The Court of Appeal has granted surviving children of Francis Fallon permission to obtain fresh representation in their father's estate, clearing the way for proposed litigation concerning Abbeyview in Rathfarnham, Dublin.
Francis Fallon, a dairy farmer, died in 1959. His will left his property to his wife Ellen Fallon as trustee for life, with a power to appoint the remaining estate among their children. If she made no valid appointment, the balance was to pass equally among all eleven children.
Ellen died in 1966. Her son Leo Fallon later proved her will. The Court of Appeal held that, under the law then governing estates, this automatically made Leo executor by representation of his father's still-unadministered estate.
In October 1968, Leo purchased the freehold reversion of Abbeyview for himself shortly before the existing lease expired. The applicants, James Fallon and Veronica Walsh, contend that his fiduciary position prevented him from retaining that benefit personally and that the property may instead have been held for the eleven siblings. They also challenge aspects of a 1983 Deed of Confirmation. Those allegations remain unproven.
The High Court refused their application for permission to obtain letters of administration with the will annexed de bonis non, a grant used to complete administration of an estate where property remains unadministered. It considered the proposed claim effectively hopeless and statute-barred.
Ms Justice Máire Whelan, delivering the Court of Appeal judgment, held that this went too far in a non-contentious probate application heard only on affidavit. Complex disputes about fraud, fiduciary duty, constructive trusts, signatures and limitation periods should not have been finally determined at that preliminary stage.
The court found sufficient special circumstances to justify the grant and set aside the High Court order. It stressed that the substantive property claim may still fail, including on limitation or delay grounds, but those questions must be determined in proper proceedings rather than pre-empted in the probate list.