Delivering judgment for the High Court, Ms Justice Stack held that the jurisdiction identified in Re Hannon [2018] 3 IR 402 under section 27(4) of the Succession Act 1965 extends only to cases where all persons who might benefit from the outcome of proceedings being compromised agree to the making of the relevant order.
The proceedings concerned the estate of Christopher Kearns, who died on 7 November 2015, unmarried and without issue. Under a will dated September 2006, Mr Kearns left his estate in equal shares to the first defendant and his niece, who were also appointed as executors.
The plaintiff, a brother of the deceased, challenged the validity of the will, alleging that the deceased had lacked testamentary capacity as a result of irrational delusions concerning him arising from schizophrenia and associated psychotic symptoms. Proceedings were issued in March 2017 on the basis that the deceased lacked capacity to choose between those who might otherwise have benefited from his estate.
The original plaintiff died approximately three years later. The parties subsequently reached a settlement under which his estate would receive a one-third share of the deceased’s estate. The matter came before the High Court for the substitution of the original plaintiff’s son and for an application under section 27(4) of the 1965 Act permitting the defendants to administer the deceased’s estate in accordance with the terms of the settlement.
Ms Justice Stack acceded to the substitution application but refused the section 27(4) application.
The application had been brought in reliance on Re Hannon, in which the High Court recognised a discretion under section 27(4) and balanced the public interest in giving effect to the wishes of a deceased against the public interest in bringing certainty to litigation concerning the succession to an estate and facilitating the consensual resolution of family disputes.
The judge found that the circumstances in Re Hannon were materially different. In the present case, not all persons potentially affected by the proceedings had been joined as parties, were parties to the settlement or had been placed on notice of the application. Consequently, an order under section 27(4) would not finally “quieten” questions concerning the validity of the deceased’s will.
The deceased had been one of eleven siblings and was survived by one sibling and at least 21 nieces and nephews who could be entitled to inherit on intestacy.
The court noted that in Re Hannon, which concerned a challenge to a second will by beneficiaries under an earlier will, Ms Justice Marie Baker had specifically noted that both groups of beneficiaries were parties to the compromise. In addition, all persons who would have been entitled on intestacy were on notice of the application and had not objected to the making of the order.
By contrast, the settlement in the present case had been reached between the beneficiaries under the disputed will and the original plaintiff, who was only one of the persons potentially entitled on intestacy. The plaintiff would have been entitled to only a one-sixth share of the estate on intestacy.
Ms Justice Stack considered that the application was effectively one of convenience, as it would permit the defendants to obtain a grant notwithstanding an unresolved question concerning testamentary capacity which could result in five-sixths of the estate passing to the nieces and nephews entitled under the 1965 Act.
The court therefore concluded that the jurisdiction recognised in Re Hannon “only extends to cases where all those who might stand to benefit from the outcome of proceedings which are being compromised are agreeable to the making of the order pursuant to section 27(4)”.
The judge also expressed concern regarding the grounding affidavit submitted by the first defendant, which incorrectly stated that the deceased had no surviving relatives other than his brother and niece. Ms Justice Stack stressed the importance of providing the court with complete and accurate information concerning family members who may benefit on intestacy.
The court emphasised that it was not sufficient to identify those who “survived” the deceased, as that expression may colloquially refer only to a deceased person’s closest surviving relatives and does not necessarily correspond with those entitled to succeed on intestacy.
Where relevant, the court indicated that affidavits should positively identify the total number of children or siblings of the deceased, whether or not they survived the deceased, and whether any predeceased child or sibling had issue or children.
Ms Justice Stack also addressed references in the pleadings to the terms “next of kin” and “heir at law”. The court noted that “heir in law” is no longer a relevant concept in modern succession law, while “next of kin”, although commonly used to refer to a deceased person’s closest surviving relatives, has a specific statutory meaning under section 70 of the 1965 Act concerning potential intestate successors where a deceased person is not survived by a spouse or civil partner, issue, parent, sibling or a child of a predeceased sibling.
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