Introduction

The judgment in Kiernan v Financial Services and Pensions Ombudsman (Approved) ([2025] IEHC 138) presents a pivotal ruling in relation to the standing of non-proving executors seeking to pursue complaints before the Financial Services and Pensions Ombudsman. The case arises from judicial review proceedings initiated by Mark Kiernan, who challenged a determination by the ombudsman. The ombudsman had ruled that Kiernan lacked the “appropriate person” status since the grant of probate did not formally appoint him as the legal personal representative of his deceased mother’s estate.

At the heart of the dispute is a controversy regarding access to banking records held by the Educational Building Society following the death of Kiernan’s mother. The accounts were initially in the mother’s sole name, later becoming joint accounts with the sister. Subsequent to her death, a dispute ensued over the rightful beneficiary—whether the surviving account holder automatically benefited from the right of survivorship or whether the funds were to be considered as part of the deceased’s estate.

The case additionally raised the procedural question of whether an extension of time was warranted for filing the judicial review. Ultimately, the proceedings address both the timeliness of the application and the statutory interpretation of the FSPO Act 2017 in determining who qualifies as an “appropriate person” to bring a complaint.

Summary of the Judgment

Mr. Justice Garrett Simons, delivering the judgment on 12 March 2025, ruled that the judicial review proceedings were out of time. The extended period between the impugned decision by the ombudsman (notified on 19 September 2023) and the filing of the proceedings (11 April 2024 followed by the leave application on 10 June 2024) could not be justified due to the absence of any satisfactory explanation for the delay.

Moreover, the court tackled the substantive issue regarding the standing of a non-proving executor. Relying on a combination of statutory interpretation under section 45 of the FSPO Act 2017 and an analysis of the relevant provisions of the Succession Act 1965, the court found that a non-proving executor—despite reserving rights for a future grant of probate—does not presently qualify as a "legal personal representative" of the deceased. Consequently, Mr. Kiernan did not have the requisite standing to pursue a complaint concerning access to the deceased’s banking records.

Analysis

Precedents Cited

The judgment extensively references several key precedents:

• Suarez v. Financial Services and Pensions Ombudsman [2022] IEHC 46 and Trustees of Vodafone Ireland Pension Plan v. Financial Services and Pensions Ombudsman [2022] IEHC 47 – These cases underline that the statutory right of appeal is confined to decisions made upon the completion of an investigation rather than preliminary opinions.
• Heaney v. An Bord Pleanála [2022] IECA 123 – This case provided guidance on how time limits for leave applications run and the associated requirements.
• M. O'S. v. Residential Institutions Redress Board [2018] IESC 61, [2019] 1 ILRM 149 – This decision was important in reinforcing the obligation of applicants to justify any delay beyond the prescribed period.
• Arthropharm (Europe) Ltd v. Health Products Regulatory Authority [2022] IECA 109 – The discussion in this case, particularly the considerations set out by Murray J., provided insights into the factors influencing the grant of extensions in public law matters.
• Little v. Chief Appeals Officer [2024] IESC 53 – This precedent confirmed that the High Court may exercise its discretion to refrain from ordering costs against an unsuccessful applicant when the proceedings offer clarity on matters of public importance.

These cases influenced the court’s reasoning on issues ranging from the strict application of time limits to the broad interpretative exercise required to define standing under the FSPO Act 2017.

Legal Reasoning

Central to the Judicial Review was the interpretation of who qualifies as an “appropriate person” for lodging a complaint with the ombudsman. The ombudsman’s decision was primarily based on an interpretation of section 45 of the FSPO Act 2017. However, the court observed that this statutory basis was misapplied in the present case. Instead, it argued that an accurate construction should observe the broader legislative framework, notably the definitions provided in section 2 of the FSPO Act and those in the Succession Act 1965.

The court examined the concept of a “legal personal representative” as defined with reference to the Succession Act 1965. It concluded that the powers reserved by a non-proving executor are prospective in nature, enabling them to apply for probate at a later time. Until such time a formal grant of probate is issued, the non-proving executor cannot exercise the functions or be recognised as the legal personal representative. Consequently, while Mr. Kiernan’s reservation of rights might entitle him in the future to seek a grant of probate, it does not confer immediate standing to pursue the ombudsman’s complaint.

Impact

This Judgment is significant on several counts:

• Clarification on Standing: It establishes that only the formally appointed personal representative (i.e., the proving executor or administrator) has standing to make a complaint before the Financial Services and Pensions Ombudsman under section 45 of the FSPO Act 2017.
• Procedural Caution: The case underscores the importance of complying with procedural time limits and ensuring that adequate reasons are furnished for any delay. This serves as a stern reminder to litigants on the necessity of adhering strictly to court-imposed deadlines.
• Public Law Implications: By engaging with questions of statutory interpretation and public interest, the decision contributes to the evolving jurisprudence on the rights of executors and the administration of estates, potentially influencing how future complaints against financial institutions are processed.

The ruling thereby not only resolves the immediate dispute but also provides a reference point for future cases where the standing of a non-proving executor might be similarly contested.

Complex Concepts Simplified

Some of the legal jargon and statutory interpretations in this judgment can be distilled as follows:

• Non-Proving Executor: An executor who, although named in the will, has not yet completed the process (probate) to become the fully empowered legal personal representative. Their rights are reserved for future action but carry no immediate authority.
• Legal Personal Representative: The individual who has been formally granted the authority to manage the deceased's estate. In the context of this case, only the proving executor or administrator meets this criterion.
• Preliminary vs. Final Decisions: The FSPO Act limits the appeal rights to decisions made after a complete investigation rather than preliminary jurisdictional determinations. The case emphasizes that an initial decision on admissibility does not trigger the statutory right of appeal.

Conclusion

In summary, the High Court’s ruling in Kiernan v Financial Services and Pensions Ombudsman crystallizes a fundamental legal principle: a non-proving executor, even when reserving the right to apply for a future grant of probate, lacks the immediate standing to lodge a complaint before the ombudsman regarding the administration of a deceased person’s accounts. The decision reinforces strict adherence to procedural requirements—particularly the timely filing of judicial review applications—while clarifying the statutory interpretation of “legal personal representative” under the FSPO Act 2017 in light of the Succession Act 1965.

By addressing both a procedural defect and a question of standing, the judgment not only resolves the specific dispute between the parties but also establishes an important precedent that will influence future cases involving disputes over estate administration and complaints against financial service providers.

Ultimately, while the applicant’s argument was comprehensively considered, the detailed analysis confirms that the ombudsman’s decision was correctly reached—even though its legal reasoning required correction.