Corrigan v Corrigan
 IESC 56
THE SUPREME COURT
[Appeal No. 2007/355]
IN THE MATTER OF THE SUCCESSION ACT 1965
Wills and probate – Testamentary disposition – Determinable fee – Appellant seeking to have the will of the testator construed by the court – Whether Clause 1 created a determinable fee
Facts: High Court proceedings were initiated by a special summons issued on 21st March, 2006 seeking to have the will of the testator, Mr C Corrigan, construed by the Court. The testator made his will on 23rd September, 1997. He appointed as his executors three of his sons, namely the plaintiff/first respondent, Mr E Corrigan, the first defendant/appellant, Mr S Corrigan, and the second defendant/second respondent, Mr O Corrigan. Having directed his executors to pay his debts, funeral and testamentary expenses as soon as possible after his death, he went on to make dispositions of his property. Three clauses followed, Clause 1 being the clause which the High Court was asked to construe. The testator died on 5th March, 2000. On 10th January, 2002 probate of the will issued to two of his executors, Mr E Corrigan (the Personal Representative) and Mr O Corrigan (the Residuary Legatee), the third son having renounced his right to probate. Subsequently, when the issue as to the construction of Clause 1 of the will arose, the Residuary Legatee, with the leave of the High Court, renounced his right to act as executor of the estate of the Testator. The position thereafter was that the Personal Representative was sole personal representative of the unadministered estate of the testator. The dispute in relation to the testamentary disposition of the property the subject of Clause 1 of the will (the farmlands) was a dispute in which, as the Personal Representative submitted, the appellant and the Residuary Legatee were "the real legitimus contradictors". The Personal Representative, in that capacity, initiated the proceedings to have Clause 1 of the will construed by the High Court. The affidavit evidence put by the Personal Representative before the Court addressed two factual matters which were called in aid in relation to the construction of Clause 1. The first factual matter was the instructions given by the testator to the solicitor who drafted the will, Mr Wallace. The second factual matter was the zoning status of the farmlands at the date of the will, at the date of the testator's death, and when the proceedings were proceeding through the High Court. The trial judge was satisfied that the determining event specified in Clause 1 of the bequest was void for uncertainty and that it followed on that basis that the entire limitation and bequest failed. That led to the further conclusion that the farmlands fell into the residuary estate of the testator. The appellant appealed to the Supreme Court against the High Court judgment, alleging that the trial judge erred: (i) in holding that Clause 1 did not contain a condition; (ii) in holding that Clause 1 created a determinable fee; (iii) in holding that Clause 1 "was made" while the Testator acted under a mistake of fact; (iv) in holding that the bequest in Clause 1 was void and thus denying the appellant any share of his late father's estate; (v) in failing to give words drafted by the solicitor their legal and technical meaning; (vi) in admitting illegible hand-written unendorsed attendance notes that contained factual errors as extrinsic evidence; and (vii) in not adopting the "armchair" principle, thereby failing to interpret the will as a whole to give effect to the testator's intentions.
Held by Laffoy J that Clause 1 created a determinable fee but the determining event was void for uncertainty. The consequence of this finding was that the devise of the lands registered on Folio 13658, Co. Westmeath contained in Clause 1 has no effect. Therefore, Laffoy J held that as the devise intended to be created in Clause 1 was incapable of taking effect, by virtue of s. 91 of the Succession Act 1965, those lands fell into the residue and were held by the Personal Representative on trust for the Residuary Legatee.
Laffoy J held that there should be an order dismissing the appellant's appeal. Laffoy J thought that it would be prudent if the order were to include declarations to the following effect: (a) that the intention of the testator by the words used in Clause 1 was to create a determinable fee in relation to the lands registered on Folio 13658, Co. Westmeath; (b) that the determining event which the testator intended to apply to the determinable fee was unclear and imprecise and that the determining event is void for uncertainty; and (c) that the Personal Representative holds the said lands upon trust for the Residuary Legatee.
The High Court proceedings which are the subject of this appeal (Record No. 2006 No. 64SP) were initiated by a special summons issued on 21st March, 2006 seeking to have the will of Christopher Corrigan (the Testator) construed by the Court.
The Testator made his last will and testament (the Will) on 23rd September, 1997. He appointed as his executors three of his sons, named as 'Eamonn, Owen and Sean', all of whom are parties to this appeal. Having directed his executors to pay his debts, funeral and testamentary expenses as soon as possible after his death, he went on to make 'the following dispositions of my property'. Three clauses follow, Clause 1 being the clause which the High Court was asked to construe.
Clause 1 of the Will in its entirety provides as follows:
'I have 21 statute acres of land in Folio 13658 Co. Westmeath and I have been advised that the said land or part thereof is zoned for residential and/or industrial development. I direct my Executors to hold the lands upon the following trusts: –
(a) To allow my son Sean to hold and enjoy the profits of the lands 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 lands 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'.
The Testator was survived by five children, his sons Eamonn, Eoin (otherwise Owen) and Sean and by another son, Thomas, and a daughter, Angela.
The remainder of the Will is to be found in Clause 2 and Clause 3. Clause 2 deals with what the Testator referred to as 'my residence situate on half an acre registered on Folio 18004 County Westmeath'. As to that property, Clause 2 provides:
'... I direct as follows –
(a) If any one of my three Executors wish with the consent of the other two, to own the said house, then my Executors can vest it in such son so as to make him full owner of same but on terms that the son who gets the house will sell his own residence and the net proceeds of such sale shall be paid to my Executors and it is to be then divided amongst my other four children equally.
(b) If no agreement is reached by my three Executors and if none of them desire to own my residence, then it can be sold by Public Auction or by Private Treaty as my Executors shall decide and the net proceeds of sale in such event, I bequeath to my children, Eamonn, Owen, Thomas and Angela in equal shares.'
Clause 3 deals with the Testator's residuary estate and provides:
'I leave my residuary estate of every kind to my son Owen for his use and benefit'. While no issue arises in the proceedings as to the proper construction of either Clause 2 or Clause 3 per se, the provisions of those clauses have been outlined because one of the grounds of appeal is that the High Court failed to interpret the Will as a whole to give effect to the Testator's intentions. Taking a broad view of it, the Will as a whole demonstrates that the obvious objective of the Testator was to treat his five children fairly. However, it must be emphasised that the function of the Court in construing Clause 1 of the Will is to ascertain the Testator's intention from the words used by him in the Will.
The Testator died on 5th March, 2000. On 10th January, 2002 probate of the Will issued to two of his sons whom he had named as executors, Eamonn (the Personal Representative) and Eoin (otherwise Owen) (the Residuary Legatee), the third son named as executor, Sean (the Appellant), having renounced his right to probate. Subsequently, when the issue as to the construction of Clause 1 of the Will arose, the Residuary Legatee, with the leave of the High Court, renounced his right to act as executor of the estate of the Testator. The position thereafter was that the Personal Representative was sole personal representative of the unadministered estate of the Testator. The dispute in relation to the testamentary disposition of the property the subject of Clause 1 of the Will, which is hereinafter referred to as 'the farmlands' to distinguish it from the house and lands the subject of Clause 2, was a dispute in which, as counsel for the Personal Representative submitted, the Appellant and the Residuary Legatee were 'the real legitimus contradictors'. The Personal Representative, in that capacity, properly initiated the proceedings to have Clause 1 of the Will construed by the High Court.
The affidavit evidence put...
To continue readingREQUEST YOUR TRIAL