High Court of Ireland Decisions

1. Thomas Nevin was murdered on 19 March, 1996. He was survived by his widow Catherine Nevin, his mother Nora Nevin and by seven brothers and sisters. Following his death, his widow instructed Solicitors to prepare the necessary papers to apply to the Probate Office for a Grant of Letters of Administration Intestate to the deceased's estate. An Inland Revenue Affidavit was sworn by his widow disclosing gross assets passing under his intestacy of £253,879.00 and net assets amounting to £250,260.00. While the Solicitors for Catherine Nevin were processing her application for a Grant of Administration they became aware that on 19 August, 1996 a Caveat was entered in the Probate Office of the High Court on behalf of Nora Nevin, the mother of the deceased. By letter dated 8 January, 1997, the Solicitors for Catherine Nevin requested the Solicitors for Nora Nevin to withdraw the Caveat which she had entered. Nora Nevin refused to withdraw the Caveat -- her Solicitors recounting in a letter dated 17 January, 1997 that the deceased's death was "caused by a single shotgun discharged to the chest", that Catherine Nevin had been questioned in relation to the investigation, and that the Caveat would not be received pending a decision from the DPP to proceed.

Catherine Nevin, by Notice of Motion dated 3 February, 1997, sought an Order setting aside the Caveat and a further Order restraining Nora Nevin from lodging any further Caveats. The Motion was grounded upon an Affidavit of Catherine Nevin. It is to be noted that it is not alleged in the Grounding Affidavit that Nora Nevin had no interest in lodging the Caveat or that the Caveat was lodged vexatiously or for the purpose of delay. It is alleged, however, in a replying Affidavit of Catherine Nevin dated 6 March, 1997, that to permit the existing Caveat to remain in force or to allow further Caveats be entered would be "an abuse of the process of the Court". In her Affidavit filed on the hearing of this Motion before this Court Nora Nevin states as follows:

"I say and believe that the Garda Siochana regard the Applicant as a suspect in the death of my son and that the Garda Siochana have forwarded the file in relation to this investigation to the DPP who is at present considering the matter"

She further states:

"I say and believe that the Applicant remains a suspect in the murder of my son. I say and believe it was my duty as the next person entitled after the Applicant to apply for a Grant of Administration to instruct my Solicitors to enter a Caveat to the estate to ensure that the estate would be protected"

In her reply to the above allegation Catherine Nevin states:

"I am not guilty of any offence in relation to my late husband's death or any other offence whatsoever in relation to him"

Catherine Nevin was cross-examined on her Affidavit; she agreed that she had been detained for 48 hours by An Garda Siochana after the death of her husband. She said she had made a statement which was provided to the Garda Siochana. She said that during her detention she was interviewed more than once. She said her husband had been murdered.

She continues to manage the business of her late husband, namely, the licensed premises known as Jack White Inn.

While the factual controversy which emerges from the Affidavits and cross-examination has a relevance to the issue of whether or not the Caveat was vexatiously and without interest lodged by Nora Nevin, it is important to note that this Court has no function whatsoever in the determination of the guilt or innocence of any party to the murder of the deceased.

A Caveat is a warning which stops probates and administrations being granted without notice to the person entering the Caveat. A Caveat remains in force for six months or until withdrawn and may be renewed from time to time. The Caveat in the present case was renewed in February 1997. Section 38 of the Succession Act, 1965 and Order 79 Rules 41 to 51 deal with the entitlement to, and procedure for, the entry of a Caveat. This procedure is well summarised by the editor of Maguire on the Succession Act, 1965 (1986 ed) at p 90:

"Notice to the Caveator (called a warning) is made form the Probate Office served upon the Caveator and confirmed by post (Order 80 R 58 Order 79 Rr 48, 49). The Caveator then has six working days or such other period as may be specified in the warning to enter an appearance (RSC apdx Q Form 21). In the appearance the Caveator must indicate what interest he claims (ibid Form 22) enabling the person seeking a grant to resolve the matter in Court. Failing an appearance, the Caveat may be cleared off (RSC Order 79 R 51)."

The effect of these rules in practice is that the warning in response to the Caveat obliges the person entering the Caveat either to abandon his claim to a grant or to take contentious proceedings in furtherance of his claim: where no appearance is entered to the warning as noted above the Caveat (and the claim) can be cleared off.

However, it is possible for a Caveator without entering an appearance to the warning to issue a summons claiming a grant. If he does not enter an appearance or issue proceedings, he effectively abandons his claim: the entry of an appearance by a Caveator (as opposed to issuing proceedings) will usually have the effect of persuading the other side to the controversy to issue the summons and assume the role of plaintiff (see generally Maxwell Irish Probate Practice: Cap 20 pp 240-243).

In the present case it is worth recording that no warning at the instance of Catherine Nevin issued in relation to the Caveat of August 1996 or the Caveat of February 1997.

Section 67 (1) of the Succession Act, 1965 provides that if an intestate dies leaving a spouse and no issue the spouse shall take the whole estate. Under Order 79 Rule 5(1) of the Rules of the Superior Court, Catherine Nevin is entitled to a Grant of Administration to the estate of her late husband in priority to the deceased's mother. Section 120 of the Succession Act, 1965 excludes certain persons from taking shares in a deceased's estate. Subsection (1) provides:

"A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other . . ."

Section 120 (5) provides:

"Any share which a person is precluded from taking under this section shall be distributed as if that person had died before the deceased"

The Court has an inherent jurisdiction to set aside a Caveat where the Caveat has been vexatiously lodged; see The Goods of Norris Ir R 1 Eq 334. Equally, the Court has jurisdiction to set aside a Caveat where the Caveator has no interest: see Nugent v Nugent 8 Ir Jur ns 52. In the present case, it is clear that in certain circumstances Nora Nevin would have an interest in the estate of the deceased -- and clearly has an interest (which is a contingent interest) sufficient to give her a right to lodge a Caveat. Indeed, it is to be noted that Catherine Nevin does not contend that Nora Nevin has no interest. Neither does Catherine Nevin contend that the Caveat has been lodged "vexatiously" -- she does however assert that the lodgment of the Caveat amounts to an "abuse of the process of the Court" which is much the same as an allegation of vexatiousness. To sustain such an allegation, the Court must be satisfied that the lodgment of the Caveat amounted to conduct which in all the circumstances no reasonable person could properly treat as bona fide. The Affidavits filed in these proceedings do not establish such a want of bona fides and while I am not prepared to set aside the Caveat, it should be remembered that its purpose is merely to ensure that no grant issues unknown to the Caveator: its presence does not restrain the Court from ordering a grant where a Caveator is on notice of the application for a grant.

While I am satisfied that Nora Nevin has not abused the process of the Court in lodging a Caveat, and while she clearly has an undisputed interest in doing so, I am also satisfied that Catherine Nevin, as the lawful spouse of the deceased, should be under no legal disability merely because she has been interviewed by An Garda Siochana in relation to her husband's death. She is entitled to her good name and a presumption of innocence. This Court's refusal to clear off a Caveat should not be seen as in any way reflecting on her innocence. This Court has no function in adjudicating on any allegation of a criminal kind and it will only assume a jurisdiction to preclude a person from a share in a deceased's estate where the matters set out in Section 120(1) are established in evidence. It is therefore worthwhile re-emphasising that the decision this Court should not be seen as one which is grounded upon a preference for one account of fact over the other: rather it is a decision based solely on the Caveator's interest and absence of want of bona fides.

While I am satisfied that the Caveat was not lodged vexatiously and was lodged by a person having an interest in the estate, it does seem to me that the interest which the Caveator seeks to protect can be protected while at the same time (if the Applicant applies to the Court) a Grant of Administration can issue to the Applicant. If the grant to be made is one limited to collecting in and preserving, but not distributing, the estate of the deceased, such interest as the Caveator may have in the estate will be preserved until further Order. Accordingly, if, but only if, the Applicant is desirous of obtaining a Grant of Administration ad colligenda bona I will make such an Order. I will make no Order as to costs. The Applicant may seek an unlimited grant on the expiration of nine months from today's date.