Corrigan v Corrigan


[2016] IESC 56


Laffoy J.

MacMenamin J.

Laffoy J.

O'Malley J.

[Appeal No. 2007/355]



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

Judgment of Ms. Justice Laffoy delivered on 5th day of October, 2016
Factual and procedural background

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 by the Personal Representative before the Court addressed two factual matters which were called in aid in relation to the construction of Clause 1 of the Will.


The first factual matter was the instructions given by the Testator to the solicitor who drafted the Will, Kevin P. Wallace (Mr. Wallace), a solicitor in the firm N. J. Downes & Co. When the grounding affidavit of the Personal Representative was sworn, Mr. Wallace was deceased. However, the Personal Representative exhibited –

(a) what were described as ‘the attendance notes (in hand-written and typed form) dated 26th August, 1997’, and

(b) a letter to the Testator from Mr. Wallace, and

(c) ‘a draft copy of the will showing one alteration by the [Testator] to its contents’.


Those exhibits disclose the following:

(a) The attendance notes record that, in giving instructions to his solicitor on 26th August, 1997, the Testator identified his children, two of whom, who are not named as executors in his will, Thomas and Angela, were then in Australia. In relation to the Appellant, he informed the solicitor that he was involved in panel-beating and used the Testator's shed. The Testator described his assets as –

(i) ‘Farm’, which was described as ‘zoned for residential’, and

(ii) the house, and

(iii) a credit union account.

The ‘Farm’ and the house were described as being on two separate folios. The instructions given as to the dispositions the Testator intended to make separately itemised the ‘Farm’, the residence and contents, and the residue. In relation to the ‘Farm’ the instruction given is recorded as follows:

‘Farm to Sean, but if any is sold for residential or commercial purposes then it's to be divided between all children equally. Sean can keep what is not required for residential purposes, all 5 to share in such sale money.’

(b) The letter from the solicitor to the Testator was dated 28th August, 1997. It obviously enclosed a draft will. The Testator was asked to check it carefully and ‘to drop in’ to the solicitor when convenient.

(c) The alteration made by the deceased to the draft will was made to the part of Clause 1 which had been drafted as follows:

‘… I have been advised that the said land or part thereof will be zoned for residential and/or industrial development.’

The word ‘will’ was crossed out and the word ‘is’ was put in manuscript over it. In fact, as is clear from Clause 1 of the Will in its final form, as quoted above, which was executed just short of a month later, the words ‘is zoned’ were substituted for the words ‘will be zoned’ in the Will.


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. In an affidavit sworn on 30th April, 2007 by Geraldine Fahy, Planning Consultant, it was averred that –

(a) the farmlands were zoned agricultural as at 23rd September, 1997, the date on which the Testator executed the Will, and as at 5th March, 2000, the date of the Testator's death; and

(b) the farmlands were rezoned in 2005 under the Robinstown Local Area Plan, with the result that –

(i) an area measuring 0.229 acres was un-zoned;

(ii) an area measuring 16.850 acres was zoned special district; and

(iii) an area measuring 3.409 acres was zoned for open space.

Ms. Fahy explained that the area zoned ‘special district’ was intended to be ‘a business and enterprise district’ and residential development was not permitted in that area.

The questions posed in the special summons

In order to understand the approach adopted in the High Court by McGovern J. (the trial judge) in his judgment delivered on 2nd November, 2007 ( [2007] IEHC 367) in identifying the issues and in addressing them, it is helpful to consider the questions in respect of which the Personal Representative seeks answers as outlined in the indorsement of claim in the special summons. There are fifteen questions in all, some of which are linked, which...

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