A tale of two capacities

A recent probate case – unusually – saw one plaintiff represented separately in different legal capacities within the same action. Kim Tandy tells the tale

Contentious probate litigation frequently raises issues concerning proof of wills, family conflict, and the application of long-standing presumptions. Occasionally, however, a case gives rise to a procedural development that attracts attention beyond the substantive dispute itself.

Recent High Court proceedings, In the Estate of Mary Eastwood, did so in an unexpected way, when one plaintiff acting as both executor and beneficiary was permitted to appear through separate legal representation in respect of those distinct capacities within the same action.

The arrangement did not arise from any formal procedural application and does not represent a change in Irish practice.

Nonetheless, the manner in which the issue emerged, the objections raised, and the way in which the trial ultimately proceeded illustrates how such practical forensic difficulties may arise and be addressed in probate litigation.

The decision itself concerned the proof of a copy will and the operation of the presumption of revocation.

Yet the procedural course adopted during the proceedings highlights the challenges that can arise where a single individual participates in litigation in more than one legal capacity – a circumstance not uncommon in succession disputes.

It was the best of times

The proceedings were brought by two plaintiffs seeking to prove a copy will in solemn form. Both of the plaintiffs appeared in dual capacity from the outset, both as executor named in the will and as beneficiary under it.

At the commencement of the proceedings, the plaintiffs were represented by a single legal team.

It was in that context that the question later arose as to whether separate legal representation might be required to reflect the distinct capacities in which one of the plaintiffs participated in the litigation. The issue of separate representation arose immediately before the trial.

The situation did not arise by way of formal motion. No notice of motion issued and no affidavit grounding relief was filed.

Rather, the matter emerged during pre-trial case management with the judge, when the dual position occupied by one plaintiff was discussed in the context of how the action might fairly proceed.

The procedural framework governing probate litigation recognises that parties may appear before the court in distinct legal capacities. Order 125, rule 1 of the Rules of the Superior Courts defines probate actions as proceedings "commenced by originating summons and seeking the grant or recall of probate, or letters of administration, or similar relief".

Such proceedings commonly include actions for the proof of a will in solemn form, interest actions in which entitlement to a grant is disputed, and proceedings seeking the revocation of an existing grant.

In addition, order 4, rule 10 of the rules requires that the indorsement of claim in probate proceedings identify the capacity in which the plaintiff sues.

The rule provides that "the indorsement shall show whether the plaintiff claims as creditor, executor, administrator, residuary legatee, legatee, next-of-kin, heir-at-law, devisee, or in any and what other capacity".

The rules, therefore, recognise that a party may appear before the court in more than one legal capacity, but they are silent as to how representation should be managed where those capacities are held by the same individual.

Separate representation was permitted as part of the court's management of the proceedings.

The development was informal in origin. At the time, it was remarked that such an arrangement appeared unfamiliar within the Courts Service, reflecting the absence of any established procedural mechanism addressing representation of a single party in multiple legal capacities within one action.

The order, therefore, derived not from any specific rule but from the court's inherent jurisdiction to regulate the conduct of litigation before it.

It was the worst of times

The course adopted was opposed by the defendant, whose objection was grounded in established evidential principle.

The potential difficulty centred on the position of the solicitor who had drafted and witnessed the will. His evidence was necessary to establish due execution, yet his handling of the original will formed part of the dispute concerning whether the presumption of revocation arose.

The possibility that differing forensic approaches might be taken to the same witness raised an evidential concern familiar to common-law procedure: a party is not ordinarily permitted to impeach the credibility of a witness whom it has called, save in limited circumstances such as hostility.

Seen in that light, the issue reflected a broader concern about maintaining the coherence of adversarial examination rather than any matter particular to the personalities involved in the litigation.

It was the age of wisdom

When the matter proceeded to hearing, however, the anticipated procedural difficulty did not arise in practice. Separate counsel appeared in respect of the executor capacity and the beneficiary capacity, alongside counsel for the defendants.

Witnesses were examined and cross-examined sequentially by each legal team. As recorded in the judgment, witnesses (including the drafting solicitor) were cross-examined by counsel appointed following the earlier order permitting separate representation.

The trial judge retained firm control over the structure and scope of questioning. In practice, the questioning reflected differing forensic emphasis arising from the roles represented, rather than competing cases.

The trial shows how an unusual procedural arrangement was accommodated within an ordinary plenary hearing.

It was the age of foolishness

Although novel in Ireland, questions concerning separate representation have arisen, from time to time, in England and Wales.

The leading authority arose in a libel action, Lewis v Daily Telegraph (No 2), brought by Mr Lewis personally and by a company associated with him. Both plaintiffs alleged liability arising from the same publication, but their claims differed in character.

Mr Lewis sought damages for personal reputational harm (general damages), whereas the company claimed special damages arising from alleged commercial loss

The actions had been consolidated. Mr Lewis subsequently sought to have the proceedings separated, in part because of concern that continuation of the joint action exposed him to the costs risks associated with the company's claim.

Although the plaintiffs were already separately represented, the application raised the broader question of whether the litigation should proceed independently.

The Court of Appeal refused to direct separate trials and held that the consolidated action should proceed as a single hearing.

While acknowledging that severance in representation might, in principle, be justified in an exceptional case, the court regarded this separate representation as irregular in ordinary practice and emphasised the practical difficulties it would create in a jury trial, including duplicated openings, repeated cross-examination, and potential procedural imbalances between the parties. 

Accordingly, the decision illustrates a distinction between the court's tolerance of separate representation as a procedural reality at interlocutory stage, and its reluctance to endorse divided advocacy at trial where the issues of liability were common.

The concerns identified in Lewis arose in the context of a jury libel trial, where the court's focus lay primarily on the practical conduct of advocacy and the potential for procedural imbalance where multiple counsel advance overlapping arguments.

A more recent English decision illustrates the issue arising in a different setting, where the question was approached less as one of trial fairness, and more as a matter of costs and case management.

It was the epoch of belief

In Patley Wood Farm LLP v Kicks, the English High Court was required to consider the consequences of multiple parties within the same proceedings instructing separate firms of solicitors, while pursuing broadly aligned relief in insolvency-related litigation.

The applicants occupied different legal positions within the bankruptcy structure and maintained that independent legal advice was required, notwithstanding a shared objective.

Unlike Lewis, this case did not concern the structure of a trial or the risk of jury confusion. Instead, the court addressed the issue through the lens of costs and proportionality.

The existence of separate representation was accepted as a practical reality, but the court examined closely whether duplication of work and expense was justified.

Particular attention was paid to avoiding overlap in preparation and advocacy, and to ensuring that the opposing party was not unfairly exposed to unnecessary costs.

The decision, therefore, demonstrates a modern case-management approach: separate representation was neither treated as inherently impermissible nor positively encouraged, but assessed by reference to its practical consequences within the litigation as a whole.

It should be noted that these English authorities were not opened to the Irish court at the stage when separate representation was permitted in Eastwood. Their relevance to Irish probate procedure, therefore, remains to be established should a similar issue arise for formal determination in the future.

It was the epoch of incredulity 

The English authorities, nevertheless, illustrate that questions of separate representation tend to arise not from abstract procedural principles, but from practical difficulties encountered in particular types of litigation – whether concerns about advocacy and jury fairness (as in Lewis) or issues of proportionality and duplication of costs (as in Patley Wood Farm).

The Eastwood proceedings presented yet a different context.

The issue arose not from consolidated commercial claims or insolvency structures, but from the coexistence of fiduciary and personal roles within a probate action.

The manner in which the Irish court addressed that situation may, therefore, be understood as case-management specific to the facts of the proceedings, rather than the application of any settled comparative approach.

It was the season of light

An alternative question arising from the case is whether the evidential difficulty might instead have been addressed by treating the attesting solicitor as a witness of the court.

In probate litigation, attesting witnesses sometimes occupy a position distinct from ordinary witnesses, given that their evidence assists the court in determining the validity of a testamentary instrument.

Certain English authorities have approached such witnesses in quasi-inquisitorial terms, treating them as assisting the court rather than as witnesses aligned with either party.

As submitted on behalf of the defendants, the English authorities relied upon arose within a statutory probate framework, including powers to summon and examine testamentary witnesses for which no direct equivalent exists in Irish legislation. In the absence of such a jurisdiction, the proceedings continued within orthodox adversarial structures.

The solicitor remained a witness called in the ordinary way, and the evidential difficulty was addressed through the structure of representation rather than through alteration of the witness's status.

It was the spring of hope 

The Eastwood proceedings do not establish a new procedural rule, nor do they suggest any general departure from the traditional exception of unified representation.

They do, however, provide an example of how the High Court addressed an unusual factual and forensic situation through pragmatic case management.

The conduct of the trial suggests that existing procedural tools, particularly judicial control of advocacy and evidence, were capable of accommodating that arrangement without disruption to the orderly hearing of the action.

For practitioners, the case may therefore be of interest, not as a statement of doctrine, but as an illustration of the flexibility available to the court in managing complex probate litigation where conventional procedural assumptions do not sit easily with the realities of the dispute. 

The Eastwood proceedings ultimately turned on established principles governing lost wills and the presumption of revocation. The procedural course adopted neither altered established principles nor created a new rule of practice.

Rather, the case illustrates how probate litigation, though grounded in settled doctrine, continues to be shaped by practical realities of individual disputes.

Sometimes, the most noteworthy aspect of a case lies not in the rule it changes, but in how the court manages the situation before it.

Kim Tandy is a Dublin-based barrister practising in probate and commercial law, with particular experience in corporate governance and EU data-protection law. She wishes to thank Stephen Moran BL for reviewing the article.