[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Gunning v. Gunning Hameed [2003] IEHC 123 (31 July 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/123.html Cite as: [2003] IEHC 123

[New search] [Printable RTF version] [Help]

Gunning v. Gunning Hameed [2003] IEHC 123 (31 July 2003)

 
THE HIGH COURT

RECORD NO. 2003/122Sp

IN THE MATTER OF THE ESTATE OF JAMES GUNNING, DECEASED

AND

IN THE MATTER OF AN APPLICATION PURSUANT TO THE SUCCESSION ACT, 1965, SECTION 26(2)

AND

IN THE MATTER OF AN APPLICATION PURSUANT TO S. 27(4) OF THE SUCCESSION ACT, 1965.

BETWEEN/

SARAH GUNNING

PLAINTIFF

-AND- EILEEN GUNNING HAMEED

DEFENDANT.

Judgment of Mr. Justice T.C. Smyth delivered the 31^st July, 2003.

James Gunning, late of Chrysanthemum Cottage, Blackline in the County of Wicklow (hereinafter referred to as "the Deceased") made his last will and testament dated 25^th June 1982 whereby he left half of his estate to the plaintiff his (widow/wife) and the other half of his estate between his two daughters – the defendant (his executrix) and her sister Mary. The deceased died on the 10^th October 1984 and Probate of his will issued to the defendant/executrix on 3^rd September 1985. At that time the defendant/executrix was advised by a firm of solicitors. The deceased's gross estate amounted to the sum of £39,449.84 and the net value thereof amounted to £38,674.84 as certified by the affidavit of Inland Revenue (which was not before the court). It is undisputed that the defendant in her capacity as executrix paid to the plaintiff the sum of £12000 and to her sister Mary £8000 and in the course of the hearing she stated she paid herself the sum of £8000. No executrix's account appears to have been furnished to the beneficiaries under the will nor is such exhibited in the affidavits filed in this case.

Central to the issue to be determined by the court is the premises Chrysanthemum Cottage, earlier referred to, in which the deceased and his wife lived for many years (from 1948 onwards) and where they brought up their two daughters, the defendant and her sister Mary. The premises it would appear were the subject of a lease for fifty years from 1935, which expired a short time (1^st November 1984) after the death of the deceased. As at the date of the deceased in 1984 the plaintiff was in occupation and possession of the premises. The plaintiff avers that from the date of death of her husband – the deceased until in or about the year 1990 the plaintiff resided on her own in the premises and that during that interval of approximately 5 years the defendant resided in Saudi Arabia and in fact married there. In that interval the plaintiff and her husband came to live in Ireland and frequently stayed with the plaintiff in the premises. Events tangential to these proceedings brought the defendant and her daughter to reside with the Plaintiff in the premises. After some years, relations between the plaintiff and the defendant deteriorated to such an extent that the plaintiff considered she could no longer live in the same house as the defendant. The defendant had no other home for herself and her daughter in which to live and made it clear to the plaintiff that she would not leave the premises. In November 1999 things had come to such a pass that notwithstanding that the premises were the plaintiff's home she moved out to live with her other daughter Mary. The plaintiff avers that "it is my very strong wish" to return to the premises. How much reality there is in this is open to serious question – not only in the light of the ill health and hospitalisation referred to in the documentation but of the arrival in court of the plaintiff in a wheelchair (manoeuvred by another person whom I took to be her daughter Mary) and bearing support sticks.

Notwithstanding that there was a short unexpired term of a lease as at the date of death of the deceased – it was an asset with all its advantages and disadvantages. It was part of the estate of the deceased and the defendant in her Oath of Executrix had sworn to administer the estate in accordance with law. Under s.10 (3) of the Succession Act 1965 – "the personal representatives shall be representatives of the deceased in regard to his real and personal estate and shall hold the estate as trustees for the persons by law entitled thereto".

The primary obligation of any trustee is to protect in advance the interests of the beneficiaries. The case of Cowan v Scargill (1985) Ch 270 is the relevant legal authority supportive of this general proposition. Therein Megarry, VC stated that:-

"The starting point is the duty of trustees to exercise their powers in the best interests of the present and future beneficiaries of the trust, holding the scales impartially between different classes of beneficiaries. This duty of the trustees towards the beneficiaries is paramount. They must, of course, obey the law; but subject to that, they must put the interest of their beneficiaries first. When the purpose of the trust is to provide financial benefits for the beneficiaries, as is usually the case, the best interest of the beneficiaries are normally the best financial interest.

Further the Vice Chancellor proceeded to observe as follows:-

"Powers must be exercised fairly and honestly for the purposes for which they were given and not so as to accomplish any ulterior purpose, whether for the benefit of the trustees or otherwise; see Duke of Portland v Topham [1864] 11 HL Cas 32, a case on a power of appointment that must apply a fortiori to a power given to trustees as such will stop".

The will of the deceased provided (inter ala) is as follows:-

"I give, devise and bequeath onto my wife Sarah Gunning a half interest in all my property, both real and personal of which I die pocessed."

Furthermore the provisions of Section 56 (1) of the Act of 1965 provides as follows:-

"Where the estate of a deceased person includes a dwelling in which, at the time of the deceased death, the surviving spouse was ordinarily resident, the surviving spouse may, subject to subsection (5), require the personal representatives in writing to appropriate the dwelling under section 55 in or towards satisfaction of any share of the surviving spouse." The provisions of subsection (5) limit the period in which the surviving spouse may elect to appropriate. It expressly provides as following:-

"A right conferred by this section shall not be exercisable-

a) After the expiration of six months from the receipt of the surviving spouse of such notification of one year from the first taking out of representation of the deceased's estate, whichever is the later."

There is no evidence that the plaintiff/widow was ever given or served with notice. In my judgment the rights of the surviving spouse do not cease by mere effluction of time (i.e. the twelve month period) from the date of the grant, because the duty still remains on the personal representative to give notice in writing to the surviving spouse. The failure to give such notice in writing to the surviving spouse after the extraction of the grant of probate (in the instant case) means that such surviving spouse rights remain until the notice is served and more than six months have elapsed form the receipt of such notice. The powers of a personal representative as to appropriation under s. 55 (2) of the Succession Act are specifically delimited by cases to which s.56 of the Act applies.

Notwithstanding the non-observance of the provisions of the act of 1965 two unsuccessful attempts were made in the Land Registry to affect registration by way of adverse possession, the first in 1998 in the names of both plaintiff defendant and in 2002 in the name of the plaintiff only under S. 49 of the registration of titles act 1964. In the events for a range of reasons both applications were abandoned.

Proceedings between the parties hereto were taken on the Eastern Circuit, County of Wicklow, record no. 154/2001, which did not resolve the fundamental issues still outstanding in these proceedings, notwithstanding being proceedings by way of ejectment on the title. The parties in these proceedings did acknowledge that in his ruling His Hon. Judge O'Hagan stated that if the defendant Eileen Gunning entered into possession of the premises "she did so in a trustee capacity". Her capacity as trustee is consistent with (if it be the case) her duty as the personal representative of the deceased that is governed by s.10 (3) of the Succession Act earlier referred to herein.

The evidence establishes that notwithstanding the conduct of the Circuit Court proceedings the defendant unknown to the plaintiff and undisclosed to the Circuit Court judge set in train a line of enquiry as to the successors in title to the freehold to the premises or the leaseholders to Patrick Gunning, father of James Gunning (the deceased) and without any reference to either the plaintiff or her sisters – both with herself beneficiaries under the will of the deceased, and sought to acquire for her own benefit to be registered as the sole owner of the premises in the Land Registry. Altogether from being mindful of her duties to the court to carry out her duties as executrix in accordance with law, the plaintiff (who is this action has appeared as a personal litigant) has sought to rely on s.126 of the Succession Act which sets out a six year limitation period for actions in respect of estates of deceased persons. This period might have had some significance if the defendant had served the plaintiff with notices provided for under s. 56(1), but as that was not done time has not begun to run against the plaintiff. Likewise the plaintiff has not observed her duties as a trustee such as I have already indicated by the extract from the case of Cowan v Scargill earlier referred to.

The Supreme Court in Dunne v Heffernan [1997] 3 I.R. 431 has held that "once an executor has been appointed, and proven a will and had thus accepted the duty of administrating a testator's estates, her or she could be removed pursuant to s. 26, subsection 2 of the Act of 1965 only if there were serious grounds or weighty reasons for overruling the wishes of the testator. Serious misconduct and/or serious special circumstances on the part of the executor would be required in order to justify such a drastic step. The appointment of a new executor pursuant to s. 27 subsection 4 of the Act of 1965 was not justified merely because one of the beneficiaries felt frustrated or excluded from her legitimate concerns.

In the instant case the dislike of the sisters for each other for a variety of reasons is nihil ad rem: what is very much ad rem is the failure of the defendant to notify the plaintiff under s. 56 (1) and more importantly to seek to acquire and have herself registered in respect of an interest that is primarily that of the plaintiff.

In Flood v Flood [1999] 2 IR 234 it was noted that "although the court would be reluctant to take steps which might have the effect of depleting the value of the estate, the issues between the parties regarding the monies in question, in that case, constituted sufficiently serious circumstances which justified the removal of the defendant from his position as executor."

In the instant case the defendant's intention to have herself registered as owner of the premises is in complete conflict with her role as executrix. In my judgment it is a very necessary and serious step to take to remove the defendant from her role – but on the evidence I am satisfied that it must be done. It is the only way in which this matter can be dealt with properly and impartially.

Accordingly, the defendant will cease to be as from this judgment as executrix to the estate of the deceased; the court hereby recalls and cancels the grant of probate of 3^rd September 1985 handed into court during the course of the hearing; and pursuant to s. 27(4) of the Succession Act 1965 appoints Brian Sherry, Solicitor. Palmerstown Avenue, Palmerstown, Dublin 20 to be administrator of the estate of the deceased.