O'Donohue v O'Donohue

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 01 December 2011
• Neutral Citation: [2011] IEHC 511
• Court: High Court
• Date: 01 December 2011

[2011] IEHC 511

THE HIGH COURT

[No. 166 S.P./2011]

O'Donohue v O'Donohue

IN THE MATTER OF THE ESTATE OF JOHN O'DONOHUE, LATE OF GLENTRASNA, CAMUS, CONNEMARA, IN THE COUNTY OF GALWAY, AUTHOR, DECEASED

AND IN THE MATTER OF QUESTIONS ARISING IN THE ADMINISTRATION OF THE ESTATE OF THE SAID JOHN O'DONOHUE DECEASED

BETWEEN

JOSEPHINE (OTHERWISE JOSIE) O'DONOHUE

PLAINTIFF

AND

PETER O'DONOHUE

DEFENDANT

RSC O.3 r7

RSC O.54 r2

GOODS OF MARTIN, IN RE 1968 IR 1

SUCCESSION ACT 1965 S90

ROBINSON & WADDELOW 1836 8 SIM 134

SUCCESSION ACT 1965 S68

CURTIN (DECEASED), IN RE 1991 2 IR 562

HOWELL v HOWELL 1992 1 IR 290

HERON v ULSTER BANK 1974 NI 44

SUCCESSION ACT 1965 S99

PECK v HALSEY 1726 2 PWMS 388

JUBBER v JUBBER 1839 9 SIM 503

SUCCESSION ACT 1965 S78

PROBATE LAW

Wills

Construction - Ambiguity - Application for assistance of court - Revocation - Presumption against intestacy - Whether implied revocation of earlier will - Whether testator intended to revoke earlier will - Intention of testator - Whether principle duty of court to give effect to testator's intention - Whether will should be considered as piece of English in order to extract meaning - Whether portion of will should be compared with other portions to confirm apparent meaning - Whether overall scheme should be used to discern intention of testator - Whether court should modify will - Whether rules of construction of statutory provisions could be used to modify will - Whether court should consider any rules of law preventing proposed modification - Whether court could have regard to precedent in interpreting will - Whether will unclear on its face - Whether intended beneficiaries could be discerned from extrinsic evidence - Whether âÇÿbottom up' approach consistent with scheme of will - Whether removal of words could allow for fixed trust -Whether extrinsic evidence indicated how beneficiaries to benefit - Whether express intentions of will mutually exclusive - Whether court could insert simple clause to supply proper sense to will - Trusts - Whether âÇÿhybrid trust' recognised by law - Whether presumption of intestacy permitted creation of new concepts in law - In re Goods of Martin [1968] IR 1, In re Curtin, deceased [1991] 2 IR 562 and Howell v Howell [1992] 1 IR 290 applied - Peck v Halsey (1726) 2 P WMS 387, Jubber v Jubber (1839) 9 Sim 503 and Robinson v Waddelow (1836) 8 Sim 134 considered - Succession Act 1965 (No 27), ss 68, 78, 90 & 99 - Will declared void for uncertainty (2011/166SP - Gilligan J - 1/12/2011) [2011] IEHC 511

In re the Estate of O'Donohue; O'Donohue v O'Donohue

Facts The plaintiff, as personal representative of the deceased sought the court's assistance in determining a number of matters regarding the true construction of the Testator's will. The plaintiff was the mother of the Testator and as the Testator's next of kin she was appointed administratrix. The plaintiff was also a witness to the Will, along with one of the testator's brothers. The will stated that the Testator was leaving 'all his worldly possessions to his mother, to be divided equally and fairly among his family with special care and extra help to be given to a named sister'. The Will then stated that 'gifts of money were to be given to a named family' and subsequently stated that 'smaller gifts were to be given to named individuals'. It was submitted on behalf of the plaintiff that this Will revoked by implication an earlier will made in 1998. It was further submitted that the Will created three groups who were potentially to benefit from the estate. It was accepted that there was some uncertainty regarding the word 'family' and in relation to the objects and quantum of the gift to the second and third groups. It was further submitted that in order to apply the presumption against intestacy, the court ought to omit the words regarding the special provision for the Testator's sister. The plaintiff submitted that with the omission of those words, the most reasonable construction of the Will would be to understand it as creating a hybrid form of trust which contained elements of a fixed trust (regarding the gifts to the Testator's family) as well as a discretionary trust (regarding the gifts to the second and third group), of which the plaintiff was to be the trustee.

Held by Gilligan J. in determining that the Will was void for uncertainty: 1. That the use by the Testator herein of the phrase "all my worldly possessions", left little doubt, in the light of the judgment of O'Keeffe P. in the case of In the Goods of Martin [1968] IR 1, that the Testator intended to revoke and as a matter of law did so revoke the earlier Will.

2. That the court's consideration of the Will was subject to the principal duty to give effect to the Testator's intention. The Will could be regarded in three parts but as a piece of English it was unclear on its face. It was clear that the Testator intended a specific group to benefit from the Will but it was not clear as to the manner in which the Testator intended his estate to be divided between those people. The court was not assisted by the scheme of the Will in attempting to come to a view on the Testator's intentions.

3. That there was no simple insertion or removal that the court could make to the terms of the Testator's will so as to supply the proper sense intended by the Testator. To accede to the plaintiff's proposal of removing the words regarding the special provision for the Testator's sister would result in the Court attempting to remake the Testator's will, which was a function that the court could not exercise. Furthermore, there was no evidence to support the proposed intention of the Testator to create a 'hybrid trust'. Consequently, the terms of the Will rendered it void for uncertainty and accordingly the entirety of the Testator's estate fell into intestacy and the statutory rules resulted in the deceased's mother taking the entire estate.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Gilligan delivered on the 1st day of December, 2011

Introduction

2 1. The making of a last will and testament is one of the most important tasks most people face and unfortunately it is one often approached in haste and without due consideration for its effect. A primary purpose of a will is to make a definitive statement regarding the disposition of a person's assets on the event of their death. A properly drawn up will, prepared with the benefit of legal advice provided by a solicitor, should ensure that the testator's wishes for the disposition of their estate will be fully complied with.

3 2. Where, however, there is any doubt as to the correct interpretation or construction of a will, the Court is charged with the task of determining the deceased's wishes insofar as it is possible so to do. This case concerns the construction of a will and the approach of the court when confronted with such situations of uncertainty.

4 3. I turn first to the facts as presented.

Background Facts

5 4. Dr. John O'Donohue (the "Testator") was born on the 2 ^nd day of January, 1956. He was ordained a priest on the 6 ^th day of June, 1979, and later gained considerable acclaim as an author and broadcaster. He died testate on the 4 ^th day of January, 2008, a bachelor without issue. He is survived by his mother, Mrs. Josephine (otherwise Josie) O'Donohue (the plaintiff herein), his brothers, Patrick, and Peter O'Donohue (the defendant herein) and his sister, Mary O'Donohue. The testator is also survived by two nieces and two nephews who are the children of his brothers.

6 5. The Testator's will (the "Will" or the "2001 will") is in the following terms:

"Last will [&] Testament of John O'Donohue"

7 Made on night of Feb 21 ^st before Australian Tour.

8 I leave all my worldly possessions to Josie O'Donohue, my mother, to be divided equally & fairly among my family with special care [&] extra help to be given to Mary O'Donohue, my sister.

9 Also gifts of money to be given to Olivia [&] family, & Marian O'Beirn.

10 Smaller gifts to Downey, Ethel, Sheila [&] Pat O'Brien, Laurie Johnson, Ellen Wingard, Deirdre O'Donohue -

11 Executor of will: Martin Downey [&] Johnny Casey -

Signed:	John O'Donohue
Witness:	Josie O'Donohue.
Witness:	Pat O'Donohue"

12 6. The Will is holographic and was prepared without the benefit of legal advice. The named executors subsequently renounced their rights to probate of the Will in early 2009. The plaintiff, as the testator's statutory next of kin, was thereafter appointed as the administratrix. She had previously sworn an affidavit averring to the fact that the "Australian Tour" referred to in the Will took place in 2001 and a copy of the Testator's passport was exhibited in corroboration. The Testator had previously executed a will dated the 19 ^th day of February, 1998 (the "1998 will"), which was prepared with the benefit of legal advice. Nevertheless the Probate Office was satisfied that letters of administration be extracted in respect of the 2001 will and it was admitted to probate on the 11 ^th day of December, 2009. The Inland Revenue Affidavit certified the net value of the estate at a sum in excess of €2M.

Procedure

13 7. These proceedings were commenced by special summons, issued on the 7 ^th day of March, 2011, in accordance with Order 3 rule 7 of the Rules of the Superior Courts by the plaintiff, Mrs. Josie O'Donohue, as personal representative of the deceased. The special indorsement of claim provides that as certain issues have arisen in the administration of the estate of the Testator, the court's assistance is sought to determine a number of matters regarding the true construction of the Will. Pursuant to Order 54 rule 2 of the Rules of the Superior Courts the defendant, Mr. Peter...