The Estate Of The Late Bernard Casey, Deceased, Late Of Threadneedle Road, Salthill, Galway, Re (Approved)

Factual and Procedural Background

This opinion concerns an application pursuant to section 27(4) of the Succession Act, 1965, brought by the Applicant to pass over the Respondents, named as Executors in the Will of the Deceased, and to appoint an independent person as legal personal representative of the estate. The Deceased died on 24 November 2020, leaving a Will dated 15 September 2015, which appointed the Respondents as Executrices and the Applicant and Respondents as beneficiaries. The estate includes several properties bequeathed in specific shares to the children. The Applicant alleges delay in extracting a Grant of Probate, failure to protect estate assets, and misappropriation of funds by the Respondents during their prior role as attorneys for the Deceased and his late wife.

The application was initiated after no Grant of Probate was extracted within the executor's year, with the Applicant lodging a caveat preventing the issuance of the Grant. The Respondents were only informed of the caveat months later. The Applicant had previously objected to the registration of the Respondents as attorneys during the Deceased's lifetime, making serious allegations of misappropriation which he later withdrew. The Respondents deny all allegations and contend the Applicant's motives are improper.

The court was asked to consider the appropriate legal test for passing over executors appointed by a valid Will who have not yet extracted a Grant of Probate, and to assess whether the Applicant had demonstrated sufficient grounds to justify removal of the Respondents as executrices.

Legal Issues Presented

1. What is the appropriate legal test to apply when considering an application under section 27(4) of the Succession Act, 1965, to pass over executors named in a Will who have not yet extracted a Grant of Probate?
2. Whether the Applicant has established "special circumstances" justifying the removal of the Respondents as executrices, including allegations of delay, failure to protect estate assets, and unfitness due to alleged misappropriation of funds.

Arguments of the Parties

Applicant's Arguments

• The Respondents delayed in extracting a Grant of Probate beyond the executor's year.
• The Respondents failed to protect the estate's assets, particularly the commercial property leased to a tenant who ceased rent payments.
• The Respondents are unfit to act as executrices due to alleged misappropriation of funds during their tenure as attorneys for the Deceased and his late wife, including use of estate funds for personal benefit and unexplained cash expenditures.
• Serious allegations of systemic fraud and abuse were made previously against the Respondents.

Respondents' Arguments

• The delay in extracting the Grant of Probate was minimal and caused largely by the Applicant's lodging of a caveat and pandemic-related restrictions.
• The Respondents have taken reasonable steps to protect estate assets, including initiating and defending legal proceedings against the tenant.
• The allegations of misappropriation are unsubstantiated and denied; the Respondents have accounted for estate funds and incurred legitimate expenses, including substantial nursing care costs for the Deceased and his late wife.
• The Applicant withdrew earlier objections to their role as attorneys, suggesting lack of foundation for allegations.
• The Applicant’s conduct appears motivated by personal animosity and financial disputes rather than legitimate concerns.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the appropriate legal test for passing over executors under section 27(4) where no Grant of Probate has been issued. It concluded that the high threshold established by the Supreme Court in Dunne v. Heffernan applies equally in such cases, especially where the executors are willing and able to act. The court rejected the Applicant’s submission that a lower standard applies simply because the Grant had not yet been extracted.

The court emphasized the importance of respecting the testator’s choice of personal representative, noting that removal of an executor is a serious step requiring serious grounds such as unfitness, incapacity, unwillingness to act, or material conflict of interest.

Regarding the Applicant's allegations, the court found:

• Delay: The slight delay in applying for a Grant of Probate was justified by the COVID-19 pandemic, the deaths of both parents in quick succession, and the Applicant’s own caveat which prevented timely issuance. The court found no undue delay or reluctance by the Respondents to discharge their duties.
• Failure to protect assets: The Respondents took reasonable steps to preserve estate assets, including defending proceedings against the tenant of the commercial property. The court accepted that the tenant’s non-payment and claims of frustration of lease are matters for separate litigation and that the Respondents acted prudently in not entering or securing the property, which could have jeopardized the lease.
• Alleged misappropriation: The court found the Applicant’s allegations of misappropriation unsubstantiated. The Respondents accounted for withdrawals from the estate accounts, including a €30,000 sum used to pay estate expenses. The large expenditures on nursing and care for the Deceased and his late wife were supported by independent evidence and reconciled by forensic accountants. The conflicting affidavit evidence on payments to one carer could not be resolved on affidavit alone and the Applicant did not seek cross-examination, resulting in the court resolving the conflict against him.

The court noted the Applicant’s history of making serious but unsupported allegations and emphasized that such claims require cogent proof and cannot be made lightly in probate proceedings. The court also rejected other dropped or unsubstantiated allegations made by the Applicant.

Overall, the court found no special circumstances within the meaning of section 27(4) to justify overriding the testator’s wishes and removing the Respondents as executrices.

Holding and Implications

The court refused the Applicant’s application to pass over the Respondents as executrices and to appoint an independent administrator.

The direct effect of this decision is that the Respondents remain the legal personal representatives of the estate and may proceed with administration without interference. The court underscored the high threshold for removing executors appointed by a valid Will and confirmed that unsubstantiated allegations and minimal delay do not meet this standard. No new precedent was established; rather, the decision reaffirms the principle that the testator’s choice of executors should be respected absent serious grounds for removal.