Supreme Court allows substitution of deceased executor with administrator in estate administration proceedings.

An Chúirt Uachtarach

The Supreme Court

Denham CJ

O’Donnell J

Charleton J

Record number 2011/1752P

Appeal number 284/2011

In the Estate of Kathleen White, Deceased

Between

Damien White

Plaintiff/Respondent

and

Rosemary Gantly

Administratrix de Bonis Non

and

Edward White

Defendant/Appellant

Judgment of Mr Justice Charleton delivered on Monday the 16th day of November 2015

1. The late Kathleen White died testate on the 16th October, 2007. In her will of the 21st October, 2005, she named two of her

children as the executors of her estate. These are Edward White, who is the defendant/appellant, and Damien White, who is the

plaintiff/respondent. Damien White died on 15th January 2014. Hence the title hereof. The other beneficiaries were her other children.

2. The most substantial asset in the estate of the late Kathleen White was a dwellinghouse, Derrynane, Ravenswell Road, Bray in the

County of Wicklow. The precise circumstances surrounding the disposal of this asset are not a matter that can be considered on this

appeal. Nonetheless, it informs the background as to how issues concerning the estate of the late Kathleen White came before the

probate list in the High Court, from which this is an appeal. It appears that a company called Pizzaro Developments Ltd contracted to

purchase that property for a sum that appears to be €1,000,000. A deposit in accordance with the contract may have been received

by the solicitor acting for the vendor. The sale, however, did not proceed. It seems that the method of completing the contract

would have been through an option agreement, but this was never proceeded with. Separately from that, this main asset in the

estate was later sold. A notice to treat by way of compulsory purchase of the premises was served by Bray Town Council on the 15th

March, 2011. The issue of compensation was eventually settled on the 26th August, 2013, and a sum of €510,000 together with

costs was arrived at.

3. It may naturally be regarded as disappointing that a sum of around 50% of the value offered for the property by Pizzaro

Developments Ltd was achieved through later compulsory purchase. In the meanwhile, however, the severe economic circumstances

apparent since late 2008 had caused a serious diminution in property values. From the oral argument presented before this Court, it

seems that Edward White believes that the original purchaser actually completed the agreement and that €1,000,000 has been

received by a solicitor acting on behalf of the estate of the deceased and that this has been hidden away. A number of facts might

usefully be considered here. Firstly, it may be possible to register an option agreement in the Registry of Deeds but any such

registration is not evidence of the completion of a contract for the sale of land. Many people contract to purchase land but do not

proceed to a sale. Secondly, businesses do not give away large amounts of money and content themselves with receiving nothing in

return. Thirdly, a local authority such as Bray Town Council is bound by statute to receive value in respect of their transactions. Bray

Town Council could not have bought the property of the late Kathleen White with the legal title vested in Pizzaro Developments Ltd

from the estate of the deceased.

4. It is thus clear that a valid purchase took place by Bray Town Council of the property that was the main asset in the estate of the

late Kathleen White. It is also clear that there was no other party involved in that transaction, such as Pizzaro Developments Ltd.

Edward White, nonetheless, regards the entire of the transaction concerning the sale of the property as showing evidence of fraud

and, in addition, the commission of a serious crime. In that regard, on this appeal he has sworn a long affidavit making allegations

against a number of lawyers engaged in the transaction. It is appropriate to record, at this juncture, that there is not even the

slightest hint of any evidence that anything untoward, much less criminal, took place. However, this background, and the strong

views expressed by Edward White, goes some way to explaining how matters which might otherwise have been considered

straightforward questions of procedure have become so contentious

5. Two issues arise on this appeal. First in time is the removal of one of the executors by Ó Néill J, the probate judge in the High

Court, namely Edward White, through order on the 29th June, 2011. That resulted in his substitution as the executor involved in the

administration of the estate by his brother, Damien White. The High Court order recites that Damien White was “at liberty to extract a

Grant of Probate in the estate of” the late Kathleen White. This directly leads to the second issue on the appeal because Damien

White, while he willingly undertook the administration of the estate and seems to have completed much, if not all, of the realisation of

the assets, died on the 25th May, 2014. Hence, the solicitor appointed by the executor of the estate of Damien White, Rosemary

Gantly, asks to be substituted in the title of the proceedings for Damien White. The relevant notice of motion seeks the following:

An Order substituting Rosemary Gantly (as Administratrix with the Will annexed, in the estate of Kathleen White

deceased), as Plaintiff in the title hereof in place of Damien White.

6. This application is opposed by Edward White. He has issued his own notice of motion in these proceedings and has grounded that

on a substantial and detailed affidavit. Both the notice of motion and the affidavit of Edward White have been read out loud in open

court on this appeal. In that notice of motion, the order of Ó Néill J is described as “fraudulent” and an order is sought from the Court

to refer the papers to the Director of Public Prosecutions. The relief claimed by Edward White which is most germane to this appeal

seeks:

An Order in the interests of justice to have the last wishes of Kathleen White as seen in her last will and testament and

her legal rights under the European Convention on Human Rights to have her son Mr Edward White reinstated as her one

and now only executor reinstated as executor on the grounds that Kathleen White’s other son, the second named

executor Mr Damien White is now deceased and because of the fact that the order of O’Neill J was fraudulently obtained

by the plaintiff/respondent’s solicitor and counsel on the 29th day of June 2011 as the record and files of the matter

show.

7. The hearing of that motion, from which this judgment derives on appeal, operates in substance as an appeal against the order

removing Edward White from the administration as executor of the estate of the late Kathleen White.

8. The appointment or removal of an executor of an estate and the powers and duties of executors are provided for under the

Succession Act 1965. Section 26 thereof reads:

(1) The High Court shall have power to grant probate to one or more of the executors of a deceased person, and a grant

may be limited in any way the Court thinks fit.

(2) The High Court shall have power to revoke, cancel or recall any grant of probate.

9. These powers are largely self-explanatory. Indeed, in Brady, Succession Law in Ireland, 2rd Ed. (Dublin, 1995) at para. 9.80, that

distinguished author only thought it necessary to give the following commentary:

Jurisdiction to grant probate to one or more of the executors named in the will of a deceased person lies with the High

Court, which may limit such grant in any way the court thinks fit. The court also has the power to revoke, cancel or recall

any grant of probate.

10. When a person dies, as a matter of law the executors of the estate must act so as to distribute the assets in accordance with

the will of the deceased as soon as is reasonably possible. Of course, some estates may be more complex than others, perhaps

setting up trusts or requiring the gathering in of property from more than one jurisdiction. What constitutes a reasonable time for

gathering in an estate and distributing it to those entitled under a will therefore depends upon the relevant circumstances. Under s.

62(1) of the Act of 1965 proceedings may not be brought against a personal representative for failure to distribute the estate within

one year of the death of the deceased, though the court may give leave to proceed over a different time frame. Brady, at para.

10.30, comments:

The Succession Act thereby incorporates the long established rule that personal representatives have one year from the

death of the deceased in which to administer the estate and beneficiaries under a will may not initiate action against the

executors until the end of the so-called “executor’s year”. There is nothing to prevent the personal representatives

distributing the estate within the executor’s year if they so choose and indeed failure to do so may leave them open to

the charge that they have failed to administer the estate with due diligence. This is particularly the case with regard to

payment of the deceased’s debts, since failure to do so will invariably mean that interest on the debt grows, and it may

grow to a point where it threatens the interests of the beneficiaries.

11. The bounden duty of an executor is to commence the process of the identification, gathering in, accounting for taxation purposes

and proper distribution of the estate. This must be done in a timely fashion. The duties of executors are solemn and require the

pursuit of such reasonable avenues of enquiry as may uncover property to the benefit of the estate. No matter whether the executor

was the late Damien White, or is Edward White, or the solicitor of the estate of Edward White acting as executor, in relation to the

estate of the late Kathleen White, these weighty duties must be fulfilled and dispatched with expedition.

12. While it may cause upset to be removed as an executor, time is one of the primary factors to be looked at by the High Court

where an application is made to remove an executor under s. 62 of the Act of 1965. The law leans against delay in the distribution of

estates; the reason is that the unfortunate results so clearly identified by Brady are to be avoided. In the discharge of its probate

jurisdiction, the High Court is bound by the Act of 1965 and will also be cognisant that efficiency in the administration of estates is to

be encouraged.

13. On the matter coming before Ó Neill J, the executor’s year had well passed. In fact, Kathleen White had been dead for over three

years. Edward White had a problem with the completion of the return to the Revenue Commissioners that is essential to the discharge

of the duties of an executor. This, in turn, related to the failed sale of the premises and the much lesser price eventually obtained on

compulsory purchase by the local town authority in Bray. Of itself, the passing of that year in circumstances where the estate did not

exhibit the complexities associated with wills that might set up an elaborate trust or otherwise cause undue complications, both

enabled the application to be made under the Act of 1965 and provided the High Court with the appropriate authority whereby,

without necessarily making any further judgement on the matter, another executor should be substituted. This could only happen

through the removal of the executor who had taken up the administration of the estate.

14. It is argued on this appeal by Edward White that this was incorrect. To put it at its lowest, however, it has not been

demonstrated that there has been an erroneous interpretation of the affidavit evidence in the High Court. The appeal cannot

therefore succeed on this point. Further, the High Court was well within the law in removing an executor once the executor’s year had

passed.

15. As to the other point, the grant of probate in the estate of Kathleen White is dated from the High Court probate registry as the

29th June, 2011. It is in proper form. This records the death of the deceased at Saint Colmcille’s Hospital on about the 16th October,

2007, annexes her will. It continues:

LETTERS OF ADMINISTRATION of the said estate which devolves on and vests in the personal representative of the said

deceased and which was so left unadministered with said Will annexed were granted at the Probate Office to ROSEMARY

GANTLY of 5 [address] Solicitor the Attorney lawfully appointed of IMELDA BRACK now residing at [address] daughter of

the deceased and as such one of the Residuary Legatees and Devisees named in the said Will – limited for the use and

benefit of the said IMELDA BRACK and until she shall apply for and obtain Administration with the said Will Annexed of the

unadministered estate the said ROSEMARY GANTLY having been first sworn faithfully to administer same.

16. The order later made in the High Court probate registry references the 14th October 2014. It refers to the death of Damien Martin

White of an address in Bray and that he died on 25th May 2014, annexes that will, and records that George White, who predeceased

him and Imelda Brack of an English address were named as executors. The order is in proper form and states that it should be known

that on that date:

LETTERS OF ADMINISTRATION with the said Will annexed of the estate which devolves on and vests in the personal

representative of the said deceased were granted by the Court to ROSEMARY GANTLY of [address] Solicitor the Attorney

lawfully appointed of the said IMELDA BRACK presently of [address] Limited for her use and benefit until she shall apply for

and obtain Probate of the said Will the said ROSEMARY GANTLY having been first sworn faithfully to administer same.

17. It is important also to record that the solicitor, who at all times has acted with the utmost propriety, was “first sworn faithfully to

administer” the relevant estate. Progress has been made on the estate in the sense that the order certifies that the Revenue

Commissioners have been delivered of an affidavit which showed that the gross value of the estate of the late Kathleen White

amounts to €511,080 and that the net value thereof amounts to €439,730.

18. This therefore provides ample justification and basis for the affirmation of the High Court order, or grant of an order by this Court,

as sought in the terms above recited substituting Rosemary Gantley as plaintiff in place of Damien White.

19. Finally, it might reasonably be commented that the litigation arising out of the estate of Kathleen White has the capacity to

affect the diminution of the estate from the point of view of those who would otherwise benefit. Even prior to the death of Kathleen

White, the prospect of the exercise of the option agreement by Pizzaro Developments Ltd for the substantial sum agreed was, of the

nature of such agreements and of limited liability companies, uncertain. In her will, dated the 21st October, 2005, she mentions

specific percentages in relation to the distribution of the estate should that deal proceed. She, a clearly wise woman and exercising

admirable common sense, expressed her last wishes in terms of distribution of the proceeds “[i]n the event of Pizzaro Developments

Ltd exercising the option to purchase my property at Derrynane, Ravenswell Road, Bray, County Wicklow” under the option agreement

“already executed”. That event did not come to pass.

20. It is not an uncommon experience, especially in the last seven years, for property transactions, which had the apparent capacity

to yield substantial revenues, to have melted away in the light of the changed economic circumstances brought about by the collapse

in property values. This may be yet another such case. Whether it is or is not, the plain reality is that that deal has disappeared, as

indeed the late Kathleen White foresaw that it might.

21. A substantial sum has been received for the purchase of the property, however, from the local authority in Bray which, while

perhaps around half of what otherwise might be promised had the property sector of the economy remained as buoyant as it was

back when the will was made in 2005, needs to be utilised for the benefit of those who are entitled under her will to inherit, namely

her children or those benefiting through their inheritance. Chasing an illusion would do nothing for those entitled under the will of the

late Kathleen White.