High Court rules solicitor is not personally liable for costs of dispute over estate

A solicitor who was executor for a €1.8 million estate, including a house on Anglesea Road, Ballsbridge, Dublin, is not personally liable for the costs of a dispute over alleged delays in administering the estate, the High Court ruled.

The dispute arose over the administration of the estate of Oliver Sherry, of Laurel, Hazeldene, Anglesea Road, who died in December 2015.

He had appointed Daire Murphy, a partner in Lyons Kenny solicitors who represented Mr Sherry for a number of years, as executor.

The terms of the will included that the residue of the estate, after payment of debts and expenses, was to go to Kieran Crowley, who had been Mr Sherry’s sole carer and assistant for many years.

The grant of probate issued in February 2018, recording a net value of about €1.8 million.

Mr Crowley became dissatisfied with the way in which the defendant was discharging his role as executor, and complained to the Law Society and later issued High Court proceedings.

He sought orders against Mr Murphy regarding administration of the estate or, in the alternative, an order removing him as the legal personal representative of the estate.

Following a number of hearings, the parties last June indicated the matter had been almost fully resolved.

Mr Crowley, however, sought an order that the costs of the case be awarded personally against Mr Murphy who strenuously opposed the application.

Mr Justice Mark Sanfey said Mr Murphy should be entitled to his costs of the proceedings and to necessary fees and costs.

He noted that shortly after the proceedings commenced, Mr Crowley, on the advice of his new solicitors, instructed that Hazeldene be transferred to him by means of an assent, thereby withdrawing his instruction that the property be sold.

After an administrative hiccup which caused a brief delay, the defendant complied with this wish.

Quicker response

It was clear that the administration did not take place as quickly as Mr Crowley would have liked, and it may be that Mr Murphy could, on occasion, have responded to queries more quickly, or acted more expeditiously, he said.

“However, no doubt that could be said of almost any administration of an estate, the beneficiary of which is waiting impatiently for his distribution,” he said.

Mr Murphy carried out the office to which he was appointed by the deceased’s will and there was no independent evidence that he did so at a pace that was at odds with his duty under section 62 of the Succession Act 1965. This requires an executor to distribute the estate as soon “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”.

There was also no evidence that he caused loss to the estate in the course of his duties, or that he is responsible for the failure of successive sales of the property – three sales had fallen through.

Even if a court were to presume culpability on Mr Murphy’s part in this regard, there was no evidence as to the quantum of any alleged loss.

The judge also noted Mr Crowley made a complaint to the Law Society, and Mr Murphy supplied various items of documentation and a narrative justifying his position.

Mr Crowley’s response was to issue further queries, and ultimately to go ahead with High Court proceedings due to a perceived failure on the part of the defendant to answer these latter queries, he said.

Given there was an existing complaint to the Law Society,which a practising solicitor would take seriously, “one wonders why Mr Crowley did not try to advance the matter by these means”, the judge said.

Effectively, the complaint process was abandoned in favour of court proceedings, he said.

In all the circumstances, it does not seem to the judge that the proceedings were the appropriate means of expediting an administration.

He did not think the proceedings or the way in which they were prosecuted could be regarded as “the event” for which the costs of the case must follow.

There was no suggestion Mr Murphy had been in any way dishonest and no breach of trust established.

He saw no reason why he was not entitled to his costs from the estate.