O Connor v Markey & Anor [2006] IEHC 219 (14 July 2006)

O Connor v Markey & Anor [2006] IEHC 219 (14 July 2006)

The case was a hostile dispute between beneficiaries, not a probate or ordinary administration suit, and thus falls within the third class of cases in In Re Buckton. The unsuccessful party (first named Defendant) must pay the costs of the successful party (second named Defendant) personally, and the special administrator’s costs are to be charged on the real estate specifically devised to the unsuccessful party to avoid unjust depletion of the residuary estate.

Citation
[2006] IEHC 219
Parties
Applicant: John O’Connor; Defendant: Gerard Markey; Defendant: Mary Markey
Jurisdiction
Ireland
Judgment Date
14 July 2006
Procedural Posture
Special Summons (probate/administration) / Post Judgment Application for Costs
Outcome
Costs awarded against the first named Defendant personally; special administrator’s costs to be charged on real estate devised to the first named Defendant; costs of prior order to be paid out of estate assets as per statutory order of application.
Legal Topics
Costs in Probate Litigation, Administration of Estates, Beneficiaries’ Liabilities, Order of Application of Assets
Probate Succession Law Civil Procedure Costs in Probate Litigation Administration of Estates Beneficiaries’ Liabilities Order of Application of Assets

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Parties

John O’Connor

Applicant

Gerard Markey

Defendant

Mary Markey

Defendant

Procedural Posture

Special Summons (probate/administration) / Post Judgment Application for Costs

Legal Issues

  1. 1 Whether the costs of the application should be paid out of the estate or by the unsuccessful party personally
  2. 2 Whether the special administrator’s costs should be charged on the real estate devised to the unsuccessful beneficiary
  3. 3 Whether the principles in In The Goods of Morelli or In Re Buckton apply to the allocation of costs

Ratio Decidendi

The case was a hostile dispute between beneficiaries, not a probate or ordinary administration suit, and thus falls within the third class of cases in In Re Buckton. The unsuccessful party (first named Defendant) must pay the costs of the successful party (second named Defendant) personally, and the special administrator’s costs are to be charged on the real estate specifically devised to the unsuccessful party to avoid unjust depletion of the residuary estate.

Court Disposition

Costs awarded against the first named Defendant personally; special administrator’s costs to be charged on real estate devised to the first named Defendant; costs of prior order to be paid out of estate assets as per statutory order of application.

Orders

  • Costs of the special administrator (including Stephenson, Solicitors) to be paid out of the estate and charged on the real estate specifically devised to the first named Defendant.
  • Second named Defendant awarded costs against the first named Defendant personally, including all costs arising from the Special Summons, applications, discovery, appeals, and hearing, but excluding legal submissions as a separate item.