THE HIGH COURT
		1995/769 Sp.
IN THE MATTER OF THE ESTATE OF MARGARET DILL DECEASED AND IN THE MATTER OF THE TRUSTEE ACT, 1893, SECTION 25 THEREOF
BETWEEN
MICHAEL KIRBY
		PLAINTIFF
AND
ANGELA BARDEN
		DEFENDANT

Judgment of Miss Justice Carroll delivered on the 12th day of March, 1999

	Margaret Dill died on 9th January, 1993.  By her will dated 11th September, 1992 she appointed her nephew and niece, the Plaintiff and the Defendant, as executors and trustees thereof.  Under the terms of her will after payment of her just debts, funeral and testamentary expenses she gave any remaining "ready cash" to be divided in equal shares among the children of her sister, Joan Kirby, that is the Plaintiff and the Defendant and Brendan and Bryan Kirby.  She gave, devised and bequeathed the rest, residue and remainder of her estate whatsoever and wheresoever situate to her trustees in trust to be applied in such manner as her trustees in their absolute discretion considered fit for the benefit of her brother, Bryan Dill, during his lifetime and on his death she gave, devised and bequeathed the remainder to the Plaintiff absolutely. 
	During her life Margaret Dill lived at Banduff House, Ballyvolane, a farm near Cork city, with her brothers, Bryan and Michael Dill.  The lands are comprised in Folios 21291 and 5082 F. Co. Cork.  Her mother (Margaret Dill Snr.) was the registered owner and died intestate in 1954.  Margaret Dill Snr. left her surviving six children, namely, Margaret, Bryan and Michael as well as Joan Kirby, Mary Patricia Twohig and John Dill.  Both Joan and Mary Patricia married and moved away from the lands.  The other brother, John Dill, got a site to build a house and worked away from the lands.  The three remaining children, Margaret, Bryan and Michael farmed the lands.  Michael died in October 1989 having left his share of the lands equally between Margaret and Bryan.  
	According to Mary Patricia Twohig who has been living in Canada since 1948, her brother Bryan, while never diagnosed with any particular impediment, relied almost entirely on his sister Margaret and brother Michael to manage his affairs.  She said he is naive and was dependant on his sister and brother both emotionally and socially.  She believes him to be very vulnerable and in need of assistance to manage his affairs.  She said that in October/November 1992 Margaret informed her that all the dairy cows at Banduff were being sold because she and Bryan were unable to look after them.  The cows had provided a major source of income for Michael, Margaret and Bryan although most of the farming had been done by her late brother, Michael.
	It transpired that shortly prior to her death the sum of £29,000 had been transferred from Margaret's assets to the Defendant.  The Defendant claims that these monies were a gift to her by Margaret.
	The Plaintiff was unable to take any steps regarding the administration of the estate immediately after the funeral as his wife was expecting a baby.   According to the Plaintiff, the Defendant told him that she was morally entitled to the money given to her.  He met the Defendant in Cashel in February 1993.  He says he could not get answers to questions.  When he contacted the solicitor who had drawn up the will, she withdrew from the administration because of the dispute between the two executors.  By letter dated 20th April, 1993 she asked for his authority to hand over the original will to Messrs. Philip W. Bass & Company, the solicitors acting for the Defendant, to enable them to commence administration of the estate.  The will was released to those solicitors in September 1993.  The Defendant's Solicitors also proceeded to extract a grant to Michael Dill's estate.
	A valuation of the lands dated 7th September, 1993 by a firm of estate agents and valuers describes the lands as being a residential holding of 55 acres with a current milk quota of 11,000 gallons temporarily leased to Dairy Gold Co-op.  Cork city centre is located 2.5 miles to the south.  They said the area around the farm is very built up with private and local authority dwellings and the property would have a high level of trespass.  They put a valuation on the property for probate purposes of £200,000.  
	Counsel's opinion was obtained by Messrs. W. Bass & Co. and she was asked to advise on the devolution of title from the death of the registered owner.  She was advised that a grant of administration to the estate of Margaret Dill, Snr. was taken out by Michael Dill on 17th November, 1959.  She was instructed that John Dill had built a family home on a portion of the lands but was not involved in the running of the farm and worked elsewhere throughout his lifetime.  She was not advised where he had built the house and it was not clear on which folio it was carved out of.  She says it is clear that since January 1967 (when there was litigation between Michael and Margaret Dill) that Michael, Margaret and Bryan remained in sole and exclusive occupation and possession of the lands to the exclusion of the other children.  She refers to John Dill moving into the house after the death of Margaret but said she was instructed John Dill appeared to have vacated the house.  Her opinion was that Margaret was entitled to a half share as was Bryan.  Then by letter dated 20th July, 1994 she advised that Margaret was entitled to a quarter share and her brother Bryan to a quarter share as tenants in common and Bryan was entitled to a further half share as survivor of a joint tenancy.  The solicitors for the Defendant said the Inland Revenue Affidavit was dealt with as per Counsel's opinion.  The first draft Inland Revenue Affidavit sent to the Plaintiff on 6th April, 1994 showed that Margaret was entitled to a half share.  This was changed and the Inland Revenue Affidavit sworn by the Defendant on 11th January, 1995 returns Margaret's share of the property as one quarter.  In this Affidavit, she states that she received £29,000 as a gift from Margaret and that her mother, Joan Kirby, received 2,000 Inchcape shares but no value was given for these.  The farm property is returned as being owned as to one quarter by Margaret in her own right.  The Affidavit states her brother, Bryan, also owned one quarter and the remaining half share was held by Margaret and Bryan as joint tenants acquired by adverse possession.  The personal and real property as set out comprised the following:-  

A quarter share of the farm  	£50,000
Cash in house 			£4,200
TSB Bank			£130
Savings Certificate		£161.70
IPBS, Patrick Street		£552.90
Credit Union, Mayfield		£1,947.64
Insurance Policy		£44.80
			__________
Total 			£57,037.04.

There were also:-
Household goods (¼ share) 		£300
Farm machinery		£200
Legacy under the estate of Michael Dill (unpaid)	£3,800
The total of debts and funeral expenses is shown as funeral expenses at £1,014.02

The grant of probate issued on 23rd March 1995 to the Defendant reserving the rights of the Plaintiff.
	John Dill took out a grant of administration to the estate of  Margaret Dill Senior.  In April 1995 Messrs. Bass informed the Plaintiff's solicitor that John Dill as personal representative of Margaret Dill (Snr.) had issued ejectment proceedings against Bryan Dill.  The Defendant, in her affidavit, said she was the main witness on behalf of Bryan Dill.  While she refers in her affidavit to the pleadings and order, she only exhibits the Civil Bill and the order.  The order dated 5th July, 1995 dismisses the Plaintiff's claim but refers to a counterclaim.  The Defence and counterclaim is not exhibited and it is not known to this Court what was in the counterclaim.  The order states that the Plaintiff (i.e. John Dill) in his personal capacity is one sixth owner of Folios 21291 and 5082 of the Register of Freeholders, Co. Cork and the Defendant (i.e. Bryan Dill) is owner of five sixths, both as tenants in common.  It directs the Registrar of Title to amend the register accordingly.  
	The solicitors acting for Bryan Dill are one and the same as the firm acting for the Defendant in the administration of this estate. 
	Subsequent to this case the Defendant filed a corrective Inland Revenue Affidavit removing the lands as part of the estate of Margaret Dill.  
	These actions show that the Defendant acquiesced in the removal of the one quarter interest in the lands from the assets of Margaret Dill, deceased, thereby purporting to wipe out the remainder interest of the Plaintiff. 
	Concerning her claim to be beneficially entitled to £29,000 as a gift from Margaret Dill immediately prior to her death, this is contested by her mother, Joan Dill, her aunt, Mary Patricia Twohig, and her brother, the Plaintiff.  All of them claim that Margaret Dill was concerned about the welfare of her brother, Bryan, and further say that she had no close relationship with the Defendant.  The Defendant herself gives no reason why Margaret Dill should have given her £29,000.  She gives no account of the circumstances in which the money became available to her beyond saying it was "gifted" to her. 
	The amount left in the estate is infinitesimal once the farm and the £29,000 are not taken into account.  According to the Inland Revenue Affidavit it would amount to £7,037.04 (not including the household goods and farm machinery and the unpaid legacy).  The funeral expenses amount to £1,014.02 and although the amount for  testamentary expenses has not been disclosed, it appears from the Defendant's Affidavit that the residuary estate appears to have been absorbed by these.  She adds there may be a substantial claim by the Department of Social Welfare arising out of the deceased's entitlement to a non-contributory old age pension.
	The proper person to query the entitlement of the Defendant to retain the £29,000 is the personal representative of Margaret Dill who is the Defendant herself.  There is no presumption of advancement to support her claim.  This creates a conflict of interest that cannot be reconciled.  
	The question of Bryan Dill's capacity to manage his affairs has been raised by the Plaintiff.  Dr. David Dunne, a psychiatrist, who examined Bryan Dill on 15th December, 1995 says on affidavit that he concluded that Bryan Dill was not capable of managing his affairs.  It is not for this Court in this action to take any steps in relation to Bryan Dill.  If his relatives, such as his sister Joan or his nephew, the Plaintiff, are concerned that Bryan Dill is being exploited in any way by the Defendant (or anyone else), they can apply through the Wards of Court's Office to the President to deal with the matter in the normal way and have a medical inspection.
	What is important is that the Defendant should be removed as trustee.  She should have been alert to preserve the trust estate, instead of which, as a result of being the main witness for Bryan Dill, the Circuit Court Order ignores the right of Margaret's estate to a quarter share.  She acquiesced in this order by filing a corrective Inland Revenue Affidavit.
	While the relief sought was to remove her as trustee, it is not enough to do just that.  The conflict of interest between her claim to be beneficially entitled to the bulk of Margaret Dill's liquid assets and the duty of a personal representative to get in the assets, can only be resolved by removing her as personal representative of Margaret Dill's estate.  The Plaintiff seeks an Order for administration under the direction of the Court. This is clearly inappropriate.  But if the Plaintiff will give an undertaking to apply for a Grant of Probate I will make an Order removing the Defendant as personal representative of Margaret Dill.
	I will also direct the Defendant to furnish the Plaintiff with an account showing all monies received and disbursed by her as personal representative.
	I accept that the jurisdiction of the Court to remove a trustee should be exercised with caution [see Arnold -v- Arnold, (1924) 58 ILTR 145].  I consider the circumstances of this case amply justify such removal.
	There are other queries raised, some of which have been answered by discovery.  Any other outstanding queries can be pursued by the Plaintiff when he takes out a grant.