In the Estate of Thomas Nevin deceased, on the application of Catherine Nevin.

Intestacy - Grant of letters of administration - Caveat - Application to set aside - Abuse of process of court - Interest of caveator - Bona fides - Grant of administration and ad coligenda bona - Rules of the Superior Courts 1986 (SI No 15). Order 79 rules 41-51. Order 80 rule 58 - Succession Act 1965 (No 27), sections 38, 67(1), 120(1) and (5).

The High Court (before Mr Justice Shanley); judgment delivered 13 March 1997.

WHERE a caveat is entered to the grant of letters of administration a court shall not set it aside unless the applicant can show the court that the caveator has no interest in the estate of the deceased or that the caveat has been vexatiously lodged.

The High Court so held in refusing to set aside a caveat entered by Nora Nevin, mother of the deceased, and providing that if the applicant wished to obtain a grant of administration ad colligenda bona limited to collecting in and preserving, but not distributing the estate such an order would be made.

Barry White SC and Eamonn Mongey BL for the applicant; Henry Bourke SC and John O'Donnell BL for the respondent.

MR JUSTICE SHANLEY said that after the death of her husband the applicant had sought to apply to the Probate Office for a grant of letters of administration intestate to the deceased's estate. On 19 August 1996 Nora Nevin, mother of the deceased, entered a caveat in the Probate Office the function of which was to ensure that administration would not be granted in the estate without notice to her, the caveator. Solicitors for the applicant requested the caveator to withdraw the caveat by letter of 8 January 1997 but the request was refused.

The applicant then applied to the court for an order setting aside the caveat and restraining Nora Nevin, the caveator, from entering any further caveats. The applicant contended that to allow the caveat remain in place or to allow any further caveats be entered would be an abuse of process of the court.

Nora Nevin, the caveator, stated in her affidavit that the applicant was a suspect in the murder of her son and she had a duty to protect his estate. The court noted that it had no function in the determination of the guilt or innocence of any party to the murder of the deceased.

Mr Justice Shanley referred to the Succession Act 1965 and said that a caveat once entered remained in place for a period of six months or until withdrawn and could be renewed from time to time. Once notice, called a warning, is issued to the caveator an appearance must then be entered within six days by the caveator indicating the interest he or she claims which usually has the effect of obliging the party seeking the grant to take proceedings.

Alternatively, a summons can be entered by a caveator without entering an appearance. Where there is no appearance and proceedings are not issued by the caveator, the caveat can be cleared off.

Mr Justice Shanley noted that while the caveat had been renewed in February 1297 no warning had issued at the instance of Catherine Nevin in relation to either caveat.

Mr Justice Shanley said that Catherine Nevin was entitled to a grant of administration of the estate of her late husband in priority to his mother. Under section 120 of the Succession Act 1965 sane persons who are guilty of the murder or the attempted murder or manslaughter of the deceased are precluded from taking any share in the estate of the deceased and the estate shall be distributed without any reference to the person so guilty.

On reviewing the authorities, Mr Justice Shanley said that the court must consider whether the caveator has an interest in the estate sufficient to give her a right to lodge a caveat. In this case the caveator had an undisputed interest in doing so. The bona fides of the caveat or must also be considered. The court took the view that the caveat had not been entered vexatiously and that by entering the caveat the caveator had not abused the process of the court.

Mr Justice Shanley was concerned that the applicant should not be under any legal disability due to the court's refusal to clear off the caveat. The caveator's interest could be protected if the applicant was given a grant of administration limited to the collection and preservation but not the distribution of the estate of the deceased. Accordingly, Mr Justice Shanley indicated the applicant could obtain a giant of administration ad colligenda bona and could seek an unlimited grant after a period of nine months from the date of the judgment. The court made no order as to costs.

Solicitors: Kennedy Fitzgerald (Galway) for the applicant; Lehane Hogan (Dublin) for the respondent.