O'Connell v Bank of Ireland
|19 May 1998
| IESC 3
|19 May 1998
 IESC 3
THE SUPREME COURT
Succession; will; construction; intention of testatrix; expressed intention of testatrix not reflected in terms of will; will clear and unambiguous; whether court entitled to have regard to intention of testatrix; s. 90 Succession Act, 1965 Held: Court not entitled to look to intention of testatrix (Supreme Court: Hamilton C.J., O'Flaherty J., Keane J., Murphy J., Lynch J.19/05/1998)- - O'Connell v. Bank of Ireland
ROWE V LAW
CURTIN V O'MAHONY
PERRIN V MORGAN
JULIAN, IN RE
BOYES V COOKE
ALLEN V ALLEN
LANGHAM V SANFORD 19 VES 654
B (E) V S (S)
JUDGMENT delivered the 19th day of May 1998, by Keane, J. ???[NEM Diss]
The factual background to these proceedings should first be summarised. The deceased named in the title, Mary Frances Collins, was a window 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/respondents (the executors named therein) on the 31st August 1994.
Clause 4 of the will was as follows:-
"I leave and bequeath all the contents (other than cash and securities) of my residence at 14 Mount View Terrace aforesaid to Joe and Alma O'Connell of 9 Inchvale Avenue Shamrock Lawn Douglas Cork."
The two beneficiaries named in that bequest are the plaintiffs/appellants in these proceedings.
There follow a number of pecuniary legacies, some of them to named charities, and there is then a residuary clause in the following terms:-
"6. I have devise and bequeath all the rest residue and remainder of all my property of whatsoever nature and kind both real and personal of which I shall die possessed or entitled to the superioress for the time being of the Sisters of Charity St. Patrick's Hospital Wellington Road Cork for the charities under her care."
There was no specific bequest of the deceased's house.
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 named 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 named 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.
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 emphasising 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.
The first named 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 named plaintiff. On Christmas Day, she told him that she had been to her solicitors about 10 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.
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.
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 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 named 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 15th December.
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.
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:
a "(a) Whether Clause 4 of the said will of the deceased carries into effect the expressed intention of the deceased in the disposal of her house at 14 Mount View Terrace St. Lukes in the City of Cork.
(b) Whether the deceased could have intended to leave only the contents of the house to the plaintiffs, thereby leaving no specific bequest of her dwelling house, which was a major asset of her estate.
(c) If the answers to the questions above are in the negative, whether the dwellinghouse forms part of the residue of the estate of the said deceased."
The summons also sought the following relief:-
"2. If the answers to the questions I(a) and I(b) are in the affirmative, an order directing the words "my dwellinghouse and" be inserted to Clause 4 of the said will after the words "I leave and bequeath" so that Clause 4 of the said will reads as follows:-
"I leave and bequeath my dwellinghouse and all contents (other than cash and securities) of my residence at 14...
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