Re Curtin, deceased

JurisdictionIreland
JudgeO'FLAHERTY J.,FINLAY C.J.
Judgment Date01 January 1992
Neutral Citation1991 WJSC-SC 1797
CourtSupreme Court
Docket Number[S.C. No. 90 of 1990]
Date01 January 1992

1991 WJSC-SC 1797

THE SUPREME COURT

Finlay C.J.

McCarthy J.

O'Flaherty J.

90/90
CURTIN v. O'MAHONY
IN THE MATTER OF THE SUCCESSION ACT 1965
AND IN THE MATTER OF THE ESTATE OF PHILIP CURTIN DECEASED

BETWEEN

WILLIAM CURTIN
Plaintiff

and

CATHERINE O'MAHONY & ORS.
Defendants

Citations:

ROWE V LAW 1978 IR 55

SUCCESSION ACT 1965 S90

PATTERSON IN RE, DUNLOP V GREER 1899 1 IR 324

HAWKINS, CONSTRUCTION OF WILLS

Synopsis:

WILL

Construction

Ambiguity - Absence - Bequest - Condition precedent - Illogicality - Condition unfulfilled - Resultant intestacy - Avoidance - Ascertainment of testator's apparent intention - Extraneous words supplied to implement that intention - Extraneous evidence unnecessary - Succession Act, 1965, ss. 90,99 - (90/90 - Supreme Court - 31/7/91) - [1991] 2 I.R. 562 - [1992] ILRM 7

|Curtin v. O'Mahony|

1

JUDGMENT delivered on the 31st day of July 1991by FINLAY C.J. [McCarthy J. agr.]

2

I have had the opportunity of reading the judgment which is about to be delivered by O'Flaherty J. and I agree with it.

3

As has been mentioned in that judgment, Counsel on behalf of the Appellants expressly disclaimed any request to this Court, on the hearing of this appeal, toreconsider the decision of this Court in the case of Rowe v.Law 1978 IR, but accepted the view of the majority of the Court in that case concerning the interpretation of the provisions of Section 90 of the Succession Act 1965. I, like O'Flaherty J., would reserve any view on the correctness of the decision in Rowe v. Law until such time as it is fully debated in a case before this Court.

4

Within the confines of that decision, however, I am satisfied, as set out in the careful reasoning of the judgment of O'Flaherty J. that this will on its face, as a will drawn by a lawyer, contains a contradiction, and a serious one, which is the contradiction between the careful and extremely detailed provisions of what might be described as the residuary clause in the will and the apparent provision that those careful and detailed provisions would only come into existence upon the happening of what would be largely an irrelevant event, namely, the selling of the testator's house, before hisdeath, by him. In those circumstances I agree that the obligation of the Court, in justice to the testator, is to seek with as much certainty as possible to ascertain and give effect to his intention. The solution suggested by O'Flaherty J. in his judgment, which in effect neutralises the conditional consequences of the phrase "In the the event of I selling the dwellinghouse and lands at Cloonyscrehane, Cork Road, Newcastlewest in the County of Limerick" achieves with sufficient certainty and as far as is possible that objective of implementing the most probable intention of the testator.

5

I would accordingly allow the appeal and answer the questions on the summons in accordance with that view.

6

jud54

7

JUDGMENT delivered on the 31st day of July 1991by O'FLAHERTY J. [McCarthy J. agr.]

8

Philip Curtin died on the 26th June, 1987 having made his last will dated the 20th September, 1985 whereby he appointed two executors, to whom probate was granted on the 16th May, 1988. At the time of his death he was a widowerwithout children. His estate has been valued at £106,388.80 net. It consisted of his dwelling-house and a small garden which was sold by the executors after his death for £30,000. The balance was made up of chattels and monies in various bank accounts and there was an estate in the United States of America valued at $27,177.40.

9

The will was prepared in the office of a Kanturk, Co. Cork, firm of solicitors and was witnessed by two solicitors of that firm. But those solicitors say that they had nothing to do with the drafting of the will and the identity of the draftsman remains a mystery. However, I believe that the overwhelming likelihood is that the will was drafted by a solicitor. What one reads about in judgments and the textbooks, therefore, concerning the necessity to put oneself in the testator's armchair in construing a will is, I believe, a somewhat artificial approach as far as this case is concerned. I think we should approach this will on the basis that it was a badlydrafted will and find out what are the consequences that flow from that. The clause that gives rise to difficulty was as follows:-

"This is the last will and testament of me Philip Curtin of Cloonyscrehane, Cork Road, Newcastle West, in the County of Limerick hereby revoking all former wills and testamentary dispositions heretofore made by me. I nominate and appoint Catherine O'Mahony of Springfield, Broadford, Charleville, in the County of Limerick and William Curtin of Cnocmhuire, 2, Owenabue Drive, Carrigaline, in the County of Cork, to be executors of this my will.

I leave and devise the dwelling house at Cloonyscrehane, Cork Road, Newcastle West, in the County of Limerick to the said Catherine O'Mahony absolutely and in the event of the said Catherine O'Mahony being deceased then I leave and devise the said dwelling house to her husband Patrick O'Mahony absolutely (the surrounding land included). In the event of I selling the dwelling house and lands at Cloonyscrehane, Cork Road, Newcastle West, in the County of Limerick, I direct that my estate both real and personal which I die possessed of to which at my death I may beentitled be divided in the following percentage shares subject firstly to payment of my just debts funeral and testamentaryexpenses".

10

There followed a number of charitable and other bequests expressed in percentage terms including a provision for a headstone for the grave of the testator and his late wife, the saying of masses and 10 per cent for Catherine O'Mahony. The percentages purported to add up to 100.5 percent.

11

The dwelling-house was not sold and Catherine O'Mahony was alive at the testator's death.

12

The questions remaining for determination by the Court in the construction summons were:-

1...

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1 books & journal articles
  • The construction of conditions attaching to gifts in wills
    • Ireland
    • Irish Judicial Studies Journal No. 1-8, January 2008
    • 1 Enero 2008
    ...warned * B.C.L., LL.B., LL.M., D.Litt, Barrister-at-Law. 1[1962-63] Ir. Jur. Rep. 29. 2 [1962-63] Ir. Jur. Rep. 29 at 36; see Re Curtin [1991] 2 I.R. 562 at 573; Corrigan v. Corrigan & Anor [2007] I.E.H.C. 367; Re O’Toole (High Court, unreported, Barrington J., 26 June, 1980); Williams and ......

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