Crawford v Lawless

JurisdictionIreland
JudgeMR. JUSTICE T.C. SMYTH
Judgment Date06 November 2002
Neutral Citation2002 WJSC-HC 1164
CourtHigh Court
Docket Number[2001 No. 551 S.P.]
Date06 November 2002
CRAWFORD & HOGAN v. LAWLESS (ORSE SZUCH) & ORS
DUBLIN
IN THE MATTER OF THE ESTATE OF JOHN J. (OTHERWISE JACK) TRACEY LATE OF SCURLOCK, 2 SUNNYHILL PARK, LOUGHLINSTOWN, IN THE COUNTY OF DUBLIN AND ST. MICHAEL'S DUNDRUM IN THE COUNTY OF DUBLIN COMPANY DIRECTOR and
IN THE MATTER OF QUESTIONS ARISING OUT OF THE CONSTRUCTION OF THE WILL OF THE SAID JOHN J. (OTHERWISE JOHN J.(OTHERWISE JACK) TRACEY DATED THE 25TH OF JANUARY 1995

BETWEEN

ALISON CRAWFORD and NIALL HOGAN
Plaintiffs

and

TARA LAWLESS (OTHERWISE TARA SZUCH)
Defendant
SARAH JANE TRACEY, DAVID WILLIAMS AND JOHN KELLY
Notice Parties

2002 WJSC-HC 1164

00551SP/2001

THE HIGH COURT

Synopsis:

PROBATE

Construction of will

Interpretation of expression "my children" in discretionary trust - Whether expression included the defendant - Admissibility of extrinsic evidence - Intention of testator (2001/005515P - Smyth J - 6/11/02)

Crawford v Lawless - [2002] 4 IR 416

Facts: John Tracy, deceased, was married to Patricia Tracy. Tara Lawless, the defendant, was a child of the union of Patricia Tracy and a one Janusz Szuch. The deceased treated the defendant in every way as his daughter. The case concerned the construction of the deceased's will. The will created a discretionary trust. The issue for the court was whether the defendant was one of the objects of the discretionary trust, having regard to the phrase "my children" in the trust.

Held by Smyth J. in finding that the defendant was included in the expression "my children" that the testator, when alive, habitually referred to the defendant as his daughter. While the word "children" prima facie means legitimate children, enough appeared on the face of the will to demonstrate that the testator intended to include the defendant.

Citations:

ROWE V LAW 1978 IR 55

O'CONNELL & ANOR V GOVERNOR & COMPANY OF BANK OF IRELAND 1998 2 IR 597

HERON ULSTER BANK LTD 1974 NILR 44

HOWELL V HOWELL 1992 1 IR 290 1992 ILRM 518 1992 2 523

KING, IN THE MATTER OF WERNER 2000 NY 189

STAMP V REDMOND & ORS 1993 ILRM 383

CURTAIN V O'MAHONY 1991 2 IR 562

SUCCESSION ACT 1986 S85(1)

MARTIN V DRINKWATER 1840 2 BEAV 215

GENT V KIDDLE 1905 LT XCII

DORIN V DORIN LR 7 HC

1

JUDGMENT DELIVERED BY MR. JUSTICE T.C. SMYTH ON WEDNESDAY, 6TH NOVEMBER 2002

2

I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.

For the Plaintiffs:

MR. B. SPIERIN SC

MS. P. McRANDAL BL

Instructed by:

JOYNT & CRAWFORD

SOLICITORS

For the Defendants:

MR. J. FINLAY SC

MR. M. SANFEY BL

Instructed by:

MESSRS. O'GRADY

SOLICITORS

For the 1st Notice Party

(Sarah Jane Tracey)

MR. P. GARDINER SC

MR. B. CREGAN BL

Instructed by:

A&L GOODBODY

For the 2nd Notice Party

(David Williams)

MR. B. O'MOORE SC

MS. A KIRRANE BL

Instructed by:

For the 3rd Notice Party

(John Kelly)

MR. J. DWYER SC

MR. L. WYER BL

Instructed by:

3

COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or Reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

THE FACTS
(1) General Historical.
4

John Tracey, deceased, was married to Patricia Buckley on 19th August 1958. They subsequently separated and Patricia Tracey went to live in England where she obtained a purported Decree of Divorce of their marriage on 7th August 1963. It has been held by Mr. Justice Kelly in separate proceedings that this purported divorce was not valid because Patricia Tracey was not domiciled in England at the time of the Decree and Patricia Tracey was at all relevant times after 19th August 1958 the lawful wife of John Tracey. A declaration to that effect is incorporated in an unappealed order of the High Court dated 12th November 1999.

5

Patricia Tracey went through a ceremony of marriage with one Janusz Szuch on 27th day of August 1963. Tara Lawless was a child of the union of Patricia Tracey and Janusz Szuch, born on 9th July 1970. In 1973, Patricia Tracey and her daughter, Tara, returned to live in Ireland. John Tracey and his wife, Patricia Tracey, were reconciled and resumed a married relationship. John Tracey took on the role of a father to Tara Lawless, then aged three years. He treated her in every way as his daughter, encouraged him to call him "Dad" and introduced her to others as his daughter. She was known as Tara Tracey. In 1974, Patricia Tracey obtained a Decree of Divorce of her purported marriage to Janusz Szuch.

6

In March 1976, Sarah Jane Tracey, a child of the union of John Tracey (deceased) and Patricia Tracey was born. This did not in any way change the attitude of John Tracey towards Tara Lawless. Tara and Sarah Jane were brought up as sisters and treated as daughters by John Tracey. In 1981, John Tracey and Patricia Tracey again separated. I shall refer to the Separation Agreement later in this judgment. Tara and Sarah Jane resided principally with their mother, although they remained in close contact with John Tracey. In 1988, John Tracey and Patricia Tracey were again reconciled and Patricia Tracey, Tara and Sarah Jane moved back to reside with John Tracey in his house. Throughout all this time, John Tracey continued to provide financially for Tara, to treat her and refer to her as his daughter. She continued to be known as Tara Tracey until her marriage to Peter Lawless.

(2) The Relevant Terms of the Will.
7

In the will of the Deceased, he makes a bequest to the Defendant in the following terms:

"To my daughter TARA, the sum of FIFTY THOUSAND POUNDS (£50,000);"

8

The residuary bequest in the will reads as follows:

"5. I GIVE, DEVISE AND BEQUEATH all the residue of my Estate of every description unto my Trustees UPON TRUST to sell, call in and convert the same into money with power in their absolute discretion to postpone indefinitely such sale, calling in and conversation and after the payment thereout of my just debts, funeral and testamentary expenses TO HOLD the same upon the following Trusts for the beneficiaries hereinafter mentioned."

(a) The expression "the Beneficiaries" shall comprise my children, their spouses and my grandchildren, who shall be living at the date of my death, or shall be born before the expiration of the period hereinafter defined as "the Trust Period".

(b) During the period (hereinafter "the Trust Period") commencing from the date of my death and determining twenty years after the date of my death and the death of my children living at the date of my death, the trustees shall stand possessed of the annual income of the Trust Fund (or so much thereof as shall not have become vested or been paid or applied under the powers and provisions hereof) UPON TRUST to pay and apply the whole or such part (if any) as my Trustees shall think fit of such annual income to or for the benefit of all or any one or more exclusively of the other or others of the Beneficiaries as the Trustees shall in their absolute and unfettered discretion think fit and the trustees shall accumulate all of such annual income as shall not be paid or applied under the above discretion by investing the same in any of the investments hereby authorised and shall hold all such accumulations as part of the capital of the Trust Fund.

(c) During the Trust Period, the Trustees may at any time or times in their absolute unfettered discretion pay or apply all or any of part of the capital of the Trust fund (including accumulations) exclusively of the other or others of the Beneficiaries.

(d) From and after the termination of the trust period, my Trustees shall stand possessed of the capital and income of the Trust Fund (or so much thereof as shall not have become vested or been paid or applied under any power or provision hereof) UPON TRUST for the Beneficiaries or such of them as shall be living at the date of such termination as tenants in common in equal shares per stirpes absolutely."

9

The balance of the residuary clause is not relevant to the claim before the Court.

10

Although the Special Endorsement of Claim raises a number of questions for determination by the Court, they essentially involve a single issue; whether Tara Lawless is included as one of the objects of the discretionary trust, having regard to the use of the phrase "my children" in the clause hereinbefore referred to.

3. The Making of the Will.
11

As these proceedings come before the Court by way of "construction summons" rather than as a probate action, the terms of the will of the Deceased must be noted and considered before considering the circumstances surrounding the making of a will. It is common case that the relevant decided cases concerning the admissibility of extrinsic evidence applicable are Rowe -v- Law [1978] IR 55 and O'Connell & Anor. -v- The Governor and Company of the Bank of Ireland [1998] 2 IR 597which established that such evidence is only admissible if two conditions are both satisfied:

12

(a) That its admission is necessary to ascertain the intention of the testator, and

13

(b) That its admission is necessary because there is an ambiguity or contradiction on the face of the will.

14

It was furthermore generally agreed that in the event that extrinsic evidence was admissible that the procedure suggested by Lord Chief Justice Lowry in Heron -v- Ulster Bank Limited 1974 NILR 44 at p. 52 as adopted by Carroll J. in Howell -v- Howell ( unreported 7th February 1992 HC) should be followed, which are as follows:-

15

2 "1. Read the immediately relevant portion of the will as a piece of English and decide, if possible, what it means.

16

2. Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion on whether they suggest the need for modification in order to make harmonious...

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