Butler v Butler and Others
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 24 March 2006 |
| Neutral Citation | [2006] IEHC 104 |
| Court | High Court |
| Docket Number | RECORD NO. 2004/457 Sp. |
| Date | 24 March 2006 |
[2006] IEHC 104
THE HIGH COURT
SUCCESSION ACT 1965 S9(4)
GORDON v GORDON 1816 3 SWANST 400
ROWE v LAW 1978 IR 55
O'CONNELL v BANK OF IRELAND 1998 2 IR 596 1996/7/2058
SUCCESSION ACT 1965 S99
CURTIN v O'MAHONY 1991 2 IR 566
HOWELL v HOWELL 1992 1 IR 290
HERON v ULSTER BANK 1974 NI 44
BANK OF IRELAND v GAYNOR UNREP MACKEN 29.6.1999 1999/2/191
KING, IN RE 200 NY 189, 192 (1910)
C (X) & ORS; C (AB) (DECEASED), IN RE 2003 2 IR 250 2003 2 ILRM 340
DELANY EQUITY & THE LAW OF TRUSTS IN IRELAND 3ED 85
FARWELL ON POWERS 3ED 1916 132
EARL OF BANDON v MORELAND 1910 1 IR 220
WILLIAMS LAW RELATING TO WILLS 6ED 1987 414
: The plaintiff, as personal representative of the Deceased, brought proceedings to determine, inter alia, as to whom the power of appointment referred to in the will of the Deceased had been granted and whether the power was granted to either of the Deceased sons, who were the executors and trustees of his will. One of the Deceased sons died intestate without having exercised the power of appointment contained in the will of the deceased. If he was the donee of the power, the default provisions would taken effect and all the objects of the power would take equally.
Held by Smyth J., that the construction of the will identified the son deceased intestate as the donee of the power, which accorded with the presumption of equality and the presumption against intestacy. The objects of the power had taken equally. The portion of the clause creating the ambiguity was to be severed.
Reporter: E.F.
JUDGEMENT DELIVERED BY MR. JUSTICE T.C. SMYTH ON FRIDAY 24TH MARCH 2006
The proceedings are brought by the Plaintiff in his capacity as the legal personal representative of Timothy Butler, Most Senior, (hereinafter referred to as "the Deceased") pursuant to a grant of administration (with will annexed) de bonis non issued to him on 29th September 2003. The Deceased lived at Raheenduff, The Rower, Co. Kilkenny. He made his last will and testament on 2nd November 1956, in which he appointed his sons, Martin Butler Senior and Thomas Butler Senior, as executors and trustees of his will. The Deceased died a widower aged 86 years of age on 18th May 1963 (accordingly, the provisions of the Succession Act 1965 which came into effect on 1st January 1967 do not apply, (S.9(4) of the Act of 1965). On 28th January 1964, a Grant of Probate to the estate of the Deceased issued to Martin Butler Senior and Thomas Butler Senior.
The will of the Deceased contained a Power of Appointment. Thomas Butler Senior died intestate on 10th December 1966 without exercising the Power of Appointment contained in the will of the Deceased. The death of Thomas Butler Senior was untimely - he was only 53. If he was the donee of the Power, then the default provisions would take effect and all of the objects of the Power would take equally. The Defendants (and the independent witness from 1977 to 1992) say that that was the understanding of the entire family throughout all of the period 1956 – 2002.
Martin Butler Senior made his last will and testament dated 11th April 1996 and he died aged 85 years of age (described in his death certificate as a “Retired Publican”) on 24th May 2002. He purported to exercise the Power of Appointment in the will of the Deceased, in the will, he (Martin Butler Senior) made in favour of the Plaintiff subject to a right of residence in favour of Maureen Butler, wife of Martin Butler Senior, for her life.
The parties to these proceedings are the only children of Thomas Butler Senior who was, as stated, a son of the Deceased. The position of the Plaintiff is complicated by the fact that while in his capacity he is required to put all relevant matters before the Court in an impartial manner, he in fact also advanced arguments in relation to the construction of the will of the Deceased that were to his own advantage. The proceedings seek the construction of the following clause contained in the will of the late Timothy Butler, Deceased:
"I give, devise and bequeath the lands of Ballynunnery, purchased by me from the representatives of the late Patrick Butler to my son Thomas Butler for his own use and benefit absolutely. As to all the rest, residue and remainder of my property of every kind and nature, whether real or personal and wheresoever situated, including my licensed premises at Raheenduff and the lands of Raheenduff and Ballynunnery, I give devise and bequeath the same to my son Martin Butler for and during the term of his natural life and after his death to such of the children of my said son Thomas Butler as he shall by Deed or Will appoint and in default of appointment to all of the children of my said son Thomas Butler as tenants in common in equal shares."
The Special Summons poses the following questions:
i i. To whom was the Power of Appointment referred to in the will of the Deceased granted?
ii ii. Further or in the alternative, was the power granted to Martin Butler Senior or to Thomas Butler?
The summons also seeks certain declaratory relief in favour of the Plaintiff which would not seem to be altogether appropriate given the capacity in relation to which the Plaintiff brings the proceedings.
While the two questions posed in the summons most definitely arise, the questions are incomplete and the replying affidavit of the First-Named Defendant at paragraph 17 sets out the additional questions that arise:
(iii) whether in all the circumstances it is unclear from the terms of the will upon whom the Power of Appointment was conferred.
(iv) If the answer to (iii) above is in the affirmative whether the objects of the power take equally?
(v) Whether the Plaintiff is estopped by his conduct or otherwise from denying the Power of Appointment was conferred on Thomas Butler? [The Plaintiff contends that the question of estoppel does not arise.]
(vi) If the Power of Appointment was conferred on Thomas Butler or the answer to (iii) is in the affirmative, whether in default of the exercise of the power, which is common case, the property falls to the objects of the power equally?
(vii) Whether the purported exercise of the Power of Appointment by Martin Butler Senior is valid?
(viii) Whether the purported exercise of the Power of Appointment by Martin Butler Senior was ultra vires and void and liable to be set aside?
(ix) If the power was conferred on Martin Butler Senior whether it was validly exercised?
(x) The answer to such further or other questions as to the Honourable Court seems just.
At the opening of the hearing, Ms. Laverty, who appeared for the Plaintiff, indicated that she was not pursuing some of the declaratory relief.
There are conflicts of fact on the affidavits as to the belief of the children of Thomas Butler Senior as to upon whom they believed the Power of Appointment was conferred. The Defendants and an independent witness (Ms. Carmel Kelly), a Solicitor who acted for the family, contend that all parties believed that the power was conferred on Thomas Butler Senior. The Plaintiff on the other hand contends now that the Power of Appointment was conferred on Martin Butler Senior. I am satisfied and find as a fact on the evidence that at no time prior to the death of Martin Butler Senior did the Plaintiff ever convey or suggest to his solicitor or his brothers or sister that Martin Butler Senior had the Power of Appointment even though there were two express written family arrangements in which the issue may not have been central, but to which such belief was relevant. The Defendants and the solicitor say that insofar as the lack of certainty was expressed in relation to upon whom the power was conferred that this was expressed to satisfy the requirements of a finance house (when the Plaintiff was raising the finance to develop a site on part of the lands in 1979/1980) and did not compromise their belief that the Power of Appointment was conferred on Thomas Butler Senior. As at the date of the making of his will by the Deceased in November 1956, the position in the family was as follows:-
1. Martin Senior was married for about eight years, but had no family. The Plaintiff's evidence was that he thought his uncle was in his early 40's at the time and that his aunt by marriage (Martin Senior's wife) was about 36 years old. It seemed unlikely that there would be any children in the family of Martin Senior.
2. Thomas Senior was a few years younger than his brother, Martin Senior. In the family of Thomas Senior was his wife and four children whose approximate ages at the time were Mary (8), Tim (5) and the Plaintiff, Martin, and the Defendant, Tom, who were twins aged about 2 years old.
In broad terms, the scheme of the will was that Thomas Senior was given certain lands outright. Martin Senior was given the residue, including a licensed premises and certain lands for his life. After the death of Martin Senior, the properties in which Martin Senior had a life interest was, subject to a default of a deed or a will exercising a Power of Appointment, to go to the four children of Thomas Senior as tenants in common in equal shares. However, there was also an in-built protection in the will for the wife of Michael Senior, who was given a right of residence and support and maintenance in the dwelling house at Raheenduff, and for a weekly sum to be paid to his daughter-in-law if she went to live elsewhere. In short, the...
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