The High Court ruled that the Governor and Company of the Bank of Ireland was entitled to an order for possession of a home in Laytown, County Meath, after rejecting arguments that the defendant could not be sued as executrix and that the claim was statute barred.
In a judgment delivered on 8 June 2018, Ms Justice Costello found that Janet Matthews had accepted the office of executrix of the estate of her late partner, John Melsop, also known as Melsopp, through her actions, although she had not obtained a grant of probate. The court said she had dealt with the mortgage account, discussed redemption figures and a possible sale, and continued living at the property. It held that she could not later renounce the office after intermeddling in the estate. A solicitor’s letter saying she did not intend to take out probate did not amount to a valid renunciation.
The bank sought possession of 16 The Glen, Inse Bay, after the mortgage loan was transferred to it from ICS Building Society in 2014. The deceased had borrowed €234,000 in 2005, secured against the property. Arrears stood at €31,890.32 when he died in February 2013. Payments continued after his death, with the last recorded payment made in January 2014. The bank demanded full repayment in August 2016 and possession the following month. It issued proceedings in December 2016.
Matthews argued that the claim was already time-barred because the cause of action had arisen before the borrower’s death. The judge examined the mortgage terms and held that default, including the borrower’s death, allowed the lender to demand repayment but did not itself make the full loan immediately due. The bank made no repayment demand before the borrower died.
The court therefore found that the claim arose on the demand date in August 2016, after the death. The two-year limitation rule for claims surviving against a deceased person’s estate did not apply, and the possession claim was not statute barred. The court also rejected Matthews’s argument that legislation required the case to be brought in the Circuit Court, finding she was not a mortgagor within the relevant statutory definition.
The judge concluded that the bank’s proofs were in order and that it was entitled to an order for possession under section 62(7) of the Registration of Title Act 1964. The judgment did not set out a deadline for delivery of possession.