Re Browne; Ward v Lawler

• Jurisdiction: Ireland
• Judgment Date: 29 July 1944
• Date: 29 July 1944
• Court: High Court

In re Browne; Ward

and

Lawler

-Secret trust - Universal legacy to executor - Testator "relying" on executor "carrying out the wishes which I have expressed to him and/or may do so hereafter" -Whether will passes legacy to executor absolutely -Testator's wishes contained in unexecuted document - Provisions of document communicated after execution of will but in lifetime of testator -Whether such communication and acceptance sufficient to constitute a trust - Whether, in the case of a legacy expressed to be fiduciary, a trust contained in an unexecuted document and communicated and accepted after the execution of the will is a valid trust - Absence of due execution of the document pursuant to the Wills Act, 1837 - Whether legatee bound by such trust.

At some time prior to the execution, in the year 1935, of the testator's will, the plaintiff, an intimate friend of the testator, promised to carry out his wishes and consented to act as his executor. The testator having appointed him sole executor, concluded his will as follows:—"I hereby give and bequeath unto [the plaintiff] all my real and personal property of what nature or kind soever, I relying on his carrying out the wishes which I have expressed to him and/or may do so hereafter." At the time the testator had not expressed his wishes to him with regard to any of his property except, perhaps, his furniture. In the forenoon of the 25th February, 1942, the plaintiff, at the testator's request, went to see him in his bedroom. The testator was seriously ill but his mind was clear. He asked the plaintiff to bring him a bundle of papers from a tin box in another room, and when the bundle was brought, he untied it and took out his will and a document, which he described as his "Instructions," bearing the date of November 23rd, 1939. He handed his will to the plaintiff, saying "This is my will,"and informed him that his wishes were contained in the "Instructions." He did not go into all the details of the "Instructions" but explained all the essentials, and the plaintiff stated in evidence that the testator clearly understood from him that he would carry out their provisions. The plaintiff read the will but did not read the "Instructions" at that time and did not know...