerns the appropriate approach to be adopted in a s.27(4) application for a grant de bonis non  to determine whether it is "necessary or expedient" to appoint an administrator by reason of the existence of  "any special circumstances". 

 

Position of Appellants

33.         The appellants' position is that at the date of execution of the 1968 indenture the doctrine of executorship by representation applied to Leo Fallon and he was constituted a trustee accountable to his siblings by the doctrine, that the Common Law rules applied and, in the words of the Statute 25 Edw.3.st.5.c. 5, 1351-52, as applied in the jurisprudence governing such executorships, he was bound to; "... answer to others for as much as they have recovered of the goods of the first testator, as the first executors would do if they were in full life". It is argued that Leo Fallon, being a fiduciary under the Rule in Keech v. Sandford [1726] Sel. Ca. Ch.61, was precluded from purchasing the freehold reversion for himself. Reliance was placed on Gabbett v Lawder [1883] 11 L. R. Ir.  At issue is whether Leo Fallon improperly procured (whether at law or in equity) the freehold to the Abbeyview lands at a time when the doctrine of executorship by representation applied to him in breach of trust and his obligations as a fiduciary such that he is deemed to have held Abbeyville as trustee by way of a constructive trust for the eleven children of the testator. 

 

34.         The judgment of Chatterton VC in Gabbett v Lawder is considered authority for the proposition that an administrator becomes a constructive trustee of the reversionary interest for the persons beneficially entitled to the personal estate of a deceased in circumstances where in the course of administration he purchases same or takes same at his own expense and for his own benefit.  The appellants also contend, in light of the decision of the English Court of Appeal in Protheroe v. Protheroe [1968] 1 WLR 519, that as Leo Fallon was constituted a Trustee he was absolutely precluded from making any profit out of the trust estate and he held same to the use and benefit of the children of the testator.  The circumstances outlined in the immediately preceding paragraphs constitute the basis of a claim which the appellants seek to institute against the estate of Leo Fallon and it is for that reason they sought the grant  de bonis non.  The High Court considered (and the respondents agreed) that any such claim was long-since statute barred.

 

 

35.         The applicants invoked s.71 (1) of the Statute of Limitations 1957 which provides:

"(1) Where, in the case of an action for which a period of limitation is fixed by this Act, either—

(a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or

(b) the right of action is concealed by the fraud of any such person,

the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it."

 

36.         Mr. McNelis (solicitor for the applicants)  observes that in light of the unusual nature of the application he anticipated the likelihood that the Probate Office would decline an application and require that it be brought in the Non-Contentious Probate List which is why he made the application in the first instance.  Given that the death of the testator pre-dates the coming into force of the Administration of Estates Act, 1959 and  his executrix died prior to the commencement of the Succession Act, 1965 that may have been prudent.

 

Position of Notice Parties/Respondents

 

37.         The respondent sought to rely on the decision of the High Court (Clarke J.) (as he then was) in Hynes v. Western Health Board [2006] IEHC 55 which concerned an application to have an order joining a third party as co-defendant in medical malpractice proceedings set aside. 

 

38.         The first named respondent, Bernard Dempsey, is the sole next of kin and administrator of Trudy Fallon, deceased who died intestate.  She was the lawful widow of  Leo (otherwise Francis Leo) Fallon the executor by representation.  There is some uncertainty as to whether he died testate or intestate.  If the latter, the chain of executorship to the estate of the original testator, Francis Fallon, is at end. There are currently High Court proceedings concerning the validity of alleged will(s) of Leo Fallon. Separately, the beneficial ownership of  Abbeyville is disputed including: Patricia Cranney and Brendan Dempsey v. Edward (otherwise Ned) Fallon and Amber Fallon record No. 5352P/2021.

 

 

39.         The second notice party is Amber Fallon, Legal Personal Representative of her late father Edward Fallon, one of the children of the testator. She is a defendant/ counterclaimant in proceedings Record No. 5352P/2021 High Court  against the estate of the executor by representation Leo Fallon concerning the property Abbeyview.

 

40.          Both respondents to this application asserted that neither has any standing or interest in the estate of Francis Fallon Sr.  Significantly,  neither opposed the application in the High Court.  As stated above if Leo Fallon is found to have died intestate, the chain of executorship would have been broken and thereby at an end. It appears that there are two disputed testamentary papers of Leo Fallon which have yet to be determined upon. If he is found in the pending litigation to have died testate the chain of executorship will continue and vest in his executor, whoever that may be.

 

41.           Neither notice party raised any objection in the High Court to the application for leave to extract a grant of letters administration with will annexed de bonis non.  That stance was entirely appropriate particularly in light of the fact that there was litigation before the High Court including a claim on behalf of one of the signatories to the 1983 Deed of Confirmation, Edward Fallon, who died 28^th November 2022. 

 

Standard of Review

 

42.         Decisions made by the High Court in the exercise of  s.27(4) statutory discretion  generally ought not be disturbed on appeal unless they fall outside the range of decisions reasonably open to the High Court. This court has frequently made clear that it affords significant deference to decision of the High Court. The role of this court in appeals is outlined in decisions such as Minogue v. Clare County Council [2021] IECA 98, Collins v. Minister for Justice, Equality and Law Reform [2015] IECA 27 and MacMenamin J. in Lismore Homes Ltd. v. Bank of Ireland Finance Ltd. [2013] IESC 6.

 

43.         Where, as here, findings were based exclusively on affidavit evidence, a somewhat deferential approach is to be taken, as the jurisprudence including Ryanair Ltd. v. Billigfluege.de GmbH [2015] IESC 11 and McDonagh v. Sunday Newspapers Ltd. [2017] IESC 46, [2018] 2 I.R. 1), make clear. However, where this court identifies a clear error in the manner of the approach of the High Court judge to the determination, it remains entitled to intervene and reverse or vary that decision. Even where the appellant cannot identify such an error this court is entitled to allow an appeal once satisfied that the justice of the case warrants doing so. This Court is entitled to intervene since it has before it all of the affidavit evidence relied upon in the High Court when the original order was made. Provided due weight is accorded to the views of the trial judge, where a matter has been heard exclusively on affidavit at first instance, an appellate court is in no worse a position than the trial judge to evaluate affidavits and reach its own view.

 

44.         In considering an application pursuant to s27(4) regard should be had to the fact that in a Non-Contentious Probate application the court does not have before it all of the evidence including the substantive evidence said to underpin any proposed litigation. Deponents conventionally are not subjected to cross-examination. There are inherent dangers and risks in a court pronouncing definitive conclusions on substantive issues such as the Statute of Limitations, fraud, non-disclosure of the  purchase of the freehold  by the executor by representation in 1968, the existence of a constructive trust,  the validity of signatures, the equitable rights of the parties, whether the chain of executorship had in fact ended and so forth.  There were highly unusual features presenting in the instant case including that the death of the original testator had occurred prior to the 1959 Act and  that the death of the Executrix took place prior to the coming into operation of the Succession Act 1965. Neither s11 (1) of the 1959 Act nor s.19 (1) of the 1965 applied in the instant case.  No doubt there have been delays in the instant case and unfortunately some of the children of the testator are now deceased.

 

General Observations

45.          As Budd J. observed in Re Morelli :Vella v. Morelli [1968] I.R. 11 at p.34: 

"In our country the results arising from the testamentary disposition of property are of fundamental importance to most members of the community and it is vital that the circumstances surrounding the execution of testamentary documents should be open to scrutiny and be above suspicion."

 He went on:

 "...it would seem right and proper to me that persons, having real and genuine grounds for believing, or even having genuine suspicions, that a purported will is not valid, should be able to have the circumstances surrounding the execution of that will investigated by the court without being completely deterred from taking that course by reason of a fear that, however genuine their case may be, they will have to bear the burden of what may be heavy costs."

  

46.         In Re Cubbidge v Boatwright 1826 1 Russ. 549  illustrates the extent to which courts are solicitous of beneficiaries and apt to scrutinise closely the conduct of executors who appear to confer benefits upon themselves. A testatrix had directed that her leasehold property should be sold and the money  divided among her five children. The executor took possession of same on her death in 1809 and used it for his own benefit. On his death in 1822 his administratrix with will annexed asserted that the beneficiaries had previously assigned their interests to the deceased executor who had then used the leasehold as security to purchase an annuity of £250. Monies derived from that annuity had been applied for his own private use and not treated as an asset of the testatrix's estate. The court held that the leasehold interest had remained an asset unadministered of the testatrix's estate at the date of the executor's death. A purchaser of the leasehold, who was aware at all times of  the true circumstances, was directed to convey the property to the administratrix de bonis non of the testatrix.

 

47.         In my view, it is of very great public interest and concern in this country that estates are properly administered and that where there is evidence suggesting that an executor may have breached his solemn fiduciary responsibility to the beneficiaries or improperly, dishonestly or fraudulently misappropriated or otherwise procured trust assets to his own use or taken benefits properly belonging to the estate by virtue of his position as executor that the beneficiaries are not presumptively foreclosed from bringing that issue before the courts in the exercise of their Article 6 ECHR rights.

 

"Apparent beyond doubt" Test

 

48.           In Hynes v. Western Health Board,  Clarke J. had considered the earlier jurisprudence including the decision of the Supreme Court in O'Reilly v. Granville [1971] I.R. 90.  The question under consideration was the extent to which the exercise of a discretion should be informed by the likelihood that a proposed defendant would successfully raise the Statute of Limitations as a defence.  Clarke J. observed at 3.2:

"...I have come to the view that the general proposition, to the effect that a defendant can be joined in proceedings notwithstanding there being issues as to the applicability of the statute to his case, is subject to an exception that the court retains a discretion not to join a defendant where the statute would clearly apply and where, in the words of Budd J., the joining of such a defendant, would be "futile"."

 

49.          Clarke J. analysed the judgments in O'Reilly v. Granville particularly those of Ó'Dálaigh C.J. and Budd J. in his judgment in Hynes.  He noted in particular the observations at pp.105/106 in O'Reilly, where Budd J. had observed:

"If it were apparent beyond doubt that the statute applied to this case, an application to add the proposed defendant as a party might very well be refused as being a futile operation; but that is not the position here."

The majority in O'Reilly in the Supreme Court concluded that it was premature to deal with a disputed question in relation to the statute on a motion to dismiss. 

 

The Statutory Discretion

50.         Section 27(4) of the Succession Act vests in the court a general discretion to depart from the normal order of priority "... where by reason of any special circumstances it appears ... to be necessary or expedient to do so".   Until 1^st January, 1967 such applications were governed by s.78 of the Probates and Letters Administration Act (Ireland) 1857, 20 and 21 Vict. c. 79.  Section 78 was much narrower in ambit than s.27(4) - a fact to be remembered when considering earlier decisions.

51.         When its language is compared to s.27(4) of the Succession Act it is evident that the scope of judicial discretion under s.78 was confined to; death intestate, death testate without having appointed an executor willing/competent to take probate, executor resident out of the jurisdiction, where necessary or convenient by reason of the insolvency of the deceased's estate or other special circumstances. Section 78 [9] of the 1857 Act ( antecedent provision to s27(4)) was in its early years generally strictly construed. 

 

52.          That initial strict approach was later superseded, particularly in this jurisdiction, by a more flexible approach by the Non-Contentious Probate Court to the exercise of its discretion in favour of granting such applications where the applicant demonstrated some difficulty or inconvenience in administering an estate. No broad rules can be laid down ex ante  as to what will constitute "special circumstances" entitling the Probate Judge to exercise their discretion to make the order sought. Each case must be decided on its own merits, as the decisions illustrate.

 

53.         Historically, the Non-Contentious Irish Probate Court was predisposed to exercise the statutory discretion in favour of finding "special circumstances" in a wide variety of instances and the prerequisites for establishing were generously construed as decisions such as In the goods of Ferguson 1881 7.LR.IR. 176 illustrate.  There, the deceased died intestate, unmarried and without issue leaving him surviving his parents who were long estranged from one another.  At law his father was his sole next of kin and entitled to administration.  The deceased left a letter with his solicitor indicating that he wished his mother to be sole recipient of his personal estate which consisted of a debt of £180 secured by a promissory note which the debtor was repaying by monthly instalments.  The father declined to co-operate with his wife when she sought to obtain a grant of administration. 

 

54.         Warren J. considered that the mother had a right which "though it may not be held valid in law, is valid in a moral point of view, and the father has recognised her right by renouncing his right to administration, and declaring his wish that she should enjoy the property."  The judge had to assess how to "work that out" from the point of view of administration of the estate. He concluded:  "Even before the Probates Act of 1857, the court, under special circumstances, granted administration to parties, who, though they had not a present interest in the assets, stood in a relation to the person who had, which gave them "spem successionis"; he noted that pursuant to s.78 of the 1857 Act the courts had in many case acted "... where the person entitled to administer was resident out of the country, or has refused to act, or there are special circumstances in favour of an application by another person for administration."  Looking at the evidence before him including that the father had renounced and noting the declaration of the deceased intestate of a wish that his mother would enjoy the property, he concluded  "... I am prepared to make an order under the 78^th section of the Act of 1857, directing that this lady shall be at liberty to apply for administration."

 

S.27(4)"...the sub-section should be given a liberal construction..."

 

55.         McCarthy J. observed in Re Glynn, Deceased [1992] 1 IR 361 [1992] ILRM 582, having considered the wording of s.78 of the 1857 Act:

This is in marked contrast to the provisions of s. 27, sub-s. 4 of the Act of 1965 where the discretion is not made expressly subject to any pre-condition; indeed, the determination of the grantee of letters of administration is made expressly subject to sub-section 4. In my view, the sub-section should be given a liberal construction."

 He attached weight to the fact that the applicant was supported by a legatee/ creditor of the estate who had renounced his right to a grant. Another legatee did not oppose the application. He concluded, allowing the appeal, that "... the grant of letters of administration [ought] not [to be] limited to calling in the estate but be a grant in the ordinary form."

56.         The operation of s.27(4) has been considered by the Courts on a number of occasions including In Re Rhatigan: Scally v. Rhatigan [2012] 2 IR 286; In Re Glynn Deceased, In the Estate of Dunne Deceased [2016] IECA 269, In the Estate of Hannon [2018] 3 IR 402  and In Re Horan Deceased [2020] IEHC 21.  In  Hannon the order of the High Court pursuant to s.27(4) granted liberty to a nominee to extract a grant of letters of administration without will annexed to the estate of the deceased, limited for the purpose of implementing the terms of a compromise notwithstanding that the deceased had left a purported testamentary instrument which had not been the subject of an application for a grant of probate and where the parties contemplated pursuing a contentious testamentary suit in regard to same. 

 

57.          The ambit of the discretionary jurisdiction of the Probate Judge was correctly outlined by Baker J. where she observed:

"It is clear that the jurisdiction of the court under s. 27(4) of the 1965 Act permits the court to give liberty to a person other than the person who would be entitled under a will or on death intestate to extract a grant, and that a full grant may issue under s. 27(4) of the 1965 Act. The grant may be limited and a court can and often does make an order under this section notwithstanding that the court is aware that there is a grant, or even that there is an executor willing and able to act. This is frequently the case where liberty is given to extract a grant ad litem or a grant pendente lite under s. 27(7) of the 1965 Act, or a grant ad colligenda bona."

 

"where the interests of justice require that leave to administer be given to the applicant"

 

58.          McCarthy J. in the Supreme Court In re Martin Glynn, Deceased,  observed:

"It appears to me in light of the authorities under ... the 1857 Act that the formulation now to be found in s.27(4) of the Succession Act 1965 which explicitly encompasses "any special circumstances" must be sufficiently wide to entitle the court to exercise its discretion in any circumstance where the interests of justice require that leave to administer be given to the applicant or applicants on such terms as the court considers appropriate.  Thus the approach of the court must be to first assess whether any circumstance exists which might fairly be described or characterised as "special" in all the circumstances of the case and in light of the context. Thereafter the court must then evaluate whether in all the circumstances any one or more of the circumstances identified render it either necessary or expedient to grant liberty to extract a grant". (emphasis added)

 

59.         Baker J. In re Hannon, citing, inter alia, In Re Glynn, observed:

"27. I am of the view that for circumstances to be sufficiently "special" to engage the power under s. 27(4) the making of the order must be more than a mere convenience, such as where beneficiaries disagree as to the person who should extract a grant in an estate, or indeed as to the distribution of an estate, whether intestate or testate. The case law which considered the powers vested by s. 27(4) involved circumstances where either for moral or legal reasons the named executor, or person otherwise entitled to administer an estate, might have a conflict of interest or be otherwise unsuitable. The circumstances are different in the present case, and the reason it is sought that [the applicant] be given liberty under s. 27(4) to extract letter of administration without reference to either the 2014 Will or the 1999 Will, or on the alternative basis that the deceased died intestate, are that there has been a contentious and as yet unresolved dispute between the persons entitled under the two testamentary document regarding the capacity of the testator to make the Will of 2014, and yet the claims to distribution of the estate have been compromised."

 

"objectively desirable decision of those beneficially entitled to quieten the dispute"

 

60.         Baker J.  in Hannon concluded at para. 28:

"I agree with the submission made by counsel for the applicant that the application is not made merely on account of convenience but that there exist circumstances sufficiently special, viz. the desire and objectively desirable decision of those beneficially entitled to quieten the dispute which has arisen and remains unresolved concerning the validity of the 2014 Will."

The court noted the disjunctive language in s.27(4) confirming it was "sufficient to establish that the applicant can show that it is expedient to make the order." (para. 36)

 

"sufficiently weighty matters of concern"

 

61.          McDonald J. in his decision In Re Horan Deceased [2020] IEHC 21 echoed the observations of Baker J. in  Hannon noting that:

"...the task of the court is to ascertain whether there are "special circumstances" to justify the grant of relief. While the court must proceed cautiously, it is clear from the judgment of Baker J. that the relevant circumstances do not have to be extraordinary or highly unusual. In every case the circumstances must be considered in the round. The court is required to form a view as to whether, on the basis of the evidence and material before it, there are sufficiently weighty matters of concern that make it either expedient or necessary to intervene under s. 27 (4)."

62.         In Re Clore Deceased (No.1) [1982] Fam. 113 Ewbank J. observed of  s.116 of the Supreme Court Act (England and Wales) 1981 ( broadly equivalent to s27(4)) :

"Speaking for myself, since this is a section giving discretion to the court, I would not impose any limitation on the words "special circumstances." I would say that the words "special circumstances" are not necessarily limited to circumstances in connection with the estate itself or its administration, but could extend to any other circumstances which the court thinks are relevant, which lead the court to think that it is necessary, or expedient, to pass over the executors." 

The decision of Ewbank J. was subsequently affirmed by the Court of Appeal  sub. Nom. IRC v. Stype Investments (Jersey) Limited; in Re Clore Deceased [1982] Ch 456. 

 

63.         In Re Matthew Deceased [1984] 1 WLR 1011, also a decision under s.116 of the English Act, reiterated the position in Clore that the Court in a Non-Contentious Probate application is equipped with a power in exercising the statutory discretion, which is without fetter, and is entitled to define the grant in any way it thinks fit ordering an unlimited or limited grant.  The court must, of course, be satisfied in the first instance that there are "special circumstances" established from which it appears either necessary or expedient that the applicant/s be appointed administrator/s. 

 

64.         Under the rule in Keech v. Sandford,  as the author and academic Hilary Biehler observes in "Equity and the Law of Trusts in Ireland" 7^th Ed. p. 273; "Where a Trustee or a person in a fiduciary position surrenders an old lease with a view to obtaining a new one, he will held to be a constructive Trustee, and this principle is illustrated in the context of an executor by the decision of M'Cracken v. M'Clelland  [1887] I.R. 11.Eq. 172."  In that case a testator's estate included a holding subject to  renewal rights known as the "Ulster Custom". The Executor surrendered same and then purchased a new tenancy on his own behalf. Chatterton V-C in delivering judgment observed that notwithstanding the powers of landlords to sell the freehold reversionary interest as they saw fit: "... all this cannot alter the rules of this Court as to the administration of assets or the principles of equity as to purchases by persons in a fiduciary position." (pp. 174 -175)  The court noted that although the executor had paid the purchase price for the new tenancy:

".. and is now in possession of it.  As executor, I am at a loss to see how in this Court he can contend that he is entitled to retain it for his own benefit.  It is said that the transaction did not in fact amount to such a purchase, but that it was a surrender out and out of the premises and then the landlord's agent disposed of them as he pleased, and that he chose to give the offer of this farm to the defendant.  I think it would be most dangerous to allow such an exception to be grafted on the doctrine that executors are liable to the persons entitled for the value of the property purchased by them."

65.         The Vice-Chancellor concluded:  "...that no person in a fiduciary position accepting any benefit, attributable in any degree to that fiduciary position, can be allowed to enjoy such benefit for himself." (p.176)  .

 

66.          The jurisprudence clearly points to a conclusion that the court in exercising its statutory discretion under s.27(4) is not limited to circumstances connected with the estate but its discretion extends to any relevant circumstances: vide. Re Horan and Re Hannon.  

 

CONCLUSIONS

67.         On the undisputed facts, having regard to the date of death of the Testator and, in turn, the date of death of his Executrix, the rule of executorship by representation, founded upon the Statute 25 Edw.3.st.5.c. 5, 1351 - 52 as extended to Ireland by Poyning's Law, 1495, operated and applied to Leo Fallon, the executor of the Executrix.

 

Analysis of reasons for refusal given by the High Court

 

68.         Merely because the applicants might potentially have brought the application to the Probate Office in the first instance for a grant de bonis non was not an obstacle or impediment per se to the court exercising its statutory discretion pursuant to s.27(4) provided a "special circumstance" is identified and the circumstances and facts, viewed in their totality, established either necessity or that it is expedient to grant the orders sought. In any event there was litigation in being concerning alleged will/s of Leo Fallon. If he died testate and a grant with will annexed issues to his executor, then the chain of executorship under the common law and the Statute of 1351-52 will continue. On that basis alone an application to the Probate Office pursuant to O.79 was potentially doomed.

 

69.         The High Court erred in holding that the applicants could have proceeded under O.79 to apply in the Probate Office. No clear reasoned basis is identified for this assessment in circumstances where the chain of executorship clearly operated and applied to Leo Fallon with effect from 12 July 1967 to the date of his death on 22^nd November 2016.

 

70.          The prospects of a successful application under O.79 were not realistic when it is uncertain whether the chain of executorship continues to run –  as it does if Leo Fallon is found in the pending litigation to have died testate and a grant is ultimately extracted. If his "wills" are condemned, then Leo Fallon will have died intestate and only then will the chain of executorship have been broken and a basis for an O.79 application shown. There was no information before the High Court as to who his intended or named executors were.

 

71.          The reasons offered for refusing to make the orders included inter alia that the process under Order 79 ought to have been availed of.  I am satisfied in light of the factual matrix that it was unrealistic and also erroneous in law to suggest that a routine application to the Probate Office was more appropriate than invoking the s. 27(4) statutory discretion in light of the many complex legal issues arising and where the applicants were unable to say whether the chain of executorship had been broken  since the answer to that is contingent on the outcome to pending litigation to which the applicants are not party.

 

72.         In the instant case O. 79 did not offer a valid basis for refusal. There was no evidence that the Probate Office would, on balance, have acceded to the application without requiring an application under s.27(4) in the first instance. The summary finding that the substantive claim was not even maintainable would in all probability preclude the applicants from having any prospect of obtaining a grant under O.79  to pursue the claim summarily pronounced by the court to have "...absolutely no prospect of success." Such apparently conclusive findings by the court  potentially foreclosed the possibility of a subsequent application under O.79  RSC, for which omission the court had earlier criticised the applicants  suggesting that there didn't "seem to have been regard to Order 79". It must at least be doubtful that such an application would ever have succeeded in the first instance in light of the complex and unusual aspects disclosed by the facts.

 

 

73.         Insufficient weight was given by the judge to the fact that by refusing the order, the applicants were denied any access to the courts insofar as the estate of their late father may have remained unadministered or improperly administered in respect of the trusts created under his will.  The mere fact that a significant passage of time had elapsed since the testator's death did not on the particular facts of this case, in and of itself , necessarily give rise to a conclusion that would automatically be outcome-determinative of the issue in a manner wholly adverse to the applicants' contentions. Neither could it be safely concluded that proposed litigation was "manifestly statute barred" a finding which in all the circumstances must be subject to at least some doubt and on balance fell outside  the remit of the court in the context of an unopposed s.27(4) application.

 

74.         The potential applicability of Gabbett v. Lawder 1883 11 LR Ir. 295 and Protheroe v. Protheroe [1968] 1 WLR 519 was separately asserted by the appellants as was the alleged failure of Leo Fallon to disclose his prior acquisition of the freehold reversion to the beneficiaries before procuring execution of the 1983 Deed of Confirmation. The 1968 purchase of the freehold was not recited in the 1983 Deed. They raise issues as to the impact of errors in the recitals of the 1983 instrument. The  applicants do not appear to accept that the Deed of Confirmation secured the waiver or acknowledgment of the entitlement of the executor by relationship to retain the freehold reversionary interest.

 

75.         It was not disputed by the Notice Parties in the course of the appeal that the applicant might well face difficulties in the Probate Office in seeking to extract a grant de bonis non pursuant to O.79, in the ordinary way.  The trial judge may, of course, be right in her adverse assessment of the legal point raised by the appellants.  That however is not the test.  Judicial surmise is of limited value where a breach of fiduciary duty is alleged. As Keane C.J. in Re Article 26 and ss. 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 369 at 399:

"[The rights of access to the courts] means the right to have all justiciable questions involving the administration of justice heard and determined by a court established by or in accordance with the Constitution."

 

76.         Given the nature of a s.27(4) application - which proceeds on affidavit, a Probate Judge is not generally in a position to conclusively resolve issues of law or complex disputes as to fact save where same are conceded or not germane to the exercise of the discretion. It is not generally open to the Probate Judge in the Non-Contentious List to pronounce without probative evidence on the respective rights of next of kin or beneficiaries save in the most exceptional circumstances or where the parties concerned concede the matter or issue in question.  Significant information deficits precluded arriving at a final conclusion that proposed litigation would be futile. The judge fell into clear error in an unopposed non-contentious application in pronouncing on the maintainability of the proposed substantive proceedings; "I think it is abundantly clear that the statute long since ran" and, as to the prospects of success; "The usual freedom to litigate can be withheld in the very limited circumstances where a court is satisfied that there is absolutely no prospect of success and that includes because the Statute will be raised and is likely to be successful.".  On the basis of the available evidence there is a sufficiently serious issue and a sufficiently serious basis for contending that there might have been a fraud perpetrated by Leo Fallon  such that s.71(1)  and/or other sections of the Statute  of Limitations, 1957 were engaged to justify the exercise of discretion in favour of allowing the appeal.  

 

77.         Insufficient regard was given by the trial judge  to the  pending litigation High Court No. 5352P/2021 by the administration of Leo Fallon against the estate of Edward Fallon and Amber Fallon concerning ownership of Abbeyview. It was said that a counterclaim was being made which strongly indicated that title to Abbeyville was in dispute. The pleadings were not exhibited. It was surely relevant to the exercise of discretion that one of the children of the deceased Testator was maintaining a claim to an interest in Abbeyview in live proceedings before the High Court. The trial judge erred in disregarding same and the desirability of having all issues in relation to Abbeyview determined together.

 

78.         The court expressed the view that the proposed proceedings intended to be instituted were "manifestly statute barred"..."having due regard to s.45 of the Statute of Limitations 1957 as inserted by s.126 of the Succession Act" or "pursuant to the logic in Gleeson v. Feehan". There are inherent dangers and risks of injustice and overreach if a judge in a Non-Contentious application pronounces, after a superficial assessment, on the merits and demerits of proposed litigation.  The application was on affidavit.  It was unopposed. The applicants invoked the rule in Keech v. Sandford 1726 Sel. Cas. Ch. 61.  It was not open to the judge on the evidence adduced nor indeed appropriate, in light of the ambit of the application as presented, to reach such a definitive determination with regard to the prospects of success or otherwise of the proposed litigation. The assessment was entirely outside the range of her discretion in a s.27(4) application. 

 

79.         Of course, there may be exceptional instances where the claim is manifestly and definitively statute barred with no prospect whatsoever of its resuscitation or viability.  This is not demonstrated to be such a case - at least at this stage. In the instant case there was a fundamental dispute as to the facts and the deficiencies, errors, omissions, and exclusions alleged to be evident from a perusal of the Deed of Confirmation of 1983 were said to give rise to questions which warranted some form of explanation.  In light of the reliance of the appellants on the Rule in Keech v. Sandford the claim is at least stateable.  Of course, the claim the applicants wish to make may ultimately prove to be statute barred.  A court must also be cognisant of the difficulties that will likely arise in litigating entitlements under wills executed as long ago as 1957 and 1962 by persons who died in 1959 and 1967 respectively. The disputed Deed of Confirmation was executed more than 40 years ago. It can reasonably be anticipated that the defendants to such proceedings will seek to rely on both the statute and also on delay more generally.  However, the Non-Contentious Probate list is not the appropriate place for such issues to be determined.

 

80.          Accordingly, it was premature to imply, conclude or infer, absent sight of any pleadings, that the proposed litigation was self-evidently futile or that the court was "... satisfied that there is absolutely no prospect of success" or would serve no purpose at all or that it was founded on baseless or invalid evidence or that it was being brought for a vexatious ulterior motive or intended to be an abuse of court process.  True enough a very substantial period of time has elapsed since the deaths of the testator and his Executrix.  Leo Fallon who was by operation of law executor of his father's estate pursuant to the doctrine of executorship by representation is deceased.  All these aspects of the application were unsatisfactory.  Provided proceedings are instituted expeditiously should it transpire that they disclose no maintainable cause of action then separate considerations apply under the rules whether pursuant to O.19, r.28 or the inherent jurisdiction. 

 

81.         There are inherent dangers in a summary application, such as one brought pursuant to s.27(4), in the court embarking on an evaluation as to the merits of proposed litigation which has not yet been instituted at the date of the s.27(4) application.  In particular it risks trenching upon the Article 6 ECHR rights of the applicants of access to the courts. There is a well-established constitutional right to litigate and to have "recourse" or "access" to the courts derived from Article 40.3.1-2, a right which is viewed by the courts as constituting a property right of the individual.  The right of access to the court was also identified by Kenny J. in McCauley v. The Minister for Post and Telegraphs [1966] IR 345 as "a necessary inference from Article 34.3.1" which as Kelly notes at 7.3.76 operates "in the form of one of the personal rights of the citizen included in the general guarantee of Article 40.3".  The right is dealt with comprehensively in Kelly at 7.3.181 with a detailed analysis of the jurisprudence including, in particular, Tuohy v. Courtney [1994] 3 IR 1.

 

82.         The applicants must at least be taken to have a stateable claim against the estate of the executor by representation in circumstances where Leo Fallon came to acquire the freehold interest.  The applicability of s.71 of the Statute of Limitations 1957 ought not be dismissed in the context of the fiduciary duty of an executor trustee.  I express no view whatsoever as to whether these arguments are sufficiently sound to hold sway at a substantive hearing of the issues between the parties.  However, it cannot be denied but that they disclose some stateable claim against the estate of the executor by representation and meet the threshold of public interest outlined in  Vella v. Morelli.

 

83.         The court does not appear to have engaged sufficiently with the provisions of the Statute of Limitations 1957 being relied upon by the appellants which in addition to s.71 included; s.44 excluding actions against Trustees in cases of fraud or retention of trust property, s.45 governing limitations of actions to recover personal estate of deceased persons, s.46 providing an exclusion of actions against personal representatives in cases of fraud and s.47 which inter alia deals with the extension of limitation periods in cases of fraud and mistake. A finding that "the Statute long since ran" fell outside the range of determinations reasonably or fairly available to the court and disregarded the fact that the proposed invocation of the Rule in Keech v Sandford and various provisions of the Statute of Limitations was not being contested by the notice parties to the application.

 

84.         The findings concerning the disputed execution of the 1983 Deed by James Fallon were particularly unsatisfactory and deeply unfair. The deponent James Fallon deposed "... I say it is not my signature on the purported Deed of Confirmation.  Because I would never have signed such a document in the first place".  The judgment notes that there was no explanation given as to how the document came to be signed: "... who he says asserts (sic) forged it and I have to say I don't place much weight on this, his signature on his affidavit does look like a shakier version if he doesn't mind me saying so.  The man being far more advanced in years of the signature in the original 1983 Deeds. And indeed the copy of the affidavits that were filed ."

 

85.         The documentation together with the exhibits to the affidavits suggest that the deponent James Fallon emigrated to Canada many years prior to the execution of the 1983 Deed of Confirmation.  The judge may be correct in her surmise that the signature appearing on the 1983  Deed is materially similar to a signature appended to the affidavit deposed to by him in support of the within application.

 

86.         It is not explained why the inability of James Fallon to identify who might have forged his signature in 1983 was considered to undermine his credibility. The judge may yet be proven right in her ex tempore ruling that the two signatures are by the same individual.  But there are inherent dangers in a judge making a such a significant determination, conventionally based on the evidence of an expert witness or a forensic graphologist, in the absence of any evidence at all. All the more so having due regard to the stance of the respondents who did not oppose the application and, sensibly, refrained from inappropriate speculation on the disputed 1983 signature. Neither did they put forward any evidence from a handwriting expert that would support the pure surmise of the judge that "... that averment is wholly self-serving in my view."  It is regrettable that this finding, which was not an issue properly before the judge, cast imputations on the veracity of the deponent James Fallon who was not afforded any opportunity to respond. Same was unfair and not within the proper exercise of the High Court's jurisdiction in a s.27(4) application. On that basis alone, the orders of the High Court would fall to be set aside.

 

87.         The Notice Parties contend that under the terms of the will of his late mother Ellen Fallon,  Leo Fallon "may have been constituted as an executor of the estate of his late father by virtue of the "chain of executorship", he was never in fact constituted or appointed as a Trustee of the will trust."  That is a matter of legal dispute and the Rule in Keech v Sandford, if engaged, would operate automatically.

 

88.         The respondents place reliance on the decision of Eithne Coyle v. Central Trust Investments Society Limited [1978] ILRM 211 but same is directed towards the merits of a claim and an assessment of the prospects of a proposed claim are generally speaking not within the High Court's competence in the Probate Non-Contentious list.  The decision in Eithne Coyle may or may not be successfully invoked by the respondents against any potential claim but it is not open to the High Court in the Non-Contentious List to reach a concluded view on the issue in a manner which permanently precludes the proper determination of the issue which is stateable. It is at least potentially open to the applicants to frame their claim in such a manner as to take it without the scope of s.45(1) of the Statute of Limitations 1957.

 

The "special circumstances" shown

89.          The arguments of Mr. McNelis, solicitor for the applicants were persuasive. The evidence before the court, considered in the round, identified special circumstances including issues deriving from the pre 1959 executorship by representation of Leo Fallon, the absence of evidence that the original executrix ever validly exercised the power of appointment by deed or will, the acquisition by  Leo Fallon of the freehold reversionary estate at a time when he was constituted the executor by representation and a fiduciary and trustee for the benefit of the children of the testator, the questionable recitals in the 1968 purchase deed as to possession of Abbeyville, the potential automatic applicability of the Rule in Keech v. Sandford - long  held good law in this jurisdiction as decisions from  Lombard v. Conway Hickson & Anor. [1862]13 Ir. Ch. R 533 to Harrisrange  Ltd. v. Duncan  [2003] 4 IR 1 suggest - to the 1968 acquisition of the freehold.

 

90.         Where, as in this complex case, there are irreconcilable differences on affidavit between the parties as to critical facts and the issues include whether the conduct of an executor by representation amounted to a  breach of his fiduciary duty or a dishonest misappropriation of the testator's estate, when coupled with the fact that the application was unopposed, such factors tend to tip the balance in favour of a conclusion that "special circumstances" exist. For all the reasons identified above there was a broad range of factors raised by the applicants, which cumulatively amounted to "special circumstances" within s.27(4)  which rendered it "expedient" to grant the order sought.

 

91.         The interests of justice warrant in all the circumstances that the High Court Order be set aside. In the interest of expediency, rather than remitting the matter to the High Court it is appropriate that this Court should substitute its own discretion in place of the discretion of the trial judge.  The "special circumstances" outlined above in detail warrant that it  is expedient to grant leave to the surviving applicant/s to extract a grant of administration with will of Francis Fallon, dated 4^th January 1957, annexed de bonis non.    

Costs

92.          It is noteworthy that the respondents were unequivocally neutral in their stance and did not oppose the application being made.  In those circumstances I am minded that no order for costs should be made against either respondent. It is proposed that no order as to costs be made in the instant case.  It is incumbent on the applicants to proceed to institute proceedings with all convenient expedition given the advanced ages of the parties.  If either party contends for a different order as to costs, a written submission no longer than 1500 words to be furnished within fourteen days from the date of delivery of this judgment.  On receipt of same the other parties to furnish a like written submission identifying relevant grounds of opposition.  The Court will thereafter make its determination in regard to costs. 

 

93.         The Court recommends that consideration be given by the parties  to entering into a Mediation Process to assist in resolving the outstanding issues  having regard to the ages of the surviving children of the Testator Francis Fallon and the importance of saving on costs.

 

94.         Faherty and Butler JJ. have indicated their concurrence with the within judgment and proposed orders.