Black v Ann O'Sullivan Centre Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice White
• Judgment Date: 02 December 2016
• Neutral Citation: [2016] IEHC 695
• Docket Number: [2016 No. 181 S.P.]
• Court: High Court
• Date: 02 December 2016

[2016] IEHC 695

THE HIGH COURT

White Michael J.

[2016 No. 181 S.P.]

IN THE MATTER OF THE ESTATE OF EILEEN CURTIN LATE OF APARTMENT 41, BLOCK C, SEABURY, SYDNEY PARADE AVENUE, SANDYMOUNT, DUBLIN 4 CIVIL SERVANT RETIRED DECEASED

BETWEEN

MAUREEN BLACK

PLAINTIFF

AND

ANNE SULLIVAN CENTRE LIMITED, OUR LADY'S HOSPICE LIMITED

AND

FAMILY SOLIDARITY LIMITED

DEFENDANTS.

Wills & Probate – S. 90 of the Succession Act 1965 – Admissibility of extrinsic evidence – Determination of true intent of testator

Facts: The applicant, being granted the probate of the estate of the deceased, sought an order for admissibility of extrinsic evidence in relation to the Will of the deceased, which had the effect of bequeathing the apartment in question to one of the daughters of the applicant. The first named respondent contended that the error, whereby the named daughter of the applicant to whom the relevant apartment had been bequeathed was referred to by some other name, was not accidental and thus, the extrinsic evidence of the family members should not be taken into record.

Mr. Justice White granted an order in accordance with s. 90 of the Succession Act 1965 and held that the relevant clause of the Will should be read as bequeathing the apartment in question to the named daughter of the applicant. The Court held that in case of any conflict on the Will, the applicant seeking to produce the extrinsic evidence should pass the two-stage test as laid down in Rowe v Law [1978] I.R. 55 namely, the intent of the testator and the explanation of alleged contradiction of the Will. The Court, after taking into account the evidence presented by the family members of the applicant, came to the conclusion that the named daughter of the applicant was the only one who had spent considerable time with the deceased/testator, which was obvious to other family members.

JUDGMENT of Mr. Justice White delivered on the 2nd of December, 2016.

1 This matter comes before the court by way of Special Summons seeking to have admitted extrinsic evidence pursuant to the provisions of s. 90 of the Succession Act 1965, to ascertain the true intention of the deceased in relation to Clause 4 of the last will and testament of Eileen Curtin.

2 At para. 4 of her last will and testament of 1st August, 2013, she made the following bequest:-

‘I give, devise and bequeath unto Rosemary Black (daughter of my niece, Maureen Black) of 51 Beechpark Avenue, Castleknock, Dublin15, my apartment together with its contents at Apartment 41, Block C, Seabury, Sydney Parade Avenue, Sandymount, Dublin 4.

3 She died on the 8th February, 2015 and Probate was granted to the Plaintiff on 18th November, 2015. The plaintiff has three daughters, Barbara, Nicola and Jennifer and never had a daughter named Rosemary.

4 The evidence sought to be relied on is that set out in the affidavit of the Plaintiff together with exhibits and that of her husband Victor Black, and to a lesser extent the affidavits of Brian Whitaker.

5 The Plaintiff deposed as follows:-

‘7. I say that I knew the deceased very well during her lifetime. She was not married and had no children and she visited my family in our house at Castleknock on very many occasions. For many years prior to her death, I was the first point of contact for her in the event that she had an issue of any concern. I say that she was particularly fond of my daughter, Barbara, as she was the only one of my daughters who was still living in our family home up to 2014 and was usually there when the deceased came to visit. Both the deceased and Barbara were able to converse with one another in French and they had a close rapport.

8. I say that the deceased told me on a number of occasions that she intended to leave her apartment to Barbara. However, she did not at any stage tell me that she had, in fact, done so.

9. I say that it is my belief that the deceased intended the property specified at Clause 4 of her last will and testament to be devised to my daughter Barbara Black who was the only one of my daughters residing at 51 Beechpark Avenue, Castleknock, Dublin 15 at the time the Will was made.

10. I say that while the deceased was normally a very careful and fastidious person and such mistake on her part would have been uncharacteristic, I believe that she inadvertently referred to my daughter Barbara as Rosemary when giving instructions to her solicitor for the preparation and execution of her will.’

6 Exhibited to the Plaintiff's affidavit are two letters from Jennifer Black and Nicola Black. In her letter of 20th February, 2016, Jennifer Black stated:-

‘I fully understand and appreciate the difficulty that has arisen in connection with Eileen's will and note that an application will be required to the High Court to confirm that the reference made to Rosemary in Clause 4 of the will should in fact refer to my sister Barbara Black.

I confirm that I am in full agreement with this interpretation of the will and will support the application that is to be made.’ Nicola Black wrote a letter in similar terms.

7 Victor Black's affidavit was sworn on 22nd April, 2016, at para. 3 he stated:-

‘I say that I knew the deceased herein well and she was a frequent visitor to our home at 51 Beechpark Avenue, Castleknock, Dublin 15. She enjoyed a close rapport with our daughter, Barbara Black who was the only one of our children still living at home up until 2014. I specifically recall a telephone call from the deceased in or around April or May 2013, in which she told me that she intended to leave her apartment to Barbara after her death. She explained that our other daughters, Nicola and Jennifer were married and in her view they were ‘well looked after’ whereas Barbara was still single and living at home and that was the reason she wanted to leave the apartment to her.’

8 Mr. Whitaker in his first affidavit of 22nd April, 2016, stated at para. 3:-

‘3. On or about 1st August, 2013, the deceased asked to see me and she wanted to make some further changes to her will. As it happened, I had a number of appointments out of the office that day and I offered to call to her apartment that afternoon and I met with her around 2:30pm. She handed me a copy of p. 1 of her then existing will that she had executed with me on 8th July, 2011, and upon which she had made a number of hand written amendments in pencil.

4. I said to the deceased that the change she was making was quite significant and I asked her why she was doing it. She told me that David Curtin was now ‘well off’ and that in any event he would be getting other significant benefits under her will and also as a one third beneficiary of her Irish Life policy. She told me that she had decided to give her apartment to a daughter of one of her nieces, Maureen Black as she had visited the deceased regularly.’

9 David Curtin was the beneficiary of the specific devise and bequest of the apartment in the will made by the deceased on 8th July, 2011.

10 The third Defendant wished to be represented in circumstances where it was concerned that there was an inherent conflict between the Plaintiff and the residuary legatees. The other residuary legatees wrote to the solicitor for the estate stating they would abide by the direction of the Court.

11 Mr Liam O'hAlmhain Chairman of the third Defendant, in his affidavit sworn on 13th July, 2016, had a number of concerns which are set out in the following paragraphs of his affidavit:-

‘15. Accordingly I say and am advised that a relevant factor in construing the meaning of clause 4 is the fact that there is a clear reference to Barbara Black in Clause 5.3 of the deceased's will which states as follows:-

5. I give devise and bequeath the following pecuniary legacies.

(iii) to my niece Maureen...