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Administration of estate – Legal personal representative –Administration de bonis non – Respondents seekinga declaration that the appellant was conflicted in his role as legalpersonal representative of their late father’s estate– Whether appellant shouldh

Posted 3/11/2016

Facts: The plaintiffs/respondents, Mr A Dunne, Ms Dormon, Mr J Dunne, Mr G Dunne, Mr C Dunne Jr, Mr D Dunne, Ms Ryan, Mr P Dunne and Mr M Dunne issued a motion on the 19th March 2015 seeking: (a) a declaration that the defendant/appellant, their brother, Mr W Dunne, was conflicted in his role as legal personal representative of their late father’s estate; (b) an order revoking the grant of administration de bonis non by which he became the legal personal representative of the unadministered estate of their late father; and (c) an order pursuant to s. 27(4) of the Succession Act 1965 allowing an independent person to extract new letters of administration de bonis non so that the administration of the estate may be fully and properly completed.

 

The reason why the plaintiffs contended that their brother was conflicted in his role as legal personal representative was that within his defence to  the plaintiffs’ claim for an order for the administration of their late father’s estate, and other reliefs, he pleaded that the plaintiffs’ were no longer entitled to their 1/42nd share in their father’s estate because their claims in that regard were statute-barred under s. 45 of the Statute of Limitations 1957 and/or that since both he, and his mother until her death in 2010 farmed the lands in question without interruption since the death of their father, they acquired a possessory title as against the plaintiffs under s. 125 of the 1965 Act, and accordingly that any claim that they would have to a share in the lands arising from the intestacy of their father had been lost.

 

The plaintiffs’ motion was heard by Cregan J, and on the 28th July 2015 he granted:(a) the declaration sought; (b) an order revoking, cancelling and recalling the grant of administration de bonis non dated 31st August 2011 which issued to the defendant; and (c) an order, pursuant to s. 27(4) of the 1965 Act, giving liberty to Mr Osborne, solicitor, to extract a new grant of administration de bonis non of that estate. Mr W Dunne appealed to the Court of Appeal against that order, submitting that the trial judge erred in:

 

1) characterising the circumstances of the case as being a serious, obvious and indefensible conflict of interest requiring his removal;

2) not applying the restrictive test;

3) failing to take into account the additional and needless expense of having the defendant replaced by an independent administrator; 4) failing to follow a line of authority which establishes that there is nothing untoward about a beneficiary pleading the statute even where he is also a personal representative, and stands to gain from doing so;

5) making a personal costs order against the defendant in respect of the motion. 

Held by Peart J that the trial judge was wrong to conclude that such conflict of interest as did arise by virtue of the pleaded defence on the statute was such as to require that Mr W Dunne be removed as legal personal representative, and replaced by an independent person as ordered. Peart J held that the trial judge took too narrow a view of the question of conflict of interest, and failed to give sufficient weight to the question of necessity.

 

In Peart J’s view, the replacement of the defendant as legal personal representative was not necessitated in the circumstances of the case. Peart J held that the appeal should be allowed, so that the action could proceed as presently constituted. Appeal allowed. 
Dunne, Arthur and ors v Dunne, William and in the matter of the estate of Cecil Dunne, deceased
11/10/2016 No. 2015/403 [2016] IECA 269

 

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