A man who has been disabled since birth and depends on welfare payments is challenging his late father’s will that left his estate to his nieces and grandnieces while excluding his children.
The deceased was long separated from the man’s mother, having left the family home and travelled abroad with a new partner when the man was a child.
The estate consists of four “medium-sized houses” which, even when taken together, “fall well within” the Circuit Court’s jurisdiction of not exceeding €3 million, said the High Court’s Ms Justice Siobhán Phelan in a judgment that anonymised the parties involved.
The man, who is wheelchair-bound, has brought a claim against his late father’s estate under section 117 of the Succession Act of 1965, on grounds alleging that “proper provision” has not been made for him.
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Ms Justice Phelan set out elements of the substantial dispute in her ruling, delivered on Tuesday, rejecting a High Court appeal by the man’s sister seeking to overturn the Circuit Court’s refusal to join her as a co-plaintiff in the man’s section 117 action.
The man issued his section 117 case within a few weeks of the executor extracting a grant of representation in May 2021, as did several of his other siblings, said the judge.
This sister did not issue similar proceedings within the required six months because, it was alleged, the executor, who is a solicitor, told her he had decided to renounce representation.
The sister’s solicitor believed the act of renunciation would suspend the six-month time limit. In the end the executor did not renounce representation and decided to remain as executor, but he did not communicate this decision until the six-month period had expired, said the judge.
The executor submitted that the communication about an intention to renounce should not have prevented the sister from issuing proceedings within the six-month limit. The co-plaintiff application should be refused as she is precluded from maintaining the proceedings due to being out of time, he contended.
Ms Justice Phelan said the plaintiff, as a person with a disability, relies on specific facts to make his section 117 claim.
It seems likely there is some similarity in that the father allegedly left the family home while they remained dependent and allegedly did not provide or adequately provide for the needs of his children, she added.
However, the sister’s proposed claim has not been set out in the same way as the man’s, with different questions arising, the judge concluded.
Ms Justice Phelan said the plaintiff could find no legal authority to support the proposition that the renunciation of a grant of representation suspends the six-month limit that applies to section 117 applications.
She was satisfied there is “no basis in law” for this understanding, which was arrived at without any prompting from the defendant executor. She noted the executor did not suggest in the correspondence that the sister should refrain from issuing her proceedings because of the intended renunciation.
The proposed co-plaintiff, she said, was “led into error by mistake of law which did not originate in or derive from any representation on the part of the defendant”.
The court has no jurisdiction to entertain the sister’s joinder application, which would inevitably result in additional costs depleting an “already small estate” to the disadvantage of beneficiaries under the will, the man and several other of his siblings who have brought section 117 applications within time, the judge added.
She dismissed the appeal and refused the application.
