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URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC193.html
Cite as: [2025] IEHC 193

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APPROVED                                                                                         [2025] IEHC 193

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THE HIGH COURT

Record No: 2024/2271 P

Between:

FRANCES LYNCH, HUGH FITZGIBBON and YORK DESIGNS LIMITED

Plaintiffs

-AND-

GREGORY OLAN MURPHY

Defendant

 

JUDGMENT of Mr Justice Rory Mulcahy delivered on 4 April 2025

 

Introduction

 

1.         Edward Joseph Murphy ("the deceased") died in his home in California on 3 January 2019. He purported to execute a will on the day of his death ("the Will"). Under the Will, the defendant, the deceased's nephew, was named as his executor. In these proceedings, the plaintiffs seek orders declaring the Will to be invalid and recalling and revoking the grant of probate extracted by the defendant on 15 May 2020. The plaintiffs expressly plead that "as parties to [three sets of Circuit Court] proceedings" they have locus standi to bring these proceedings.

 

2.         The first plaintiff has sued the defendant, in his capacity as executor of the deceased's estate, in Circuit Court proceedings seeking specific performance of an alleged agreement regarding possession of a property in Kinsale, Co. Cork ("the Property"). The first plaintiff currently occupies the Property with the second plaintiff. In addition, the defendant, also in his capacity as executor, has sued both the second plaintiff and the third plaintiff, in separate Circuit Court proceedings, seeking to recover debts allegedly owed by them to the estate.

 

3.         The plaintiffs are not beneficiaries of the deceased's estate under the Will. They do not contend that there is another document in being purporting to be the will of the deceased pursuant to which they are beneficiaries. In fact, all of the parties have sworn affidavits of scripts confirming that there is no other purported will in existence. Nor would the plaintiffs be beneficiaries of the estate if the Will were declared invalid, i.e. in the event of intestacy, since there is no other purported will. The sole beneficiaries in the case of intestacy would be the deceased's sons, Johnathon and Edmond Murphy. They have not sought to challenge the Will dated 3 January 2019.

 

4.         In those circumstances, the defendant contends that the plaintiffs have no standing to challenge either the Will or his appointment as executor since they can obtain no benefit from these proceedings. He contends that the sole purpose of these proceedings is to delay the progress of the three sets of Circuit Court proceedings and accordingly that they are an abuse of process. He has thus brought the application the subject of this judgment, seeking to strike out the plaintiffs' claim pursuant to Order 19, rule 28 of the Rules of the Superior Courts ("the Rules") or the court's inherent jurisdiction as an abuse of process.

 

The plaintiffs' case

 

5.         The plaintiffs issued these proceedings on 3 May 2024. The defendant entered an appearance on 28 May 2024 and, after the parties exchanged affidavits of scripts, the plaintiffs delivered a statement of claim on 25 October 2024. In fact, the plaintiffs delivered their statement of claim a number of days after this motion issued. They argue that the defendant acted precipitously in issuing the motion when he did not know the full extent of the plaintiffs' case. It is certainly true that the case as pleaded in the statement of claim is in markedly different terms to any claim disclosed in the plenary summons.

 

6.         The plenary summons simply identifies each of the plaintiffs as parties in Circuit Court proceedings against the defendant and seeks orders to have the grant of probate revoked and to have the Will declared and void.

 

7.         The plaintiffs' statement of claim is more elaborate. They plead that the Will is invalid because it was not executed in accordance with the Succession Act 1965 and because the signature on the Will is not that of the deceased but is that of John Murphy, a beneficiary under the Will. John Murphy is also a nephew of the deceased. In the alternative, they plead that if the deceased did execute the Will, he lacked testamentary capacity at the time of so doing, did not know and approve of the contents of the Will and / or that he was induced to execute same by the undue influence of John Murphy.

 

8.         There are no particulars pleaded of the alleged failure to comply with the requirements of the Succession Act 1965 independent of the other complaints about the Will. In relation to the allegation that the Will was not signed by the deceased but by John Murphy, the plaintiffs plead that they commissioned two reports from a named "Court Qualified Forensic Document Examiner". It is pleaded that the first report, dated 12 March 2024, concluded that it was "highly improbable" that the signature on the Will was that of the deceased. It is pleaded that the second report, dated 27 March 2024, concluded that there were "indications" that the purported signature of the deceased on the Will was that of John Murphy.

 

9.         In relation to testamentary capacity, the statement of claim refers to the fact that the deceased was terminally ill at the date of execution of the Will, noting that he died the same day. The deceased is alleged to have been heavily medicated at the time of execution, receiving end-of-life palliative care. Further details of his medical condition are set out. It is pleaded that the solicitors who drafted the Will were not in attendance at the execution of the Will and had no prior relationship with the deceased. It is alleged that the deceased had needed assistance when telephoning the first plaintiff from November 2018 and that he was at the time of the execution of the Will unable to understand its contents or to use a computer to send emails.

 

10.     As regards undue influence, it is pleaded that the deceased was under the "direction and influence" of John Murphy at the date of execution of the Will. It is pleaded that it was John Murphy who first made contact with the solicitors who prepared the Will. Emails evidencing same are annexed to the statement of claim. The statement of claim also refers to emails purportedly sent by the deceased on the day of his death and describes as "remarkable" the fact that on the day of his death, the deceased was able to send detailed emails regarding his will and to scan and send a copy of the Will in the hour prior to his death.

 

11.     The plaintiffs seek that the grant of probate be recalled, that the Will be declared invalid, and that an identified solicitor be appointed as administrator ad litem pursuant to section 27(4) of the Succession Act 1965 for the limited purpose of defending the first plaintiff's proceedings against the estate.

 

12.     As the defendant had issued this motion prior to the delivery of the statement of claim, he has not delivered a defence.

 

The defendant's motion

 

13.     The defendant's motion issued on 21 October 2024. The defendant's position is that the proceedings can confer no benefit on the plaintiffs since there are no circumstances in which they will be beneficiaries of the estate, irrespective of the outcome of the proceedings. In the circumstances, he contends that they have no locus standi to maintain proceedings challenging the Will or the grant of probate.

 

14.     In his grounding affidavit, he explains that there are three sets of Circuit Court proceedings in being. The pleadings in the three cases were produced to the court at the hearing of this motion. In the first plaintiff's proceedings against the estate, she seeks specific performance of an alleged agreement between the plaintiff and the deceased regarding the Property which is the main asset of the deceased's estate.

 

15.     The defendant notes that no issue was raised about the Will prior to 2024, despite it having been furnished to the plaintiffs in December 2019. He highlights the fact that there is no evidence to substantiate the claim regarding the existence of handwriting reports which cast doubt on the authenticity of the Will. Although certain emails were, the defendant says "unusually", annexed to the statement of claim, the alleged handwriting reports were not.

 

16.     The defendant avers that the plaintiffs' only purpose in instituting these proceedings is to delay the Circuit Court proceedings, which are ready for hearing, and that they, therefore, constitute an abuse of process.

 

17.     The first and second plaintiffs swore a joint affidavit in reply to the motion. They summarise the claim made in the Statement of Claim and confirm the position set out in their affidavits of scripts, i.e. that they are not beneficiaries of the estate and that there is no other document purporting to be the will of the deceased. They claim that they nonetheless have standing in these proceedings because of their position as parties in litigation to which the defendant is also a party in his capacity as executor of the deceased's estate. They aver that they commissioned the handwriting reports referred to in the statement of claim and that the conclusions of the reports are as pleaded. Despite the defendant's averment that there was no evidence to support the pleas in relation to the expert handwriting reports, they were not, and have not been, exhibited by the plaintiffs, still less has the expert sworn an affidavit.

 

18.     The plaintiffs also argue that their case raises a public interest issue and should be permitted to proceed for that reason.

 

19.     In reply to this affidavit, the defendant delivered three replying affidavits. These include affidavits from both of the deceased's sons, i.e. the only potential beneficiaries in the event of intestacy. Each avers that he supports the defendant's motion and does not believe the claim that the deceased did not sign the Will. In addition, John Murphy, the other beneficiary of the Will and the party who is alleged to have exercised undue influence over the deceased and possibly forged his signature on the Will, has sworn an affidavit.

 

20.     He rejects the allegation that he forged his signature on the Will as a "false and malicious claim". He refers to the fact that the first plaintiff issued proceedings against him in California in which she also made claims against him of fraudulent conduct. She ultimately withdrew those proceedings with an order for costs against her. The California proceedings are exhibited. John Murphy avers that those proceedings, as he contends are these, were designed to exert leverage over the existing Circuit Court proceedings.

 

21.     An affidavit was also delivered from the defendant's solicitor. This exhibited the correspondence between the parties since April 2019. The solicitor avers that the correspondence shows that the plaintiffs not only had not questioned the Will prior to 2024 but also that they had accepted it and the grant of probate for the purpose of instituting the first plaintiff's Circuit Court proceedings against the estate in 2020.

 

22.     The correspondence includes a letter dated 4 September 2024 which refers to affidavits of the witnesses to the execution of the Will being provided to the plaintiffs, referred to as affidavits of plight and condition. The affidavits were not included in the exhibited correspondence, and there was some dispute as to whether these affidavits had, in fact, been provided to the plaintiffs. There was no objection to them being provided to the court for the purpose of this application.

 

23.     The witnesses to the Will were both attorneys at law. Each witness avers to the fact that they were present at the same time as the other and witnessed the deceased signing the Will and that each "attested and subscribed" the Will in the presence of the deceased and each other. Each avers that before the Will was executed, it was read over to the deceased "truly, audibly and distinctly" and that the deceased appeared to fully understand it and that, at the time of execution, he was "of sound mind, memory and understanding."

 

Applicable Principles

 

24.     In Scotchstone Capital Fund Ltd v Ireland [2022] IECA 23, the Court of Appeal summarised the principles applicable to applications to strike out proceedings (at para. 290):

 

"In essence these are:

a) An application for a strike out of a plaintiff's claim on the basis of the inherent jurisdiction is not a substitute for summary disposal of a case;

b) The jurisdiction exists, not to prevent hardship to a defendant from defending a case, but to prevent against an abuse of process of the court by the plaintiff, e.g. causing a manifest injustice to the defendant in being asked to defend a case which is bound to fail;

c) The burden of proof is on the defendant;

d) There is a degree of overlap between bound to fail jurisprudence and cases which are held to be frivolous and vexatious. However, the latter are cases which may have a reasonable chance of success but would confer no tangible benefit on a plaintiff or are taken for collateral or improper motives or where a plaintiff is seeking to avail of scarce resources of the courts to hear a claim which has no prospect of success;

e) The standard of proof is on the defendant/respondent to show that the claim is bound to fail or frivolous or vexatious;

f) Bound to fail may be described inter alia, as devoid of merit or a claim that clearly cannot succeed;

g) Frivolous and vexatious must be understood in their legal context as claims which are, inter alia, futile, misconceived, hopeless;

h) The threshold for the plaintiff successfully to defend such a motion is not a prima facie case but a stateable case;

i) It is a jurisdiction only to be used sparingly, in clear cut cases and where there is no basis in law or in fact for the case to succeed;

j) The court must accept that the facts as pleaded by the plaintiff in considering whether an Order pursuant to O.19, r. 28 may be made but in the exercise of its inherent jurisdiction the court can to some extent look at and assess the factual basis of the plaintiff's claim;

k) Where the legal or documentary issues are clear cut it may be safe for a court to reach a conclusion on a motion to dismiss;

l) Even where a plaintiff makes a large number of points, each clearly unstateable, it may be still safe to dismiss; and

m) In some cases, even if the factual disputes are clear cut or may be easily resolved, the legal issues or questions concerning the proper interpretation of documentation may be so complex that they are unsuited to resolution within the confines of a motion to dismiss."

 

25.     In Lopes v Minister for Justice Equality and Law Reform [2014] IESC 21; [2014] 2 IR 301, the Supreme Court (Clarke J, as he then was) emphasised the distinction between the jurisdiction under the Rules and the court's inherent jurisdiction:

 

"[17]. The distinction between the two types of application is, therefore, clear. An application under the RSC is designed to deal with a case where, as pleaded, and assuming that the facts, however unlikely that they might appear, are as asserted, the case nonetheless is vexatious. The reason why, as Costello J. pointed out at p. 308 of his judgment in Barry v Buckley [1981] I.R. 306, an inherent jurisdiction exists side by side with that which arises under the RSC is to prevent an abuse of process which would arise if proceedings are brought which are bound to fail even though facts are asserted which, if true, might give rise to a cause of action. If, even on the basis of the facts as pleaded, the case is bound to fail, then it must be vexatious and should be dismissed under the RSC. If, however, it can be established that there is no credible basis for suggesting that the facts are as asserted and that, thus, the proceedings are bound to fail on the merits, then the inherent jurisdiction of the court to prevent abuse can be invoked."

 

26.     In Gilchrist v Sunday Newspapers Ltd [2017] IECA 190; [2017] 2 IR 701, the Court of Appeal (Finlay Geoghegan J) reviewed the authorities in which the jurisdiction to strike out proceedings on the basis that they could confer no benefit on a plaintiff was in issue:

 

"[29] It therefore appears to me that on present authority, the jurisdiction of the Irish courts to strike out proceedings as an abuse of process where the plaintiff has no ulterior purpose in pursuing the claim (and it is not frivolous or vexatious or repeat litigation or bound to fail) is where a defendant establishes that there is no benefit to the plaintiff in successfully pursuing the claim. Whilst I have noted that Hardiman J. uses the phrase "no tangible benefit", I do not understand him to use it in a sense which would include an award of damages which may be minimal or small vindication of a reputation as he considered the absence of a tangible benefit would mean the proceedings would be pointless or moot. That is the threshold which a defendant must meet."

 

27.     In Rippington v Ireland [2019] IEHC 353, the High Court (Simons J) considered an application to strike out proceedings seeking to challenge an interlocutory order made in earlier probate proceedings. The court concluded that the proceedings should be dismissed on a variety of grounds, including the plaintiff's lack of standing (para 84 et seq.):

 

"As it happens, however, there is an additional reason why these proceedings are destined to fail. Ms Rippington is unable to point to any loss or damage suffered by her personally as a result of the alleged invalidity of the order. Even if it had been established that a loss was caused to the estate— and the evidence is entirely to the contrary—Ms Rippington does not have standing to make any claim in this regard in circumstances where she is not a beneficiary of the estate nor would she have been a beneficiary on intestacy.

 

85. In the circumstances, it is doubtful whether Ms Rippington has any legal standing to maintain these proceedings. The appropriate plaintiff in proceedings alleging damage to an estate is the executor of that estate. In the present case, the lawful executor of the estate of the late Celine Murphy is Michael Cox.

 

86. Even if one adopted a generous approach to standing, and allowed that proceedings might properly be maintained by the person who would benefit in the event of intestacy, such proceedings would have to have been taken by the executor of the estate of the late Miss Murphy's mother, Catherine Murphy. Ms Rippington is not the lawful executor of that estate, and any interest which she may allege as a result of her being one of the four beneficiaries under her late mother's Will is not sufficient to allow her to maintain proceedings in the present form.

 

87. Leaving aside for the moment Ms Rippington's legal standing to maintain the proceedings, it is, in any event, well established that proceedings will be regarded as vexatious if such proceedings do not confer any practical benefit on the plaintiff. For the reasons set out above, even if she could succeed in the case—which she cannot—there would be no practical benefit to Ms Rippington. This represents a further ground for striking out the proceedings."

 

28.     Finally, Bissessur v McMillen [2024] IEHC 23 concerned an application to set aside a court order appointing an administrator to an estate on the basis that the order had been obtained by fraud. The plaintiff was not a beneficiary of the estate. The proceedings were dismissed on the basis that the plaintiff had no standing to maintain them. In response to an argument that the plaintiff should be permitted to continue the proceedings because of the public interest in the issues raised, I concluded as follows (at para. 35):

 

"But there is nothing in the jurisprudence to suggest that a party who is not affected by an order alleged to have been fraudulently obtained could have standing to bring proceedings to set aside that order. None of the authorities cited by the plaintiff, Talbot, Shaughnessy or Heaphy, provide any support for such a jurisdiction. Even where proceedings to set aside a court order are based on an allegation of fraud, there is a requirement that a plaintiff have locus standi to maintain those proceedings. There is no general right in the public to police court orders made in proceedings in which they have no interest."

 

Discussion

 

29.     There is no doubt that, in accordance with established principles, a court should be slow to strike out a claim, that it is a jurisdiction which should be exercised sparingly and only in clear cases where a plaintiff has no prospect of succeeding. Can that be said of the plaintiffs' proceedings?

 

30.     Counsel for each side took some time to explain the nature of the Circuit Court proceedings between, in particular, the first plaintiff and the defendant. A written copy of the agreement relied on in the first plaintiff's Circuit Court proceedings was produced at the hearing. Counsel for the defendant referred to inconsistencies in that claim and observed that the written agreement relied on was not in the same terms as the pleaded agreement.

 

31.     In addition, the parties also addressed the merits of the argument that there was impropriety about the execution of the Will. On the defendant's side, he relied on the absence of the reports purporting to support the plaintiffs' plea of forgery, the affidavits filed in support of his application by the beneficiaries of the estate in the event of intestacy, the deceased's sons, and the affidavits of plight and condition sworn by the witnesses to the Will. He also pointed to the timing of the proceedings and to the conduct of the first plaintiff regarding the Californian proceedings.

 

32.     On the plaintiffs' side, they contend that they have expert evidence supporting their allegation of forgery, although they failed to provide any adequate explanation for not having provided that evidence. They also point to potential irregularities regarding the circumstances in which the Will was executed having regard to what they contend was the deceased's condition at the time of execution.

 

33.     I have no doubt that it would be premature to dismiss the proceedings on the basis that the argument that there is an irregularity about the Will, and therefore the grant of probate, is bound to fail. That is not to suggest for a moment that the plaintiffs have made out a compelling or even a strong case, merely that it is a case which is capable, if the plaintiffs' case is taken at its height, of succeeding. In this regard, it is worth observing that the only parties who could benefit if the Will was successfully challenged, the deceased's two sons, support the defendant's application.

 

34.     The defendant also contends that these proceedings are an abuse of process because their sole purpose is to delay, or otherwise advantage themselves in, the Circuit Court proceedings, that this is an improper purpose and that they should, therefore, be dismissed. There is certainly some force to the defendant's complaints regarding the timing of these proceedings. Moreover, there is something quite extraordinary about a party electing to sue a person in Circuit Court proceedings in their capacity as executor of an estate and subsequently issuing High Court proceedings seeking to have that person removed from that capacity. As the defendant's counsel put it, the plaintiffs cannot both approbate and reprobate.

 

35.     Despite the force of these submissions, it is not necessary to reach a conclusion on the question of whether these proceedings have been brought for an improper purpose. That is because the real question in this application is whether the plaintiffs have standing to maintain these proceedings at all. It is clear that they do not.

 

36.     As is apparent from the authorities cited above, the court has jurisdiction to strike out a claim where the proceedings can confer no tangible benefit on the plaintiff. It is impossible to identify any potential benefit to the plaintiffs from these proceedings, even if they were entirely successful. Having the Will and grant of probate set aside will confer no advantage on the plaintiffs, nor could it. Although the plaintiffs contend that they require certainty that the party being sued and suing in a representative capacity has been properly appointed and will, therefore, be amenable to court orders in the Circuit Court, the only uncertainty regarding same is caused by these proceedings. A plaintiff cannot rely on the uncertainty that proceedings create to give them standing to maintain those same proceedings.

 

37.     True it is that the plaintiffs also seek to have their own nominee appointed as administrator in the first plaintiff's proceedings (though not, notably, the proceedings against the second and third plaintiffs). However, that is a claim which is without merit since, as parties with no interest in the estate, they could have no possible entitlement to appoint, or apply to have appointed, an administrator in the event of the deceased's intestacy. As counsel for the defendant points out, it will be the beneficiaries of the estate who will be entitled to take out letters of administration in the event of intestacy. Section 27(3) of the Succession Act 1965 provides that the person to whom letters of administration shall be granted is to be determined in accordance with the Rules. Order 79, rule 5 of the Rules sets out the order of priority. It is clear that it is the deceased's sons who would be entitled to the grant in the event of intestacy.   

 

38.     Leaving that aside, even having the plaintiffs' nominee as administrator could not confer a tangible benefit on the plaintiffs, at least none to which this court could properly have regard. It may be that the first plaintiff believes that it will be to her advantage to have a different person defending the proceedings she has taken against the estate, However, as any administrator appointed by the court would be under a duty to act in the interests of the estate, just as the defendant is, a change in the identity of the administrator could not confer a benefit on the plaintiffs. A change in the identity of the person sued in a representative capacity in separate proceedings is not, therefore, a potential "benefit" which gives the plaintiffs standing to maintain these proceedings. Still less is any benefit accruing to the plaintiffs by delaying the Circuit Court proceedings - for instance, by delaying payments of debts or maintaining their occupancy in the Property - a potential benefit from these proceedings which the plaintiffs can rely on to give them standing. Just as, in Bissessur v McMillen, the fact that the administrator had initiated proceedings seeking possession of the property in which the plaintiff was squatting did not give her standing to challenge the administrator's appointment, the first plaintiff's proceedings regarding possession of the property of the estate does not give her standing here.

 

39.     The plaintiffs contend that the public interest in ensuring the proper execution of a will gives them standing to maintain these proceedings. In this regard, they rely on the Supreme Court decision in Vella v Morelli [1968] IR 11. They refer to the following passage from the judgment of Budd J (at p. 34):

 

"In our country the results arising from the testamentary disposition of property are of fundamental importance to most members of the community and it is vital that the circumstances surrounding the execution of testamentary documents should be open to scrutiny and be above suspicion. Accordingly, it would seem right and proper to me that persons, having real and genuine grounds for believing, or even having genuine suspicions, that a purported will is not valid, should be able to have the circumstances surrounding the execution of that will investigated by the court without being completely deterred from taking that course by reason of a fear that, however genuine their case may be, they will have to bear the burden of what may be heavy costs."

 

* emphasis added

 

40.     The plaintiffs argue that the underlined sentence is authority for the proposition that any person who has genuine grounds for believing that a purported will is invalid has standing to bring a case to the courts in order to have that claim determined. That sentence, however, is relied on entirely out of context. Properly considered, Vella v Morelli offers no support for the plaintiffs' claim that they have, in effect, "public interest" standing to maintain these proceedings.

 

41.     First, the paragraph relied on by the plaintiffs addresses a situation "where the case is a proper one for investigation and the litigation was conducted bona fide". A case being brought by a party who cannot benefit from it is not a proper one for investigation, nor, in the strictly legal sense, is it one conducted bona fide.

 

42.     Second, neither the case nor the passage relied on by the plaintiffs was concerned with the question of standing at all. Rather, the issue in the case was whether an unsuccessful litigant in proceedings challenging the validity of the will should have to bear the costs of those proceedings. In that case, the plaintiff had challenged a will unsuccessfully in the High Court. The defendant had been awarded his costs out of the estate, but no order was made for the plaintiff's costs. She successfully appealed to the Supreme Court. The passage quoted from Budd J is an expression of his view that given her challenge to the will, though unsuccessful, had been conducted bona fide and for good reason, she should be allowed her costs out of the estate. In so concluding, he was acting in accordance with old Irish authorities.

 

43.     Third, and critically, it was a case in which the plaintiff's standing to maintain the proceedings could never have been in issue. The plaintiff in Vella v Morelli was the daughter of the deceased, the defendant the deceased's son. The deceased had executed a will leaving her estate to her two children in equal shares. However, a subsequent will, admitted to probate and challenged in the proceedings, left the entire estate to the defendant. It is abundantly clear that the plaintiff stood to benefit from proceedings challenging that will. The underlined portion of Budd J's judgment cited above could not possibly be interpreted as authority for the entitlement of any person to challenge a will, irrespective of whether they stood to benefit from that challenge, in circumstances where it was not addressed to that issue at all and was delivered in the context of proceedings where the plaintiff manifestly did have standing. Vella v Morelli is not, therefore, authority for the plaintiffs' proposition that there is some exception from the general principles regarding standing, identified in Cahill v Sutton [1980] IR 269, for cases concerning the execution of wills. Where a party has no interest in proceedings and cannot obtain a tangible benefit from them, they should be dismissed.

 

Conclusion

 

44.     In the circumstances, I accept the defendant's argument that the plaintiffs lack standing to maintain these proceedings because there is no outcome from these proceedings which could confer a benefit on them. The proceedings should, accordingly, be dismissed pursuant to the court's inherent jurisdiction.

 

45.     I will list the proceedings for mention on 11 April 2025 at 10.30 am to address any ancillary matters and the question of costs.

 

 

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