Corrigan (plaintiff) v Corrigan & Corrigan

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian McGovern
• Judgment Date: 02 November 2007
• Neutral Citation: [2007] IEHC 367
• Court: High Court
• Date: 02 November 2007

[2007] IEHC 367

THE HIGH COURT

[No. 64 S.P./2006]

Corrigan v Corrigan

IN THE MATTER OF THE SUCCESSION ACT, 1965

BETWEEN

EAMON CORRIGAN

PLAINTIFF

AND

SEAN CORRIGAN AND EOIN (OTHERWISE OWEN) CORRIGAN

DEFENDANTS

SUCCESSION ACT 1965 S90

ROWE v LAW 1978 IR 55

SUCCESSION ACT 1965 S91

SUCCESSION ACT 1965 S94

SUCCESSION ACT 1965 S99

CURTIN v O'MAHONY 1991 2 IR 566

HERON v ULSTER BANK 1974 NI 44

HOWELL v HOWELL 1992 1 IR 290

MATTER OF KING 1910 200 NY 189

MCGOWAN v KELLY UNREP LAFFOY 19.6.2007 2007 IEHC 228

MACKESSY v FITZGIBBON 1993 1 IR 520

PORTER, RE 1975 NI 157

BURKE & O'REILLY v BURKE & QUAIL 1951 IR 216

THEOBALD ON WILLS 16ED 2001 PARA 53.36

LYALL LAND LAW IN IRELAND 2ED 2000 179

AG v CUMMINS & ORS 1906 1 IR 406

PROBATE

Wills

Construction - Administration of estate - Whether statement declaration of belief or condition - If condition, whether condition subsequent or precedent - Whether condition void for uncertainty - Whether bequest determinable fee simple - Evidence - Whether extrinsic evidence admissible - Succession Act 1965 (No 27), s 90 - Rowe v Law [1978] IR 55 and Howell v Howell [1992] 1 IR 290 considered - Held that estate purported to be granted determinable fee simple, bequest failed and property reverted to residue (2006/64SP - McGovern J - 2/11/2007) [2007] IEHC 367

Corrigan v Corrigan

These proceedings were brought by the plaintiff as executor of the deceased's will seeking a construction of a clause contained in the will. The first named defendant was joined in the proceedings as the person named as a beneficiary in the will on foot of the relevant clause and the second named defendant was joined as the person entitled to the entirety of the residuary estate. Essentially clause 1 mistakenly stated that the relevant land was zoned for residential and/or industrial development and allowed the first named defendant to enjoy the profits of the land until the land was acquired for the aforementioned purpose. In that eventuality the net proceeds of the sale were to be divided equally amongst all the testator's children.

Held by McGovern J. in determining that the subject matter of clause 1 of the bequest fell into the residuary of the estate of the Testator: 1. That clause 1 of the bequest contained a lack of clarity and was ambiguous and therefore the admission of extrinsic evidence was permissible in this case. The bequest to the first named defendant in clause 1 was in the nature of a determinable fee simple and provided that if a determining event occurred, the land was to pass to a third party. The determining event specified in clause 1 was void for uncertainty and consequently the entire limitation and bequest failed. The gift to the first named defendant by way of clause 1 was made upon a mistake of fact and the court was not permitted to rectify that mistake.

Reporter: L.O'S.

1 1. Christopher Corrigan ("the deceased") died on the 5th day of March 2000. He was a widower and left surviving him five children. He made his last will and testament on the 23rd September, 1997. The will was drawn up by a solicitor who is now deceased. In his will he appointed the plaintiff and the first and second named defendants as executors.

2 2. These proceedings were brought by the plaintiff as executor seeking a construction of a clause in the will. A grant of probate issued to the plaintiff and the second named defendant from the District Probate Registry of Mullingar on 10th January, 2002. By order of the High Court dated 23rd January, 2006 the second named defendant was given liberty to renounce his rights to act as an executor and he did so on the 30th January, 2006. The first named defendant renounced his position as executor on the 2nd November, 2001 prior to the grant of probate.

3 3. The first named defendant is joined in these proceedings as a person who is named as a beneficiary in the will on foot of a clause that requires construction by the court. The second named defendant is joined in the proceedings as the person entitled to the entirety of the residuary estate.

4 4. Difficulties have arisen in construing clause 1 of the will which states as follows:

"1. I have 21 acres of land in Folio 13658 Co. Westmeath and I have been advised that said land or part thereof is zoned for residential and/or industrial development. I direct my executors to hold the said lands upon the following trusts:"

(a) To allow my son Sean to hold and enjoy the profits of the land for his own benefit until there is acquisitions of my lands for the purposes mentioned above. In such event the net proceeds of the sale of my land shall be divided equally amongst all my children and any section of the farm not so acquired shall become the absolute property of my son Sean."

5 5. At the time of the execution of the will the lands referred to in the bequest were zoned for agricultural use. In April 2005 some of these lands were rezoned for use as a special district for business and enterprise development by Westmeath County Council.

6 6. The plaintiff as personal representative seeks the assistance of the court in administering the Estate..

7 7. These proceedings have been commenced by special summons in which the plaintiff seeks the answers to a number of questions which I will answer later in this judgment.

8 8. The bequest which I am to construe ("the bequest") is in clause 1 in that part of the will in which the testator disposes of his property. Clause 1 is divided into two parts. The first part is a preamble in which the testator states that he has 21 statute acres of land in Folio 13658 Co. Westmeath and that he has been advised "...that the said land of part thereof is zoned for residential and/or industrial development". The second part of the clause comprises the bequest to Sean in the following terms:

"to allow my son Sean to hold and enjoy the profits of the land for his own benefit until there is acquisition of my lands for the purposes mentioned above. In such event, the net proceeds of the sale of my land shall be divided equally amongst all my children and any section of the farm not so acquired shall become the absolute property of my son Sean."

9 9. The bequest only makes sense in the light of the first part of the clause and seems to be predicated on it. This can clearly be seen from the words "... until there is acquisition of my lands for the purposes mentioned above" (my highlights). On the face of it, it appears that the intention of the testator was that first named defendant should hold and enjoy the profits of the lands until they were acquired for the development purposes which are stated to be residential and/or industrial. This would appear from the use of the words "to allow my son Sean to hold and enjoy the profits of the lands for his own benefit until..." (my highlights). In other words the testator expected the lands or part of them to be acquired for a value that would reflect the fact that they were zoned for residential and/or industrial development in that event the proceeds of sale would be divided equally among his children and first named defendant would hold any part of the lands not so acquired.

10. Interpretation of the will

It is clear from the evidence that the testator acted under a mistake of fact when he declared that "... the said land or parts thereof is zoned for residential and/or industrial development". He may well have been advised that that was case but the advice was wrong and he was therefore acting under a mistake of fact. Even now, after the rezoning of the land they have not been zoned for residential or industrial development but rather for use as a special district for business and enterprise development.

11 11. In interpreting the will the court must have regard to the relevant provisions of the Succession Act, 1965.

12 12. Section 90 provides that "extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will". In Rowe v. Law [1978] I.R. 55 and O'Connell v. Bank of Ireland [1998] 2 I.R. the Supreme Court held that s. 90 must be strictly interpreted. In Rowe v. Law, Henchy J. stated on p. 72:

"I read s. 90 as allowing extrinsic evidence to be received if it meets the double requirement of"

(a) showing the intention of the testator, and

(b) assisting in the construction of , or explaining any contradiction in, a will."

At p. 73 he states:

"...s. 90 allows extrinsic evidence of the testator's intention to be used by a court of construction only where there is a legitimate dispute as to the meaning or effect of the language used in the will. In such a case... it allows the extrinsic evidence to be drawn on so as to give the unclear or contradictory words in the will a meaning which accords with the testator's intention as thus ascertained. The section does not empower the Court to rewrite the will in whole or in part."

13 13. I am satisfied that the clause 1 of the bequest contains a lack of clarity and that there is ambiguity contained therein. I am also satisfied that the admission of extrinsic evidence is permissible in this case. There is extrinsic evidence to be found in notes taken by the testator's solicitor upon taking instructions for the drafting of the will. I will look at these notes in some detail later in this judgment.

14 14. Section 91 of the Succession Act provides:

"Unless a contrary intention appears from the will, any estate to comprise or intended to be comprised in any devise or bequest contained in the will which fails or is void by reason of the fact that the devisee or legatee did not survive the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, shall be included in any residuary devise or...