THE High Court yesterday displaced Mrs Margaret Heffernan from being executrix of the estate of her late sister, Ms Therese Dunne.
Mr Justice Smyth said the continuation of Mrs Heffernan as executrix would be detrimental to the welfare of the estate and its beneficiaries. He appointed a Dublin accountant, Mr Garrett Wren, to administer the estate. He was giving judgment in proceedings brought by Mrs Heffernan's brother, Mr Ben Dunne, who challenged her right to administer the estate of their sister.
Mrs Heffernan had been named by Ms Dunne to be executrix of her will. Mr Dunne applied to have the estate administered either by the court itself or by someone appointed by the court.
Ms Dunne died in September 1995. The net distribution value of the estate was £22.5 million.
Mr Dunne contended that Mrs Heffernan had failed fundamentally in her duties as executor and in particular in furnishing an affidavit to the Revenue authorities relating to the value of Ms Dunne’s 265 preference shares in the Dunnes Stores group of companies.
Mr Justice Smyth yesterday decided to appoint an administrator given what he described as the unspoken but clear antipathy of the litigants towards each other and their propensity to litigate.
He said he had tried to refrain from casting blame on the parties, as he did not wish to feed any more litigation. In a less sensitive case he could and would have made findings of fact in more forthright terms.
He said that Ms Dunne had bequeathed to her sisters, Margaret and Elizabeth, her preference shares in the Dunnes Holding Company in equal shares absolutely or, if only one should survive, the entire would go to the survivor. In the event, Elizabeth died and Margaret became entitled to the shares.
The will confined itself to disposing of the preference shares. The remainder of the estate of Ms Dunne was governed by the law of intestacy.
Notwithstanding apparent severe differences between the litigants, which the facts before him indicated existed at the time of Ms Dunne’s death, Mr Justice Smyth said that Mrs Heffernan did not renounce her right to apply for probate, but sought and obtained it.
It was clear from documents that, in the course of her duties as executrix, Mrs Heffernan swore an Inland Revenue affidavit in which the 265 preference shares were returned at a value of £265. Mr Ben Dunne's solicitor had written that they were concerned that the shares had not been returned to the Revenue at their correct value.
Under the company’s articles of association, shares of a deceased shareholder could be made available to remaining shareholders at £1 each. Mrs Heffernan had claimed she did not take up her entitlement to purchase Ms Therese Dunne’s shares and maintained that other preference shareholders had taken up the shares and paid the £265 due to the estate.
Mr Justice Smyth said he was not concerned with deciding the correct value of the shares.
Mrs Heffernan contended the correct valuation was returned to the Revenue. She also contended that, even if that was wrong, it was "none of her brother's business."
Mr Justice Smyth said it appeared to him that, notwithstanding the provision of the company's articles of association concerning the disposal of preference shares, there was room for another point of view.
Mr Ben Dunne appeared to have felt so frustrated and excluded from what he considered his legitimate concerns that in June last year he issued legal proceedings against his sister.
Mrs Heffernan, perhaps wishing to bring matters forward, wrote to all the beneficiaries of the estate of Therese Dunne, including Mr Ben Dunne, giving a progress report. But, more importantly, she had issued a notice under the Succession Act (an appropriation notice).
Whatever confidence Mr Ben Dunne may have had in his sister as executrix was finally shattered by this action and Mr Dunne had issued further legal proceedings.
Mr Justice Smyth, in appointing Mr Wren as administrator, said that documents held by Mrs Heffernan since Ms Dunne’s death in connection with the estate were to be handed over to Mr Wren or to his solicitors. Mr Ben Dunne’s solicitors would be allowed an opportunity to photocopy the documents.
He also ordered that the administrator report back to the court on April 21st. He refused to grant a stay on his order in the event of Mrs Heffernan deciding to appeal to the Supreme Court.