Court of Appeal dismisses appeal where plaintiffs lack standing to challenge a will as they receive no benefit.

THE COURT OF APPEAL

CIVIL

APPROVED

NO REDACTIONS NEEDED

Court of Appeal Record Number: 2025 118

High Court Record Number: 2024/2271 P

Neutral Citation Number [2026] IECA 2

The President

Whelan J. Pilkington J.

BETWEEN/

FRANCES LYNCH, HUGH FITZGIBBON AND YORK DESIGN LIMITED

APPELLANTS

- AND –

GREGORY OLAN MURPHY

RESPONDENT

JUDGMENT of Ms. Justice Máire Whelan delivered on the 16th day of January 2026

1. This is an appeal against the Judgment of Mulcahy J. of 4th April 2025 [2025] IEHC 193, and consequential order perfected on 11th April 2025, as amended on 13th May 2025, striking out the plaintiffs’ claim pursuant to the court’s inherent jurisdiction. In his written judgement of 4th April 2025, the learned judge held that the three plaintiffs lacked standing to maintain this will challenge/probate suit “because there is no outcome…which could confer a benefit on them.” The Court ordered that the plaintiffs pay the executor’s costs of the proceedings to be adjudicated in default of agreement. Whereas the court order states on its face that it was made “by consent”, the parties accept that that is erroneous, although nothing turns on that error in this appeal.

The Background

2. Edward Joseph Murphy (the deceased) died on 3rd January 2019 in San Francisco, California. It is not in dispute that he left two surviving lawful next-of-kin in his sons Jonathan Francis Murphy and Edmond Joseph Murphy, both resident in San Francisco. By virtue of the terms of the deceased’s Last Will and Testament dated 3rd January 2019, the validity of which the plaintiffs attempt to contest by the within proceedings, he appointed Gregory Olan Murphy, his nephew, to act as his sole executor (the executor). On 15th May 2020, the executor extracted an Irish Grant of Probate of the said Last Will and Testament.

3. Under the terms of his Will, the beneficiaries are his said two sons together with his three named nephews John Paul Murphy, Gregory Olan Murphy (the executor) and Eamonn Anthony Murphy. A copy was provided to the first plaintiff around December 2020.

4. It is acknowledged by them that none of the three plaintiffs take any benefit under the Will and neither do they stand to benefit in the event that the Will was for any reason condemned and the deceased be deemed to have died intestate.

The Circuit Court Proceedings

5. The first named plaintiff, Frances Lynch, is a distant relative of the deceased. Following his death, she instituted proceedings in Cork Circuit (Record No. 2020 /00969) against the executor claiming an interest in a dwelling in Kinsale in the registered ownership of the deceased where she resides with her partner the second plaintiff.

6. The executor instituted proceedings against the second named plaintiff in Cork Circuit (Record No. 2021/00309) on the basis that he is indebted to the estate.

7. The third plaintiff is a limited liability company of which the second plaintiff is controller and company director. The executor instituted proceedings against the company in the Cork Circuit (Record No. 2021/00508) on the basis it is indebted to the estate. The three sets of proceedings stand adjourned before Cork Circuit Court.

8. Thus far the prosecution of the Circuit Proceedings has been delayed and adjourned, laterally by the plaintiffs on the basis that adjournments were warranted by reason of this ill challenge which has delayed administration of the deceased’s estate by the executor.

The Probate Suit

9. Four years after the Grant of Probate issued to the executor, the three appellants instituted the within proceedings in the High Court by way of plenary summons on 3rd May 2024. The writ seeks to have the Grant of Probate “recalled and revoked and to have the pretended will condemned and declared null and void”.

10. Procedurally, it is doubtful whether the proceedings were properly constituted in strict accordance with the Rules of the Superior Courts, though no issue in that regard is live in this appeal. The first plaintiff asserts that the “capacity” in which she pursues the proceedings is by virtue of being “ plaintiff” in her Cork Circuit proceedings. The second and third named plaintiffs purports to sue in their respective “capacity” as “defendants” in the respective Circuit Court proceedings. The verifying affidavit of each plaintiff acknowledges that the next of kin of the deceased are his two sons. Significantly, each deposes “I say that there is no person other than the persons named above who will be entitled under an intestacy to any interest in the assets of the deceased.”

The Motion

11. By notice of motion issued on 21st October 2024 the executor sought an order striking out the proceedings either pursuant to O. 19, r. 28 of the Rules of the Superior Courts (RSC) or pursuant to the inherent jurisdiction of the court together with costs. The executor’s grounding affidavit, sworn on 16th October 2024 identifies the various grounds being relied upon including that while the Circuit Court proceedings have been instituted several years previously and been ready for hearing since “early 2023”, the plaintiffs have “continuously raised issues pertaining to the litigation when the matters are ready to proceed, for example the unavailability of witnesses”.

It is contended that various attempts have been made by the plaintiffs to frustrate disposition of the Circuit Court litigation. Elsewhere, the affidavit deposes that the named beneficiaries under the deceased’s Will take no issue with the validity of same nor do his next of kin who alone would benefit on intestacy. He deposes that “some person is required to represent the estate of the deceased to allow the circuit court proceedings to be litigated it should be of no consequence to the plaintiffs who that person is, save for where that person is unsuitable for example by reason of conflict.” (para. 16 of said affidavit).

The executor deposes that the plaintiffs could derive no direct benefit for themselves even if they have successfully challenged the deceased's last Will or are “successfully pursuing the claim”. He further deposes that they “… do not seek reliefs as contingent or purported beneficiaries, nor assert any basis upon which they might be so entitled. I am satisfied that the plaintiffs therefore have no standing to challenge the validity of the will.” The executor emphasises that the deceased’s sons are “themselves satisfied as to the validity of the deceased’s last will and this must be sufficiently probative or of added significance.” Potential motives identified for the institution of the proceedings include;

“The plaintiffs are maintaining a will challenge to serve their own interests. In respect of Frances Lynch, the primary objective is to remain in the property the subject of dispute for as long as possible, and in respect of Hugh Fitzgibbon and his company (“York”), the goal is to avoid having to deal with the debt claims being made against them, arising from monies which were loaned by the deceased to Hugh Fitzgibbon and his company.” (para. 24).

12. Subsequent to the issuing of this motion, the plaintiffs delivered a statement of claim on 25th October 2024 seeking that the High Court pronounce against the force and validity of the Last Will and Testament of the deceased and that the grant of probate of 15th May 2020 be recalled and revoked and delivered up to the High Court Probate Office. They further seek orders appointing a named solicitor as administrator pursuant to Section 27(4) of the Succession Act 1965 on the basis of alleged “special circumstances” to apply for and extract a grant of administration in the estate of the deceased limited solely to the defence of the first named plaintiff’s proceedings.

13. From a litigation strategy perspective, this would achieve an outcome whereby an individual of the first-named plaintiff’s choosing and who had no nexus with the deceased or his next of kin or beneficiaries under the disputed will would have a limited grant of administration would replace the executor as defendant in the specific performance proceedings. The rights of the deceased’s two sons to administer his estate on intestacy is not engaged with nor any reason identified why they should be excluded. Furthermore, the consequences of such a limited grant for the two sets of debt proceedings which stand adjourned before Cork Circuit Court against the second and third plaintiffs is not addressed.

14. The substantive basis of the plaintiffs’ case, as amplified in the Statement of Claim, includes that the Will is invalid as it was not executed in accordance with the provisions of the Succession Act 1965. The testator’s signature was allegedly forged by a named individual who is a beneficiary under the will. The claim in effect is that the will is a forgery. An alternative plea is that if the deceased did execute the Will, he lacked testamentary capacity at the time and did not know and approve of its contents as required by law. In regard to the issue of testamentary capacity, the statement of claim lays emphasis on the fact that the deceased died on the same day on which the Will was executed and at the time was undergoing end-of-life palliative care. It is pleaded that he was induced to execute the will by the undue influence brought to bear upon him by the aforesaid beneficiary under whose “direction and influence” the deceased was at the date of execution of the Will. It asserts two reports were obtained from a “court qualified forensic document examiner” dated 12th March 2024 and 27th March 2024 which allegedly state that it was “highly improbable that the deceased’s signature was appended to the will” and conclude that there were ‘indications’ that the alleged signature of the deceased had been appended by the named individual other than the testator. These reports were not adduced in evidence.

The High Court Judgment

15. The High Court judge reviewed the evidence in some detail, noting “It is certainly true that the case as pleaded in the statement of claim is in markedly different terms to any claim disclosed in the plenary summons.” (para. 5). He considered that the Statement of Claim, which was delivered on 25th October 2024, after the motion had issued noting the various claims advanced and the plaintiffs’ contention that this case raises a public interest issue and ought to be permitted to proceed (paras. 17/18).

16. He noted the executor's position that the proceedings could confer no benefit on the plaintiffs “since there are no circumstances in which they will be beneficiaries of the estate, irrespective of the outcome of the proceedings.” (para. 13), and that they lacked locus standi to maintain proceedings challenging the Will or the grant of probate. The High Court judge noted that the Will had been provided to the plaintiffs in December 2019 over four a half years prior to the institution of the within proceedings.

Locus standi

17. The High Court judge, at para. 17, noted that the first and second plaintiffs had sworn a joint affidavit in reply to the motion observing: “Despite the defendants’ averment that there was no evidence to support the pleas in relation to expert handwriting reports, there were not, and have not, been exhibited by the plaintiffs, still less has the expert sworn an affidavit.” The High Court noted (para.19) that the deceased’s two children, the sole nextof-kin in the event of intestacy, furnished affidavits opposing the application and indicated their concurrence with the application brought by the executor to have these proceedings struck out for lack of standing. It is noteworthy that affidavits of plight and condition were available to the High Court from the attesting witnesses Christopher Hall and Tony Hall. The High Court judge noted “Each witness avers to the fact that they were present at the same time as the other and witnessed the deceased signing the will and that each “attested and subscribed” the will in the presence of the deceased and each other.” The trial judge observed that “the witnesses to the will were both attorneys at law.” Each averred that the deceased was of “sound mind memory and understanding” at the time of execution and that the Will was read over to him “truly audibly and distinctly” and that he appeared to fully understand same.

18. He reviewed the jurisprudence on strike out applications in detail including the appellate decisions Scotchstone Capital Fund Ltd v Ireland [2022] IECA 23, Lopes v Minister for Justice Equality and Law Reform [2014] IESC 21; [2014] 2 IR 301, Gilchrist v Sunday Newspapers Ltd [2017] IECA 190; [2017] 2 IR 701, and High Court decisions involving administration of estates including Rippington v Ireland [2019] IEHC 353 and Bissessur v McMillen [2024] IEHC 23. The High Court declined to be drawn into any assessment of the merits of the proceedings or whether same had been brought for an improper motive, focussing instead on what he correctly identified as: “…the real question in this application is whether the plaintiffs have standing to maintain these proceedings at all.” (para.35). He concluded: “It is clear that they do not.” On that basis he held: “It is impossible to identify any potential benefit to the plaintiffs from these proceedings, even if they were entirely successful.” (para.36). The Court ordered that the Plaintiffs’ claim be struck out with costs.

The Grounds of Appeal

19. The appellants contend that the High Court erred in: i. Misapplying the established principles governing dismissal/strike out summarised in Scotchstone, particularly since the trial judge had accepted that they had advanced “stateable grounds” concerning the Will’s invalidity. ii. Since they had a “stateable case” on the issues of testamentary capacity, compliance with s.78 as to due execution and alleged undue influence, the trial judge ought to have found that “the strength of the appellants’ claim” was a relevant matter in assessing whether the claim was frivolous and/or vexatious. iii. Failing to find that, in light of Vella v Morelli [1968] IR 11, it was in the public interest “the execution of testamentary documents should be open to scrutiny by persons having a real and genuine grounds for believing a purported will is not valid.” The appellants enjoy the requisite standing to seek to set aside the grant of probate as the High Court accepted they had raised a “stateable case”. iv. Failing to find that since Vella v Morelli “the appellants’ involvement in litigation against the respondent as executor” meant “they enjoyed sufficient standing to challenge the Will” v. The High Court ought to have dismissed the motion since the grounding affidavit had been sworn prior to delivery of the Statement of Claim. vi. The High Court erred in finding that the litigation “was not bona fide” by reason that none of the appellants could benefit from it.

General Observations

20. The Notice of Motion which issued on 16th October 2024 invokes O. 19, r. 28 RSC as well as inherent jurisdiction. O. 19, r. 28 (1) was amended by SI 456/2023 and reads: “ The Court may, on an application by motion on notice, strike out any claim or part of a claim which:

(i) discloses no reasonable cause of action, or

(ii) amounts to an abuse of the process of the Court, or

(iii) is bound to fail, or

(iv) has no reasonable chance of succeeding.” The words “frivolous or vexatious” are no longer explicitly part of the rule.

21. O. 125, r. 1 RSC defines a "probate action" to mean “any proceedings commenced by originating summons and seeking the grant or recall of probate, or letters of administration, or similar relief”. The within proceedings constitute a "probate action".

22. In the instant case, the plaintiffs seek to pursue a claim for the revocation of the grant of probate which issued on 15th May 2020 and condemning of the Will of January 2019. A number of Rules of the Superior Courts are engaged when proceedings are instituted which seek the grant or recall of probate or letters of administration or similar reliefs.

O. 4, r. 10 of the Rules of the Superior Courts provides: “In probate actions the endorsement shall show whether the plaintiff claims as creditor, executor, administrator, residual legatee, legatee, next-of-kin, heir at law, devisee, or in any and what other capacity.” It mandates that the capacity or locus standi of the plaintiff must be expressly identified in the writ. The general indorsement of claim in the plaintiffs’ Plenary Summons purports to suggest that each plaintiff acquired locus standi from the fact of being either plaintiff (in the case of the first plaintiff) or defendant (in the case of the second and third plaintiffs) in various proceedings which are pending before the Circuit Court in Cork. No legal authority for this novel assertion was identified beyond general reference to the “public interest”.

23. It is by no means clear that the plaintiffs ever cited the executor to lodge the existing grant of probate into the High Court as envisaged by O. 79, r. 52 in the forms of the Rules of the Superior Courts Appendix Q although such a step is not mandatory. Such applications can be made to the Master of the High Court pursuant to O. 63, r. 1(21).

24. O. 5, r. 13 RSC provides: “The issue of a summons in probate proceedings shall be preceded by the filing of an affidavit made by the plaintiff or one of the plaintiffs in verification of the endorsement on the summons. On issuing the summons the plaintiff shall, if he has not already so done, lodge a caveat in the Probate Office entitled in the estate of the deceased person.” It would appear that the verifying affidavits of all three plaintiffs were filed in the High Court on 4th September 2024, over four months after the institution of the proceedings.

Appellants’ Affidavit

25. The appellants’ affidavit, filed on 3rd December 2024, freely acknowledges they are “not beneficiaries of the deceased’s estate either on testacy or intestacy”. They base their claim of standing on their respective participation as plaintiff or defendants in various Circuit Court litigation. Crucially they seek to locate their standing by relying on an asserted general “public interest” in having the validity of the Will substantively determined. The second plaintiff also deposes in his capacity as director of the third plaintiff (the company) and with its authority. This affidavit distils the substantive grounds of challenge as outlined above.

26. Paras. 5, 6 and 7 of the affidavit contend that each plaintiff has standing to bring the will suit by virtue each being party to proceedings being brought either by or against the executor. At para. 17 of the affidavit the appellants assert: “We say and are so advised the fact we are not beneficiaries of the deceased’s estate either on testacy or intestacy does not deprive us of locus standi to challenge the disputed will.” That assertion is at the heart of this appeal and determination of that procedural issue is outcome-determinative of this entire appeal. Curiously, in the affidavit there is no engagement with the fact that the first plaintiff had sight of the deceased’s Will, and presumably the co-plaintiffs were also aware of its terms since December 2020 Neither does she address the material fact that thereafter she chose to institute equity proceedings against the proving executor which were served in July 2020, a measure that in substance acknowledges the executor’s status derived from the very will she now seeks to impugn. None of the plaintiffs questioned the standing of the executor to defend or pursue the claims now adjourned before the circuit court.

27. They assert “…the first name plaintiff …has locus standi to impugn the disputed will which purports to deal with the said property and to ensure a proper administrator is appointed as administrator of the deceased's estate and as defendant against whom any decree obtained in those circuit court proceedings is capable of being enforced.” (para.17) Nowhere does the first plaintiff identify any basis for the implicit assertion that if she obtains the decree of specific performance same might not be “capable” of being enforced against the executor. Any order against the executor would demonstrably be binding upon him and the estate of the deceased and fully enforceable as such.

28. A similar bare assertion is reiterated on behalf of the second and third plaintiffs: “… we say the situation is similar in relation to the second and third named plaintiffs in relation to enforcing any costs orders they obtain in the defence of the proceedings referred to at para. 6 and 7 of this affidavit.” It is apparent that the executor has been conscientious in the conduct of the various Circuit Court proceedings, endeavouring to have them progressed to a hearing and conclusion. There is no basis identified for seeking his removal as such even had the plaintiffs otherwise shown locus standi to pursue such an application simpliciter.

29. The appellants delayed from December 2019 until May 2024 to institute proceedings seeking to impugn the validity of the Will. No satisfactory explanation is offered for such delay of four and a half years.

30. They assert at para. 20 that their “…case raises a public interest issue of grants of probate (High Court orders) having to be seen to be above suspicion and that confidence in the system would be undermined by allowing to stand a grant of probate of a will which may have resulted from a criminal act namely forgery and which was not executed in accordance with the Succession Act 1965 or was the product of undue influence and not the product of the free will of the testator and this will offend public policy regardless of who will ultimately inherit.” This is a novel proposition which in substance contends for a complete reversal of the historic rules and jurisprudence on locus standi in probate suits over the past two centuries as considered further hereafter.

31. At para. 21, the plaintiffs depose that “…testamentary dispositions of property are a fundamental importance to society and 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. We say accordingly it is proper to the plaintiffs having real and genuine grounds for believing that the purported will is not valid, should be able to have the circumstances surrounding the execution of that Will investigated by the court.”

32. It is noteworthy that no explanation is offered by the deponents for the stance being adopted in the Statement of Claim (Clause (d)) whereby an extremely limited grant of administration is sought from the High Court “limited to the defence(and all matters necessary and ancillary thereto, to include the making of discovery)” confined to the first plaintiff’s equity claim alone. This application, if granted, would achieve an outcome whereby the first plaintiff would get to hand-pick and install an administrator-defendant of her choice in her equity suit 2020/00969 instead of the executor against whom no cogent complaint is advanced qua defendant administrator. No input from the next of kin of the deceased is envisaged nor is it explained how, even if the Will was condemned on any substantive basis, the person/s then entitled on intestacy to a general grant to administer the estate under O. 79 RSC (the deceased’s two sons) ought not be permitted to do so. Curiously, neither have they have been made defendants to these proceedings.

33. The bespoke and limited terms of the grant of administration sought in the Statement of Claim exclude the proposed administrator from substantiating or continuing to pursue the two pending debt claims on behalf of the estate against the second and third plaintiffs. Such an outcome would clearly be attractive to those plaintiffs but could scarcely be asserted to be in the public interest. It is of note that the second or third plaintiffs never applied to the Circuit Court to have either claim struck out on any basis.

Position of the next of kin and Californian Proceedings

34. The sons are persons entitled in priority to a grant of administration pursuant to O. 79, r. 5(c) of the Rules of the Superior Courts. In addition, the nephew of the deceased against whom the serious allegation of forgery of the testamentary signature is made filed an affidavit on 15th January 2025. He supports the application by the executor; “I thoroughly reject this false and malicious claim”. He deposes that the first plaintiff, under the name “Hanorah Lynch” instituted proceedings in California which “…also included false and malicious claims of fraud against your deponent personally.” He states, “I say that after costly litigation in which the first named plaintiff sought several adjournments and consistently delayed the progression of the matter, the first named plaintiff agreed to abandon same, with prejudice, and paid cost to the deponent.” He deposes that the Californian proceedings “while in effect, prevented the sale of a substantial commercial building in San Francisco owned by your deponent…the California proceedings were designed to exert leverage over existent circuit court proceedings in Ireland between the parties but were dismissed at an early juncture and accordingly were not capable of achieving same.”

35. The deponent states (para.10) that on 10th December 2023 the second plaintiff signed a declaration “…wherein he declared that the first name plaintiff herein was “bedridden with a serious medical condition” to such a degree that she could not “sign a declaration on her own behalf”. I say this declaration was to support a motion to adjourn a trial date in the California proceedings of 15th January 2024. Despite these claims I say that the first named plaintiff was subsequently inter alia observed working in the third named defendant’s business premises in Cork City on 12th December 2023, 14th December 2023 and 15th December 2023.” He deposes (para.12) that the within proceedings the subject of this appeal “… are designed to exert similar pressures on the beneficiaries to the estate.”

Standard of Review

36. The general approach which this Court should take in an appeal from a final order made following a hearing on affidavit is as stated by Murray J. in AK v. US [2022] IECA

65 at para. 53 “…the appellate court affords limited deference to the decision of the trial court by beginning its analysis from the firm assumption that the trial judge was correct in the findings or inferences he or she has drawn, and interfering with those conclusions only where it is satisfied that the judge has clearly erred in the findings made or inferences drawn in a material respect.” Earlier he had observed “…the appellate court is free to correct errors of fact as well as of law, and mistaken inference as well as erroneous application of principle. It is thus not necessary for the appellant to establish that a judge has erred in law or in principle, the appellate court is not concerned to establish that the decision of the trial judge was not one that was reasonably open to him or her, nor will the appellate court be necessarily constrained to affirm a finding which is supported by credible evidence (although obviously where a judge has so erred or there is no credible evidence to support the finding the appellate court will interfere).”

The Law

Standing - “a sufficient interest”

37. The issue of standing to pursue a probate suit is a discrete yet fundamental anterior procedural determination to be reached irrespective of the substantive nature of the claim sought to be advanced or any issue of substantive law. Central to the determination of this appeal is the question who is entitled to be plaintiff in a probate action seeking revocation of the grant of probate of 15th May 2020, or to challenge the validity of the Will of 3rd January 2019.

38. In light of the bare assertions on the part of the three appellants to be entitled to pursue the within will-challenge litigation despite their acknowledged lack of any interest in the estate of the deceased whether pursuant to the Will or on intestacy and notwithstanding that they have failed to identify any legal basis which would confer any “sufficient interest” or in the deceased’s estate in them to maintain these proceedings, it is necessary firstly to consider the principles governing standing to institute and maintain a probate action. Critically, the plaintiffs do not assert to be creditors of any beneficiary of the estate such as would confer an interest in the estate of the deceased under the jurisprudence sufficient to entitle them to institute a probate action.

39. As already stated, the claim seeks an order for revocation of the grant of probate which issued to the executor on 15th May 2020 and that a limited grant of administration issue, not to the persons entitled under the Rules on intestacy, but to an administrator to enable the first plaintiff pursue her equity suit.

40. O. 15, r. 12 of the Rules of the Superior Courts provide: “Subject to the provisions of the Acts and these Rules, in all probate actions the rules as to parties and as to citations to see proceedings in use in the court of probate immediately before 1st January 1878, shall continue to be in force. Citations to see proceedings shall issue from the Central Office.” (emphasis added) The “the rules as to parties …in use in the court of probate immediately before 1st January 1878” under reference derive from and were to be found in the Probates and Letters of Administration Act (Ireland) 1857, (20 & 21 Vict. c.79) as amended by the Court of Probate Act (Ireland) 1859 (22 & 23 Vict. c.31). The Court of Probate exercised its jurisdiction in accordance with rules as to pleading, practice or procedure arising pursuant to both statutes in relation to the conduct of probate actions. The functions of the Court of Probate were transferred to the Supreme Court of Judicature by virtue of the Supreme Court of Judicature (Ireland) Act 1877 which came into force on 1st January 1878. The 1857 and 1859 statutes were ultimately repealed in their entirety by s.8 the Succession Act 1965 subject to the savings in s. 9(5) which provided that their repeal did not affect “any established jurisdiction, form or course of pleading, practice or procedure derived from the repealed enactment” and the Second Schedule to the 1965 Act.

41. In identifying whether an individual or body is entitled to be a party to a probate suit/will challenge, in light of O.15, rr. 11 and 12 RSC, the proposed claimant should in the first instance demonstrate a sufficient interest to establish standing. Such rules evolved to protect estates, beneficiaries and next of kin from risk of loss, harm or injury as might occur were any party who did not stand to benefit from the outcome sought nonetheless, irrespective of motive, to pursue litigation contesting its validity.

42. The rules and principles as to parties, pleading, practice and procedure in will suits are accordingly long settled in this jurisdiction in regard to determining who can be a party to same. The cornerstone of entitlement to bring the claim hinges on interest. In each case the question to be addressed is whether the claimant has a “sufficient interest” to be permitted to pursue a probate suit. This is a distinct procedural issue not a matter of substantive law.

Standing is procedural issue not a matter of substantive law

43. The issue was considered by the Irish Chancery Division, Probate Court in the leading

decision of The Goods of Timothy White Deceased (1893) 31 L.R. Ir. 385 where Warren P. considered an application by a creditor of the widow of the deceased for leave to apply to recall letters of administration granted to his son. In earlier proceedings the son was found to have obtained a grant of letters of administration as if his father had died intestate by knowingly suppressing the fact that the father had made a will. It was on that basis that a creditor of the deceased’s widow sought leave to issue a citation to recall the grant of letters of administration so obtained. At p. 386, the Warren P. noted “There is no doubt of the jurisdiction of the court to grant such an application in the case of a creditor who has an interest in the issuing of a citation to recall letters of administration…” The judgement goes on, “ the question then is, what is the interest of a creditor necessary to enable this to be done? I turn to Tristram and Coote’s Probate Practice, a treatise in which I find, as a rule, the law and practice of this Court accurately and clearly stated. At p. 367 the subject of actions for the revocation of probate and the revocation of letters of administration is discussed; and after stating the object of such suits, I find that the parties to actions for revocation are plaintiffs defendants or interveners, and that the foundation of their title is the same, viz. that of interest. At p. 369 is a summary of the result:- “The foundation of title to be a party to a probate or administration action is interest so that whenever it can be shown that it is competent to the court to make a decree in a suit for the revocation of probate or of administration, which may affect the interest of possible interest of any person, such person has a right to be a party to such suit in the character either of plaintiff, defendant or intervener.” Warren P. continued: “No words can be more extensive, and therefore, if Mr Hennessy's client has any possible interest, he is entitled to be either plaintiff or defendant. A creditor of a person who has an interest under a will has a sufficient interest to entitle him to be made a party.” This decision established the principle that in this jurisdiction “interest” for the purpose of establishing standing to bring a Probate Action is to be generously interpreted but is an absolute procedural prerequisite.

44. In the instant case it is agreed that the deceased left only one testamentary paper, that of 3rd January 2019. In the event that same were to be condemned for any reason he would be deemed to have died intestate. It is significant that the plaintiffs do not assert to be creditors of any beneficiary of the deceased neither do they claim to have any estate right title or interest being derived either under the terms of a will or in the event of intestacy.

An interest or possible interest in the estate

45. In The Goods of Timothy White Deceased was followed by the English Court of Appeal in Randall v. Randall [2016] EWCA Civ 494, [2016] WLR 1217 where Dyson L.J. reversed the decision of the Deputy Master sitting in the Chancery Division who had suggested that Timothy White’s was wrongly decided. The state of the law on the operative date pursuant to O.15, r.12 namely 1st January 1878 is as set forth in Timothy White Deceased. Is the first Plaintiff also “a creditor of the estate”?

46. The first plaintiff’s equity claim apparently1 encompasses an assertion that she is constituted a creditor of the estate and as such is entitled to property in Folio 8279F Co. Cork which is registered in the deceased’s name. As such she belongs to a class of individuals generally excluded in law from seeking to institute a probate action or seeking revocation of a grant of probate or letters of administration of the alleged debtor’s estate. The interest of a The Plaintiffs’ affidavit (para. 8) filed 5th December 2024, (Section B -120/593) refers to a booklet of Circuit Court pleadings which was apparently before the High Court but was not provided to this court in the context of this appeal. “creditor” claiming or counter-claiming against the estate is limited to the right to ensure that there is due administration of the estate so that valid claim/s can be satisfied.

47. Historically, from the 18th century, a creditor was not entitled to have the court appoint an administrator except in the limited circumstance where it was satisfied there was evidence of default of entitled next of kin applying or their refusal to take out letters of administration. Decisions including of Sir Herbert Jenner in Menzies v Pulbrook & Anor.

(1841) 2 Curt 846 (Prerogative Court) have held that the creditor of an estate does not per se have an interest in the estate sufficient to allow him to challenge the validity of a will.

48. The judgment in Menzies continues to be good law in that a creditor per se has no right to institute or maintain proceedings to impugn the validity of a will qua creditor of the deceased. This principle was said to derive from earlier decisions including Elme v. Dacosta [1791] 1 Phill. 173, where Sir William Wynne held: “The right of a creditor is only this, he cannot be paid his debt until the representation of the deceased is made; he can call on all who have a right to administer; before an administration is granted, if a will be produced, the creditor has no right to contradict or deny it; for if there is a will, or a next of kin claims the administration, then a person offers to make himself a representative, and the creditor gets all that he has a right to.” Sir Herbert Jenner in Menzies approved that statement adding: “This appears to me to be a very strong expression that a creditor has no right to oppose a will, and that all that he has a right to is that there should be a representation; although this does not expressly determine the point, it is so strong a declaration that the court would be inclined to adhere to it;” The court in Menzies cited with approval the later

decision of Dabs v Chisman [1810] 1 Phill 155, and the observation of Sir John Nicholas “A creditor cannot deny an interest or oppose a will”.

49. In Randall v Randall [2016] WLR 1221 Lord Dyson MR reviewed the jurisprudence on standing including of creditors of an estate and observed: “10. The earlier decision of the Prerogative Court in Menzies v Pulbrook (1841) 2 Curt 845 has assumed some importance in the present case. Menzies, who was a creditor of the estate of the deceased, wished to contest the validity of the will and oppose probate passing to the executor. Menzies opposed the application by the executor for administration of the deceased’s effects. The question for the court was whether creditors of the estate have the right to challenge the validity of a will.

After an analysis of previous case law, all of which the judge said supported the proposition that a creditor of an estate has no right to oppose a will and that the only right he has is to have the estate administered by someone, he said, pp 849— 850: “These cases then appear to me to establish the rule of practice as contended for by the counsel for Menzies, and to be precedents which the court must adhere to, unless the principle on which they are founded be shewn to be unsound. Now, some cases were cited in which a creditor has been allowed to contest the right to administration against the next of kin; but in those cases it appeared that the next of kin had no interest in the property, and they do not affect the question before the court.

“I apprehend that a creditor, except by the practice of the court, has no right to the administration of the estate of a deceased; he has no right by the statute: he is the appointee of the court and I do not know, if circumstances shewed that the creditor was not a proper person, that the court might not appoint another person. “The rule contended for in this case is founded in reason and sound sense. Sir George Lee2 says, “if a creditor was admitted to dispute the validity of a Burroughs v Griffiths & Hall (1754) 161 E.R. 201 will, it would create infinite trouble, expense, and delay to executors, and I think much inconvenience; if a creditor has a right to oppose a will, he has an equal right to call in a probate, and put the executor upon proof of the will in solemn form; and if one creditor has this right, every creditor has it; and if a creditor has a right to oppose a will, an executor has a right to oppose the interest of a creditor; and the court would be called upon to determine questions out of its jurisdiction, whether a debt was barred by the Statute of Limitations; whether the instrument under which the creditor claimed was duly stamped, and various other points.

I am therefore clearly of opinion, that the rule which has been acted upon so long ought not to be disturbed.” Lord Dyson MR in Randall, explained the reasoning underpinning the 1754 rule: “11. The basis of this decision was that (i) a creditor cannot administer an estate if there is another person who has an apparent right to do so; (ii) the court was applying a rule which had been acted on for so long that it ought not to be disturbed; and (iii) the rule was in any event founded in reason and sound sense, because, were it otherwise, the administration of estates “would create infinite trouble, expense and delay to executors”.

A creditor of an estate can obtain a grant of administration as of right only if , in the case of a testate estate, there are no executors, residuary legatees or personal representatives of residuary legatees willing to act[referencing the relevant English Rules] … There are no circumstances in which the creditor of a beneficiary is entitled to a grant as of right.” Dyson MR further observed in Randall: “12.…the Menzies case has stood the test of time and continues to be referred to in Williams, Mortimer & Sunnucks on Administrators and Probate, 20th ed (2015), at para 34-17.

It is clear authority for the proposition that the creditor of an estate does not have a sufficient “interest” in the estate to allow him to challenge the validity of a will.” Menzies v Pulbrook is cited with approval in the leading Irish text Miller’s Irish Probate Practice, (1900) pp. 263,334 and is of importance in this case, in light of O. 15, r. 12 RSC, as regards the first-plaintiff’s claim to have standing to pursue this litigation.

50. Lord Dyson MR considered that whilst the question of whether a person has a good probate claim is a matter of substantive law, the question whether he has an "interest" in the estate of a deceased sufficient to entitle him to bring or pursue a claim is a matter of procedure. Whilst the procedural issue of standing was strictly dealt with in accordance with the relevant domestic rules the court noted that same "replicates a long-standing requirement that a party to a probate claim must have an "interest" in the estate”.

51. The plaintiffs seek to buttress the assertion that they enjoy standing to pursue this litigation by interposing arguments as to the “public interest” generally served by probate actions concerning substantive claims as to the validity of wills in general as somehow negativing the long-standing requirement to demonstrate that the plaintiff stands to gain some material benefit from the outcome of the litigation which is the antecedent procedural requirement of a plaintiff to demonstrate locus standi/standing.

52. The concept of “interest” to determine standing to maintain a probate suit must be broadly and flexibly construed. Dyson MR in Randall (para.22) explained that the requirement to establish standing to bring a probate suit is found in a “… passage which has appeared in every edition of Tristram that has appeared since 1881… is expressed very broadly: ‘in a suit for probate or administration which may affect the interest or possible interest of any person’ (emphasis added) the court was right to say in Timothy White’s Estate

31 L R Ir. 385: “…no words can be more extensive”.”

Conclusion on First Ground of Appeal

53. There was ample evidence before the High Court to satisfy the judge that in light of the inherent jurisdiction and O. 19, r. 28 each of these plaintiffs lacked standing to institute and pursue a probate suit seeking to condemn the Will of this deceased or to have the grant of probate of 15th May 2020 revoked pursuant to s.26 of the Succession Act 1965. The Authorities outlined above and decisions such as Menzies and In the Estate of Timothy White as approved by the English Court of Appeal in Randall, as well as the provisions of O. 15, r. 12 RSC demonstrate that all three plaintiffs lack locus standi.

54. Quite separately and in addition, it is clear that the first appellant is to be deemed a creditor of the estate, since her claims against the estate constitute her as such in law. To seek to pursue such a suit and install an administrator of her choosing - despite failing to identify any basis for passing over the next of kin as the persons entitled to administer the estate in the event of intestacy - is demonstrably an abuse of the process of the Court and is procedurally doomed.

55. Further, the Statement of Claim which seeks in effect an order removing the proving executor (who is suing the second and third appellants for sums due to the estate) but refrains from seeking that any administrator be appointed in his place even on a limited or ad litem basis to continue the litigation against the second and third appellants – on its face a manoeuvre which potentially risks rendering those claims becoming statute barred - constitutes an abuse of the process of the court also.

56. In regard to the obligation to meet the minimum requirements specified in O. 15, r. 12 as to “parties”, it is self-evident that the appellants have not established any valid basis which entitles them to have instituted or pursued the within proceedings which were manifestly inappropriately instituted by them. They lack standing to pursue same.

57. The assessment of standing is entirely procedural in a Probate Suit. Hence, the appellants are fundamentally in error in asserting that the High Court judge was obliged to embark on “a full consideration of the Plaintiffs’ claim.” To do so would conflate the preliminary procedural requirements on locus standi with the substantive aspects of the pleaded case. Such an approach would have been contrary to authority of very long standing including the leading Irish decision In the Estate of Timothy White, as followed in 2016 by the English Court of Appeal in Randall. “Standing” is a discrete preliminary procedural issue. In the context of a probate suit it is to be given a wide and flexible meaning but must encompass some financial interest or possible interest in the outcome of a challenge to the validity of the Will. The appellants lack any such interest. This ground of appeal fails.

Conclusions on Second Ground of Appeal

58. This ground is also unsound. The strength of any substantive claim does not per se confer standing in a plaintiff to pursue it. The Appellants have identified no authority for such a proposition. The remarks of the judge were obiter. The Appellant’s admitted lack of any material interest - or even potential interest - in the outcome of the litigation renders the appellants intermeddlers in the administration of the estate of the deceased devoid of entitlement to be a moving party in a probate action in respect of the deceased. Provided the estate is administered properly - and there is no assertion of impropriety being levelled against the executor - claims (such as the first plaintiff’s claim to the Kinsale property) will be determined at Cork Circuit Court prior to distribution.

59. There is no authority for the proposition that by virtue of their respective standings as plaintiff (in the case of the first appellant) and as defendants (in the case of the second and third appellants) same confers an entitlement or standing on them to pursue these proceedings seeking to have the Will or testamentary paper condemned. It clearly does not. It follows that the appellants have not complied with the requirement in O. 4, r. 10 RSC which requires that the endorsement of claim should show whether each are claiming in their respective capacity as creditor, executor etc or otherwise in “what other capacity”. Purporting to have an entitlement to pursue the claims in their capacity as “plaintiff” or “defendant” in extant civil litigation before Cork Circuit Court is not a valid “capacity”. In passing, it is to be observed that such a generic characterisation does not meet the requirements of O. 4, r.10. This ground of appeal fails.

60. The High Court did not dismiss the case “on the grounds of being frivolous and vexatious” as the appellants assert. The judge clearly stated at para 44. “The proceedings should… be dismissed pursuant to the court’s inherent jurisdiction.” In doing so he correctly applied the relevant legal principles. No basis is identified to interfere with same.

Conclusions on Third Ground of Appeal

61. The appellants are erroneous in their contention that they are entitled to rely on the

decision in Vella v. Morelli [1968] I.R.1 to justify the institution or prosecution of these proceedings on a “public interest” basis. It is not an authority for such a proposition. The essential facts outlined in the head note demonstrates: “In the year 1950 the deceased made a will and bequeathed all her property to the plaintiff and the defendant in equal shares. In the year 1955 the deceased made another will whereby she revoked the will of 1950 and bequeathed all her property to the defendant.” The standing of the plaintiff was self-evident and uncontested in Vella where the testatrix had two children, the plaintiff and the defendant . If the later will was condemned, the plaintiff took half the estate under the earlier will. If both wills were condemned, she took half under the intestacy rules which applied at the date of the testatrix’ death. Clearly therefore in the event that the later will was condemned, the plaintiff stood to gain a significant benefit from the earlier will. The appellants fundamentally misconstrue or misunderstand the import and effect of Vella v. Morelli. The remarks of Budd J. in the majority judgement of the Supreme Court in Vella are relevant to claims where the plaintiff has established standing by demonstrating a material interest or potential interest in the outcome of the suit. These appellants are not such parties, as they acknowledge. This ground of appeal fails.

62. The “public interest” referred to by Budd J. was confined to that of individuals whose interests were directly or potentially impacted by the terms of a will. He restated the principles governing payment of costs to an unsuccessful plaintiff which was reflected case law from the late 1700’s. Deceaseds’ estates ought not be exposed to the risk of being consumed in costs incurred by officious individuals - no matter how well intentioned - who seek to intervene in the administration of an estate. It would be profoundly contrary to the public interest were this line of litigation enterprise permitted to be launched reversing centuries of settled law on the issue of standing. This ground of appeal fails.

Conclusions on Fourth Ground of Appeal

63. The analysis and conclusions of the trial judge at paras. 37 and 38 are entirely correct and accord with the long-established jurisprudence on standing in probate actions. He was correct in his analysis of Vella v Morelli. The dictum of Budd J. at p.34, cited by Mulcahy J., is an iconic re-iteration of the long-established principle applied by the Irish Probate Court and before that by the Prerogative Court in relation to will-suits. The principles adumbrated in Vella apply only to persons who have, as a pre-requisite, established standing the gateway to pursuing a substantive claim. It does not avail appellants who lack standing.

64. In contrast with the plaintiff in Vella or any other reported Probate Suit, the appellants freely admit to having no recognised interest in the outcome of the litigation. They seek to foist themselves unbidden upon the estate and if it fails, presumably, would seek that the estate bear the costs of their academic exercise, all apparently “in the public interest”. Estates need to be protected from such enterprise which risks their dissipation in costs and legal fees irrespective of the wishes of the beneficiaries and next of kin. The analysis of Vella by the High Court is entirely correct. This ground of appeal is not maintainable.

Conclusions on Fifth Ground of Appeal

65. There is no merit in the appellant’s assertion that respondent executor acted precipitously in issuing the motion when he did not know the full extent of the plaintiffs’ case. The executor acted entirely properly. The litigation amounts to a collateral attack by these appellants - parties who procedurally could never establish entitlement in law to institute or pursue such proceedings - on the due and proper administration of the estate of the deceased by his executor who has held a grant of probate since 15th May 2020. The claims in the Statement of Claim were immaterial to the issue of standing since they engaged with substantive issues which were, as such, matters not material to the determination of standing in this case. The judge acted well within the ambit of his discretion and no basis for interfering with his exercise of same has been identified.

66. The motivation of the appellants for the institution of the within proceedings is opaque and largely irrelevant. They stand to gain nothing should it transpire that the deceased died intestate. However, they will have had the advantage of delaying the hearing of three sets of proceedings pending for upwards of five years before Cork Circuit Court. One concerns ownership of real property which forms part of the estate of the deceased which the first named plaintiff continues to occupy, the others are claims to recover debts for the benefit of the estate. If these proceedings were brought for the purposes of delay same would amount to an abuse of the process of the court within O.19, r. 28(1). I reach this conclusion in addition to the determinations on the part of the trial judge dismissing same pursuant to the inherent jurisdiction of the court. This ground of appeal also fails.

Conclusions on Sixth Ground of Appeal

67. The appellants contend that the trial judge misdirected himself at para. 41 of the judgment and erred in fact and/or in law and in the application of the law to the facts and/or in the exercise of his discretion at para 41. of the judgment where, having cited Budd J. at p.34 in Vella, Mulcahy J. states: “First, the paragraph relied on by the plaintiffs addresses a situation “where the case is a proper one for investigation and the litigation was conducted bona fide”. A case being brought by a party who cannot benefit from it is not a proper one for investigation, nor, in the strictly legal sense, is it one conducted bona fide.” For all the reasons identified above this litigation was not bona fide. Had it proceeded to trial the issue of standing would have been a preliminary one which the appellants had no prospect of establishing. This would have resulted in waste of court resources, legal costs and expenses to the estate and delay in completion of the administration of this estate.

68. None of the plaintiffs have succeeded in establishing even on a prima facie basis that they have an entitlement to be a plaintiff within the meaning of O. 15, r.12 RSC in probate proceedings seeking recall of the grant of probate which issued forth of the Probate Registry in respect of the estate of the deceased to the respondent, his executor, on 15th May 2020.

69. The appellants have identified no authority in support of their contentions. The within proceedings are not maintainable, because none of the plaintiffs have an interest in the estate of the deceased sufficient to confer legal standing to bring contentious probate proceedings and in particular the within probate action. The suit falls to be dismissed. “Public policy” arguments contended for do not avail strangers to the who stand to benefit neither directly nor indirectly from the distribution of this estate. This ground of appeal fails.

70. The appellants, accordingly, have failed to establish any valid basis which would warrant interfering with the determinations and conclusions of the High Court. Their arguments did not disclose any valid basis for contending that any one or more of them enjoy an entitlement to institute or pursue proceedings by way of a probate action seeking to have condemned the Last Will and Testament of the deceased dated 3rd January 2019 and revocation of the Grant of Probate dated 15th May 2020. The judge’s determinations were well within the margin of his discretion and no reviewable error was identified by the appellants.

Provisional view on Costs

71. With regard to the issue of costs, there never having been any valid basis for the institution and prosecution of the proceedings the preliminary view is that the respondent is entitled to an order for his costs in this Court and in the court below same to be adjudicated in default of agreement. If the appellants contend for a different order, brief written submissions no longer than 1,500 words should be furnished within 14 days, with any response of no greater length to be furnished by the other side within a further 14 days. The court will give its adjudication on the issue of costs thereafter.

72. The President and Pilkington J. confirm that they concur with this judgment.