High Court of Ireland Decisions

1. In this case the Testatrix, Clare Bernadette Doran, a teacher of religion, who died on the 17th December, 1996 at St Maur's Convent, Weybridge, Surrey, England, was a member of a Religious Order of women known generally as Sisters of Infant Jesus or the Dames de St Maur.

2. On the 4th February, 1982 Clare Bernadette Doran signed her last Will and Testament in the presence of Helen Coleman and Nancy O'Donoghue, both retired teachers and members of the said Religious Order. The Will contains a sufficient attestation clause and an affidavit of Nancy O'Donoghue one of the attesting witnesses as to due execution was before the Court.

3. The testamentary document appears to be a type of standard form Will containing a number of pre-printed provisions one of which provides as follows:-

4. A question has now arisen for determination by this Court as to whether this appointment is void for uncertainty. In my judgment it is not.

5. In my judgment the intention of the Testatrix in adopting this form of words unaltered was to appoint the named Officers of her Order of Religion as original and substitute Executors. I say "adopted" because it is clear that the form of words, "for the time being at the date of my death to be Executor of this my Will", anticipate and resolve a problem which inter alia troubled the Court in the case of In Re Horgan Deceased , (1971), L.R. Probate Divorce and Admiralty, 50, and it is fair to infer were settled as was the clause as a whole by a lawyer. I feel confident in this view when I consider the terms of the subsequent printed paragraphs of this testamentary document.

6. Words used in a Will are deemed to have been used in their ordinary grammatical meaning unless there is something in the text of the Will read as a whole to indicate that they were used in some restricted sense or that some special meaning was intended. I find no such indication in this Will. The general and principal meaning of "or" as defined by the dictionaries (and in this respect I am conscious of the warnings given in the case of Re Redmond (1963) Ch 1 at 10) is "a conjunction introducing alternatives", "a particle co-ordinating 2 or more words phrases or clauses between which there is an alternative". It has been held in a number of cases cited in Stroud's Judicial Dictionary that "or" may also be read as implying a substitution, especially where this will prevent a testamentary gift from lapsing. (Op. Cit., 5th Ed. 1986, Vol 3 p. 1782)

7. In my judgment this clause was intended to be read, "I appoint the Provincial Superior or alternatively or by way of substitution the Provincial Bursar ... to be Executor of this my Will." In my judgment the words, "for the time being at the date of my death", qualify the words, the Provincial Superior or the Provincial Bursar" and not the words "the Irish-English Province".

8. I do not consider that the same lack of sufficient identification which lead to the appointment of Executors in the cases of In Re Goods of Bayliss Deceased (1862) 2 Swabey and Tristram Reports 613 and In the Goods of Blackwell Deceased (1877) L.R. 2 Probate and Divorce 72, being held void for uncertainty arises in this case. In the former case the appointment was made in the terms, "any two of my sons" and in the latter case the words used were, "one of my sisters my sole Executrix", without stating which sister and even though in the events which occurred only one sister survived the Testator. In the present case the intended Executor is clearly identified as whoever might be the holder of one of two named official positions in the Religious Order at the date of death of the Testatrix.

9. The decision in the case of In Re Horgan Deceased (1971) (cited above) and the decision of Lord Penzance in the case of Re Foster (1871) L.R 2 Probate and Divorce 304, demonstrate that the Courts will construe a clause appointing an Executor, not in any "technical spirit" but so as to give proper sense and meaning to the clause read as a whole and to carry out the real object of the Testator so as if at all possible to avoid an interpretation which would render the appointment void for uncertainty.

10. Issues nearly approaching the problem which confront this Court in the present application fell to be considered in the case of Re Lewis: Goronwy -v- Richards , (1942) 2 All ER 365. Though that case concerned the construction of a gift in a Will and not a clause appointing an Executor no material difference in principal arises between the two matters. In the case of Re Lewis the Testator gave his residuary estate to his wife for life and in the event of her predeceasing him then to, "Margaret Ann and/or John Richards." The Testator's wife predeceased him and the other named persons, who were husband and wife were both alive at the date of his death. In giving judgment in that case Farwell J., held as follows:-

11. In Williams Mortimer & Sonnucks, “Executors, Administrators and Probate”, (17th Edition; 1993) at Chapter 3, pages 27 and 28, citing the authority of Swinbourne and Godolphin, and the case of Smith -v- Croft , (1758) 2 Lees Ecclesiastical Cases 557, it is stated that a testator may appoint substituted executors. The first person so named is termed in law the “instituted executor in the first degree”, and the second the “substituted executor in the second degree” and so on. By Order 79 Rule 5(14) of the Rules of the Superior Courts 1986, the number of persons entitled to take out a Grant of Probate is three unless the Probate Officer directs otherwise. In Williams, “On Wills”, (7th Edition; 1995), Volume 1 at page 229 it is stated that:-

12. Authority for the legal acceptance of substituted executors is also to be found in Millar, “Irish Probate Practice” at pages 44 and 45.

13. In the present case probate of the said last Will and Testament of Clare Bernadette Doran is now sought by Pauline O’Dwyer, a member of the Religious Order of the Sisters of the Infant Jesus, otherwise Dames de St., Maur, who is Provincial Bursar of the Order in Ireland and England and was such Provincial Bursar at the date of death of the Testatrix on the 17th December, 1996. In my judgment no ambiguity or uncertainty arises from the clause in the will of the Testatrix appointing Pauline O’Dwyer by virtue of her Office as Provincial Bursar of the Religious Order at the date of death of the Testatrix to be Executrix of the Will in substitution for the first appointed Executrix, the Provincial Superior, who at the date of death of the Testatrix was Mairead O’Sullivan. I also find in no ambiguity or uncertainty in the fact that the clause appointing the Executrix refers to, “the Irish-England Province”, without more. It is absolutely clear from the will read as a whole that the Province in question in the clause of appointment is that of the Religious Order or Congregation of Sisters of the Infant Jesus, otherwise known as Dames de St., Maur, of which the Testatrix was herself a member.

14. Having regard to the provisions of Section 78(4)(b) of the Succession Act, 1965, to the Affidavit of the attesting witness, Nancy O’Donoghue and to the decision in the case of In Re. The Goods of Tiernan , (1942) Irish Reports, 572, no issue in my judgment arises on the plight or condition of this Will, in particular such an issue does not arise from the fact that the Will is comprised partly by what appears to be standard form text and partly of handwriting.

15. In Williams Mortimer & Sonnucks, “Executors, Administrators and Probate”, (above cited) at page 28 and in Millar, “Irish Probate Practice” (above cited), at page 45 it is stated on the authority of Smith -v- Croft , (above cited), In The Goods of Lane , (1864), 33 Law Journal, Probate Matrimonial and Admiralty 185, and Re. Wilmot , (1852), 2 Robertson’s Ecclesiastical Cases, 579, that before a substituted executor can obtain probate those entitled before him must renounce or be cited to accept and refuse to accept.

16. Having regard to the provisions of Section 20 of the Succession Act, 1965, I considered whether a formal renunciation by the instituted Executor in the first degree, namely, Mairead O’Sullivan, who was the Provincial Superior of the Religious Order at the date of death of the Testatrix, was necessary before Probate may be granted in this case. It is somewhat unlikely that the, “substituted executor in the second degree”, who has applied for Probate of the Will of the Testatrix by virtue of her office as Provincial Bursar of the relevant Province of the Religious Order at the date of death of the Testatrix, (an office which she continues to hold at the date of this application), would make such an application without the knowledge of at least the present Officers of the Province of the Religious Order and of Mairead O’Sullivan even if she no longer holds the office of Provincial Secretary. Further, having regard to the avocation of the persons concerned in this application there seems little or no likelihood of a Grant of Probate to the relevant Provincial Bursar, Pauline O’Dwyer being challenged by the relevant Provincial Secretary, Mairead O’Sullivan.

17. However, notwithstanding these matters, I am compelled to the view that this practice of requiring a renunciation by the person who is first entitled to prove a Will has been established for so long a period, and is reflected in the provisions of Part III of the Succession Act, 1965, that it would be wrong for this Court to depart from or to distinguish this practice otherwise than after a full argument and careful consideration in an appropriate case. The Grant of Probate to the Applicant should not issue unless the conditions of Section 17 of the Succession Act, 1965 are satisfied.