A non-proving executor who reserved the right to apply for probate could not bring a complaint to the Financial Services and Pensions Ombudsman about denied access to a deceased person’s bank records, the High Court has ruled.
In a judgment delivered on 12 March 2025, Mr Justice Garrett Simons found that Mark Kiernan lacked standing because he had not been appointed a personal representative under a grant of probate. His sister, Claire O’Dwyer, was the sole executor who had taken out probate for their mother’s estate, with the grant reserving Kiernan’s rights as co-executor.
The dispute concerned two Educational Building Society accounts first held in their mother’s sole name and later converted to joint accounts with O’Dwyer. Their mother died in 2015. The judgment records an ongoing dispute between the siblings over whether O’Dwyer became entitled to the funds by survivorship or whether they formed part of the estate.
Kiernan sought account information from the financial service provider in 2022. After it declined, he complained to the Ombudsman, which determined in September 2023 that he was not an appropriate person to complain on behalf of the estate because he was not named as personal representative in the grant.
The High Court held that the Ombudsman’s result was correct, but its reliance on section 45 of the Financial Services and Pensions Ombudsman Act 2017 was legally mistaken. The court said the issue instead turned on the Act’s definitions of “complainant” and “actual or potential beneficiary”, read with the Succession Act 1965. Reserving the right to seek a later grant did not make Kiernan a legal personal representative in the meantime.
The court also found the judicial review proceedings were brought outside the three-month time limit. Kiernan provided no affidavit explanation for the delay, and the court found no proper basis to extend time. Those findings were sufficient to dispose of the proceedings. The judge addressed the standing issue in addition, because it raised a question of general public importance; he said setting aside the Ombudsman’s determination and remitting it would serve no practical purpose, as the complaint would remain inadmissible.
The judgment did not make a final costs order. The judge’s provisional view was that each side should bear its own costs, and the case was listed for submissions and final orders on 25 March 2025.