James Mullen Junior v James Mullen
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cregan |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] IEHC 407 |
| Court | High Court |
| Date | 31 July 2014 |
[2014] IEHC 407
THE HIGH COURT
BETWEEN
AND
SUCCESSION ACT 1965 S89
SUCCESSION ACT 1965 S90
SUCCESSION ACT 1965 S91
SUCCESSION ACT 1965 S99
RAFTER (DECEASED), IN RE; THORNTON v TIMLIN UNREP LAFFOY 13.6.2012 2013/50/14284 2012 IEHC 239
HERON v ULSTER BANK LTD & ORS 1974 NI 44
ROWE v LAW & MORGAN 1978 IR 55
O'CONNELL v BANK OF IRELAND & BANK OF IRELAND TRUSTEES CO LTD 1998 2 IR 596
Will – Interpretation – Land and Property – Family – Intention – Procedures – Bequests – Succession Act 1965 – Evidence – Construction of Words
Facts: This case concerned an application in respects of the interpretation of the terms of the will of Mrs. Elizabeth Mullen, deceased, of Fahy, Clifden, County Galway. Mrs. Mullen died on 24th May, 2012 having executed her last will and testament on 19th July, 2004. In her will Mrs Mullen had left various bequests to her sons and daughters. She also bequeathed a small plot of land of not more than half an acre to her grandson, James Mullen Jnr., the plaintiff in these proceedings. Mrs. Mullen died on 24th May, 2012 without having altered or revoked her last will. In her will she appointed the defendant James Mullen, her son, to be her executor. There was however a dispute between the plaintiff and the executor of the will as to the meaning of the bequest to James Mullen Jnr. James Mullen Jnr., claimed that he was entitled to the bequest; the defendant on behalf of the estate claimed that the bequest had lapsed and/or had failed. The relevant bequest which was at issue in these proceedings was as follows: ‘I also give devise and bequeath to James Mullen Junior, son of my son John, a small plot or piece of land of not more than half an acre to make up the site of his proposed new house should he require same.’ The plaintiff had been left certain lands by his father which adjoined the testatrix”s lands. Having obtained planning permission, he built his home and moved into the property in 2006. In March 2010 the plaintiff sought the testatrix”s permission to use a portion of her lands (which adjoined his dwelling house) as a garden. The plaintiff in his grounding affidavit stated that from May 2010 until the testatrix”s death on 24th May, 2012, he had occupied that portion of the testatrix”s land for use as a garden with her knowledge, consent and indeed encouragement. The defendant argued that the plaintiff had had an offer (at the time he was building his home) from his grandfather of a few feet of land to help him build his house should he need it. He did not avail of this offer and it was claimed that he did not need it. The defendant also stated that the plaintiff had an adequate area within his own site to create a garden.
Held by Justice Cregan in light of the applicable statutory provisions, namely the 1965 Succession Act and case-law including In Re Rafter [2012] IEHC 239 and Heron v. Ulster Bank Ltd. [1974] N.J. 44 that he was duty bound to interpret the will and give effect to the intentions of the testator. In applying the principle emanating from Heron, Justice Cregan first considered the immediately relevant portion of the will at issue. He was of the opinion that the words of the testatrix where clear and stated that the intention of the testatrix was that she wanted to bequeath a small piece of land to her grandson. That piece of land was not to exceed half an acre and it was to be available to him if he required it. The purpose of the bequest was to permit him ‘to make up the site’. The defendant”s argument was that at the time the testatrix made her will, she knew that the plaintiff was building his own house. She had in mind, therefore, that she would leave him up to half an acre of land to make up a site for his proposed new house should he require same. The defendant submitted that because the ‘proposed new house’ had now been built, the gift lapsed. It was also submitted by the defendant that as the plaintiff had built his house it was clear that he did not require the relevant half acre. The defendant further submitted that the phrase “should he require same” was a phrase which should have been given an objective meaning because of the use of the word ‘require’. According to Justice Cregan the words ‘should he require same’ constituted a conditional subordinate clause. The subject of the subordinate clause was ‘he’ (i.e. James Mullen Jr.); the verb was ‘require’ and the object of the clause was ‘same’ (i.e. a small plot or piece of land of not more than half an acre’). It follows, therefore, because ‘he’ is the subject of the clause that it is the plaintiff - and the plaintiff alone - who is the person who decides whether he ‘requires’ any of the land. In other words, it was the plaintiff”s subjective assessment of whether he required the land which enabled the condition to be fulfilled. Accordingly, based on the facts, Justice Cregan determined that the plaintiff did indeed objectively “require” the relevant parcel of land “for a purpose, namely to provide a garden for his children and that there was no other area suitable on his land which could provide an alternative space for a garden. He further reasoned that the defendant”s submissions were not well-founded. On the facts of the case, it was determined that the site of the plaintiff”s home was always a difficult site. It did not cease to be a difficult site once the house was built as it had been built into the rock on the hillside and also because it slopped very deeply at the front. Thus, it was reasoned that it was the intention of the testatrix at all times that she intended to bequeath to her grandson, ‘a small plot of land up to half an acre should he require same to make up his site’. Given that the plaintiff used it as a garden with her consent for the last two years of her life, Justice Cregan stated that she clearly knew that the plaintiff needed this parcel of land to make up his site and to provide it with a garden. The defendant also sought to argue that because the phrase, ‘his proposed new house’, was used and because the house had now been built that the gift lapsed. That submission was deemed unsustainable. The fact that the house had been built did not invalidate the gift under the Succession Act. The testatrix had seen the plaintiff”s house been built between 2005 and her death in 2012, and nevertheless the testatrix never sought to revoke or amend her will in any way. Moreover, when asked by the plaintiff, the testatrix readily assented to giving consent to the plaintiff to permit him to use that part of her lands adjoining his lands as a garden for his children. It is clear, therefore, at the death of the testator, she was in full knowledge of all the material facts in relation to this matter and she did not seek to amend or revoke her will in any way. Secondly, in applying the second and third principles, Justice Cregan examined the other provision in the will. He concluded that when one looked at the scheme of the will, the testatrix was concerned to perfect the title of de facto gifts she had made during her lifetime and to ensure that those with houses should have some surrounding land. Thus, her intentions were clear and precise. Thirdly in respects of the fourth principle, namely the need to consider any applicable rule of construction, Justice Cregan applied s.99 of the Succession Act and determined that the intention of the testator was clear from the words of the will. However, insofar as there was any doubt in the matter, particularly insofar as the defendant sought to lay considerable emphasis on the ambiguity of the phrases, ‘proposed new house’ and ‘to make up the site’ the consequence of the defendant”s interpretation was that the bequest would not be operative. In those circumstances, it was reasoned that, even if the bequest did admit of more than one interpretation, in applying the statutory principles, that the interpretation according to which the bequest would be operative should be preferred. Justice Cregan thus concluded that the statutory presumption in favour of the validity of the bequest applied in this case. It was determined that the fifth and sixth principles emanating from Heron did not need to be considered. In concluding, and having examined the extrinsic evidence available, it was reasoned that the testatrix intended to devise the small parcel of land (being her garden) to her grandson. The will was deemed to be valid and the plaintiff was entitled to the land.
JUDGMENT of Mr. Justice Cregan delivered on the 31st day of July 2014
1. This is an application about the interpretation of the terms of a will. The will was made by Mrs. Elizabeth Mullen, deceased, of Fahy, Clifden, County Galway. Mrs. Mullen died on 24 th May, 2012 having executed her last will and testament on 19 th July, 2004.
2. In her will Mrs Mullen left various bequests to her sons and daughters but she also bequeathed a small plot of land of not more than half an acre to her grandson, James Mullen Jnr., the plaintiff in these proceedings.
3. Mrs. Mullen died on 24 th May, 2012 without having altered or revoked her last will. In her will she appointed the defendant James Mullen, her son, to be her executor. There is however a dispute between the plaintiff and the executor of the will as to the meaning of the bequest to James Mullen Jnr. James Mullen Jnr., claims that he is entitled to the bequest; the defendant on behalf of the estate claims that the bequest has lapsed and/or has failed.
4. I set out below the terms of the will in full. It is dated 19 th July, 2004 and it provides as follows:
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Goodwin and Others v Murphy
...recent times in order to give effect to a will which presents difficulties of interpretation: see for example Mullen v. Mullen [2014] IEHC 407, at paras. 28 to 33, where a bequest of “a small plot or piece of land of not more than half an acre to make up the site of [the Testator's grandson......