Goodwin and Others v Murphy

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Stack
• Judgment Date: 03 July 2023
• Neutral Citation: [2023] IEHC 383
• Court: High Court
• Docket Number: Record No. 2022/104 SP

In the Matter of the Succession Act, 1965

And in the Matter of the Estate of William John Murphy, Otherwise Seán Murphy, Deceased

Between

Adrienne Goodwin, Patricia Kennedy and Martin Kennedy

Plaintiffs

and

Brendan Mary Murphy

Defendant

[2023] IEHC 383

Record No. 2022/104 SP

THE HIGH COURT

JUDGMENT of Ms. Justice Siobhán Stack delivered on the 3 ^rd day of July, 2023 .

Introduction

1 . These proceedings come before the court by way of special summons issued to construe the Will dated 4 October 2019, of the late William John (otherwise Seán) Murphy (“the Deceased”), late of Coolcarrigan, Coill Dubh, Naas, County Kildare.

2 . The Deceased died on 14 November, 2021, without having altered or revoked the said Will. He died a bachelor, never having married or entered civil partnership, and without issue or a surviving parent. As it is submitted by the plaintiffs that the entire Will may be void for uncertainty, it is appropriate to point out that, on an intestacy, his estate would be divided in four equal shares as follows:

• i. one share for each of his three surviving siblings: Brendan Murphy (the defendant and Executor named in the Will, hereinafter “the Executor”), Teresa Goodwin, and Kathleen Kennedy;

• ii. the remaining share to be divided equally between his nephew and niece, Derek Murphy and Amanda Murphy, as children of his predeceased brother, Dominick, who would take their father's share per stirpes.

3 . The Deceased also had a predeceased sister, Imelda, but as she died leaving no surviving children, this does not affect the distribution on intestacy. Similarly, although the Deceased was survived by a number of nieces and nephews who are named as beneficiaries at clause 14 of the Will, none of these has an entitlement to a share on intestacy.

4 . The Executor has sworn a replying affidavit in which he confirms that the Estate of the Deceased comprises real property (a house and surrounding lands) worth approximately €335,000.00, and some moneys held in the credit union in the amount of €23,298.84. However, as that account was subject to a nomination in favour of the Executor, the amount for distribution under the Will is only the sum of €298.00.

5 . There is no dispute as to the valid execution of the Will and it is admitted that it was executed in accordance with the provisions of the Succession Act, 1965 (“the 1965 Act”). However, the Will was drawn by the Deceased's niece, Fiona Murphy, from a template which she downloaded from the internet. Unfortunately, that template is not particularly well drafted and this has given rise to difficulties in interpretation of the Will. However, I am of the view that the Will can be interpreted and is not void for uncertainty at any point. I do not accept that all of the suggested difficulties regarding its interpretation even arise.

6 . Having said that, there is no doubt that use of the standard form will has given rise to difficulties of interpretation and that, even in the absence of these proceedings, the Executor would most likely have needed to bring a construction summons before proceeding to distribute the estate. The use of the internet-sourced template will has, therefore, significantly reduced the assets available for distribution to the beneficiaries under the Will.

7 . There are of course plenty of examples in the law reports of wills drafted by solicitors which give rise to significant difficulties of interpretation, with similar adverse consequences for those entitled to inherit. Even so, it must inevitably be the case that such difficulties are much more likely to arise in the case of a homemade will. I would therefore stress that the public should ensure that they not only make a will but that they take professional advice in so doing, in order to ensure that their intentions are carried out after their death, and they should also update it from time to time over the years to take account of changes in assets, the identity of family members, and other circumstances.

8 . For example, there must be significant doubts about the enforceability of this so called “no contest provision” in clause 15, given a spouse's entitlement to a legal right share pursuant to s. 111 of the 1965 Act, the equivalent right of a civil partner pursuant to s. 111A, as well as the rights of a child of a deceased or a qualified cohabitant of the deceased to apply for “proper provision” under s. 117 of the 1965 Act or s. 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010, respectively, regardless of whether they are named as beneficiaries in the Will. Although I have not found it necessary to decide the point, I think any such clause might well be void as being contrary to the Succession Act, 1965 and/or public policy in circumstances where unworthiness to succeed is specifically dealt with in Part X of the 1965 Act and where the Oireachtas has specifically provided for certain classes of person to claim more than has been left to them under a will.

9 . The problem is that a person who is not legally advised might well assume that clause 15 of the template will was enforceable and, rather than take advice from a solicitor as to possible challenges on death, might be under the impression that clause 15 would be effective to prevent any such challenges. That assumption is incorrect and might lead to a subsequent successful application for a legal right share or provision out of the estate which might defeat the intention of the testator in other ways, such as by defeating a residuary gift which a testator might have thought valuable, as well as leading to litigation and the consequent dissipation of the assets of the estate on litigation costs.

10 . Before turning to the issues of interpretation which fall for determination in this case, it is convenient first to set out the evidence led de bene esse as to the Deceased's intentions in drawing up the Will.

Evidence of Deceased's intention

11 . With the consent of both parties, I heard viva voce evidence from Fiona Murphy in the course of the application, leaving over the question of the admissibility of that evidence. I consider below the extent to which that evidence is admissible and what, if any, effect it has on the interpretation of the Will.

12 . That evidence was to the effect that the Deceased had wanted to make a will and Ms. Murphy had asked him to go to a solicitor, but he refused. Ms. Murphy was of the view that the reason was simply that the Deceased was very private. Accordingly, at his request for assistance in drawing up the Will, she googled something along the lines of “homemade wills” and saw a company who provided online templates for wills. She said she subscribed to the website and had to pay for what she regarded as their expertise, but could not now find the website, although she was clear that it was not an American website.

13 . Having found the online template, she filled it in in accordance with the Deceased's instructions as to how he wished his assets to be distributed on his death. These were, first, that Ms. Murphy was to have the Deceased's house and adjoining lands, which were adjacent to the land where she herself had lived for over 20 years and which, as is apparent from the values referred to above, constitute the primary asset in the estate.

14 . Ms. Murphy gave evidence as to how the Deceased arrived at this intention. The logic of leaving it to Ms. Murphy and her family was that the Deceased's father was a blacksmith and the Deceased was fond of Ms. Murphy's daughter's horse, Benji. The land consisted of three fields and some of it – as I understand it, the greater part of the lands — was leased, but some of it was cordoned off for Ms. Murphy's daughter, Mollie, to ride her horse. Indeed, the Deceased had said that he was going to stop leasing the lands so that Mollie could use all of them for her horse. A second consideration was that the Deceased wanted to ensure the land would remain within the Murphy family, and, as Ms. Murphy had not married, the land would remain in the Murphy family name. In fact, Ms. Murphy said that the Deceased's original intention was to leave the house and lands to her father, the Executor, but he had told the Deceased he didn't want it, and that intention became replaced with an intention to leave it to Ms. Murphy and, if she predeceased him, to her daughter, Mollie

15 . The Deceased also instructed that any money that the Deceased had in the credit union was to be used for his funeral and was then to go to Ms. Murphy's siblings and cousins as ultimately named in clause 14, which is set out in full below.

16 . Having filled it in and printed it out in the form ultimately executed, Ms. Murphy brought the Will to the Deceased. He took it from her and reviewed it over a few days. Despite the fact that he had worked as a labourer and was not educated, she said he was very interested in history, an avid reader, and well able to read the Will.

17 . In any event, after a few days, the Deceased told Ms. Murphy that he was happy with the Will. She then got two of her sister's friends, who were acquainted with the Deceased, to witness the Will and this was done in the Deceased's house at a time that Ms. Murphy was not present.

18 . At a later time, Ms. Murphy asked the Deceased to go to a solicitor and to draft a will with the benefit of legal advice but he refused. She was of the opinion that this was because he was a very private man.

Relevant provisions of the Will

19 . The structure of the Will is that after preliminary declarations revoking any prior wills and codicils and declaring that the Deceased was not married and did not have living children, there is a section headed “ Executor” which provides for the appointment of a power of an executor or executors. No issue arises as to the appointment of the defendant as sole...