McGowan v Kelly

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 19 June 2007
• Neutral Citation: [2007] IEHC 228
• Docket Number: RECORD NO. 197 SP/2006
• Court: High Court
• Date: 19 June 2007

[2007] IEHC 228

THE HIGH COURT

RECORD NO. 197 SP/2006

MCGOWAN v KELLY

IN THE MATTER OF THE ESTATE OF PATRICK KELLY DECEASED

BETWEEN/

HILDA McGOWAN

PLAINTIFF

AND

BRIAN KELLY

DEFENDANT

SUCCESSION ACT 1965 S90

BURKE & O'REILLY v BURKE & QUAYLE 1951 IR 216

MOFFAT v MCCLEARY 1923 1 IR 16

SIFTON v SIFTON 1938 AC 656

MOTHERWAY v COGHLAN & AG 1963 IR 246

HENNESSY v HENNESSY & ORS 1963 ILTR 39

MACKESSY v FITZGIBBON & ORS 1993 1 IR 520

CLAVERING v ELLISON 1859 7 HLC 707

THEOBALD ON WILLS 16ED 2001 PARA 45.26

FITZSIMONS v FITZSIMONS & ORS 1992 2 IR 295

Abstract:

Succession - Probate - Practice and procedure - Whether a condition precedent or a condition subsequent - Whether the condition was void for uncertainty - Succession Act, 1965.

An issue arose out of the construction of the last will of the Testator. Probate of the will was granted to the plaintiff, one of the executors of the will. Difficulties arose out of the construction of a clause where the Testator devised the farmlands to be devised to his nephew provided that he returned to live on the land. The defendant resided in England. An issue arose as to whether the clause was a condition subsequent and therefore void for uncertainty or a condition precedent.

Held by Miss Justice Laffoy that the condition imposed on the defendant by the testator was a condition subsequent and was void for uncertainty. The defendant was to take the disputed lands and farm free of the condition.

Reporter: E.C.

Judgment of

Miss Justice Laffoy

1 delivered on 19th June, 2007.

2 These proceedings concern the construction of the last will dated 21^st October, 2004 of Patrick Kelly (the Testator), who died on 25^th October, 2004 aged 85 years. Probate of the will was granted to the plaintiff, one of the executors, reserving the right of the other executor, on 16^th January, 2006.

3 The provision of the will which has given rise to difficulties of construction is in the following terms:

"I give devise and bequeath my house and farm at Carraghs, Ballinlough, County Roscommon to my sister Hilda McGowan of Carraghs, Ballinlough, County Roscommon in trust and on condition that she (Hilda McGowan) transfers, conveys the said house and farm at Carraghs to my nephew Brian Kelly, Birmingham, England son of my late brother William Kelly provided he returns to live there but if he does not wish to take it on that condition then otherwise I give devise and bequeath my house and farm above to my sister Hilda absolutely."

4 Brian Kelly named in that provision is the defendant. The Testator devised the residue of his estate to the plaintiff in trust for his three nephews, Michael Gallagher, Robert Gallagher and Tommy Fitzgerald, to be divided equally in three shares.

5 On the special summons the plaintiff asked the court to determine the following questions arising out of the construction of the will of the Testator:

6 (1) Whether or not the condition that the defendant "returns to live there" (i.e. on the farm at Carraghs) is void for uncertainty?

7 (2) If the answer to question (1) is in the negative, whether the condition obliging the defendant to return to live on the farm is a condition precedent or a condition subsequent?

8 (3) Whether, if the answer to question (2) is that the requirement on the defendant to return and reside on the farm is a condition precedent, the plaintiff holds the farm and dwelling in trust for the defendant, and, if so, what is the duration of the said trust?

9 Counsel for the defendant took issue with the formulation of the foregoing questions and suggested that questions which would have been posed by "an impartial personal representative" would have been the following:

10 (a) Whether the condition attaching to the bequest is a condition subsequent?

11 (b) If so, is it void for uncertainty?

12 (c) If the answers to (a) and (b) are in the affirmative, does the defendant take the subject matter of the bequest freed and discharged from the condition?

13 (d) Is the condition attaching to the bequest a condition precedent?

14 (e) If so, is the same void for uncertainty?

15 (f) If the answers to questions (d) and (e) are in the affirmative, does the subject matter of the bequest pass to the plaintiff?

16 (g) Such further or other questions as to the court might seem proper.

17 As appears on the face of the will, the defendant is a nephew of the Testator, being the son of a brother of the Testator. The defendant was born in England in 1960. He was educated in Birmingham. Having left school at the age of sixteen, he has been working in the construction industry in Birmingham since. He is married and he has two children, a son who is sixteen years of age and a daughter who is eight years of age. The family is settled in England, from which I infer that the defendant has no wish or intention to uproot his family and settle at Carraghs.

18 The net value of the estate of the Testator as per the Inland Revenue affidavit amounted to €234,258.94, which I understand to represent the value of the dwelling and farm at Carraghs which comprises about twenty acres with a derelict house on it.

19 The foregoing facts are outlined merely for the purpose of putting the issues which arise in context. In my view, this is not a case in which it is permissible to resort to extrinsic evidence to show the intention of the Testator, having regard to the jurisprudence of the Superior Courts on s. 90 of the Succession Act,1965. There is no ambiguity or contradiction on the face of the will and it is not necessary to resort to extrinsic evidence to ascertain the intention of the Testator.

Legitimus contradictor

20 On the hearing of the summons, the plaintiff who, as personal representative of the Testator, put the issues before the court, was also thelegitimus contradictor. The interest of the residuary legatees was not represented, which is somewhat unsatisfactory given that there is inherent in the issues which arise a conflict between the plaintiff and the residuary legatees. The court was informed that the residuary legatees have been kept notified of the proceedings.

21 The conflict arises because of the practical effect of the distinction between a condition precedent and a condition subsequent to which a testamentary gift is subject. The practical effect was explained in the following passage in the judgment of Gavan Duffy P. inBurke and O'Reilly v. Burke and Quayle [1951] I.R. 216 (at p. 223):

"Here are two conditions and, with reference to the gift of capital, and without reference at this point to the validity of the conditions, the question is whether these conditions are conditions precedent, that is, conditions which the legatee must have fulfilled before the gift can take effect at all, or only conditions subsequent, intended to defeat a gift pre-existing (whether vested or contingent). The practical effect of the distinction is of the utmost importance: a gift made subject to a condition precedent fails altogether, as a rule, if the condition is found to be void, but, if a gift is made subject to a condition subsequent which is found to be void or inapplicable, the condition disappears and the gift takes effect independently of the condition."

22 The position adopted by the plaintiff was that the condition requiring the defendant to return to live on the farm at Carraghs was a condition precedent, and, as I understand it, that the condition was void for uncertainty, although there was equivocation on this point in the submissions, and that, consequently, the gift over in favour of the plaintiff took effect. The case made on behalf of the defendant was that the condition was a condition subsequent, that it was void for uncertainty and that, consequently, the gift to the defendant took effect independently of the condition. There was nobody before the court to make the case that, if the condition was a condition precedent and it was void for uncertainty, the gift over also failed and that the house and farm fell into the residue to be held upon trust for the residuary legatees. However, counsel for the defendant submitted that the effect of finding that the condition was a condition precedent and that it was void for uncertainty would be that the gift to the defendant and the gift over failed but that the residuary gift survived.

23 I propose considering first whether the condition is a condition precedent or a condition subsequent and thereafter whether it is void for uncertainty.

24 The fact that the Testator devised the house and farm to the plaintiff in trust for and to transfer it to the plaintiff is immaterial to the determination of the issue whether the condition that the defendant return to live...