THE HIGH COURT [2026] IEHC 328 Record No. PO 2025/12769 IN THE MATTER OF THE ESTATE OF JOHN JOSEPH O’FARRELL LATE OF CAPPAHANNA, MURROE IN THE COUNTY OF LIMERICK -andIN THE MATTER OF THE SUCCESSION ACT, 1965 -andIN THE MATTER OF SECTION 27
(4)OF THE SUCCESSION ACT, 1965 -andIN THE MATTER OF THE APPLICATION OF MARY BYRNE Judgment of Ms. Justice Siobhán Stack delivered 21st May,
- Introduction
- John Joseph O’Farrell, late of Cappanahanna, Murroe, County Limerick (“the Deceased”), died on 29 October, 2022, leaving him surviving no spouse, parent or issue. The applicant is his sister and therefore would appear to be entitled to a share on intestacy should the Will be found to be invalid. However, others would likewise be entitled to a share on intestacy, although it is not necessary to put them on notice of this application as there is no challenge to the Will.
- The Deceased was possessed of certain cash assets and lands comprised in three Folios at the date of his death. In his last Will and Testament made 8 January, 2007, the Deceased 1 nominated his friend, Michael Leonard, to be his sole executor and he devised a field comprising approximately five acres and situate at Cappanahanna to his niece, Josephine Bradshaw. The Deceased left the residue of his estate to the applicant, subject to payments up to a maximum of €10,000 to be applied to the upkeep of the house of his brother, William. William predeceased the Deceased. He also directed that a contract for the sale of approximately six acres at Cappanahanna, which had apparently been concluded with the executor prior to the making of the Will, if not completed at the date of his death, would be completed and fulfilled. (Cappanahanna is spelled in various ways in the papers, and I will adopt this spelling in the body of the judgment as it seems to be the one most consistently used.)
- The applicant entered a caveat on 29 May, 2025, which has not been warned by the respondent and seeks to remove the respondent as executor and seeks liberty to extract a grant pursuant to s. 27
(4)of the Succession Act, 1965, on the essential basis that the executor is asserting a contract for approximately six acres of the Deceased’s lands, which is said by the applicant to be in conflict with his duties as executor.
- There is a high threshold to remove an executor, but one ground for such removal is that the nominated executor has a conflict of interest, which would include a cause of action against the estate: Flood v Flood [1999] IEHC 232; [1999] 2 I.R.
- One issue which is evident from the papers is that the executor has delayed in the administration of the estate and, in particular, in applying for a Grant of Probate. The stated reason as of mid-2023 was that the executor said that he was owed €25,000 by the estate. He said this was due to him for works carried out on the lands, which appear to be the lands the subject of the contract mentioned in the Will.
- He also, incidentally, objected to the sale by the applicant of certain estate assets which seem to be livestock. The applicant now accepts, having taken legal advice, that it was for the executor to deal with any livestock. Having said that, it is not clear that the executor has any 2 interest in the estate other than to ensure that the sale to him is “completed”, as it is put in the Will. As executor, it was his obligation to gather in and preserve the assets of the estate and, in the case of livestock, this is not an obligation which can be put off. It should be noted that the applicant not only told the executor that she was going to sell this livestock – indeed, she maintains that he offered to purchase them – but there is no suggestion of any misappropriation of funds, and the greater part of the proceeds was used to pay the funeral expenses, which take priority over any other liability of the estate and which the executor is obliged to discharge from the assets of the estate in any event.
- By April 2024, the executor was claiming the full amount which he said he was due for carrying out works on the lands, i.e., €40,
- It should be noted that any such debt is now statute-barred by reason of s. 9
(2)of the Civil Liability Act, 1961, as more than two years have passed since the death of the Deceased without any proceedings for the debt being issued.
- After considerable delay and failure to reply to numerous letters from the applicant’s solicitors, the executor’s solicitors eventually replied on 25 November, 2024, confirming that the executor would proceed to “issue” the Grant of Probate – which must mean that he would proceed to apply for the Grant, before completing “the sale of the probate” – which presumably means the sale of the lands – and then proceeding to finalise the administration of the estate.
- This in turn led to correspondence by the applicant’s solicitor which makes it clear that she is, to put it mildly, suspicious about the validity of the contract for the sale to the executor. The contract, although on its face apparently signed by both parties, is undated and it seems that only a copy of the Deed of Transfer was supplied. However, on the face of the copies of the contract and Deed of Transfer, the Deceased’s signature is witnessed. While the signature of the witness is illegible in the copy contract supplied to the court, the Transfer was witnessed by a solicitor who witnessed the Will. This solicitor has retired but her practice was taken over 3 by the executor’s current solicitors and I understand that they hold the original contract and Deed of Transfer.
- The problem for the applicant is that the existence and validity of the contract which is said to give rise to the conflict of interest is recognised on the face of the Will, which provides: “I direct however that should the contract which I have entered into for sale of lands at Cappahanna, Murroe, Co. Limerick not be completed at the date of my death that said contract is to be completed and & fulfilled with the said Michael Leonard … my executor.”
- The executor accepts that he was involved in drafting the Will and a circumstance of this kind may lead to suspicions which place a higher onus of proof on those seeking to prove a will: Leahy v. Corboy [1969] I.R.
- However, it is worth noting that the executor is not a significant beneficiary under the Will he helped prepare. In the SA2 prepared by the executor’s solicitors, it is confirmed that the devise to the applicant is worth €285,000, the devise to the Deceased’s niece is worth €28,000, and the lands to which the executor claims to be entitled are worth €65,
- It is the applicant, therefore, who appears to be the principal beneficiary under the Will. Furthermore, insofar as the executor could be said to benefit, the Will does not contain a bequest so much as an acknowledgement by the Deceased of a pre-existing contract. As it happens, in this case, the Deed of Transfer has also been signed but even if the matter rested in contract, the result would be that the lands the subject of the sale would not fall into the estate.
- Therefore, while the full circumstances of how the Will was drawn are not known at this point, it does not seem that there is anything untoward about the executor’s involvement in the preparation of the Will, as it appears to have been restricted to ensuring that he became owner of lands which, as the Deceased acknowledges on the face of the Will, the Deceased had contracted to sell to him. In fact, it seems that, by the date of execution of the Will, the executor 4 may already have been in possession of those lands (with the agreement of the Deceased) and it also seems that the executor may have carried out substantial works on the lands.
- As a consequence, it may well have been that the Deceased was happy to execute a will which would ensure that the executor got what was due to him on foot of a pre-existing agreement, before proceeding to bequeath the assets remaining in his ownership to his niece and sister. The appointment of the respondent as executor also seems to have come about to ensure that he would become registered as full owner in due course.
- In any event, no issue arises from the respondent’s involvement in the drafting of the Will, because the applicant does not assert that the Will is invalid. However, she questions the validity of the contract which the executor is directed by the Will to complete. This is material to her application, as her obligation as legal personal representative would be to distribute the estate in accordance with the Will. Before turning to that issue, it is appropriate to refer in more detail to the form and terms of the Contract and Deed of Transfer which have been put in evidence. The contract and Deed of Transfer
- A copy of a formal contract, in the standard Law Society General Conditions of Sale (2001 Edition) has been exhibited, along with a copy of a Deed of Transfer. Both are dated “2007”, i.e., no date or month is given.
- In the contract, Special Condition 3, relating to VAT, has been deleted and special conditions unique to the transaction have been inserted. For example, the contract requires the executor to construct and maintain a boundary, an obligation which is expressed to survive the contract. Importantly, it also provides that the contract was not to be binding on the Deceased until he signed it. The Deceased subsequently signed the contract and a Deed of Transfer, and 5 these facts, coupled with the drafting of a formal contract which aimed to protect the Deceased from the dangers of becoming bound by an informal agreement, suggests that the Deceased took legal advice before he executed either document.
- The contract is signed by both the Deceased and the executor and, as already stated, the Deceased’s signature is witnessed. The purchase price is said to be €60,000 and this is repeated in the Deed of Transfer, which contains the usual provision to the effect that the Vendor acknowledges receipt. This consideration seems to have been agreed based on a valuation obtained by the Deceased on 22 January,
- As I have already said, the Deceased’s signature on the Deed of Transfer was witnessed by the solicitor who witnessed the Will. The email providing copies of these documents to the applicant’s solicitors indicates that a valuation and the particulars delivered form for stamp duty purposes were also sent. However, the particulars delivered form has not been exhibited. The valuation seems to be one and the same as that dated 22 January, 2007, which is exhibited elsewhere in the court booklet.
- The Deed of Transfer has not been stamped and the executor has not become registered as full owner. It appears from the contract that the lands in sale were part of a Folio of which the Deceased remains registered as full owner, and that there was no boundary in place. However, the Deed of Transfer purports to transfer the entire Folio. I have seen only an incomplete copy of the Folio which excludes Part 1, with the result that it is not possible to see the description of the property comprised in the Folio, and therefore it is not possible to see if the six acres described in the Particulars and Tenure of the contract is part only of the lands comprised in the Folio (as stated in the contract) or whether it comprises the entire of the lands in the Folio (as the Deed of Transfer assumes). Although not for determination at this point, insofar as the Deed of Transfer mistakenly purports to transfer the entire Folio when the written contract refers only to part, it is subject to rectification at the instance of the estate. However, 6 I do not understand there to be any dispute as to the extent of the lands which the executor claims should be registered in his name.
- Apparently, the originals of the contract and the Deed of Transfer are in the possession of the executor’s solicitors, who have taken over the practice of the solicitor who witnessed the Will, the Deed of Transfer (and possibly also the contract) and who is now retired.
- If his assertions in the correspondence are correct, it appears that the executor was hoping to build a dwellinghouse on these lands. The lands proved to be very boggy and they required a lot of filling and the building required a raft foundation. The executor claims he spent over €40,000 on these works but then it seems that he was refused planning permission to construct a dwellinghouse.
- It should be noted that the applicant disputes the contention that the executor paid for the works and she maintains that the Deceased paid for them, albeit that her assertion seems to be based on hearsay. I would add that Deed of Transfer acknowledges payment of the consideration of €60,
- It is not clear whether this was a sum additional to the amount which the executor says he had already spent on the lands, but nothing turns on this for the purpose of this application.
- In any event, there appears to be, not only an executed contract, but a Deed of Transfer executed by the transferor. Generally, a Deed is effective if executed by the grantor, and therefore this Deed of Transfer seems to have transferred the beneficial interest in the lands to the executor: Coffey v. Brunel Construction [1983] I.R.
- The latter contains the usual receipt clause, which is prima facie evidence of payment (see s. 54 of the Conveyancing Act, 1881). As the executor also seems to have been in possession of the lands, it may be that his rights would prevail over the rights of the registered owner as a person in “actual occupation” of the lands: s. 72
(1)(j) of the Registration of Title Act,
- 7
- It is therefore not entirely clear to me why there is a concern at this point as to whether the sale has been “completed” – which normally refers to the execution of a formal Deed, payment of monies, and delivery of possession - other than that the Deed of Transfer has not been stamped. The situation bears some resemblance to that in In re Roohan, decd.; Roohan v. Gallagher [2022] IEHC 225, where a Deed of Transfer which remained unstamped and unregistered at the date of death of the transferor was subsequently registered. Butler J. held that the lands the subject of the transfer did not fall into the estate of the transferor. Whether it is appropriate to grant the application
- I should first point out that the executor is appointed as such by the Will and this application is, in substance, an application to remove him as executor. The applicant must therefore meet the threshold in Dunne v. Heffernan [1997] 3 I.R. 431, where it was stated that serious misconduct and/or serious special circumstances would be required before a nominated executor would be removed (at p. 443).
- It must also be borne in mind that the applicant seeks liberty herself, as residuary legatee and devisee, to apply for Letters of Administration with Will Annexed. The effect would be that she would become legal personal representative in place of the nominated executor and would be obliged to administer the estate in accordance with the terms of the Will.
- It is highly material, therefore, that the applicant disputes the enforceability of the 2007 contract. The fact is that the Will contains a direction to complete the contract with the nominated executor. I do not see how it could be appropriate to give liberty to the applicant to take out such a Grant when she disputes part of the terms of the Will.
- There is a fundamental difficulty with this application as the applicant accepts the terms of the Will so far as they leave the residue to her (and so far as they contain a specific bequest 8 to the Deceased’s niece), but she does not accept the direction to the executor to complete the contract (insofar as it is not already completed). The current situation seems to be that the executor may become registered as full owner on foot of the Deed of Transfer, once it has been stamped. That, on the face of it, is something which, taking the documents executed by the Deceased at face value, the nominated executor is entitled to insist on even if he were removed as executor.
- In my view, it is inappropriate for this Court to grant administration with Will annexed to an applicant who both approbates and reprobates the Will. Only a person who will undertake to comply with all of the terms of the Will can succeed in such an application. Whether the executor has a conflict of interest
- I would add, however, that while the correspondence discloses an attitude on the part of the executor which is – to say the least – somewhat unusual, I do not believe the relatively high threshold for removing an executor has been met in this case.
- First, there is no obvious conflict from the executor’s point of view in maintaining the enforceability of the contract while administering the estate in accordance with the terms of the Will. The current situation seems to be that the executor may become registered as full owner on foot of the Deed of Transfer, once it has been stamped. That, on the face of it, is something which is likely to happen even if the executor renounces his executorship. But, insofar as the executor is not entitled to become registered anyway, his action in seeking to enforce the contract is consistent with the direction in the Will, and not in conflict with it.
- Secondly, it is true that the executor has written in somewhat intemperate terms looking for the costs of monies expended on lands. I think the better view is that he is correct in categorising this as an alternative to completion of the contract rather than the assertion of a 9 debt owed by the estate (which he now acknowledges would be statute-barred in any event). It seems that, on mature reflection, he has decided that he cannot recover the monies spent and will seek to become registered as owner of the lands in question. The description of his demand to be repaid for monies spent on the lands, while expressed in somewhat argumentative terms, cannot, in my view, be fairly categorised as “holding the estate to ransom” as the applicant puts it. Conclusion
- In all the circumstances, there are no grounds at this point for removing the executor, not least because the applicant herself is seeking to reprobate part of the terms of the Will. While neither the substance nor the tone of the correspondence from the executor is as would be expected from the legal personal representative of the Deceased, I do not think he could be accused of “serious misconduct”. The Deceased himself has acknowledged in the Will that he is contractually bound to transfer the lands in question to the executor.
- The essential position is that the executor was nominated as such in order to protect his right to have the contract completed and he has no other interest in the estate in the sense that he is not a beneficiary. In my view, the correspondence is best understood in light of the fact that the executor has now found himself with obligations to the Deceased’s family members, and now has all the duties of an executor in relation to the estate as a whole even though he has only a very limited personal interest in the due administration of the estate. Having sought to resolve his own position while leaving it to the Deceased’s family to administer the Deceased’s affairs, he seems now to have realised that it is in his interests to extract a Grant, as the applicant has refused to acknowledge the validity of either the contract or the Deed of Transfer. He has, perhaps somewhat belatedly, come to the view that it is not in his interests to renounce. 10
- In those circumstances, it is not appropriate to remove the executor but I come to this conclusion very much on the basis that the executor is genuine in his stated intention to apply promptly for a Grant of Probate. However, if there is any further delay, or any assertion that the Deceased’s estate should be administered other than in accordance with the terms of the Will, then it may be that a court would look favourably on an application to remove the respondent as executor. In those circumstances, and in the absence of any further settlement or agreement between the parties, the proposed legal personal representative would have to be a person who does not dispute what is written on the face of the Will.
- In the circumstances, this application must be refused. 11