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Cite as: [2014] IEHC 407
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Judgment Title: Mullen Jr -v- Mullen Neutral Citation: [2014] IEHC 407 High Court Record Number: 2013 502 SP Date of Delivery: 31/07/2014 Court: High Court Composition of Court: Judgment by: Cregan J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 407 THE HIGH COURT [2013 No. 502 SP] IN THE MATTER OF THE WILL OF ELIZABETH (O/WISE BETSY) MULLEN DECEASED LATE OF FAHY, CLIFDEN, COUNTY GALWAY BETWEEN JAMES MULLEN JUNIOR PLAINTIFF AND
JAMES MULLEN DEFENDANT JUDGMENT of Mr. Justice Cregan delivered on the 31st day of July 2014 Introduction 2. In her will Mrs Mullen left various bequests to her sons and daughters but she also bequeathed a small plot of land of not more than half an acre to her grandson, James Mullen Jnr., the plaintiff in these proceedings. 3. Mrs. Mullen died on 24th May, 2012 without having altered or revoked her last will. In her will she appointed the defendant James Mullen, her son, to be her executor. There is however a dispute between the plaintiff and the executor of the will as to the meaning of the bequest to James Mullen Jnr. James Mullen Jnr., claims that he is entitled to the bequest; the defendant on behalf of the estate claims that the bequest has lapsed and/or has failed. The terms of the will
I appoint my son James Mullen to be executor of this my will subject to the payment of my lawful debts funeral and testamentary expenses. I give devise and bequeath as follows: My house and garden at Fahy, Clifden to my three daughters, Lily Kane of Dawros Letterfrack Rita McNamara of Tullyvoheen, Clifden And Margaret Pride of Letternoosh, Clifden In equal shares. The field opposite my house at Fahy, Clifden as to one half thereto to my son, Marty Mullen and as to the other half thereof to my son Thomas. They are each to have the half nearest to their respective houses. To my executor and son James Mullen the land upon which his house stands at Fahy, Clifden together with the well and water supply servicing same which comes from adjoining lands and also I give devise and bequeath to him the lands running to the sea which he presently occupies. I also give devise and bequeath to my son, James Mullen the site of the house my late husband James Mullen senior was born in which is situated at Fahy, Clifden and is half way between the Low Road and the Sky Road. I also give, devise and bequeath to James Mullen Junior., son of my son John, a small plot or piece of land of not more than half an acre to make up the site of his proposed new house should he require same. All the rest, residue and remainder of my property of every nature and kind wheresoever situate I give devise and bequeath to my three sons John, Marty and Thomas in equal shares. I direct that my executor appoint the firm of Black and Co. Solicitors of 28 South Frederick Street, Dublin 2 to act in the administration of my estate and that they be paid their proper professional fees and expenses for so doing. In witness whereof I have herewith signed this my last will and testament this 19th day of July, 2004. Elizabeth Mullen (Betsy) Signed by the testatrix.
6. The parties are agreed that there are certain factual matters which are relevant in order to put the will into some form of factual context. 7. I set out below therefore a summary of the relevant background to the making of the will.
2. He then set about applying for planning permission to build his own home on this site. He obtained planning permission. In or about June 2005 he commenced construction of his dwelling house on these lands and he substantially completed the construction and moved into the house with his wife on or about 30th July, 2006. 3. The plaintiff, in his affidavit, states that it was difficult to secure planning permission in the area but, as his brother had already constructed his house adjacent to the plaintiff’s lands, he was able to use his brother’s access road which greatly strengthened his application for planning permission. 4. It appears that the site on which the plaintiff built his house was a difficult site on a sloping road and blasting was required to clear the stone from the hillside and also to create a level space. 5. In or about March 2010 the plaintiff sought the testatrix’s permission to use a portion of her lands (which adjoined his dwelling house) as a garden. The plaintiff at this stage had a number of small children and wished to obtain a garden for them to play in. 7. The plaintiff also states in his grounding affidavit that from May 2010 until the testatrix’s death on 24th May, 2012 that he, the plaintiff, occupied this portion of the testatrix’s land for use as a garden with her knowledge, consent and indeed encouragement. He avers that he placed swings on the land for use by his children and that the testatrix on her many visits to his house also discussed with the plaintiff the use to which he could put the lands and encouraged him to plant vegetables on the lands, to keep chickens on the lands and also to allow his children to play there. 9. The defendant, in essence, says that the plaintiff had an offer (at the time he was building his house) from his grandfather (the testatrix’s husband) “of a few feet of land to help him build his house should he need it”. However he did not avail of the offer to make up the site of his proposed new house and this is proof that he does not need it now. The defendant also states that he is of the view the plaintiff has an adequate area within his site to create a garden. 10. The plaintiff filed a replying affidavit as did his mother Kathy Mullen. A further affidavit was also sworn by Gerard Black, the testatrix’s solicitor about the circumstances in which the testator made her will. The Legal Principles Applicable to this Application The Relevant Statutory Provisions
23. Section 99 provides:
12. Laffoy J. In Re Rafter [2012] IEHC 239 considered to how the court seeks to construe a will and to give effect to the intention of the testator and referred to the principles set out by Lowry LCJ in Heron v. Ulster Bank Limited as follows at para. 14:-
‘I consider that, having read the whole will, one may with advantage adopt the following procedure: 1. Read the immediately relevant portion of the will as a piece of English and decide, if possible, what it means. 2. Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest the need for modification in order to make harmonious sense of the whole, or, alternatively, whether an ambiguity in the immediately relevant portion can be resolved. 3. If the ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do. 4. One may at this stage have resort to rules of construction, where applicable, and aids, such as the presumption of early vesting and the presumption against intestacy and in favour of equality. 5. Then see whether any rule of law prevents a particular interpretation from being adopted. 6. Finally, and, I suggest, not until the disputed passage has been exhaustively studied, one may get help from the opinions of other courts and judges on similar words, rarely as binding precedents, since it has been well said that ‘no will has a twin brother’ ....” Application of Principles The First principle: Consider the immediately relevant portion of the will
16. It is the words which are underlined above which, according to the defendant, mean that the bequest fails. The defendant’s argument in this regard is, that at the time the testatrix made her will, she knew that the plaintiff was building his own house. She had in mind, therefore, that she would leave him up to half an acre of land to make up a site for his proposed new house should he require same. The defendant submits that because the “proposed new house” has now been built, it therefore follows that the gift lapses. It is also submitted by the defendant that as the plaintiff has built his house it is clear that he does not require the relevant half acre. 17. In this regard, the defendant submits that the phrase “should he require same” is a phrase which must be given an objective meaning because of the use of the word “require”. 18. However the words “should he require same” constitute a subordinate clause. It is a conditional subordinate clause. The subject of the subordinate clause is “he” (i.e. James Mullen Jr.); the verb is “require” and the object of the clause is “same” (i.e. a small plot or piece of land of not more than half an acre”). It follows, therefore, because “he” is the subject of the clause that it is the plaintiff - and the plaintiff alone - who is the person who decides whether he “requires” any of the land. In other words, it is the plaintiff’s subjective assessment of whether he requires the land which enables the condition to be fulfilled. 19. Thus, in my view, there is no basis for the defendant’s argument that the word “require” implies an objective test. The error in this part of the defendant’s argument is to place too much emphasis on the verb “require” and to place no emphasis whatsoever on the subject of the clause. 20. But in order to take the defendant’s submission, at its height, I turn to consider firstly whether on a subjective assessment, the plaintiff “requires” the said plot and secondly, to consider whether on an objective assessment, the plaintiff requires the said plot. 21. However this in turn necessitates a consideration of the meaning of the word “require”. There was some debate about the exact definition of the meaning of the word “require”. The Oxford English definition of the word “require” is:-
2. Instruct or expect someone to do something. 3. Make compulsory: the minimum required by law. 22. Thus, the Oxford English definition of “require” is “to need something for a purpose”. The question then becomes does the plaintiff “need” this half acre of land “for a purpose” either subjectively or objectively. 23. I turn first to consider whether the plaintiff, subjectively, needs the said plot. At para. 8 of his affidavit he says as follows:
25. It is also clear, in my view, from the evidence that, viewed objectively the plaintiff does indeed need this parcel of land for a purpose. That purpose is to provide a garden in which his young children can play. The plot in question is a small garden adjoining the house. The court has seen photographs of the house from all angles. The court has also had the benefit of the plaintiff’s direct evidence, when he was cross examined, and also his affidavit evidence. It is quite clear from the affidavit and oral evidence that the site is a difficult site and that there is no area suitable on the site for a garden for his children. That is why in 2010, he asked his grandmother, the testatrix, whether he could use some part of her land to create a garden for his children. The evidence is that she willingly consented, supported and encouraged her grandson in using her land as a garden for his children. 29. Indeed the plaintiff in an affidavit states that although he moved into his house in 2006, it still looked like a building site at that time and that he did not complete all the works associated with his house until 2011. He also says that in 2011, he was constructing a boundary wall around his house and he left a gap of approximately 16ft at the boundary wall adjacent to his grandmother’s land so that his children could access the land. 30. He also states at para. 18 of his affidavit:-
32. The Plaintiff in cross examination also stated, in response to a question, that he did not have enough space in his site to have a garden. The plaintiff also gave evidence that there was no part of his current site on which he could put a garden. I therefore also find, as a fact, that there is no part of the plaintiff’s site on which it is suitable for him to create a garden. 33. Therefore, I find, as a fact, having listened to his evidence in cross examination that the plaintiff does indeed objectively “require” the relevant parcel of land “for a purpose” namely to provide a garden for his children and that there is no other area suitable on his land which could provide an alternative space for a garden. 34. There was also a dispute between the parties as to the meaning of the phrase “to make up the site”. The plaintiff submitted that this should not be construed as an entitlement to lands - only if they were required for the construction of the plaintiff’s house. The plaintiff submitted that a site consisted of more than a footprint of the dwelling house constructed on it. It might include an access road or driveway, an area for a septic tank and also a garden. The plaintiff also submitted that the phrase “to make up the site” should be construed as including lands required to service the house, (i.e. lands specifically utilised for the provision of a safe and suitable area on which a garden could be provided for the use and enjoyment of the plaintiff’s children and for the use and enjoyment of the plaintiff and his family in the normal conduct of family life). 35. The defendant, by contrast, sought to contend that the phrase “to make up the site” of his proposed new house referred to the fact if the plaintiff’s 1.2 acre site proved unviable for planning purposes, that the testatrix was making available to him additional adjacent land for building purposes. He says that at the time the testatrix made her will, the plaintiff was in the process of obtaining planning permission and that the plaintiff intended to build a house on the said land. 36. However, in my view, the defendant’s submissions are not well founded. On the facts of this case - and each case involving a will is applicable only to the facts of a specific case - this site was clearly always a difficult site. It did not cease to be a difficult site once the house was built on it. It was a difficult site to build the house on initially but it remains a difficult site because it is built into the rock on the hillside and also because it slopes very steeply at the front. It is clear, therefore, that there is no suitable space on the site for a garden. I am of the view, therefore, the intention of the testatrix was at all times that she intended to bequeath to her grandson, “a small plot of land up to half an acre should he require same to make up his site”. Given that the plaintiff used it as a garden with her consent for the last two years of her life, she clearly knew that the plaintiff needed this parcel of land to make up his site and to provide it with a garden. 37. It follows that his existing site is deficient in some respect (i.e. it is without a garden). To that extent, therefore, the plaintiff requires the additional land “to make up the site” of his proposed new house. 38. The defendant also seeks to argue that, because of the phrase, “his proposed new house”, and because the house has been built, the gift has lapsed. However, in my view, that submission also is not sustainable. The phrase “his proposed new house” was used by the testatrix because at the time she made her will the house had not yet been completed. It was at that stage “proposed”. The plaintiff gave evidence that the house was built in 2005 and that he and his wife moved into it in 2006. The plaintiff also gave evidence however that it was a building site for a number of years and indeed it only seems to have been completed in or about 2010. It then became the plaintiff’s new house. The fact that the house has been built does not invalidate the gift. Given that the will speaks from death, the testatrix must be taken to be referring to the plaintiff’s “new house”. 39. It is at this point that the relevance of s. 89 of the Succession Act becomes apparent (i.e. that the will speaks from death). The testatrix saw that the plaintiff’s house had been built between 2005 and her death in 2012, nevertheless the testatrix never sought to revoke or amend her will in any way. Moreover, when asked by the plaintiff, the testatrix readily assented to giving consent to the plaintiff to permit him to use that part of her lands adjoining his lands as a garden for his children. It is clear, therefore, at the death of the testator, she was in full knowledge of all the material facts in relation to this matter and she did not seek to amend or revoke her will in any way. 40. However even if it were not for this issue of the will speaking from death, given that the court must strive to give effect to the intention of the testator, I have no doubt that the intention of the testator was, at all times (i.e. at the time of the making of her will and thereafter up until the date of her death), to make a bequest to her grandson of up to half an acre should he require it to make up the site. The Second and Third Principles: Look at the other material parts of the will/the scheme of the will.
(ii.) In addition the testatrix gave land to her sons Marty and Thomas in such a way as to enlarge the sites of their respective houses. The plaintiff submits, therefore, that the testatrix was of the view that a house should have some surrounding land. The plaintiff submits that this re-enforces the interpretation advanced by the plaintiff. The testatrix lived beside the plaintiff and was aware of the difficulties of the site and how he had no garden. I also find this submission persuasive. (iii.) The plaintiff also submits that the testatrix knew there was a difficulty with the plaintiff’s site and sought to gift him land to assist him. She had not known exactly what was required; she left it up to him to decide what he required up, to a maximum of half an acre. She wished to leave the balance of those lands to the defendant, her son. In structuring matters in this way, the plaintiff submits, the testatrix was trying to be fair to her son and to her grandson. I find this submission persuasive also. 41. I note that s.99 of the Succession Act provides as follows: 42. “If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.” 43. In my view the intention of the testator is clear from the words of the will. However insofar as there is any doubt in the matter, and in particular insofar as the defendant sought to lay considerable emphasis on the ambiguity of the phrases, “proposed new house” and “to make up the site” the consequence of the defendant’s interpretation is that the bequest would not be operative. In those circumstances, even if the bequest did admit of more than one interpretation, I am of the view, applying the statutory principle, that the interpretation according to which the bequest would be operative should be preferred. I would therefore conclude that the statutory presumption in favour of the validity of the bequest applies in this case. The Fifth and Sixth Principles: These are not necessary to consider in this case. 45. The scope and application of s.90 has been considered by the Supreme Court in Rowe v. Law [1978] I.R. 55 and O’Connell v. Bank of Ireland [1998] 2 IR 596 where the court construed the provision as permitting extrinsic evidence of intention only if there is an ambiguity in the will which cannot be resolved by construing the will. 46. Laffoy J. in In Re Rafter [2012] IEHC 239, in commenting on the extent of s. 90, stated as follows at para. 11 of her judgment:-
‘There are thus two conditions which must be met before such evidence is admissible: it must assist in the construction of the will or resolve a contradiction and it must, in either event, show what the intention, in the particular context, of the testator was.’”
b. She was aware of the difficulty of the site and the fact that there was no suitable area on the site for the plaintiff to have a garden. c. She gave full consent to the plaintiff to use that part of her land which he did use as a garden for his children. She completely encouraged him in this regard. d. She did this in the full knowledge from 2005 until 2012 when she died that the plaintiff’s house had been built and was being occupied. She also did so in the full knowledge that the house lacked a garden and that with young children the plaintiff needed a garden for the children to play in safely and without any serious risk that they might suffer an accident.
Conclusion |