← Ireland

2026 IEHC 285

THE HIGH COURT [2026] IEHC 285 Record No. H. Sp. 2025/0015 BETWEEN/ FRANK DOYLE Plaintiff AND ANNE DOYLE AND BRIDGET GOODWIN DOYLE Defendants Judgment of Ms. Justice Siobhán Stack delivered 29 April,

  1. Introduction
  2. Bridget Doyle, died on 19 August, 2016, aged
  3. She was predeceased by her husband and survived by one son, the plaintiff herein, and six daughters, two of whom are her personal representatives and are the defendants to these proceedings. A Grant of Probate in her estate issued to the defendants on 8 October, 2019, and these proceedings issued on 1 February,
  5. The special summons, in substance, seeks to compel the defendants to distribute the estate in accordance with what the plaintiff contends is the true interpretation of the Deceased’s Will. This is an application by the defendants for the trial of a preliminary issue and the dismissal of the plaintiff’s claim on the basis that it is statute-barred by reason of s. 45 of the Statute of Limitations,
  6. 1
  7. By her last Will and testament made on 13 October, 2005, the Deceased appointed the defendants as her executrices and devised and bequeathed to the plaintiff “my old house and yard”. She devised and bequeathed “all of my lands comprised in Folio 6885 of the Register, County Westmeath, together with all the lands comprised in Folio 9266 of the Register County of Westmeath, to the first defendant, Anne, who farms them and has been farming them, according to the affidavit evidence, for over 35 years.
  8. The Deceased’s remaining five children were named as residuary legatees and devisees and the Will also provided that her daughter Mary was to be provided with a site by Anne, on certain conditions. The plaintiff has sought to take issue with whether or not this provision in the Will was complied with but there is no evidence that the beneficiary in question has any issue with how the personal representatives sought to comply with that aspect of the Will and it is not material to his claim.
  9. There were in fact no assets in the residue as the Deceased’s two bank accounts apparently had nil balances on the date of death. The Will provided that Anne was to pay the funeral expenses and she has apparently done this. Apart from that, it seems that the only debts and liabilities of the estate were the testamentary and administration expenses. The SA2 has not been exhibited and the affidavits do not say how the testamentary and administration expenses were discharged.
  10. The dispute between the parties arises because the plaintiff says the “yard” referred to in the bequest to him is the farmyard while the defendants say it is the small, paved patio area at the rear of the old dwellinghouse. This latent ambiguity arises because the patio area could reasonably be referred to as a “yard”, as could the farmyard: I am in fact using the terms “patio area” and “farmyard” for the purposes of clarity in this judgment. It is entirely possible, for example, that the patio area was in fact referred to as a “yard” by the deceased in her lifetime, or that she described it as such when giving instructions for her will. The plaintiff has sought 2 to tender the evidence of various third parties to corroborate his claim that the Deceased referred to the farmyard as “the yard”. Should the matter proceed to full hearing, and should those third parties give evidence, that evidence will quite possibly be material to the interpretation of the Will pursuant to the “armchair principle”. However, the correct interpretation of the Will is not for determination at this point. The issue before the court is solely a preliminary one, i.e., whether the plaintiff’s claim is statute-barred by s. 45 of the Statute of Limitations,
  12. In addition to the possible ambiguity about the meaning of the word “yard”, it is common case that the old dwellinghouse and the paved patio area at the rear were, at the time of the making of the Will, comprised in Folio
  13. The bequest to Anne of the lands in Folio 6885, therefore, does not create a neat distinction on the face of the Will between the lands and farmyard on the one hand, and “my old house and yard” on the other, as might be the case if the old dwellinghouse and patio area were comprised in a separate Folio.
  14. As the correct interpretation of the Will is not for determination at this point, it is sufficient for the purposes of this application to say that neither interpretation is unstateable and – without in any way purporting to decide the matter, even on a preliminary basis – it is arguable that the Will is ambiguous.
  15. The material point is that the plaintiff says he is entitled under the Will to the farmyard. However, it seems – though this is not entirely clear from the evidence – that the defendants have already assented to the vesting of the farmyard in Anne.
  16. While there appears to have been some delay in furnishing a copy of the Will to the plaintiff, it is clear from the correspondence exhibited that, no later than March, 2018, the plaintiff was contesting the defendants’ assertion that the true interpretation of the Will was that the farmyard had been left to Anne. The plaintiff lodged a caveat in the Probate Office on 13 February, 2019, but by email dated 5 July, 2019, to the defendants’ solicitors, he stated that 3 he would not contest the interpretation of the Will as propounded by the defendants. The plaintiff was no longer legally represented at this stage. Nevertheless, it is the case that he specifically stated that he would not challenge the defendants’ interpretation of the Will. The caveat was removed and the Grant of Probate then issued to the defendants on 8 October,
  18. The defendants have applied for trial of a preliminary issue as they say that the six year limitation period in s. 45 applies, that it commenced on the date of death, and that the proceedings are consequently statute-barred and should be dismissed.
  19. The defendants submit that the question of whether the proceedings are statute-barred is suitable for determination as a preliminary issue as they contend that the relevant limitation period runs from the date of death, and it is not in dispute that the plaintiff did not sue within six years of the date of death.
  20. However, the first issue is to determine whether s. 45 is indeed the appropriate limitation period and to identify the date on which the six year period commences. In particular, it is necessary to consider whether the defendants are correct in their contention that, in the case of a specific bequest of real property, the limitation period commences, as a matter of law, on the date of death. If they are correct in that contention, then the proceedings are clearly statute-barred. Relevant limitation period
  21. Section 45 of the Statute of Limitations, 1957, as inserted by s. 126 of the Succession Act, 1965, provides; “

(1)Subject to section 71, no action in respect of any claim to the estate of a deceased person or to any share or interest in such estate, whether under a will, on intestacy or under section 111 or section 111A of the Succession Act, 1965, shall be brought after 4 the expiration of six years from the date when the right to receive the share or interest accrued.”
  1. I should add that it is clear from the caselaw that s. 45 applies where the beneficiary’s claim is against another beneficiary who is said to have been overpaid: Re Diplock, decd. [1948] Ch.
  2. Therefore, even though the disputed farmyard has been vested in Anne by assent of the defendants, the limitation period operates in the same way.
  3. The plaintiff contends that Anne, as legal personal representative, had a fiduciary duty to him and should have either vested the farmyard in him or should have brought a construction summons to resolve the dispute about the correct interpretation of the Will. He claims that she is in breach of her duties in proceeding to assent to the vesting of the disputed asset in herself, notwithstanding his objection. The plaintiff is correct in saying that legal personal representatives are fiduciaries: s. 10
(3)of the Succession Act, 1965, provides that they “shall hold the estate as trustees for the persons by law entitled thereto”.
  1. The fact that the defendants, as executrices, held the farmyard as trustees for whoever was entitled to it pursuant to the Will, as correctly interpreted – and there is of course a dispute as to who is entitled by law to that part of the estate – does not alter the fact that claims against the personal representatives may become statute-barred. Prior to the enactment of the Succession Act, 1965, a personal representative was regarded as a “trustee” for the purposes of the Statute of Limitations, 1957, and s. 44 of the Statute - which deals with trustees more generally - provided that there was no limitation period where a trustee converted trust property to their own use. That would most likely have operated so as to disapply any limitation period (such as that in s. 45) to a cause of action of the kind in issue here.
  2. However, that position was altered by the Succession Act, 1965, so far as deaths occurring on or after 1 January, 1967, are concerned. While s. 10
(3)of the 1965 Act provides 5 that personal representatives are “trustees” of the estate for the persons entitled by law thereto, s. 123
(1)of the 1965 Act provides: “A personal representative in the capacity of personal representative shall not, by reason only of section 10, be a trustee for the purposes of the Statute of Limitations, 1957.” Section 123
(2)copper fastens that by amending the definition of “trustee” for the purposes of the Statute so as to exclude personal representatives acting in that capacity (as opposed to situations where the will also appoints them trustees).
  1. The net result is that while the first defendant owes duties to the plaintiff as a beneficiary under the Will, principally to administer the estate in accordance with law and arguably to bring a construction summons where there is a bona fide dispute about the correct interpretation of the Will, any cause of action against her for distributing the estate other than in accordance with the Will may become statute-barred by virtue of s. 45 of the Statute.
  2. The effect of the changes brought about by the Succession Act, 1965, in applying a limitation period to claims by beneficiaries against personal representatives, even though they are trustees of the estate for those entitled, is tempered by s. 71 of the Statute, which provides for an extension of the limitation period in s. 45 in certain circumstances. Section 71 of the Statute, which provides: “
(1)Where, in the case of an action for which a period of limitation is fixed by this Act, either— (
  1. a)the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or (
  2. b)the right of action is concealed by the fraud of any such person, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. 6
(2)Nothing in subsection
(1)of this section shall enable an action to be brought to recover, or enforce any charge against, or set aside any transaction affecting, any property which has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed.”
  1. However, s. 71 does not operate, in this case, to prevent the plaintiff’s claim becoming statute-barred. The only evidence which suggests that s. 71 might be of significance is that there seems to have been some delay in this case in providing the plaintiff with a copy of the Will when he sought it. The facts relating to this have not been put before the court in any clear way. However, in principle, one can see how a refusal to furnish a beneficiary with a copy of the Will might result in an extension of time under s. 71: for example if there was a clear and explicit bequest of property in the beneficiary’s favour and a personal representative simply went ahead and vested the property in himself or herself without disclosing the existence of the bequest, s. 71 would operate to prevent the six year period from commencing until the beneficiary in question was able to access a copy of the Will.
  2. However, that is not the situation here. Not only is the Will ambiguous, such that it cannot be said that the personal representatives acted in disregard of the clear and explicit terms of the relevant bequest, but it is clear from the correspondence that the plaintiff had a copy of the Will and was asserting his interpretation of it by early 2018, which is approximately seven years before the institution of the within proceedings. It also seems to have been clear by that stage that the defendants were asserting a contrary interpretation and did not intend to bring a construction summons. Therefore, even if it could be said that the limitation period may have been extended by s. 71 for a time, that is, until the personal representatives furnished the plaintiff with a copy of the Will, the time had obviously begun to run by early
  3. As that 7 was more than six years before proceedings were instituted, s. 71 cannot avail the plaintiff in this case.
  4. It was also suggested in the written submissions filed by the defendants that s. 14 of the Statute of Limitations applied and, on this basis, they asserted that the plaintiff’s cause of action accrued on the date of death.
  5. Section 14 provides, in material part: “
(1)Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.
(2)Where— (
  1. a)any person brings an action to recover any land of a deceased person, whether under a will or on intestacy, and (
  2. b)the deceased person— (
  3. i)was on the date of his death in possession of the land or, in the case of a rentcharge created by will or taking effect upon his death, in possession of the land charged, and (
  4. ii)was the last person entitled to the land to be in possession thereof, the right of action shall be deemed to have accrued on the date of his death.” 25. I do not think that s. 14 has any application in this case. That provision deals with accrual of the cause of action for the purposes of an action to recover possession of land under s. 13, and not the accrual of the cause of action for the purposes of s. 45: insofar as Spierin, The Succession Act 1965 and Related Legislation, 6th ed., (Bloomsbury, Dublin, 2024), at para. 947, suggests the contrary, and that the cause of action for both sections automatically arises 8 on death, I respectfully disagree. The purpose of s. 14 is to stipulate that, where a deceased person was in possession up to the date of his death, but where his personal representatives do not take possession immediately on death, the cause of action under s. 13 is deemed to have accrued on the date of death (as opposed, perhaps, to a later date where, after the property has been vacant for a period, a trespasser goes into possession). 26. The defendants relied on In re Roohan, decd.; Roohan v. Gallagher [2022] IEHC 225, where this Court (Butler J.) appears (at para. 31) to have referred with approval to the statement in Spierin which is now relied upon by the defendants. However, that reference was clearly obiter as the issue in that case was whether a Deed of Transfer of property in this jurisdiction, which had been executed in 2002 but not stamped or registered until 2017 – and therefore after the deaths of both transferor and transferee - was effective to dispose of the property, or whether the transfer was ineffective, in which case the property formed part of the transferor’s estate. The proceedings were essentially declaratory ones which had become necessary by reason of proceedings brought by the transferor’s widow in Northern Ireland in which she applied for family provision, a claim which, as Butler J. stated, seemed to be more akin to a s. 117 claim in this jurisdiction, than to a claim to a legal right share enjoyed by a surviving spouse under s. 111 of the 1965 Act. The purpose of the proceedings was to determine whether the property was in the ownership of the transferor when he died and whether, consequently, it would be available for the purposes of the claim in Northern Ireland. 27. The principal finding in Roohan was to apply Coffey v. Brunel Construction [1983] I.R. 36 and to conclude that the beneficial ownership had passed on execution of the Deed of Transfer so that the estate only held a bare legal estate. As a result, the property did not form part of the estate for the purposes of the claim made in Northern Ireland. So far as s. 45 is concerned, Butler J. seems to have been of the view that it did not apply to the proceedings in question, as they were essentially declaratory in nature and did not in themselves comprise a 9 claim to any share or interest in the estate of the deceased: see para. 32 of Roohan. For the avoidance of doubt, I am in full agreement with this conclusion. Had the property formed part of the estate of the plaintiff’s husband, the question would then have arisen as to whether the plaintiff could elect to take her legal right share under s. 111, notwithstanding that she had elected to take her share of the Northern Ireland estate under the will (see paras. 33 and 34). But, ultimately, that question did not arise as it was held that the property in this jurisdiction did not form part of the estate in any event. 28. Roohan, therefore, is not authority for the proposition that the cause of action under s. 45 automatically accrues on death. Indeed, it could not be so in circumstances where the plaintiff – so far as the will of her late husband was concerned and leaving aside any statutory entitlement she might have - was a residuary legatee only and where the nature of her interest under the Will was as stated by the Supreme Court in Gleeson v Feehan (No. 2). 29. The net issue for determination, therefore, is whether the plaintiff is barred by s. 45 from maintaining these proceedings. That turns on the specific wording and correct interpretation of s. 45 and its application to the within proceedings. When did the right to receive the bequest accrue? 30. Section 45
(1)provides that the six-year limitation period commences on “the date when the right to receive the share or interest accrued” and, therefore, the outcome of this preliminary issue depends on the correct interpretation of that phrase.
  1. In support of the proposition that the six-year period commences on the date of death, the defendants rely on s. 14 of the Statute, which I have already dealt with, but also various authorities, including an obiter statement of Finlay C.J. in Gleeson v. Feehan (No. 1) [1993] 2 10 I.R. 113; [1991] I.L.R.M
  2. That case principally concerned an intestacy arising on a death which occurred in 1936, but – as frequently occurred in the rural Ireland of the day and which probably still occurs, to some extent – no steps were taken to administer the estate until the family members who remained in possession of and farming the lands, agreed to sell them to a third party. As a result, no letters of administration were extracted until
  3. The legal personal representative then sought possession from the purchasers by way of proceedings issued very shortly after the relevant Grant issued.
  4. The Circuit Court had held that the legal personal representative was statute-barred by reason of s. 45, but ultimately the Supreme Court held that s. 45 applied only to actions brought against the estate by a beneficiary and not an action brought by an estate against a stranger. As a result, the 12-year limitation period in s. 13
(1)of the Statute applied, but, in his judgment, Finlay C.J. explicitly left over the question of when the right to receive a share on intestacy accrued and whether it might be when the assets in question came into the hands of the personal representative. Finlay C.J. also commented (at p. 122), referring to Re Johnson, Sly v. Blake
(1885)29 Ch. D. 964, that similar considerations would not appear likely to apply to an executor under a will. However, he did not decide that issue.
  1. The question of whether the right of a beneficiary to receive a bequest or a share under a will should be treated in the same way as a right to a share on intestacy must be considered against the backdrop of the legislative provisions governing devolution of property on death. Significant changes were brought about by the Land Transfer Act, 1897, which altered the law in England and Wales so as to vest real property in the personal representative in the same manner as if it were a chattel real. In doing so, it was similar in effect to s. 84 of the Local Registration of Title (Ireland) Act, 1891, which provided that registered freehold land would vest on death in the personal representatives as if it were a chattel real. Very importantly, s. 86 of the 1891 Act explicitly provided that registered freehold land could become liable for debts, 11 costs, and expenses in the same way as personal property, albeit that the order in which the real and personal estate of the deceased would become liable for funeral and testamentary expenses and the payment of legacies would not change. In simple terms, real property might be used to pay those expenses and legacies but only after the personal estate was exhausted.
  2. Subsequently, the law in England and Wales was altered to vest all of a deceased’s estate, including unregistered real property, in the personal representative: see s. 1 of the Administration of Estates Act,
  3. A similar change was effected in this jurisdiction by the Administration of Estates Act, 1959, which brought about a situation where, for all deaths occurring on or after 1 June, 1959, there was no distinction in the treatment of any part of the deceased’s estate, and it all became vested in the legal personal representatives on death (albeit, in the case of an intestacy, with the aid of the doctrine of “relation back”, as the property will initially vest in the President of the High Court until Letters of Administration are extracted: see the general discussion in Brady, Succession Law in Ireland, 2nd ed., (Butterworths, Dublin, 1995) at p. 270 to 271).
  4. However, prior to these various legislative changes, real property vested directly in the beneficiary named in the will. The caselaw relating to deaths which occurred prior to these changes in the devolution of real property does not, of necessity, give any consideration to the question of when a “right to receive” a bequest of real property from a personal representative accrues because it never vested in the personal representative as such. It is for this reason that the older cases generally consider when a beneficiary’s right to receive pecuniary legacies, or shares in the residue of an estate, accrued.
  5. In Gleeson v Feehan (No. 2) [1997] 1 I.L.R.M. 522, Keane J. (as he then was) comprehensively reviewed the authorities as to the nature of the interest held by those entitled on intestacy or as residuary legatees and concluded that they held no beneficial interest in real property, such that their occupation of it without any assent to them by the legal personal 12 representative was adverse to the estate. However, he specifically left over (at p. 539) the question of whether an entitlement under a specific bequest in a will should be treated differently.
  6. Having said that, Keane J. appears to have harboured some doubts about the correctness of the decision in Kavanagh v. Best [1971] NI 89, which concerned a bequest of real property, and where Gibson J. held that the beneficiary had an interest to which a judgment mortgage could attach, even prior to the execution of an assent in her favour. Notwithstanding that finding, the facts of Kavanagh v. Best illustrate why it may be incorrect to say that the beneficiary of a bequest of real property should be regarded as the beneficial owner: no assent had been executed because the personal representatives had not ascertained the full extent of the liabilities of the estate but had permitted the beneficiary to go into possession pending due administration of the estate, in the hope that an assent of the property could be made in due course.
  7. As a result, there seems to have been no judicial consideration of when the “right to receive” a bequest of real property under a will accrues. However, I note that in Deane v. Revenue Commissioners [2018] IEHC 519, Costello J. (as she then was) stated (at para. 20): “In any estate there will be funeral expenses, legal costs and there may be liabilities and claims against the estate. Property in the estate may ultimately be sold to discharge these expenses and liabilities or property appropriated to satisfy claims, such as a claim brought pursuant to s. 117 of the Act or the legal right share of a surviving spouse or civil partner. As a result, property in the estate may become unavailable to the beneficiaries named in the will due to the obligation to discharge these costs and expenses and the requirement to comply with the claims in advance of any distribution to the beneficiaries named in the will.” 13
  8. Deane concerned a general devise in a will of all the property in an estate and the issue was whether the beneficiary could be said to have become beneficially entitled on death to real property, specifically, to a dwelling house. Costello J. held that she could not. As it was only necessary in that case to decide that the entitlement had not vested on death, the court did not proceed to decide when the dwelling house had in fact vested in the beneficiary.
  9. Deane was cited to me for the purposes of drawing a distinction with a specific bequest of real property in a will. However, as already stated, it was not necessary in that judgment to decide whether the beneficiary of a specific bequest of real property is regarded as becoming beneficially entitled in possession to that property immediately on the death of the deceased. The reasoning suggests that, even in the case of a specific bequest of real property, it cannot be said to have vested in the beneficiary until the personal representatives have ascertained that the property is not required to satisfy any costs, expenses, liabilities or claims arising in the course of the administration of the estate. In any particular estate, these matters affect the entitlement to a specific bequest of real property. For example, sale of the property may be necessary to pay debts, or it may be required to satisfy either the legal right share of a surviving spouse or a claim pursuant to section
  11. The Court of Appeal of England and Wales has had to consider, relatively recently, the question of when the “right to receive” a share on intestacy accrues. In In re Loftus decd. [2007] 1 W.L.R. 591, the Court had to consider the effect of s. 22 (a) of the Limitation Act, 1980, which provides: “Subject to section 21
(1)and
(2)of this Act— (
  1. a)no action in respect of any claim to the personal estate of a deceased person or to any share or interest in any such estate (whether under a will or on intestacy) shall be brought after the expiration of twelve years from the date on which the right to receive the share or interest accrued.” 14 42. It can be seen, therefore, that s. 22 (
  2. a)is similar to s. 45 but with the critical distinction that it is expressed to relate only to the personal estate of the deceased. Chadwick L.J., giving the unanimous decision of the Court of Appeal of England and Wales states (at p. 600): “The true position … is that it was not contemplated by the legislature that s. 22 (
  3. a)of the 1980 Act would apply to claims against the personal representative of an intestate in respect of real estate which remained unsold or (as to claims in respect of personal estate) at a time when the estate remained unadministered – in the sense that the costs, funeral and testamentary and administration expenses, debts and other liabilities properly paid thereout had not been paid and any pecuniary legacies provided for.” 43. He reiterated this (at p. 601): “Section 22 (
  4. a)of the 1980 Act (in cases to which that section applies) will not begin to run until the administrator has paid the costs, funeral and testamentary and administration expenses, debts and other liabilities properly payable out of the assets in his hands, and provided for the payment of any pecuniary legacies. It is not until then that he is in a position to distribute the residuary estate to those entitled under section 46 of the Administration of Estates Act, 1925; because it is not until then that ‘the residuary estate of the intestate’ can be identified [as required by] section 33
(4)of that Act. That is not, of course, to say that a beneficiary has no remedy against an administrator who delays in getting in the assets and paying the administration expenses and debts: it is only to say that, in such a case, time does not run against the beneficiary under section 22(a) of the Limitation Act 1980.”
  1. He then went on to comment that the primary remedy for delay in gathering in and administering an estate was an administration action. There is no issue in this case about the gathering in of the relevant assets, as they have been in the possession of the first defendant since the date of death. It is less clear from the papers how the estate has been administered as 15 there is no clear evidence as to whether the defendants have assented to the vesting of the farmyard in the first defendant or whether she has become registered as full owner in her own right.
  2. The reasoning in In re Loftus is consistent with the reasoning of the Supreme Court in Gleeson v. Feehan (No. 2), and its main significance for the purposes of this judgment is that it specifically considers when the “right to receive” any share or interest in an estate accrues, whereas Gleeson v. Feehan (No. 2) was concerned with the distinct - but nevertheless closely related - question of when it could be said that a beneficial interest vested in a person entitled to a share on intestacy. Both judgments point to the need for the personal representatives to take steps to ascertain and satisfy various liabilities before the estate is distributed. Deane confirms that similar considerations apply to a general devise of real property in a will.
  3. In my view, it cannot be said that any beneficial interest in real property vests in a beneficiary entitled thereto by virtue of a specific bequest in a will. The policy first introduced in relation to registered land by the 1891 Act, and applied to all real property by the 1959 Act, has been continued by s. 10 of the Succession Act,
  4. All property, including all real property, vests in the executors named in a will, notwithstanding any specific bequests. One might ask, if the person entitled to real property under a will is entitled to receive that share or interest on death, what is the purpose of vesting it, in the first instance, in the legal personal representatives as trustees?
  5. The answer to that question must be that the real property in question vests in the executors named in the will and they hold it “as trustees” in the sense that they must duly administer the estate in accordance with law and, once they are satisfied that the property in question is not required to discharge any costs, expenses, liabilities or claims, they are then obliged to transfer it to the person entitled thereto under the will. 16
  6. Given that there must be a period afforded for due administration, it cannot be said that the beneficiary has a right to receive the bequest immediately on death. The difficult issue which next arises is how to identify the point in the administration of the estate at which it can be said the beneficiary has a right to receive the bequest. Time allowed for due administration of an estate
  7. Generally speaking, executors will be afforded a year to gather in assets and ascertain the liabilities of an estate. This is known as the “executor’s year” which is recognised in s. 62
(1)of the Succession Act, 1965, in the following terms: “The personal representatives of a deceased person shall distribute his estate as soon after his death as is reasonably practicable having regard to the nature of the estate, the manner in which it is required to be distributed and all other relevant circumstances, but proceedings against the personal representatives in respect of their failure to distribute shall not, without leave of the court, be brought before the expiration of one year from the date of the death of the deceased.”
  1. As is evident from that provision, the obligation to distribute may arise within that one- year period, but this will depend on the particular circumstance of the administration in question. However, the expectation must be, that in the case of a relatively straightforward estate, where there are no significant debts or liabilities and only the usual funeral, testamentary and administration expenses, a beneficiary is “entitled to receive” his or her bequest no later than one year after death.
  2. The defendants submitted that the executor’s year was reckonable, relying on Waddell v. Hershaw [1905] I.R. 416 in which a legacy to a daughter was charged on lands left to the testator’s son and grandson. The daughter herself died within the limitation period (which was 17 then 12 years), but her personal representative did not sue to enforce the legacy until shortly before the thirteenth anniversary of her father’s death. This meant that the question of whether the executor’s year was reckonable in calculating the 12 years was critical to the issue of whether the claim was statute-barred.
  3. The High Court held that time did not run until the expiry of the executor’s year, that is, it was not reckonable. However, this was overturned by the Irish Court of Appeal who found that “a present right to receive” in s. 8 of the Real Property Limitation Act, 1874, should not be equated with a right to enforce payment. A beneficiary had a “right to receive” a legacy before they had a right to sue to compel payment, and therefore the executor’s year was reckonable and the claim was statute-barred.
  4. In making that finding, the court relied on Hornsey Local Board v. Monarch Investment and Building Society
(1889)24 Q.B.D. 1, in which the right of a public authority to recover the costs incurred in paving a footpath for the benefit of landowners was held to have accrued when the works were done, even though the precise sum recoverable from the various property owners along the street had not been apportioned between them and had not been ascertained. The relevant limitation period was contained in s. 8 of the Real Property Limitation Act, 1874, as the amounts recoverable were charged on the lands. This provided: “No action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twelve years next after present right to receive the same shall have accrued to some person capable of giving discharge for or release of the same….”
  1. As can be seen, this is in similar terms to s. 45 of the Statute and is therefore relevant. However, it must be said that the reasoning in Hornsey - which is to the effect that it is not necessary to ascertain the precise sum due before it can be said that there is a “right to receive” 18 it - does not seem to have found favour in In re Loftus, decd., where the right of those entitled on intestacy to receive their share was found not to have accrued until the net estate had been ascertained.
  2. More importantly, it does not seem to be consistent with the reasoning in Gleeson v. Feehan (No. 2), which emphasises the duties of personal representatives to take steps to administer the estate in accordance with law before it can be said that any beneficiary is entitled to any specific property of the estate, and which I am satisfied also applies to specific bequests of real property in a will.
  3. The obligation to gather in the assets and ascertain the net estate before distribution, in my view, leads to the conclusion that there is a period before which it can be said that even a person entitled under a specific bequest in a will can be said to have a “right to receive” the property in question.
  4. In my view, the scheme of the Succession Act, 1965, suggests that the “executor’s year” represents the period generally assumed to be necessary to allow executors to gather in assets and ascertain liabilities, and which must be allowed pass before beneficiaries can call upon them to transfer the property bequeathed to them in a will.
  5. In considering the “right to receive” a bequest of real property in a will, it should be noted that s. 62
(1)is not the only provision in the Act which reflects an assumption that the executors will generally need a year to attend to the administration of an estate before any formal demand can be made of them to transfer over the property in the estate to those who are entitled thereto. Section 52
(4)of the Succession Act, 1965, provides that, if the beneficiary has not obtained a transfer of the property within a year of the death of the testator, he or she may apply to court to compel such transfer. The power of the Court under s. 52
(4)is a discretionary one, and one could well see why such an application would be refused if, for example, settlement had still to be reached with a creditor (such as the Revenue 19 Commissioners) and where it might be in terms which would require the sale of the property and the use of the proceeds to settle the debt in question. Another case in which it might not be appropriate to compel the transfer under s. 52
(4)would be where the testator’s spouse had elected to take his or her legal right share under s. 111, or where there was an outstanding s. 117 claim which might affect the property the subject of the bequest. 59. However, s. 52
(4)suggests that, unless there is a potential or outstanding claim, or a level of debt which might affect the right to inherit the property, the beneficiary is entitled to compel a transfer if it has not been done within the executor’s year.
  1. The general position therefore is that the “right to receive” the property accrues no later than a year after the death of the testator, but that period may be further extended where additional claims arise which might affect the ability of the personal representatives to distribute. Examples of such claims include claims by a spouse to his or her legal right share (which may include a right to appropriate the family home in satisfaction of that share) or a claim pursuant to section
  3. Similar considerations seem to have informed the views of Chitty J. in Re Johnson, decd. when he said (at p. 970) that the 20-year limitation period in s. 13 of the Law of Property Amendment Act, 1860 (which was also a precursor to s. 45) would, “in the absence of any special circumstances relating to the getting in of the deceased’s estate”, expire 21 years from the date of death. This was interpreted by Chadwick LJ. in In re Loftus, decd. as meaning that the right to receive would generally accrue at the end of the executor’s year but might accrue later if additional time were required to gather in the assets, or to ascertain and pay the debts and liabilities of an estate.
  4. The legal position therefore appears to be that the assets must come into the hands of the personal representative, and he or she must then ascertain the expenses, debts, liabilities, and claims (including under s. 117, if applicable) which arise in the particular estate. Only 20 when it can be said that the property in question is not required to meet any such expenses, debts, liabilities, or claims can it be said that the beneficiary in question has a “right to receive” the bequest or legacy under the will. When did the “right to receive” accrue in this case?
  5. In this case, it must be said that it does not appear that the estate had any significant debts. However, I am unsure when the executrices satisfied themselves of that or when estate accounts were drawn up – even on a relatively informal basis – so as to verify that. The evidence is that there was no cash in the estate and no assets other than the real property. While the funeral expenses are not relevant as the Will specifically provided that Anne would be personally liable for them, I do not know when it was decided to fund the expenses connected with the administration or how this was done. On the face of it, the real property in the estate seems to have been liable to discharge those expenses.
  6. In addition, even after taking out the Grant of Probate, there was a possibility that any one of the remaining five siblings – or indeed the plaintiff – might have brought a claim pursuant to section
  7. Had that occurred, the assets in the estate, which consist solely of real property which was disposed of by way of specific bequests, which would have been potentially required to satisfy any such claim, if it was successful. From the point of view of the personal representatives, I find it difficult to see how they could safely assent to the vesting of the real property in the estate until the six-month period for bringing such a claim, which commences on the date the grant issues, had passed. In any specific estate, it may be the case that there was some form of waiver on which the personal representatives could rely, but I do not know what occurred in this case. 21
  8. The “right to receive” a bequest must accrue at the time that the duties of the personal representatives in connection with the due administration of the estate permit the transfer of the bequest in question. I find it difficult to see how there can be a “right to receive” when there remains the possibility of a claim which might require the personal representatives to refrain from distribution so as to meet that claim. On the facts of this case, that time seems not to have expired until six months after the grant issued. The plaintiff sued less than six years from the expiry of that six month period (and indeed less than six years after the issue of the Grant), and therefore, it cannot be said that he is statute-barred by reason of section
  9. Conclusion
  10. I am of the view that it cannot be said that the plaintiff’s claim is statute-barred. Even in the case of a specific bequest of real property, the beneficiary does not have a “right to receive” that property immediately on the death of the deceased. Only after some essential steps in the administration have been taken could a beneficiary call for the transfer of the property. In particular, the administration must have reached the point where it can be said that the property in question is not liable to meet the costs, expenses, debts, or liabilities of the estate. It must also not be amenable to any claim, such as one pursuant to s. 117 of the Succession Act,
  12. This comes before the court as a request to determine these matters as a preliminary issue. There is no clear evidence relating to the administration of the estate which would allow the court to identify with any precision the date on which it could be said that the plaintiff had a “right to receive” his bequest under the Will of the Deceased. For six months after the date of issue of the Grant, any one of the other five siblings might have brought a claim pursuant to s.117, and the real property disposed of by specific bequest in the Will might then have been 22 required to satisfy any such claim. In those circumstances, I am satisfied that it cannot be said that the plaintiff’s proceedings have been brought outside of the limitation period in section 45 of the Statute of Limitations. 23

🔗 To official source

AI explanation based on the official legal text. Indicative, not a substitute for legal advice.