Supreme Court of Ireland Decisions

1. The factual background to these proceedings should first be summarised. The deceased named in the title, Mary Frances Collins, was a widow who lived in a house at 14 Mount View Terrace, St. Lukes, in the city of Cork. She died on the 6th January, 1994, having made her last will dated the 15th December, 1993, a grant of probate of which was issued to the defendants (the executors named therein) on the 31st August, 1994.

2. Clause 4 of the will was as follows:

3. The two beneficiaries named in that bequest are the plaintiffs in these proceedings.

4. There follow a number of pecuniary legacies, some of them to named charities, and there is then a residuary clause in the following terms:-

5. There was no specific bequest of the deceased’s house.

6. Mrs. Bernadette Healy, a neighbour of the deceased, who was also on terms of close friendship with her, said in an affidavit that she had told the first plaintiff on the morning of her death that the plaintiffs had been left the house and gave him a key of the house which she had in her possession. She also gave him a briefcase containing personal documents of the deceased, including a photocopy of the original will. The first plaintiff then realised that only the contents of the house had in fact been left to him and his wife and this was confirmed when he went to see the solicitor who acted on behalf of the deceased.

7. Mrs. Healy said that, for some period prior to her death, the deceased had spoken to her about changing her will and had said that she wanted the plaintiffs to have her house, because they had a young family and she thought this would be of some benefit to them. Mrs. Healy said that she told the deceased to be sure to tell her solicitor that the contents were to be left to the plaintiffs in the will, because if the house was left on its own, the contents would not go to the plaintiffs. Mrs. Healy said that her reason for emphasizing this to the deceased was that she had recently been talking to a friend of hers who had been making a will and had been advised of the importance of leaving the contents along with the house when leaving the house to her son. She told the deceased that “there could be trouble about the contents” if they were not included with the house. She said that before the deceased left for the hospital where she subsequently died shortly after Christmas, 1993, she again said that she hoped the house would be “of good use” to the plaintiffs. It was on that occasion that she gave the briefcase to Mrs. Healy. Mrs. Healy said she was very concerned to discover subsequently that the plaintiffs had not in fact been left the house, since she attributed this to the emphasis she laid in her conversation with the deceased on the importance of mentioning the contents.

8. The first plaintiff said that on Christmas Day, 1993, the deceased came to his house for Christmas dinner, which she did every year. A few days prior to that, she had told him on the telephone that she had something that she wished to discuss with him and the second plaintiff. On Christmas Day, she told him that she had been to her solicitors about ten days previously, that she had made a will and that she had left her house and contents to the plaintiffs. She added that the contents were not worth much, but that there was no point in leaving them the house without the contents. She also said that she was happy with what she had done and that, when she died, the plaintiffs should get in touch with her solicitors about the house.

9. The deceased had made three earlier wills in 1952 , 1972 and 1987. They were all made, however, when her husband was alive and they had decided to make mutual wills. While there were different provisions in each of the wills, the house was not specifically bequeathed in any of them: it passed with the residue of her property in each case to her husband. There were then other provisions for what was to happen in the event of his predeceasing her.

10. The solicitor who prepared the will, Mr. Gerald Moloney, in an affidavit said that the deceased called to him by appointment on the 13th December, 1993, with a view to making changes in her will. Mr. Moloney said that they discussed her previous will and she then gave her instructions to him which he noted on an attendance docket. She dealt initially with the residue and indicated that she had been very impressed by the manner in which the Mary Mount Hospice had looked after her late husband and that she wanted to leave the residue to them rather than to the several charities which had been named in her earlier will. She also indicated that she wished to change two of the pecuniary legacies in the 1987 will and Mr. Moloney said that he noted those changes. She had brought with her a list of five names and addresses and said that she wished to leave £500 to each of them. He said that he photocopied the list and retained the photocopy giving her back the original list, while he noted the fact that each was to have a legacy of £500. Mr. Moloney then said that he asked the deceased whether there was anything else and she then told him that she had been thinking of leaving something out of the house to the first plaintiff, who was already mentioned in her earlier will. Mr. Moloney’s recollection was that, when it became apparent to him that she was not sure what she had in mind, he suggested that she might consider leaving him the entire contents of the house. She said that she agreed with that suggestion and that she would leave the contents to both plaintiffs. He noted on the reverse side of the docket that all the personal effects and the contents of the house were to go to them. At that stage, she said that she was not absolutely sure that they were still at the address given in the 1987 will, but that she would check it and let him know. She enquired when the will would be ready and he made an appointment with her for the 15th December, 1993.

11. Mr. Moloney said that he subsequently dictated a draft will incorporating the changes which he had noted and on the following day received confirmation by telephone as to the address of the plaintiffs. He said that on the 15th December, when the deceased called by appointment, he told her that the will was ready and suggested that he would go through it with her. He said that he then read over the will clause by clause, but paraphrasing each clause rather than reading it out word for word. He said that in his opinion she had no difficulty in hearing what he said and appeared perfectly to understand the contents of the will. When he had finished, she confirmed that was what she wanted and the will was then executed by her in the presence of Mr. Moloney and another member of his firm, each of them signing the will as witnesses.

12. The present proceedings were instituted by way of special summons and the special endorsement of claim sought answers to the following questions which were said to arise out of the terms of the will of the deceased:-

13. The summons also sought the following relief:-

14. The action came on for hearing in the High Court before Barron J. and all the witnesses already referred to gave oral evidence to the same effect as what they had said on affidavit. There was also evidence by a Mr. William J.A. Rea who said that he was very well acquainted with the deceased and her husband and that he had on several occasions been given to understand that, when they were both dead, most of the estate would go to the first plaintiff.

15. The action was dismissed by the learned High Court Judge. It was acknowledged on behalf of the plaintiffs that, having regard to the decision of this Court in Rowe v. Law [1978] I.R. 55, they could not avail of s. 90 of the Succession Act, 1965 (hereafter “the Act of 1965”) so as to rely on extrinsic evidence adduced as to the intentions of the deceased, in the absence of any ambiguity in the will itself They relied, however, on another decision of this Court in In re Curtin Deceased [1991] 2 I.R. 562, as entitling the court to grant the relief which they sought.

16. In his judgment, the learned High Court Judge said that he was satisfied that the case of In re Curtin Deceased [1991] 2 I.R. 562, was distinguishable from the present case. He considered that no ground had been established for construing the will other than in accordance with its terms. He added at p. 600:-

17. From that decision, the plaintiffs have appealed to this Court. The defendants have also served a notice to vary the order as to costs made in the High Court, one of the grounds advanced being that the learned trial judge erred in law and on the facts in preferring the evidence of the witnesses for the plaintiffs to that of the solicitor who prepared the will.

18. On the hearing of the appeal to this Court, it was submitted on behalf of the plaintiffs that the decision in Rowe v. Law [1978] I.R. 55, was wrong in law and should be overruled. It would then follow, in the light of the findings of fact made by the trial judge, that the plaintiffs were entitled to the relief which they had sought. They would, in any event, he submitted, be entitled to that relief, having regard to the decision of this Court in In re Curtin Deceased [1991]2 I.R. 562 .

19. On behalf of the defendants, it was submitted that the decision of this Court in Rowe v. Law [1978] I.R. 55 , was correct in point of law and should not be overruled. He further submitted that the trial judge was correct in treating the decision in In re Curtin Deceased [1991] 2 I.R. 562 , as entirely distinguishable from the present case.

20. There was a conflict of evidence on affidavit between the first plaintiff and the first defendant, who was the solicitor who prepared the will. The former said that he was present when the testatrix gave instructions for the will to the first defendant and that her expressed intention was that the balance of the estate was to pass to the plaintiffs. The solicitor said that her instructions were that the balance of the total estate should go to the persons given the life interest in the cottage. In the High Court, Kenny J. held that there was no ambiguity in the terms of the will and that, accordingly, extrinsic evidence was not admissible to show the intention of the testatrix. That conclusion was upheld on appeal by a majority of this Court (Henchy and Griffin JJ.), O’Higgins C.J. dissentiente.

21. All three judges in this court upheld the finding of Kenny J. at first instance that the terms of the will were clear and unambiguous and contained no contradiction. In those circumstances, the majority were of the view that s. 90 of the Act of 1965 could not be invoked so as to allow extrinsic evidence to be adduced as to the intention of the testatrix with the purpose of incorporating in the will different or additional provisions.

22. O’Higgins C.J., however, was of the view that s. 90 also applied in a situation where there was a contradiction between the actual intention of the testator and what was said in the will and that this would include situations in which an error had been made by a solicitor or other person in the preparation of the will. The only such evidence which could be admitted, however, was what was said and done at the time of the making of the will.

23. In this case, as in Rowe v. Law [1978] I.R. 55, the terms of the will are clear and unambiguous. The house, not having been specifically bequeathed to the plaintiffs or to anyone else, passed with the residue and all that went to the plaintiffs was the contents. There was, however, evidence which was accepted by the trial judge that the will in so providing was at variance with her expressed intention at the time. But if Rowe v. Law was correctly decided, the extrinsic evidence as to the intentions of the deceased was not admissible under s. 90 and it would follow that (subject to the alternative submission founded on In re Curtin Deceased [1991] 2 I.R. 562) , the appeal would inevitably fail.

24. In the course of his judgment in Rowe v. Law [1978] I.R. 55, Henchy J. said at p.72:

25. Griffin J, who also emphasised the fact that s. 78 of the Act of 1965 set out in detail the formalities necessary for a valid will, said at p. 77:-

26. O’Higgins, C.J., in his dissenting judgment, having referred to the legislative history of the Act of 1965 as it progressed through the Oireachtas, summarised his conclusions as follows at p. 67:-

27. The law as it stood prior to the enactment of the Act of 1965 should first be considered.

28. The general principle was and is that, in construing a will, the object of the court is to ascertain the expressed intention of the testator. The law was thus stated by Simon L.C. in Perrin v. Morgan [1943] AC 399 at p. 406:-

29. The general rule also was that extrinsic evidence of a testator’s declarations of intention as to the meaning to be put on the language of his will was not admissible as direct evidence of his testamentary intention.

30. In a later part of his judgment in that case, the learned judge refers to another category of cases in which extrinsic evidence may be admitted, not strictly speaking as evidence of the intention of the testator, but rather of circumstances existing at the date of his death which he might have had in mind and which accordingly, might assist the court in the construction of the language used in the will. James L.J. in Boyes v. Cook [1880] 14 Ch. 53 said at p. 56 :-

31. Such evidence was admitted, not as direct evidence of the testator’s intention, but rather as circumstantial evidence which assisted the court in inferring what the testator’s intention was. Under this rule – sometimes referred as “the armchair principle” – evidence could be adduced as to the testator’s knowledge of and relations with the different persons or institutions who claimed to be the object of a gift under his will.

32. The policy underlying these decisions was clear: the detailed requirements of the legislature as to the execution, attestation and publication of wills could not, in general, be circumvented by allowing parol evidence to be admitted as to the intentions of the testator, save in the limited circumstances to which I have referred. However, the strict application of those principles by the courts led on occasions to perplexing results, of which In Re Julian [1950] I.R. 57, itself is a remarkable example.

33. In that case, the testatrix in her will left a sum of £1,000 “to the Seamen’s Institute, Sir John Rogerson’s Quay, Dublin”. Two institutions claimed the sum, the Dublin Seamen’s Institute, Eden Quay, and the Catholic Seamen’s Institute, Sir John Rogerson’s Quay. One of the objects of each institution was to provide for the religious needs of seamen, in the case of the first by purely Protestant religious teaching, in the case of the second by exclusively Roman Catholic religious teaching. The undisputed evidence was that the testatrix, who happened to be a Protestant, knew the first institute well, had visited its premises and had subscribed to its funds. There was no evidence that she had ever heard of, or been interested in, the second institute. However, Kingsmill Moore J. considered he was bound by the authorities to hold that this was not a true case of equivocation, since that exception to the general rule only applied where the description in the will applied accurately to two different objects. In the instant case, it applied partly to one object and partly to another, but accurately to neither. Hence, the evidence as to the intention of the testator was not admissible and, since the only seamen’s institute on Sir John Rogerson’s Quay was the Catholic Seamen’s Institute, the learned judge felt coerced to hold that, in the absence of admissible parol evidence as to her intention, the will would have to be construed as referring to that institute. He added at pp. 65 and 66:-

34. If the latter was indeed what the Oireachtas intended, then s. 90 should, in logic, have read simply:-

35. The remaining words of the provision are, on the interpretation put forward on behalf of the plaintiffs, superfluous since, on that reading, parol evidence of the intention of the testator is admissible in every case, and not simply where it assists in resolving ambiguities or explaining contradictions in the will.

36. The alternative construction, which was upheld in the High Court and by the majority of this Court in Rowe v. Law [1978] I.R. 55 , is that extrinsic evidence was henceforth to be admissible as to the intention of the testator, not merely in the severely confined category of cases already referred to, but in every case where it assisted in the construction of, or resolved contradictions, in the will. That reading of the section is not only logical, but in grammatical terms is consistent with the use of the conjunctive “and” rather than the disjunctive “or”. 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.

37. Any other construction of s. 90, as the judgments of Henchy J. and Griffin J. in Rowe v. Law [1978] I.R. 55, made clear, would have led to a radical and far reaching change in the law which it cannot have been the intention of the Oireachtas to bring about by such, at best, opaque and ambiguous language. As Griffin J. pointed out at p. 77 of the report, where evidence of intention was admissible at common law, declarations made by the testator before, after and contemporaneously with the will were all admissible. He added:-

38. The authorities cited by Griffin J. make it clear that this was the position at common law. In Doe dem. Allen v. Allen (1840) 12 Ad. & El. 451, which was a case of equivocation, Denman L.C.J. said at p. 455:-

39. It is true that in an earlier case of Langham v. Sanford (1816) 19 Ves. 641, Eldon L.C. said that most weight was to be given to what was said at the time the will was made, but the general principle was stated by him as follows at p. 649:-

40. It would thus follow, if the plaintiffs’ submission is well founded, that the will of a deceased person could consist of various statements, written and oral, which he or she had made during the course of his or her life and that, to the extent that they supplemented, varied or contradicted the terms of the will of the deceased as admitted to probate, they, rather than the will so proved, would constitute the effective testamentary document. That far reaching conclusion is supported neither by the language of s. 90 nor the policy, in this context, of the Act of 1965 and the earlier legislation which it replaced or re-enacted.

41. In his dissenting judgment in the same case, O’Higgins, C.J. drew attention to the legislative history of the Act of 1965 as supporting his view that a more radical change in the law was intended to be effected by section 90. When the Bill was first introduced, the relevant provision read:-

42. He added at p. 67 of the report:-

43. I cannot, with respect, agree that this alteration in the terms of the provision during its passage through the Oireachtas supports the conclusion reached by the learned Chief Justice in that case. Had the words as to the intention of the testator been omitted, the provision might simply have stated the existing common law position, since, as I have made clear, extrinsic evidence was already admissible to assist in the construction of a will, e.g. under the armchair principle, but not in the form of direct evidence of the intention of the testator, save in very confined circumstances. Hence, without the addition of the reference to “the intention of the testator” the section might well have been construed by the court as being simply declaratory of the existing law.

44. O’Higgins C.J. also commented as follows on the decision in In re Julian [1950] I.R. 57, at p. 67 of the report:-

45. Again, I cannot, with respect, agree. A description of the object of the testatrix’s bounty as “the Seamen’s Institute, Sir John Rogerson’s Quay” when there were in fact two seamen’s institutes in Dublin, one called “the Dublin Seamen’s Institute” and situated at Eden Quay, the other called “the Catholic Seamen’s Institute” and situated at Sir John Rogerson’s Quay could hardly be regarded as a clear and unambiguous description of the institute intended to be benefited.

46. I am satisfied that the decision of the majority in Rowe v. Law [1978] I.R. 55, was correct in point of law and should be upheld. There remains the argument advanced on behalf of the plaintiffs founded on the decision of this Court in In re Curtin Deceased [1991] 2 I.R. 562.

47. The facts in that case were as follows. The testator, who was a widower with no children, left an estate valued in excess of £100,000, which included a dwelling house sold after his death. In the will, he left this house to a lady absolutely, or in the event of her predeceasing him, to her husband. The will then provided that, in the event of the testator selling the dwelling house, his estate should be divided into percentage shares for a number of charitable and other bequests. The dwelling house had not been sold at the time of his death.

48. This was, to put it mildly, a mystifying provision: there seemed no reason why the disposition of his entire estate to a number of charitable and other beneficiaries in specified proportions should be dependent on the happening of an apparently irrelevant event, i.e. the sale of the dwelling house. Yet there was no provision for what was to happen in the event of the house having been unsold at his death, as it was. To add to the confusion, the percentages in which the estate was purportedly distributed in the event of the house being sold amounted to 100.5%.

49. In these circumstances, it was held by this Court, reversing the judgment of the High Court, that the overwhelming probability was that the testator must have intended a similarly proportionate distribution of the estate, in the event of the house not having been sold at his death and that the will should be construed accordingly. In the High Court, Lardner J. had refused to admit extrinsic evidence of the contents of two previous wills as indicating the intention of the testator, considering himself bound so to hold by the decision in Rowe v. Law [1978] I.R. 55. However, although that finding was appealed, no argument in support of that ground of appeal was advanced in this Court.

50. I have no doubt that the decision in In re Curtin Deceased [1991] 2 I.R. 562, is entirely distinguishable from this case. First, the will in that case, literally construed, would have led to an intestacy, which could not have been the intention of the testator; there is indeed a presumption against intestacy, it may be noted, in this context, that s. 99 of the Act of 1965 provides that:-

51. That provision is clearly intended to ensure that, where the wording of a will allows of more than one construction, it should be interpreted, if possible, so as to avoid an intestacy arising. It is not specifically referred to in the judgments in In re Curtin Deceased [1991] 2 I.R. 562, but it is clear from the observations of O’Flaherty J., (at p. 573) that the presumption against intestacy was of paramount importance in that case. No question of intestacy, however, arises in relation to the will in the present case.

52. Secondly, the Court reached its conclusion solely having regard to the language of the will itself Accordingly, it did not have to consider the question which has arisen in this case, i.e. as to the extent to which extrinsic evidence showing the intention of the testator is admissible under s. 90 of the Act of 1965.

53. I am, accordingly, satisfied that the decision of Barron J. was correct. There is, however, one other matter to which I should refer. During the course of the arguments, members of the Court drew attention to the fact that, in the event of the plaintiffs’ claim being successful, the interests of the residuary legatee, which is a charity, would be seriously affected and, depending on the effect of any order as to costs made in the High Court or in this Court, so also might be the interests of a number of other charitable legatees mentioned in the will. None of these parties were joined in the proceedings nor, it would appear, was the Attorney General even notified of their existence.

54. This Court has recently drawn attention in E.B. v. S.S. [1998] 2 ILRM 141, to the importance of notice being given by the parties to proceedings such as this, where the interests of charities may be affected by the outcome, to the Attorney General as the protector of charities. The Court was informed by counsel for the defendants in the present case that the superioress of St. Patrick’s Hospital had been told of the proceedings and had indicated that she was happy to leave the protection of the interests of her institution to the defendants. The Court was of the view that, in these circumstances, no useful purpose would be served at this stage, and that further delay and costs might well be incurred, if the proceedings were to be adjourned so as to enable the Attorney General to consider whether he should apply to be joined as a party. That should not be taken as relieving parties of their obligation to notify the Attorney General in future of cases such as the present where the interests of charities may be affected.

55. I would dismiss the appeal, affirm the order of the learned High Court Judge and make no order on the notice to vary.