Re Doran

• Jurisdiction: Ireland
• Judge: Mr Justice Herbert
• Judgment Date: 24 July 2000
• Neutral Citation: [2000] IEHC 137
• Court: High Court
• Date: 24 July 2000

[2000] IEHC 137

THE HIGH COURT

DORAN(DECEASED), IN RE

PROBATE

IN THE MATTER OF THE ESTATE OF CLARE BERNADETTE DORAN, (IN RELIGION, SISTER BERNADETTE), DECEASED

Citations:

LE CRAS V PERPETUAL TRUSTEE CO LTD 1967 3 AER 915

METHUEN V METHUEN 1817 2 PHILLIM 416

HORGAN (DECEASED), IN RE 1971 P 50

REDMOND, IN RE 1963 CH 1

STROUDS JUDICIAL DICTIONARY "OR"

GOODS OF BAYLISS (DECEASED), IN RE 1862 2 SW & TR 613

GOODS OF BLACKWELL (DECEASED), IN RE 1877 LR 2 P & D 72

FOSTER, IN RE 1871 LR 2 P & D 304

LEWIS, IN RE: GORONWY V RICHARDS 1942 2 AER 364

WILLIAMS MORTIMER & SONNUCKS EXECUTORS ADMINISTRATORS & PROBATE 17ED CH 3 27–28

SWINBOURNE ON WILLS

GODOLPHIN ON WILLS

SMITH V CROFT 1758 2 LEES ECCLESIASTICAL CASES 557

RSC O.79 r5(14)

WILLIAMS ON WILLS 7ED V1 229

MILLER IRISH PROBATE PRACTICE 44–45

SUCCESSION ACT 1965 S78(4)(b)

GOODS OF TIERNAN, IN RE 1942 IR 572

GOODS OF LANE, IN RE 1864 33 LJ PM & A 185

WILMOT, IN RE 1852 2 ROBERTSON ECCLESIASTICAL CASES 579

SUCCESSION ACT 1965 S20

SUCCESSION ACT 1965 PART III

SUCCESSION ACT 1965 S17

Synopsis:

Succession

Succession; wills; probate; provision in will of testatrix appointing "Provincial Superior or the Provincial Bursar of the Irish-English Province for the time being at the date of my death" as executor; whether provision to be read as creating alternatives or a substitute; whether provision void for uncertainty; whether clause "the Irish-English Province" ambiguous; whether will uncertain due to part text and part handwriting composition; whether renunciation by person entitled before substitute executor necessary before probate could be granted; s.17, Succession Act, 1965.

Held: Executor sufficiently identified as whoever might be holder of one of two official positions at date of death of testatrix; clause not void for uncertainty.

Doran, In re - High Court: Herbert J. - 24/07/2000 - [2000] 4 IR 551

The application concerned the clause appointing the executor of a will. A question arose as the validity of the appointment and whether the appointment was void for uncertainty. Herbert J held that the courts would construe such a clause in order to carry out the intention of the testator. In this instance it could be said that no uncertainty arose in regard to the propose appointment of the executor in question (in the second degree). Nevertheless and following established practice there should be a formal renunciation by the instituted executor (in the first degree) prior to the appointment of the substituted executor.

1 Mr Justice Herbert delivered the 24th day of July, 2000

2 In this case the Testatrix, Clare Bernadette Doran, a teacher of religion, who died on the 17th December, 1996 at St Maur's Convent, Weybridge, Surrey, England, was a member of a Religious Order of women known generally as Sisters of Infant Jesus or the Dames de St Maur.

3 On the 4th February, 1982 Clare Bernadette Doran signed her last Will and Testament in the presence of Helen Coleman and Nancy O'Donoghue, both retired teachers and members of the said Religious Order. The Will contains a sufficient attestation clause and an affidavit of Nancy O'Donoghue one of the attesting witnesses as to due execution was before the Court.

4 The testamentary document appears to be a type of standard form Will containing a number of pre-printed provisions one of which provides as follows:-

" I appoint the Provincial Superior or the Provincial Bursar of the Irish - English Province for the time being at the date of my death to be the Executor of this my Will."

5 A question has now arisen for determination by this Court as to whether this appointment is void for uncertainty. In my judgment it is not.

6 In the case of Le Cras -v- Perpetual Trustee Company Limited and Ors, (1967) 3 All ER 915 at 925, Lord Wilberforce in delivering the opinion of the Privy Council on an appeal from the Supreme Court of New South Wales, applied the dictum of Sir John Nicholl in Methuen -v- Methuen, (1817) 2. Phillim. 416 at 426 that:-

" In the Court of Probate the whole question is one of intention: The animus testandi and the animus revocandi are completely open to investigation."

7 In my judgment the intention of the Testatrix in adopting this form of words unaltered was to appoint the named Officers of her Order of Religion as original and substitute Executors. I say "adopted" because it is clear that the form of words, "for the time being at the date of my death to be Executor of this my Will", anticipate and resolve a problem which inter alia troubled the Court in the case of In Re Horgan Deceased, (1971), L.R. Probate Divorce and Admiralty, 50, and it is fair to infer were settled as was the clause as a whole by a lawyer. I feel confident in this view when I consider the terms of the subsequent printed paragraphs of this testamentary document.

8 Words used in a Will are deemed to have been used in their ordinary grammatical meaning unless there is something in the text of the Will read as a whole to indicate that they were used in some restricted sense or that some special meaning was intended. I find no such indication in this Will. The general and principal meaning of "or" as defined by the dictionaries (and in this respect I am conscious of the warnings given in the case of Re Redmond (1963) Ch 1 at 10) is "a conjunction introducing alternatives", "a particle co-ordinating 2 or more words phrases or clauses between which there is an alternative". It has been held in a number of cases cited in Stroud's Judicial Dictionary that "or" may also be read as implying a substitution, especially where this will prevent a testamentary gift from lapsing. (Op. Cit., 5th Ed. 1986, Vol 3 p. 1782)

9 In my judgment this clause was intended to be read, " I appoint the Provincial Superior or alternatively or by way of...