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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> K. (M.) v. B. (J.) [1999] IEHC 117 (26th February, 1999)
URL: http://www.bailii.org/ie/cases/IEHC/1999/117.html
Cite as: [1999] IEHC 117

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K. (M.) v. B. (J.) [1999] IEHC 117 (26th February, 1999)

THE HIGH COURT
Record No. 1997/500 Sp

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964
AND IN THE MATTER OF THE TRUSTEE ACT, 1893

BETWEEN

M.K.
(SUING BY HIS FATHER AND NEXT FRIEND E.S.)
PLAINTIFF
AND
J.B.
DEFENDANT


Judgment of Miss Justice Carroll delivered on the 26th day of February, 1999 .

1. This is an application by the Plaintiff through his father and next friend, E.S., to remove the Defendant as Trustee of the Will of L.K., the mother of the Plaintiff.

2. L.K. died on 29th April, 1996 having by her Will dated 21st October, 1998 appointed the Defendant, her sister, as sole Executrix and Trustee and she appointed her guardian of the Plaintiff. She made the following disposition:-

"I give devise and bequeath the whole of my estate to my Executor upon trust either to retain or sell it on trust to pay the capital and any income arising from it to and for the benefit of my son (M) in such manner and at such time as my Executor in her sole discretion thinks fit until my son shall attain the age of 21 years and thereafter I give devise and bequeath the whole of my estate to my said son (M) absolutely."

3. She gave her Executor an extensive power to invest as if she were beneficially entitled and exonerated her from loss not attributable to her own dishonesty or wilful breach of trust.

4. The Plaintiff was born in New York on 14th March, 1987. L.K. with the Plaintiff returned to Ireland in May 1987 to reside with her mother in her house in Dublin. Her mother died on 31st May, 1988 and left her house to L.K. Thereafter L.K. and her son, the Plaintiff, lived in the house.

5. There were visits by E.S. to Dublin and by L.K. and the Plaintiff to the U.S. during the following years. The Defendant says that after the death of their mother, L.K. entered into a relationship with another man and both of them lived in the house with the Plaintiff. The death of L.K. at the age of 35 years was an untimely one. The Defendant believes it was caused by liver failure brought on by abuse of alcohol combined with tablets. She also says the Plaintiff had a very undisciplined life with his mother.

6. After the death of L.K., the Defendant took the Plaintiff to live with her and her family. E.S. initiated guardianship proceedings in May 1996. These came on for hearing in November 1996. E.S. was appointed joint guardian of the Plaintiff with the Defendant and given interim custody with liberty to take the Plaintiff to New York. On 30th October, 1997 custody was confirmed.

7. E.S. alleges that there is animosity between himself and the Defendant and that she threatened that she would sell the house if he initiated guardianship proceedings. He alleges the decision to sell was not made bona fide in the interests of the Plaintiff. He relies on a letter (21st November, 1997) from a psychiatric social worker in New York written to support his request not to sell the house. He also relies on an evaluation by a firm of auctioneers and advice from Allied Insurance Consultants Limited that it would not be prudent to liquidate the property and reinvest for seven years. He also exhibits a note written by the Plaintiff on 25th March, 1997 to say he did not want his house sold.

8. The Defendant also took advice about sale or letting. She was cross-examined on her Affidavit. She denied that she was motivated by animosity towards E.S. I am satisfied that she was not motivated by any such feelings and that she has made a bona fide decision to sell. She gives four reasons.


1. The property is vacant and she foresaw difficulties about insurance although she said the property is fully insured.
2. A very good price can be obtained so he will have a large capital sum when he attains his majority at 18.
3. If he has an attachment to the property it is unhealthy. He had a disturbed upbringing in the house with no discipline.
4. If he wished to acquire a property at 18 he is free to do so with the proceeds of sale.

9. Following issue of these proceedings, the Defendant took further advice from a financial adviser recommended by A.I.B. and he recommended sale rather than letting.

10. The Guardianship of Infants Act, 1964, Section 3, provides:-

"Where in any proceedings before any Court the custody guardianship or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income thereof, is in question, the Court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration."

11. Section 11 of the Children's Act, 1997 inserted Section 25 into the Guardianship of Infants Act, 1964. This provides:-


"In any proceedings to which Section 3 applies the Court shall as it thinks appropriate and practicable having regard to the age and understanding of the child take into account the child's wishes in the matter."

12. This must be contrasted with the Succession Act, 1965, Section 50, Sub-section (1), which provides:-


"The personal representatives may sell the whole or any part of the estate of a deceased person for the purpose not only of paying debts but also (whether there are or are not debts) of distributing the estate among the persons entitled thereto, and before selling for the purposes of distribution, the personal representatives shall so far as practicable, give effect to the wishes of the persons of full age entitled to the property proposed to be sold or in the case of dispute, of the majority (according to the value of their combined interest) of such persons so however that -

(a) a purchaser shall not be concerned to see that the personal representatives have complied with such wishes; and
(b) it shall not be necessary for any person so entitled to concur in any such sale.

I do not consider it appropriate or practicable to give effect to the Plaintiff's wishes. It seems to me probable that he is influenced by his father's wishes and also I doubt that he could appreciate the practicalities and benefits between the two options of renting or sale.
However there is still a duty on the Court to decide this matter in accordance with Section 3 of the Guardianship of Infants Act, 1964 having regard to the welfare of the infant as the first and paramount consideration.
In this case there are two conflicting advices. A decision has been taken bona fide by the person chosen by L.K., the mother of the Plaintiff, to act as his guardian and in whom she reposed confidence as a Trustee for sale. There are no grounds for removing her as Trustee unless the decision to sell would not be for the welfare of the Plaintiff. In my opinion the sale of the house and the investment of the capital sum until the Plaintiff attains his majority will enure for the benefit of the Plaintiff and is a decision which the Defendant is entitled to take as Executor and Trustee of the Plaintiff's mother's Will. In my opinion it is a decision to be taken on financial grounds not psychological grounds. I have no way of evaluating the opinion of the social worker which is not on Affidavit and as the Defendant says, it is not known how much information was given to her about the Plaintiff's upbringing prior to his mother's death.
I refuse the relief sought.

© 1999 Irish High Court

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URL: http://www.bailii.org/ie/cases/IEHC/1999/117.html