Probate Practice Guide by Karl Dowling BL

The Limitation of Actions & Time Limits

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The Limitation of Actions & Time Limits in Probate Practice (& Associated Practical Issues)

ACTIONS TO RECOVER ARREARS

Section 126(2) of the Succession Act 1965 provides that

No action to recover arrears of interest in respect of any legacy or damages in respect of such arrears shall be brought after the expiration of three years from the date on which the interest became due.

 

CLAIMS FOR EQUITABLE RELIEF

Section 11(9)(a) of the Statute of Limitations 1957 provides that:

This section shall not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief.

Whilst, traditionally, the statutes of limitation were not applicable to actions in equity, delay is a discretionary factor that may influence the court’s decision as to whether or not to grant the relief as sought. Therefore, arising from this, the court will look to see whether (i) the doctrine of laches applies and may refuse relief on the grounds of unreasonable or prejudicial delay; and (ii) there has been any acquiescence (to the acts of the defendant) of the part of the plaintiff.

Promissory Estoppel

The doctrine of promissory estoppel can be relied upon so as to prevent a person from not acting upon representations made to another by words or conduct of a fact that causes that party to incur detriment in reliance on the representation.

In such circumstances, the person making the representation will be prevented from acting in a manner that is inconsistent with what had been agreed. In the House of Lords decision in Jordan v Money, Lord Cranworth summarised the principle of estoppel in the following manner:

“if a person makes any false representation to another, and that other acts upon that false representation, the person who has made it shall not afterwards be allowed to set up that what he said was false.”

Further, Lord Cranworth was firmly of the opinion that the doctrine only applied to the representation of existing facts and not representations of future intention. Black J. in Munster & Leinster Bank Ltd v Croker, adopted the reasoning in Jordan and stated that this form of estoppel “only applies to representation of existing facts”.

The House of Lords in Hughes v Metropolitan Railway Company moved away from the strict interpretation of promissory estoppel as illustrated in the decision in Jordan v Money. Lord Cairns concluded that equity would prevent a person from denying the trust or accuracy of a representation of a future intention when the result would be unconscionable.

Such reasoning was adopted in Central London Property Trust Ltd v High Trees House Ltd, with Denning J. stating that where a promise is made which “is intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made and which was in fact so acted on” the court must make certain that the agreement is honoured.

The decision in both Hughes v Metropolitan Railway Company and Central London Property Trust Ltd v High Trees House Ltd seem to be at variance with Jordan v Money in that the House of Lords held that estoppel could only operate where the misrepresentation is of an existing fact.

The principle as developed by the High Trees case was subsequently constrained by Denning L.J. in Combe v Combe, where he was of the opinion that it did not “create new causes of action where none existed before”.

In recent Irish decisions, the principle of promissory estoppel has been further restricted. In Association of General Practitioners Ltd v Minister for Health, O’Hanlon J. stated that

“the doctrine of equitable or promissory estoppel cannot create any new cause of action where none existed before.”

Furthermore, in Industrial Yarns Ltd v Greene, Costello J. concluded that in order to establish a claim of estoppel,

“the representor must show that what was said or done by the representor influenced both the belief and conduct of the representor to his detriment.”

In terms of time limits for the bringing of such an application, Clarke J. in Cavey -v- Cavey & ors was of the view that claims based upon promissory estoppel can only be maintained if it is commenced within two years of date of death of the deceased.

Proprietary Estoppel

The concept of propriety estoppel was developed by equity to furnish a remedy to a person who acts on foot of representations made to them by an owner of land in relation to future property right to said land, and the person to whom the representations are made, relies upon them to his detriment.

In McCarron v McCarron Murphy J. quoted the circumstances in which proprietary estoppel operates by reference to the following passage from Plimmer v. Mayor of Wellington, which was an appeal to the Judicial Committee of the Privy Council:

“Where an owner of land has invited or expressly encouraged another to expend money on part of his land on the faith of an assurance or promise that that part of the land would be made over to the person so expending his money a Court of Equity will prima facie require the owner by appropriate conveyance to fulfil his obligation and when, for example, for reasons of title, no such conveyance can effectively be made, or (sic) a Court of Equity may declare that person who has expended the money is entitled to an equitable charge or lien for the amount so expended.”

Mr. Justice Laffoy in Coyle v Finnegan & Another examined the legal principles that must be applied in such claims of propriety estoppel and referred to Delaney on Equity and the Law of Trusts in Ireland (5th edition, Round Hall) (at page 760), wherein it is suggested that most scholars agree that the doctrine of proprietary estoppel is based on three main elements, namely:

(a) a representation or assurance made to the claimant;

(b) reliance on it by the claimant; and

(c) detriment to the claimant in consequence of his (reasonable) reliance.

The author then quotes the following passage from the judgment of Robert Walker L.J. in Gillett v. Holt (at page 829):

“… the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments. Both sides are agreed on that, and in the course of the oral argument in this court it repeatedly became apparent that the quality of the relevant assurances may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a ‘mutual understanding’ may depend on how the other elements are formulated and understood. Moreover the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round.”

Furthermore, it was held by Hogan J. in Coleman v Mullen that no action in quantum meruit or in unjust enrichment lay in the circumstances of the case where the plaintiff had voluntarily acted as a good friend to an elderly neighbour and there had been no understanding between them that the plaintiff was entitled to be rewarded for her services.

As the statutes of limitation do not generally apply to equitable claims, however, for the reasons as set out by Clarke J. in Cavey -v- Cavey (in relation to promissory estoppel), it seems correct that the same time limit should apply to claims based upon propriety estoppel, that being two years from the date of death of the deceased.

Condemnation of a Testamentary Instrument

In order for a will to be valid, section 77(1) of the 1965 Act requires that the testator:

(a)  has attained the age of eighteen years or is or has been married, and

(b)  is of sound disposing mind.

Although there is a minimum age limit specified by the 1965 Act, old age presents no bar to executing a will, and a valid will can be executed by an elderly testator, provided always that he or she is of sound disposing mind.

Once the above criteria are satisfied, section 78 of the 1965 Act provides for the following conditions:

To be valid a will shall be in writing and be executed in accordance with the following rules:

  1. It shall be signed at the foot or end thereof by the testator or by some person in his presence and by his direction.
  1. Such signature shall be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness shall attest by his signature the signature of the testator in the presence of the testator, but no form of attestation shall be necessary nor shall it be necessary for the witnesses to sign in the presence of each other.
  1. So far as concerns the position of the signature of the testator or of the person signing for him under rule 1, it is sufficient if the signature is so placed at or after, or following, or under, or beside, or opposite to the end of the will that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his will.
  1. No such will shall be affected by the circumstances—

(a)  that the signature does not follow or is not immediately after the foot or end of the will; or

(b)  that a blank space intervenes between the concluding word of the will and the signature; or

(c)  that the signature is placed among the words of the testimonium clause or of the clause of attestation, or follows or is after or under the clause of attestation, either with or without a blank space intervening, or follows or is after, or under, or beside the names or one of the names of the attesting witnesses; or

(d) that the signature is on a side or page or other portion of the paper or papers containing the will on which no clause or paragraph or disposing part of the will is written above the signature; or

(e)  that there appears to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature;

and the enumeration of the above circumstances shall not restrict the generality of rule 1.

  1. A signature shall not be operative to give effect to any disposition or direction inserted after the signature is made.

 

Section 77(1)(b) of the 1965 Act requires that in order to be valid, a will shall be made by a person who is of sound disposing mind. As to determining whether a person was “of sound disposing mind” when making or purporting to make a will (which requirement has been consistently applied in this jurisdiction), Cockburn C.J. in Banks v Goodfellow sets out that:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

The within test is essentially a three-fold test, requiring satisfaction of all of the constituent elements which may be paraphrased as follows:

(i)   The testator must understand the nature of the act and its effects, i.e. know that they are executing a will, a document that will dispose of their assets;

(ii)  The testator must know the nature and extent of the property of which he is disposing;

(iii) Did the testator call to mind all those persons who might be expected to benefit and then decide whether or not to benefit those persons?

The burden of proof in relation to testamentary capacity is subject to the following:

(i)   While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity.

(ii)  In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.

(iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity none the less.

In Scally v Rhatigan, Laffoy J. endorsed what has become known as the “Golden Rule” as being the law in this jurisdiction. In referring to the judgment of Briggs J. in In Re Key, Deceased, where the court stated that:

“The substance of the golden rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings …”

However, Briggs J. went on to say at 2023:

“Compliance with the golden rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope.”

Laffoy J. went on to comment that:

“Irrespective of whether the golden rule or best practice was followed in a particular case, it is a question of fact, which is to be determined having regard to all of the evidence and by applying the evidential standard of the balance of probabilities, whether a testator was of sound disposing mind when the testamentary document which is being propounded was executed.”

It is clear from the decision of the Supreme Court in In Re Glynn that the test of capacity is a legal test and not a medical test. Therefore, any medical evidence, whilst valuable, must be treated as being supplemental to, and not a substitute for, the legal tests for capacity.

Any action seeking to challenge the validity of a will on the grounds of lack of capacity, undue influence, duress, fraud or any other valid grounds is termed a ‘probate action’. Section 125(1) of the Rules of the Superior Courts defines such an action as meaning ‘any proceeding commenced by originating summons and seeking the grant or recall of probate, or letters of administration, or similar relief.’

In the High Court, a probate action is commenced by way of plenary summons and both the plaintiff and defendant must file an affidavit of scripts in the Central Office, whether or not they have any such script in their possession. In the Circuit Court, the action is brought by way of Testamentary Civil Bill. In both the High Court and Circuit Court, a caveat must be lodged (if not already in place) upon the issuing of proceedings.

Although section 126(1) of the Succession Act 1965 provides 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 of the Succession Act, 1965, shall be brought after the expiration of six years from the date when the right to receive the share or interest accrued. It is not clear when the six-year time period begins, however, where the will is condemned, it is certainly arguable that time will only begin to run from the date of the order condemning the will for the beneficiaries under an earlier will or on intestacy.

Construction Suit

A construction suit may be brought by a personal representative for the determination of any questions arising under a testamentary instrument or by a beneficiary for the purpose of determining their rights under a will. Such an application is initiated on foot of a Special Summons in the High Court and in the Circuit Court, by a Succession Law Civil Bill.

Whilst there appears to be no time limit for the bringing of such applications, it goes without saying that the parties must act with due expedition, so as not to delay the administration of the estate.

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By | 2017-03-04T20:04:44+00:00 November 9th, 2016|Papers, Probate|0 Comments

About the Author:

Karl Dowling is a Barrister at Bar of Ireland & Bar of England and Wales. He is editor of the Irish Probate Journal and Committee member of the Society of Trust and Estate Practitioners (STEP) Ireland and coordinator of the Law Society's Certificate & Diploma in Trust and Estate Planning.