Re Bonnet, Johnston v Langheld and Others

JurisdictionIreland
JudgeO'Hanlon J.
Judgment Date01 January 1983
Neutral Citation1983 WJSC-HC 572
CourtHigh Court
Date01 January 1983

1983 WJSC-HC 572

THE HIGH COURT

No. 312 Sp/1981.
JOHNSTON v. LANGHELD
IN THE MATTER OF THE WILL OP ANTONIE MARIE BONNET DECEASED

BETWEEN:

ROBERT WILLIAM ROCHE JOHNSTON
PLAINTIFF

AND

HEINZ H. LANGHELD KURT PRUESSMAN EDUARD ARTHUR SEEZER

AND

BY ORDER/THE REPRESENTATIVE CHURCH BODY
DEFENDANTS

Subject Headings:

CONFLICT OF LAWS: will

WILL: construction

1

Judgment delivered by O'Hanlon J. the 18th November, 1982.

2

This case involves the construction of the will made in Germany by Antonie Marie Bonnet deceased, a German national who was at the date of her death and at all other material times, domiciled in Germany. The text of the original will and the condicil thereto is in German.

3

The particular clause which requires to be construed by the Court refers to a disposition of a farm in Ireland in favour of the Protestant Church in Ireland - at first sight a disposition of immovables. There was some debate in the course of the hearing as to the proper law to be applied in construing this part of the will. It was contended as a general principle that when a testator is domiciled abroad at the relevant time (which according to some authors is the date of making the will, and according to others is the date of death), the law of the domicile is the law applicable in the construction of the will. See Maxwell Probate, p. 174, and Cheshire, Conflict of Laws, 9th edn. p. 517.

4

On the other hand it is stated in Halsbury's Laws of England, 3rd edn., Vol. 7, p. 63 that

"Unless an intention to the contrary on the part of the testator is established, the construction of a will of immovables is governed by the lex loci rei sitae, and that of a will of movables is governed by the law of the place which was the testator's domicil at the time of his death".

5

A footnote to this passage refers to a statement in Dicey's Conflict of Laws, that the maxim that the terms of a will should be construed with reference to the law of the testator18 domicil "is a mere canon of interpretation which should not be adhered to when there is any reason from the nature of the will or otherwise to suppose that the testator wrote it with reference to the law of some other country". The text has, however, undergone considerable modification in the 4th edition of Halsbury's Laws of England Vol. 8 pages 686/687.

6

With specific reference to one of the matters which arose for consideration in the present case, Dicey and Morris's Conflict of Laws, 10th edn. (1980) contains the followingstatement in Vol. 2, p. 629:

"It is clear that the lex situs determines what is included in a general devise of an estate, for instance, whether it means the lands and buildings thereon only, or includes livestock or other movables necessary for the work of the estate. Further, the use of technical language of the lex situs may indicate the intention that its law should govern the construction of the will".

7

The cases cited in support of the foregoing propositions are Luahington .v. Seweoll (1827) 1 Sim. 435, and Stewart .v. Garnett, (1830) 3 Sim. 398.

8

In the case of Re Adams Deceased, (1967) I.R. 424, Budd J.

9

construed a condicil in a will dealing with money and securities only, in accordance with Irish law, although holding that the testator was domiciled in Prance at the time of making the condicil. He deduced an intention on the testator's part that it should be so construed from a number of circumstances, such as the use of the English language in making the will, and the fact that it was made in the form appropriate for an Irish will. See also in this context the decision of the same judge in the case of Re. George C. Sillar Deceased, (1956) I.R. p. 344.

10

For reasons which will hereafter appear, however, I do not feel obliged to choose between German Law and Irish law in the construction of the present Will, since I am satisfied from the evidence given by experts in German Law that the German legal code incorporates the primary principle of construction which is applicable in our law also, namely, that whether or not the case contains a foreign element, a will is to be construed in accordance with the intention of the...

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