The Gazette 1986

GAZETTE

JANUARY/FEBRUARY 1986

A Limitations Conundrum by J ames C. Brady Professor of Property and Equity University College Dublin

T he view expressed by McMahon J. in Drohan -v- Drohan* to the effect that the personal representative of a deceased person has a period of twelve years from the date on which the right of action accrued within which to recover any land for the benefit of the estate of the deceased poses certain difficult questions to which the relevant legislation provides no clear answers. The court in Drohan had to determine whether s.45 of the Statute of Limitations 1957, as amended by s. 126 of the Succes- sion Act 1965, operated to bar an action to recover the deceased's lands taken by his personal representative more than six years after the accrual of the right of action. The original s.45 had provided a limitation period of twelve years in respect of any claim to the personal estate of a deceased person, or to any share therein whether under a will or in intestacy. S.45 as amended by s.126 of the Succession Act provides a limitation period of six years for claims to the estate of a deceased person which period applies to claims in respect of both realty and personalty. Drohan which came to the High Court by way of an appeal from a Circuit Court judgment of Judge Dermot Sheridan turned on the rather narrow question whether s. 126 had come into effect on the date of the passing of the Succession Act which was December 22nd 1965, or the date of its commencement which was January 1st 1967. If the former date was the correct one the Plaintiff was statute-barred and in support of that proposition counsel for the defendant submitted that the words "is hereby amended" in s. 126, in their ordinary and natural sense, meant that the repeal and re-entactment of s.45 was effected on the date of the passing of the Act and amounted to an express provision to the contrary within s.9(3) that the provisions of the Succession Act should not apply to the estate of any person dying before the commencement of the Act. McMahon J. in rejecting that argument agreed with Judge Sheridan that there was nothing in s. 126 which would bring it within the category of express provisions to the contrary in s.9(3); the latter must be expressly stated and not merely implied from the language of the section. McMahon J. however went on to say that he did not agree that s.45 contained the relevant limitation period. Having considered the genesis of s.20 of the English Limitation Act 1939, which is in almost identical terms to s.45, as explained by the Court of Appeal in Re Diplock , 2 McMahon J. concluded that s.45 had no application to a claim by a personal representative to recover assets of the deceased from a person, whether a beneficiary or a stranger, holding adversely to the estate. The period of limitation applicable to such a claim is that provided in s. 13(2) of the Statute of Limitations for the recovery of land, viz. twelve years from the date on which the right of action accrued and an administrator

is deemed to claim as if no interval had occured between the death and the administration.- Since McMahon J.'s observations on s.45 were not essential to his decision in Drohan, and the scope of the section was not argued by counsel, they can be accorded the status of obiter dicta which are not binding in subse- quent cases. Be that as it may the distinction made by McMahon J. between actions by personal representatives to recover assets belonging to the estate of the deceased, and actions against personal representatives by persons entitled to shares in the deceased's estate is a compelling one and wholly congruent with s.45 which referred only to actions in respect of claims to the estate of deceased persons, whether under a will or on intestacy. Indeed McMahon J.'s obiter dicta in Drohan have already led to a modification of the Land Registry practice which permitted registration on foot of an affidavit by an applicant that he had been in sole and exclusive occu- pation and possession of property for a period of six years from the date of death of the registered owner. 4 An obvious question which arises from McMahon J.'s obiter dicta however is whether a personal representative who recovers land belonging to the deceased's estate within twelve years of the accrual of the right of action, but more than six years after the date of death, can vest such land in next of kin or those otherwise entitled to shares, who are statute barred. Such a course of action, while not directly in breach of the new s.45(l) which, like the old s.45(l) refers only to actions by next of kin or those otherwise entitled, would clearly be inconsistent with, and subversive of, the policy considerations underlying the limitation period of six years contained in the new s.45(l). Indeed the facts of a particular case may reveal that the personal representative is acting at the behest of next of kin who are statute barred and the question will arise as to whether the limitation period can be circumvented in this way. Such a question did arise in Gleeson -v- Feehan and Gleeson -v- Purcell which came before Judge Dermot Sheridan in the Circuit Court. 5 The plaintiff was the personal representative of James Dwyer, deceased, who was the registered owner of Folios A and B, and the personal representative of Edmund Dwyer, deceased, who was the registered owner of Folio C, in the register for County Tipperary. James Dwyer had died intestate on 27th Nov. 1937 leaving a widow and six children including the said Edmund Dwyer and Josephine Dwyer, the natural mother of one Jimmy Dwyer. Only Edmund Dwyer and Jimmy Dwyer had remained on the lands and the widow and other children of James Dwyer were all dead. Edmund Dwyer died on 22nd Oct. 1971, a bachelor and intestate, and after his death Jimmy Dwyer remained on the lands enjoying the rents and profits. In 1975 the said Jimmy Dwyer sold the lands in Folio C to the first

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