Background
Christopher Kearns died unmarried and without issue in 2015. His will appointed Marion and Thomas Daly as executors and left the estate equally to Marion Daly and his niece, Celia Flood. His brother, Arthur Kearns, challenged the will, alleging that schizophrenia-related delusions and paranoia had prevented Christopher from rationally deciding whom to benefit.
The original plaintiff died during the proceedings. The parties agreed that his estate, Marion Daly and Celia Flood would each receive one-third of Christopher’s estate, and sought an order under s. 27(4) of the Succession Act 1965 allowing the defendants to administer the estate under that settlement.
The Court’s Holding
Ms Justice Stack substituted Arthur Kearns junior, the original plaintiff’s son and legal personal representative, as plaintiff. But she refused the s. 27(4) application for a grant giving effect to the settlement.
The proposed compromise did not include, notify, or bind all persons who could take on an intestacy if the will were invalid. Christopher had at least 21 nieces and nephews entitled on intestacy, whereas the original plaintiff had only a one-sixth intestacy entitlement. Granting the order would therefore not finally resolve the estate’s distribution and was a matter of convenience, not the necessary or expedient special circumstance contemplated by Re Hannon.
Key Takeaways
- A probate compromise under s. 27(4) cannot ordinarily be used to bypass potential intestacy beneficiaries who are not parties or on notice.
- Applicants must give complete and accurate information about all persons entitled on intestacy, including children of predeceased siblings.
- The terms “heir at law” and “next of kin” should not be used loosely to plead exclusive entitlement to a modern intestate estate.
Why It Matters
The decision limits the use of s. 27(4) to settle will disputes where the settlement can conclusively determine entitlement to the estate. A settlement among only some beneficiaries cannot support a grant that leaves unrepresented intestacy claimants able to challenge the distribution later.
It also stresses the evidential discipline required in probate affidavits: identifying only the deceased’s closest surviving relative is insufficient where descendants of predeceased siblings may inherit per stirpes under s. 69 of the 1965 Act.