In The Matter Of The Succession Act, 1965, And In The Matter Of The Estate Of E.f., Deceased And In The Matter Of Section 27(4) Of The Succession Act, 1965 And In The Matter Of An Application By H.f., J.f. And K.f. To Appoint An Administrator Ad Litem (Approved)

Factual and Procedural Background

This opinion concerns an application under section 27(4) of the Succession Act, 1965, seeking to appoint an administrator ad litem for the estate of the Deceased, who died in November 2020 leaving a Will dated February 2014. The Will appointed the Deceased's daughter, the Executrix, as sole executrix and sole beneficiary of the main asset, a substantial dwelling house located in a major city, as well as the contents and any motor car owned by the Deceased at death. The Deceased was survived by three other children, the applicants, who were entitled under the Will to share equally in the residue of the estate.

The application was prompted by concerns regarding the capacity of the Executrix to administer the estate. Initially, it was contended that the Executrix was of unsound mind, though this was not formally found. The key issue was whether it was necessary or expedient to appoint an independent solicitor to administer the estate in place of the Executrix, who was alleged to lack capacity. The applicants intended to challenge the validity of the 2014 Will, alleging that the Deceased lacked capacity at the time of its execution.

The Executrix had a history of mental health issues, including multiple detentions under the Mental Health Act and residence in sheltered accommodation. A guardian ad litem (GAL) was appointed to represent the Executrix's interests during the application. The GAL reported that the Executrix did not understand the significance of the application or the Will and was unable to give instructions or make decisions regarding the proposed challenge.

The Court considered the legal framework governing the appointment of administrators where capacity is in question, including relevant rules of court and the Assisted Decision-Making (Capacity) Act, 2015. The Court also noted the procedural history, including several adjournments and interim orders to preserve estate assets.

Legal Issues Presented

1. Whether it is necessary or expedient within the meaning of section 27(4) of the Succession Act, 1965, to appoint an independent solicitor to administer the estate in place of the nominated Executrix.
2. Whether the Executrix has the capacity to administer the estate and to give instructions in relation to the proposed challenge to the validity of the 2014 Will.
3. The appropriate procedure to follow where the nominated executor is alleged to lack capacity but is also a beneficiary under the Will.

Arguments of the Parties

Applicants' Arguments

• The Executrix lacks capacity to administer the estate and to defend the intended challenge to the 2014 Will.
• The 2014 Will is subject to challenge on the basis that the Deceased lacked capacity when making it.
• An independent solicitor should be appointed as administrator ad litem to manage the estate and defend the proceedings.

Executrix's Position (as reported by Guardian ad Litem)

• The Executrix does not understand the significance of the application or the Will.
• She believes she is entitled to the family home by a Deed of Trust rather than the Will.
• She disputes the applicants' status as siblings and requests a DNA test.
• She does not wish to actively engage with solicitors or the proceedings herself.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by considering the statutory framework under section 27(4) of the Succession Act, 1965, and the procedural rules in Order 79 of the Rules of the Superior Courts, particularly rules 26 and 27 relating to persons of unsound mind entitled to take out grants of representation. The Court noted that while the Executrix's capacity was in doubt, there was no allegation of misconduct or unwillingness to act, only incapacity.

The Court acknowledged that the applicants sought to challenge the 2014 Will on grounds of the Deceased's capacity at the time of execution, and that the role of the personal representative would primarily be to defend that challenge. Given the Executrix's apparent incapacity to give instructions or manage the proceedings, the Court recognized the need for someone to act in her interests and discharge the role of legitimus contradictor.

However, the Court found that appointing an independent solicitor as administrator ad litem pursuant to section 27(4) would introduce an additional party and increase costs unnecessarily, especially since the Executrix would still require representation in the challenge proceedings. The Court considered that the proper course was to pursue a declaration of the Executrix's capacity under the Assisted Decision-Making (Capacity) Act, 2015, and if appropriate, the appointment of a decision-making representative who could then apply for letters of administration or act in the Executrix's best interests.

Accordingly, the Court concluded that it was neither necessary nor expedient to grant the application to appoint an independent solicitor administrator ad litem at this stage.

Holding and Implications

The Court REFUSED the application to appoint an independent solicitor as administrator ad litem under section 27(4) of the Succession Act, 1965.

The direct effect of this decision is that the Executrix remains the nominated personal representative, subject to future proceedings concerning her capacity. The Court indicated that the appropriate next step is an application in the Circuit Court for a declaration of capacity under the Assisted Decision-Making (Capacity) Act, 2015, potentially followed by the appointment of a decision-making representative who may then apply for letters of administration or act to protect the Executrix's interests. No new precedent was established, and the decision preserves the principle of respecting the testator's choice of executor absent serious reasons or misconduct.