Daly v Murphy
| Jurisdiction | Ireland |
| Judge | Mr. Justice Paul Gilligan |
| Judgment Date | 27 July 2017 |
| Neutral Citation | [2017] IEHC 650 |
| Docket Number | [2015 No. 372 SP.] |
| Court | High Court |
| Date | 27 July 2017 |
IN THE MATTER OF THE ESTATE OF JOSEPH DALY DECEASED LATE OF THOMOND LODGE NURSING HOME, BALLYMAHON IN THE COUNTY OF LONGFORD AND FORMALLY OF KILLALON ROAD, CLONMEL IN THE COUNTY OF WESTMEATH
[2017] IEHC 650
[2015 No. 372 SP.]
THE HIGH COURT
Estate – Practice & Procedures – O.3(2) of the Rules of the Superior Courts – S. 90 of the Succession Act 1965 – S. 49(1) of the Charities Act 1961 – Residuary clause in Will – Admissibility of extrinsic evidence – Intent of testator
Facts: The plaintiff, being a beneficiary under the estate of the deceased/testator, filed the present application under o. 3(4) of the Rules of the Superior Courts against the executor/defendant of the estate for directing the defendant to distribute full share in to the plaintiff in that estate. The plaintiff sought answers to following questions: whether the residuary clause contained in the last Will of the deceased conferred an absolute title on the defendant; whether the residuary clause created a vested trust; whether the residuary gift failed; and whether the distribution of the residue of the estate fell to be distributed on a resulting partial intestacy. The key issue was pertaining to the effect of residual clause and the intent of the testator regarding how to treat that residuary clause.
Mr. Justice Paul Gilligan refused the plaintiff's application under o. 3(4) of the Rules of the Superior Courts. The Court held that the residuary clause contained in the last Will of the deceased did not confer an absolute title on the defendant; however, it created a valid trust. The Court further held that the residue of the estate should be distributed for charitable purposes. The Court noted that under s. 90 of the Succession Act 1965, the intention of the testator was material to ascertain the purpose of the residuary clause in the Will of the testator and the admission of extrinsic evidence would assist in the construction of that residuary clause. The Court found that in the present case, the testator expressly wrote to his executor that the residue of his estate should be distributed as the executor saw fit and thus, the distribution of the estate was not merely restricted for charitable objects but included non-charitable objects.
These proceedings commenced by way of a special summons issued on the 15th day of December, 2015 and relate to the estate of Joseph Daly deceased late of Thomond Lodge Nursing Home, Ballymahon in the County of Longford.
The plaintiff in the proceedings resides in Mount Merrion in the County of Dublin and he brings these proceedings as one of the persons entitled to share in the estate of the deceased on the intestate distribution thereof if the situation arises.
The defendant is a solicitor with his place of business at Athboy in the County of Meath and he is sued in his capacity as executor to the estate of Joseph Daly deceased.
The deceased died a widower without issue, parents, sibling, uncle or aunt or a nephew or niece surviving him but is survived by four first cousins of whom the plaintiff is one.
In the deceased's last will and testament as made on the 2nd day of May, 2013, the defendant was named as the deceased's sole executor and probate issued to him on the 17th day of December, 2014 forth of the principal probate registry.
The deceased made a number of pecuniary legacies including inter alia a bequest in the sum of €15,000.00 to the plaintiff, a sum of €15,000.00 to Vera Daly, wife of the plaintiff, and sums of €10,000.00 each to Martin Daly and Ann Daly, the son and daughter respectively of the plaintiff and also made a bequest of €100,000.00 to the Administrator for the time being of the General Hospital in Mullingar and the deceased directed that the said sum was to be used for the benefit of patient facilities in the said Hospital.
The deceased concluded his will with a final bequest in the following terms:
‘I Give Devise and Bequeath all the rest residue and remainder of my Estate of every nature and description and where so ever situate onto my Executor to apply same for such purposes as my executor in his absolute discretion shall think fit.’
The net estate returned for probate purposes was in the sum of €922,941.00 and the pecuniary legacies as made by the deceased totalled €257,000.00 so on the probate figures the residue of the deceased's estate is a sum in the region of €650,000.00.
In the prayer of the special summons the plaintiff seeks a determination as regards the effect of the clause relating to the rest residue and remainder of the deceased's estate in effect as to whether or not the residue is to be distributed in accordance with the residual clause or does the residue fall to be distributed by way of intestacy.
The plaintiff claims a determination pursuant to O. 3(2) of the Rules of the Superior Courts of the following questions:
(a) Does the residuary clause contained in the last will of the deceased named in the title thereof confer an absolute gift on the defendant?
(b) Does the said residuary clause create a valid trust?
(c) If the answer to (b) is in the affirmative what are the terms of the said trust?
(d) Does the residuary gift fail?
(e) Does the residue of the estate fall to be distributed on a resulting partial intestacy?
The plaintiff requests answers to the aforesaid questions in the following terms:
(a) No
(b) No
(c) No
(d) Yes
(e) Yes
and further if necessary claims an order pursuant to O. 3(4) directing the defendant to distribute to the plaintiff the share of the estate of the deceased to which he is by law entitled.
Both parties herein through counsel have made extensive oral and written submissions which I have taken into consideration.
The issues that arise are as to the effect of the residual clause, and as to whether extrinsic evidence can be introduced pursuant to s. 90 of the Succession Act 1965 to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, the will and further as to whether or not s. 49(1) of the Charities Act 1961 has a role to play.
Section 90 of the Succession Act 1965 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.’
Section 49(1) of the Charities Act 1961 provides that:-
‘Where any of the purposes of a gift includes or could be deemed to include both charitable and non-charitable objects, its terms shall be so construed and given effect to as to exclude the non-charitable objects and the purpose shall, accordingly, be treated as charitable.’
The above section has not been affected by the enactment of the Charities Act 2009 and remains in force.
In accordance with s. 38 Charities Act 2009 the Charities Regulator has been notified of the present proceedings and awaits a determination in relation to the charitable status of the bequest.
In an affidavit as sworn on the 22nd day of March, 2016, the defendant avers that he considers that the residuary gift of the will was a trust over which he was appointed trustee. He made an inheritance tax return in respect of the residuary estate and at all times he intended to distribute the residuary estate to charities and not to benefit from it himself either directly or indirectly. No proceedings were in being when he made the return to the Revenue Commissioners.
It is accepted by the parties that the provisions of the residuary clause do not create a gift in favour of the executor and the issue then is whether a trust is created and further whether it fails for uncertainty because it amounts to a non-charitable purpose trust with no objects provided for.
As set out by Delany in Equity and the Law of Trusts in Ireland (6th Ed., 2016), for a trust to be valid it must be capable of control and execution by the court and the objects of the trust must be defined with a sufficient degree of certainty if the court is to administer the estate in accordance with the testate's intentions.
Keane in Equity and the Law of Trusts in the Republic of Ireland (2nd Ed., 2011) states;
‘Trusts...
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