Gilvarry v Maher

APPROVED [2026] IEHC 157 THE HIGH COURT CIRCUIT APPEAL 2019/00099 BETWEEN MYLES GILVARRY RESPONDENT/PLAINTIFF AND JEAN MAHER APPELLANT/DEFENDANT JUDGMENT of Mr Justice Nolan delivered on the 11th day of March 2026 Introduction 1. The fictional probate dispute of Jarndyce v. Jarndyce in Dickens’s Bleak House has long stood as a symbol of interminable litigation—proceedings so protracted that the estate was ultimately consumed by legal costs. Unfortunately, the present dispute between these parties has followed a similar path. 2. The matter came before me on 4th of December 2025, while sitting as the High Court on Circuit in Naas, County Kildare. At least four written judgments have issued over the past fourteen years, beginning with the judgment of O’Keeffe J. in 2012 (Naylor v Maher [2012] IEHC 408), the judgment of Gilligan J. in 2014 (Gilvarry v Maher [2014] IEHC 694), the judgment of Peart J. in 2018 (Naylor (Otherwise Hoare) v Maher [2018] IECA 32) and the judgment of Quinn J. in 2024 (Gilvarry v Naylor [2024] IEHC 668). Those decisions trace the increasingly tangled history of the underlying dispute. This is the fifth. The Underlying Dispute 3. In 2018, six years ago, Peart J. in the Court of Appeal described the dispute in the following terms “On the 30th September 2005 Michael Hoare (now deceased) executed a Will (‘the first Will’) in which, inter alia, he devised his farm of lands comprised in Folios 21455 and 18131 of the Register of Freeholders County Tipperary to the plaintiff, his son. Just over one year later on the 9th November 2006 he executed another Will, revoking the first Will, and inter alia leaving these lands instead to the defendant, his daughter, but making a bequest to the plaintiff of the sum of €150,000. These are the relevant testamentary provisions which have given rise to these proceedings and associated acrimony between the parties, not to mention the vast expense in terms of legal costs of a twenty one day trial in the High Court, and now the additional costs of this appeal”. 4. Various other ancillary issues arose which required the court to intervene over and above the written judgements which I have referred to, including the removal of the Appellant/Defendant as executrix by Pilkington J. on the 5th of March 2019 and the appointment of the Respondent/Plaintiff as Administrator with Will annexed. Subsequently, these Circuit Court proceedings were commenced by the Administrator seeking possession of the only remaining asset in the estate, namely the old family home at Military Road, Birr, County Offaly. This has led to further costs being incurred in the administration of the estate. 5. In his decision in 2024, Quinn J. noted that the continuing litigation led to the estate becoming insolvent such that it could not discharge the costs that have been incurred. He was asked to determine as to the priority to be applied in respect of the various sets of costs that had arisen and he concluded that the executor’s and Administrator’s costs took priority. The Circuit Court Proceedings 6. On the 5th of April 2019, the Respondent/Plaintiff, as Administrator, issued these proceedings for injunctive relief and possession. As noted above the house had been left to the Appellant/Defendant in the deceased’s second will. She then resided there for a number of years after her father’s death, having given her own home to her son. However, it should be noted that arising from the various cases, the outstanding legal costs comes to a sum in excess of €1 million. Even when this property is sold there will be a massive shortfall, such that those who are owed will be lucky to get 20% of what is due. 7. In her defence, she asserts that she owns the house, since it was given to her in the will and she was allegedly given assurances by the Respondent/Plaintiff, when he acted for her in the past, that the property was hers and that no application for possession would be brought. 8. She alleges that she has acted to her determent, in that she has done substantial improvements to it. She also raises two legal defences namely Section 13 of the Statute of Limitations 1957, that the claim has been brought out of time and Section 10 of the Civil Liability Act 1961, that no proceedings are maintainable where the estate is insolvent. The Order of the Circuit Court 9. The matter was heard before her Honour Judge Deirdre Browne, on the 22nd of October 2025, who granted orders of possession in favour of the Respondent/Plaintiff, with a stay for nine months. 10. Having heard evidence and submissions from the parties, I was satisfied, that prima facia, the Appellant/Defendant did not own the property, that any assurances given by the Respondent/Plaintiff to her were not in the context of his appointment as Administrator and that any betterment of the property which she may have affected does not give her an interest in it. 11. Nonetheless the two legal issues which the Appellant/Defendant raised warranted further legal submissions. On that basis I put the matter back for those submissions, which I have now considered. Section 10 of the Civil Liability Act 1961 12. In evidence the Appellant/Defendant raised this section as a bar to the claim being brought against her. It reads as follows: - “Insolvency of estate against which proceedings, are maintainable 10.—In the event of the insolvency of an estate against which proceedings are maintainable, any liability in respect of the cause of action in respect of which the proceedings are maintainable shall be deemed to be a debt provable in the administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by a contract or promise”. 13. I am satisfied that there is no merit in her reliance on this statutory provision. These proceedings are not proceedings against the estate; they are proceedings in which the Administrator is seeking to recover assets of the estate to discharge his legal duty. Therefore, the section does not provide a defence to the claim brought against her. Section 13 of the Statute of Limitations Act 1957 14. The Appellant/Defendant alleges that the proceedings are statute barred, in that the proceedings were issued on the 24th of April 2019. Since her late father died on the 7th of April 2007, the proceedings should have been issued no later than the 6th of April 2019. Thus, the proceedings were issued 17 days outside the time permitted. To that extent she relies upon Section 13 of the Statute of Limitations and the case of O’Hagan v Grogan [2012] IESC 8. 15. The section reads as follows: - Limitation of actions to recover land. “13. (2) The following provisions shall apply to an action by a person (other than a State authority) to recover land— (a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;” (emphasis added) 16. On the face of it the proceedings may well be statute barred. However, it is clear that matters are not that straightforward. The key to understanding this section is the phrase “from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person”. 17. When the Appellant/Defendant filed the Inland Revenue Affidavit of the estate, as she did as executrix, she was living in the property. She could not have owned the property at that time, because she declared it to be part of the estate. 18. The Respondent/Plaintiff only became entitled to bring these proceedings after he was appointed Administrator, by order of the High Court, dated 5th of March 2019. He could not have instituted them before that date. Indeed, he wasted no time thereafter, since the Equity Civil Bill was issued one month later. 19. While the Appellant/Defendant remained the executrix, there was no issue concerning her occupation. It was only after she was removed by court order, that she refused to leave the property when requested to do so, that a cause of action accrued, since it was only at that point in time she was trespassing. 20. While Section 23 of the Statute of Limitations 1957 states that in actions concerning the recovery of land, an administrator is deemed to claim as if there had been no interval of time between the date of death and the grant of administration, that is to ignore the fact that there was no cause of action until at least the 5th of March 2019. 21. This matter was dealt with by the Supreme Court in O’Hagan v Grogan to which the Appellant/Defendant refers. Macken J. dealt with Section 23 and the doctrine of “relation back” which relates to the right of the administrator to protect the interest in the estate, in the following terms: - “An issue also arose under what is known in some jurisdictions, and in some authorities, as the doctrine of “relation back”. By this is meant that once letters of administration issue, the right of the administrator to protect the interests of the estate, relates back to the date of death of the deceased owner, as if no time had elapsed in the period between death and administration. Section 23 of the Statute, which provides for this, is set out earlier in the judgment. The doctrine was available at common law, but has now been incorporated into s.23... The best expression of the true meaning of the section is found in Jourdan on Adverse Possession 2002 [London], in which, in dealing with the English equivalent, he states: “Under the general law, the estate of a deceased person vests in an executor at the moment of death. But an administrator’s title only vests on the grant of letters of administration, although for certain purposes it is treated as relating back to the death. Apart from the Limitation Act, 1980, s.26, time for bringing an action does not begin to run against the administrator until letters of administration are granted. The effect of s.26 is that time for recovering land runs against a deceased person’s estate, regardless of whether an executor or an administrator is appointed.” (emphasis added) I am satisfied that this is a correct statement of the effect of the section. It means that, if in the interval between the death of an intestate and the appointment of an administrator, a party has procured a lawful interest in lands the subject of the administration, that interest may be sufficient to bar its recovery by the administrator, when appointed, acting in the interests of those who, but for such event, would have been entitled to the lands.” (emphasis added) 22. In this case the Appellant/Defendant has not procured “a lawful interest in land” since up till the point when she was removed as executrix, namely the 5th of March 2019, she had not occupied the property adverse to the estate. 23. In McHugh v McHugh [2015] IESC 101, McKechnie J. noted that the plaintiff/appellant had been the executor of his mother’s estate but also made a claim against the estate. He noted that insofar as he purported to make a claim against the estate, the plaintiff was precluded from doing so in his capacity as executor. He “could not suppose to prosecute, and in the same breath to defend a claim, both on behalf of and against the Estate”. 24. Thus, the Appellant/Defendant cannot claim adverse possession of the property at a time when she was executrix. Therefore, no cause of action accrued till she refused to leave the property and on that basis the proceedings are not statute barred. 25. In those circumstances I shall affirm the order of the Circuit Court. 26. As to legal costs, my provisional view is that the Respondent/Plaintiff, having been successful in these proceedings, would be entitled to recover his costs against the other side in accordance with the default position under Section 169 of the Legal Services Regulation Act 2015. However, if the Appellant/Defendant wishes to argue for an alternative order, she may apply within seven days to have the matter listed for a short hearing on costs. If, however, a hearing on costs is requested and if, having heard the parties, the Court makes the order it has, provisionally indicated, then the Appellant/Defendant may be at risk of having to pay the additional costs incurred as a result of the hearing.