In the estate of Donal Brendan O'Connell (Deceased) and In the estate of Catherine Reen (Deceased) [2014] IESC 55 (31 July 2014)

Judgment Title: In the estate of Donal Brendan O'Connell (Deceased) and In the estate of Catherine Reen (Deceased)

Neutral Citation: [2014] IESC 55

Supreme Court Record Number: 206, 207 & 208/2008

High Court Record Number: Probate, 2007 1249 P

Date of Delivery: 31/07/2014

Court: Supreme Court

Composition of Court: O'Donnell Donal J., Clarke J., Dunne J.

Judgment by: Dunne J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result	Concurring
Dunne J.	Link	Appeal dismissed	O'Donnell Donal J., Clarke J.

Outcome: Dismiss

THE SUPREME COURT

[Appeal No. 206/2008]

IN THE MATTER OF THE ESTATE OF DONAL BRENDAN O’CONNELL, DECEASED LATE OF ARD NA LEAC, BALINGUILLY, BALLINCOLLIG IN THE COUNTY OF CORK WHO DIED ON THE 6th MARCH, 2008

IN THE MATTER OF AN APPLICATION BY MICHAEL O’CONNELL THE SOLE EXECUTOR AND PERSONAL REPRESENTATIVE OF THE SAID DONAL BRENDAN O’CONNELL PURSUANT TO HIS LAST WILL AND TESTAMENT DATED 1st MARCH, 2004

[Appeal No. 207/2008]

IN THE MATTER OF THE ESTATE OF DONAL BRENDAN O’CONNELL, DECEASED LATE OF ARD NO LEAC, BALINGUILLY, BALLINCOLLIG IN THE COUNTY OF CORK WHO DIED ON THE 6th MARCH, 2008

[Appeal No. 208/2008]

IN THE MATTER OF THE ESTATE OF CATERINE REEN, DECEASED LATE OF ARD NA LEAC, BALLINCOLLIG, COUNTY CORK

IN THE MATTER OF SECTION 27(7) OF THE SUCCESSION ACT 1965

IN THE MATTER OF AN APPLICATION BY DONAL BRENDAN O’CONNELL A WARD OF COURT SUING BY HIS COMMITTEE AND NEXT FRIEND FRANK O’CONNELL

AND

IN THE MATTER OF PROCEEDINGS ENTITLED THE HIGH COURT RECORD NO. 2007/1249P BETWEEN DONAL BRENDAN O’CONNELL, A WARD OF COURT SUING BY HIS COMMITTEE AND NEXT FRIEND FRANK O’CONNELL, PLAINTIFF AND PATRICK REEN, DEFENDANT

IN THE MATTER OF AN APPLICATION BY MICHAEL O’CONNELL AS PERSONAL REPRESENTATIVE OF THE SAID DONAL BRENDAN O’CONNELL, DECEASED ON THE 6th MARCH, 2008

O’Donnell J.

Clarke J.

Dunne J.

Judgment of Ms. Justice Dunne delivered on the 31st day of July, 2014

Introduction

Donal Brendan O’Connell, a retired solicitor, died on the 6th March, 2008 at the age of 76. At the time of his death, he was a Ward of Court and had been for a number of years. He executed a will on 1st March, 2004 and appointed his nephew, Michael O’Connell (hereinafter referred to as “the Executor”) as his executor. After making a number of dispositions, the principal beneficiary and residuary legatee under the will was the Executor.

On the day after his death, Patrick Reen lodged a caveat in the District Probate Office in Cork in respect of the estate of Mr. O’Connell and on the 10th March, 2008, Eugene O’Brien followed suit by lodging a caveat in the same District Probate Office. Each caveat was in the standard form and was completed by Mr. Reen and Mr. O’Brien respectively. The caveats were identical in one respect. The standard form of caveat provides a space for the individual lodging the caveat to show the interest they have in the estate of a deceased’s person in the following terms:

“Having interest as a ___________________of the deceased.”

In each of the caveats lodged, Mr. Reen and Mr. O’Brien had drawn a line through that part of the form save for the words “having interest”. Thus, neither of them set out in the caveats the basis on which they could claim to have an interest in the estate of Mr. O’Connell.

The Executor brought an application in the High Court probate list seeking an order setting aside the caveats entered by Mr. Reen and Mr. O’Brien to the estate of Mr. O’Connell.

In addition, a separate application was brought by the Executor against Mr. Reen seeking to re-constitute proceedings entitled “The High Court - Record No. 2007/1249P between Donal Brendan O’Connell, a Ward of Court suing by his committee and next friend, Frank O’Connell, plaintiff, and Patrick Reen, defendant”, (“the Catherine Reen proceedings”).

Catherine Reen, deceased, referred to in those proceedings was the sister of Mr. Reen. It would appear that she had been in a relationship with Mr. O’Connell for many years prior to her death. She died on the 27th February, 2004 and by her will of the 11th February, 1997, she appointed the late Mr. O’Connell as her executor. He was also the legatee under her will. Mr. Reen lodged a caveat in respect of the will of Ms. Reen and the Catherine Reen proceedings were instituted for the purpose of proving her will in solemn form of law. Mr. Reen has filed a defence and counterclaim in those proceedings challenging the validity of the will and making a number of allegations against Mr. O’Connell. Mr. O’Connell was by now a Ward of Court, an order to that effect having been made in 2004. An application had been made in those proceedings pursuant to s. 27(4) of the Succession Act 1965 by Frank O’Connell as the committee and next friend of Mr. O’Connell seeking a limited grant of administration in the estate of Catherine Reen for the purpose of taking possession of the premises known as Reen’s Bar, Berrings in County Cork and taking the appropriate steps to renew the liquor licence in respect of the said premises pending the litigation as to the validity of the will of Catherine Reen. An order granting that relief was made on the 3rd March, 2008 just a few days before the death of Mr. O’Connell. The Executor subsequently sought a similar order and the orders sought by the Executor were made by the High Court (O’Neill J.) on 9th June, 2008. Mr. Reen and Mr. O’Brien have appealed the orders made on the 9th June 2008 setting aside the caveats and Mr. Reen has appealed the orders made in the Catherine Reen proceedings.

The proceedings before the High Court
The notes of the judgments of the learned trial judge in respect of these matters are of assistance in relation to the making of the orders under appeal. In the proceedings concerning the lodging of the caveats, counsel on behalf of the Executor outlined the background to the matter. It was submitted to the High Court on behalf of the Executor that neither party had any interest in the estate under the will or on intestacy and could not stand to benefit in any circumstances. It was added that Mr. Reen and Mr. O’Brien had personal grudges against the last Mr. O’Connell and it was the Executor’s position that the caveats were essentially malicious.

Mr. Reen explained to the Court that he had no option but to file the caveat because Mr. O’Connell had no run-off insurance in respect of professional indemnity. He said that his father’s estate and his mother’s estate had been dealt with by Mr. O’Connell and that in respect of both estates he had a claim for malpractice. The learned trial judge indicated to him that it would be prudent to seek legal advice in relation to that.

Mr. O’Brien said that he had issues with the late Mr. O’Connell over his mother’s and his father’s estates.

Having considered the matter, the learned trial judge held that the respondents had “chosen the wrong options” and further that “the actions of the respondents are ill-advised and inappropriate”. He concluded that the caveats should not have been lodged and on that basis he granted the orders sought setting aside the caveats, the warnings and appearance and awarded costs against Mr. Reen and Mr. O’Brien.

In the matter concerning the proceedings in respect of the estate of Catherine Reen, the matter was again opened by counsel on behalf of the Executor. Mr. Reen had entered a caveat in the estate of his late sister and proceedings were brought by Mr. O’Connell through his duly appointed committee pursuant to an order of the President of the High Court. The order was then made on the 3rd March, 2008 granting liberty to the committee to apply for a grant of administration without the will annexed of the estate of the deceased for the purpose of taking possession and re-licensing the premises known as Reen’s Bar. It was explained that Mr. O’Connell died on the 6th March, 2008 and consequently the Executor was making a further application so that he could apply for the grant of administration without the will annexed and could re-license the premises. Mr. Reen objected to the application and indicated that he was opposing the same on the basis that the Executor was not a suitable person to act as administrator of the estate.

The learned trial judge having considered the evidence before him on foot of the application and having heard the submissions made on behalf of the parties, stated:

“I am satisfied that the best interests of the estate are served by making the orders sought.”

He also made an order that the proceedings be re-constituted in the name of the Executor as plaintiff. Costs were awarded to the Executor out of the estate.

The Appeal
Mr. Reen and Mr. O’Brien appeared in person before this Court. Following a brief discussion with the Court, Mr. O’Brien indicated that he would not pursue his appeal against the order setting aside the caveat lodged by him in the estate of Mr. O’Connell. Mr. Reen took a different course and said that he wished to pursue his appeal from the order of the High Court striking out the caveat lodged by him. He also wanted to maintain the appeal in respect of the other orders that had been granted in the estate of Catherine Reen.

Mr. Reen in the course of his submissions outlined some of his family history. Reen’s Bar was started by his great-grandfather in 1860. Ultimately it was inherited by his father. Mr. Reen’s father died in 1965 when Mr. Reen was eleven years of age. He has a complaint about the manner in which his late father’s estate was handled. He claimed that he would have been the heir at law under the relevant legislation then in force prior to the commencement of the Succession Act 1965. Whatever may have been the position under the law then in force, it appears from what Mr. Reen said in court and from an affidavit sworn by Frank O’Connell in the proceedings to have the will of the late Catherine Reen proved in solemn form of law, that subsequent to the death of her mother, Hannah Reen, in January 1985, Catherine Reen took out letters of administration intestate to her estate in July 1993. She had issued proceedings in February 1993 against Patrick Reen seeking orders declaring void and setting aside a transfer dated the 12th May, 1983 whereby the said Hannah Reen and Catherine Reen had transferred their share in the premises at Berrings in County Cork to Patrick Reen. Orders setting aside the transfer were made in 1993 and confirmed on appeal to the High Court on circuit in October 1994. In addition to the licensed premises, the property consisted of a number of acres comprised in Folio 7164 County Cork. As a result of the orders made in those proceedings, Catherine Reen took possession of the property and ran the licensed premises for a number of years. Subsequent to her death, Mr. Reen re-took possession of the licensed premises and lands for a period of time. Ultimately, he left the premises, and there was an application on behalf of Mr. O’Connell by his committee and next friend for the limited grant as described above. It is not surprising in the circumstances that relations between the late Catherine Reen and Mr. Reen were bad for many years. Whatever the outcome of the Catherine Reen proceedings, it would appear that following the death of their mother, Hannah Reen, the late Catherine Reen and Mr.Reen should have had a joint interest in her estate, given that their mother died intestate. Catherine Reen, deceased, as mentioned previously, took out letters of administration to the estate of her late mother. If Mr. Reen has a complaint in respect of the administration of that estate, the remedy lies elsewhere, subject to any potential difficulty with limitation periods.

Mr. Reen made a number of other complaints against the late Mr. O’Connell. He then went on to complain about the fitness of the Executor to administer the estate of the late Mr. O’Connell. It is not necessary to address those issues here.

Section 27(4) of the Succession Act 1965 provides as follows:

“Where by reason of any special circumstances it appears to the High Court (or, in a case within the jurisdiction of the Circuit Court, that Court) to be necessary or expedient to do so, the Court may order that administration be granted to such person as it thinks fit.”

The original application for a limited grant was made by Frank O’Connell, the committee and next friend of the late Mr. O’Connell, in the Catherine Reen proceedings in which Mr. Frank O’Connell set out the circumstances and expressed concern that the licensed premises had been left unused, had been abandoned and were uninsured. The late Mr. O’Connell was the executor appointed under the will of Catherine Reen. He was also the beneficiary under the will. He had an obligation and an interest in protecting the assets of the estate. As he was no longer in a position to act, the responsibility fell on Mr. Frank O’Connell pursuant to an Order of the High Court (the President) in Wardship proceedings given that Mr. O’Connell was no longer capable of managing his affairs and had been made a ward of court some time previously. Mr. Reen swore a number of affidavits in the course of the application pursuant to s. 27 (4). Mr. Reen took part in the hearing of the application and on the 3rd March, 2008, the order was made pursuant to the provisions of s. 27(4) of the Succession Act 1965.

Ms. McKechnie on behalf of the Executor pointed out that the Executor herein was appointed as sole executor of the estate of the late Mr. O’Connell and was also the principal beneficiary under his will. Consequently, it was appropriate for Mr. O’Connell as Executor to take the necessary steps to preserve the assets of the estate, including taking of possession of Reen’s Bar for the purpose of renewing the liquor licence. The learned trial judge was satisfied on the evidence before him that the Executor was an appropriate person to do so and granted the orders in those circumstances. Accordingly, it was submitted that there was no basis for challenging the order made pursuant to s. 27(4) of the Succession Act 1965.

Insofar as Mr. Reen’s appeal from the order made by O’Neill J. that the Catherine Reen proceedings be re-constituted in the name of the Executor as plaintiff is concerned, it was submitted by Ms. McKechnie that the Executor was the appropriate person to continue to prove the Will in solemn form in his capacity as Executor.

Decision on the applications pursuant to S. 27 (4) and to re-constitute the Catherine Reen proceedings
I agree with the submissions of counsel on these issues. I am satisfied that Mr. Reen has not demonstrated that the learned trial judge was in error in making these orders. In the case of the application pursuant to s. 27 (4), it was clearly necessary to take steps to preserve the assets of the estate and it was appropriate to make the order in favour of the Executor. It should be noted that the order under s. 27 (4) was for the limited purpose of preserving the assets with a view to protecting the licence attaching to the premises and is therefore an order which is temporary in nature pending the resolution of the dispute between the parties in the Catherine Reen proceedings.

Turning to the application to re-constitute the proceedings, it is not possible to discern any basis either in the papers before the Court or by way of submissions which could demonstrate any error on the part of the learned trial judge in reconstituting the proceedings in the name of the Executor. It was an order provided for in the Rules of the Superior Courts and properly made. Accordingly, I would dismiss the appeals in respect of the order made pursuant to S 27(4) and the order re-constituting the Catherine Reen proceedings.

It may be helpful to make one further observation. Mr. Reen’s appeal against the order re-constituting the Catherine Reen proceedings could only be described as counter-productive. It is clear that Mr. Reen is anxious to ventilate a number of issues in those proceedings. He has challenged the validity of the will. He has raised many other issues in those proceedings and has made a series of complaints about the late Mr. O’Connell and others. The appeal against the order re-constituting those proceedings has the effect of stymieing those proceedings. That could not be in the interests of Mr. Reen given that those proceedings cannot be prosecuted if not reconstituted. Even if there was a basis upon which Mr. Reen could successfully challenge the order of the learned trial judge, and none has been demonstrated, the making of an order re-constituting the proceedings in the will suit in respect of his sister’s estate can only be of benefit to Mr. Reen in the sense that those proceedings are now in a position to proceed. Mr. Reen has sought to pursue a number of issues in those proceedings and those issues fall to be considered in those proceedings. Thus, it is in Mr. Reen’s interest to have the Catherine Reen proceedings re-constituted. It is necessary to point out that someone has to represent the contrary view to Mr. Reen and the reconstitution of the proceedings is designed to achieve this.

I would also observe that the reliefs sought by Mr. Reen in the notice of appeal in respect of the orders made in the Catherine Reen proceedings encompass matters not before the High Court which therefore cannot be determined on appeal including, for example, a request that the Supreme Court make a ruling declaring Donal Brendan O’Connell’s will invalid, null and void. In addition, the notice of appeal sought to rely on a number of grounds including an allegation that the signature on the last will and testament of the late Catherine Reen “bears no resemblance to the signature of the late Catherine Reen and the signature is not her name”. As is clear from what has been said previously, Mr. Reen has challenged the validity of his later sister’s will and these proceedings provide the appropriate framework in which to challenge the will of his late sister. There is no basis upon which the court on this appeal can consider matters which require to be determined following a full hearing in the High Court.

The Caveat in respect of the Will of the late Mr. O’Connell
I now want to turn to the question of the caveat lodged by Mr. Reen in respect of the will of Mr. O’Connell. In the course of her submissions, counsel on behalf of the Executor pointed out that Order 79 of the Rules of the Superior Courts provides that where a caveat is warned, the caveator must either “abandon his claim to a grant or take contentious proceedings in furtherance of his claim”. She added that a court may set aside a caveat where the caveator has no interest in the estate of the deceased either under the will or on an intestacy. In support of her argument she referred to the decision in the case of Re Nevin [1997] IEHC 209 in which Shanley J. observed:

“The court has an inherent jurisdiction to set aside a caveat where the caveat has been vexatiously lodged; see the

Goods of Norris I.R.R. 1 Equity 334

. Equally, the court has jurisdiction to set aside a caveat where the caveator has not interest: see

Nugent v. Nugent

8 I.R. JURNS 52.”

It is not suggested by Mr. Reen that he does have an interest in the estate of Mr. O’Connell either on an intestacy or under the terms of his will. In truth, the position is that Mr. Reen has a number of complaints against the late Mr. O’Connell, arising out of the conduct of his practice as a solicitor. It may well have been the case that Mr. Reen could have brought proceedings against Mr. O’Connell arising out of his complaints during the course of his life. Despite the complaints canvassed by Mr. Reen, no such proceedings were ever taken. It may be the case that Mr. Reen is of the view that he is entitled to bring some form of proceedings against the estate of Mr. O’Connell. It would not be appropriate for me to make any comment on such a possibility. Nevertheless, it is important to point out that there is a difference between a claim arising under the estate of an individual, either on intestacy or on foot of the will of a deceased person, and a claim against the estate of a deceased person. It is not appropriate for a person with a claim against an estate to lodge a caveat in respect of that estate. Such a person has no interest in the estate. A caveat, as explained by Shanley J. in the decision referred to above, can be lodged in circumstances where the caveator has an interest in the estate of the deceased. Mr. Reen has no interest in the estate of Mr. O’Connell. Accordingly, it is impossible to see any error in the order made by the learned trial judge striking out the caveat in respect of the estate of Mr. O’Connell.

Conclusions
The appeal by Mr.O’Brien can be struck out.

Mr.Reen does not have an interest in the estate of the late Mr. O’Connell arising under his will or by way of intestacy. In those circumstances, the learned High Court Judge was correct in setting aside the Caveat lodged by Mr. Reen in respect of the will of the late Mr. O’Connell.

No basis has been demonstrated by Mr. Reen as to why it was incorrect to make the order pursuant to s. 27 (4) of the Succession Act 1965 in the Catherine Reen proceedings. Finally, it is impossible to see any basis for the challenge to the order re-constituting the Catherine Reen proceedings. Such an order is procedural in nature and is of a type which is routinely made. The order made enables the proceedings to be prosecuted. Those proceedings provide Mr. Reen with the opportunity to ventilate some of the various issues raised by him in respect of the late Mr. O’Connell. Seeking to have that order set aide could only be described as counterproductive so far as Mr. Reen is concerned.

In all the circumstances, I would dismiss the appeals of Mr. Reen from the orders made by the learned trial judge.

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