Mc Guinness -v- Sherry & Anor, [2008] IEHC 134 (2008)

Docket Number:2007 486 SP
Party Name:Mc Guinness, Sherry & Anor
Judge:Mac Menamin J.
 
FREE EXCERPT

THE HIGH COURT2007 No. 486 SPIN THE MATTER OF THE ESTATE OF OWEN MC GUINNESS (DECEASED) AND IN THE MATTER OF THE SUCCESSION ACTS

BETWEENELLEN MC GUINNESSPLAINTIFFAND

MICHAEL SHERRY AND TEDDY GILLANDERSDEFENDANTSAND

GERALDINE FINNNOTICE PARTY

JUDGMENT of Mr. Justice John MacMenamin delivered on the 8th day of May, 2008

  1. This matter comes before the Court by way of an application seeking directions as to the precise meaning and import of the bequest contained in the last Will and Testament of Eoin McGuinness, deceased (hereinafter referred to as "the deceased"), which said bequest is identified in the special summons issued by the plaintiff herein on 6th July, 2007. The notice party has been joined to these proceedings by order made by the Court on 31st March, 2008, for the purposes of, inter alia, providing the Court with the necessary legitimus contradictor in circumstances where the stated position of the executors of the estate of the deceased is that they intend to adopt a neutral status in respect of the contention being made by the plaintiff in regard to the request, the subject matter of the application.

    Background

  2. The plaintiff in these proceedings is the widow of the deceased, late of Tully House, Tully, in the County of Monaghan, who died on 13th May, 2002. At the time of his death he was 88 years. His wife was considerably younger, in her late 60s. The defendants are the executors of the estate of the deceased and the notice party is the daughter of the plaintiff and the deceased. The issue is to be heard on affidavit and it is accepted that extrinsic evidence is not to be admitted in dealing with the interpretation of the Will.

    The Will

  3. In the application, the plaintiff seeks directions as to the type of interest conferred upon her by her late husband's Will. The deceased, in his last Will and Testament dated 1st May, 2002, made the following devises: "I give and devise to my wife, Ellen, my dwelling house (including front street, gardens, garage, planting, old orchard, yard, rear sheds, cattle crush and farm buildings) with right to enjoy existing services with right of access thereto and therefrom at all times on foot and with vehicles. I give and devise the remainder of my real property to my five children, namely, Charles, Sean, Geraldine, Elizabeth and Teresa, and to my wife, Ellen, jointly, subject to and charged with payment of the sum of 100,000 in favour of my wife, Ellen, payable within one year following the date of my death, and subject to the right of Ellen to have use and occupation of my said real property for the term of her life, free of charge." (Emphasis added). The emphasized portion gives rise to the issue.4. The first portion of the devise relating to the dwelling house is relatively straightforward. It provides clearly that the plaintiff is entitled to the whole interest in that part of the property. Steps have been taken to comply with the devise in the recent past. The fundamental issue facing the Court is as to the remainder of the real property as referred to in the second devise. The plaintiff contends that she has the benefit, not only of the joint interest, along with her five children, but in addition that she is entitled by virtue of the devise of the "use and occupation" of the property for her lifetime for a life tenancy in the said property.

  4. It is acknowledged that such a claim has consequences for the nature of the joint ownership granted for the first part of that devise.

    Life 'state or right of residence'

  5. Section 2 (5) of the Settled Land Act 1882 defines a tenant for life as follows:

    "The...

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