Re Prendiville
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barron |
| Judgment Date | 01 January 1995 |
| Neutral Citation | 1991 WJSC-HC 1289 |
| Docket Number | No. 597 Sp. Ct. 5/1989 |
| Court | High Court |
| Date | 01 January 1995 |
BETWEEN
AND
1991 WJSC-HC 1289
THE HIGH COURT
Synopsis:
TRUSTS
Creation
Will - Legacy - Application - Directions - Secret trust - Validity - Legacy to be used in accordance with testator's wishes - Wishes recorded in separate document - Legatee's acceptance of directions in testator's lifetime - (1989/597 Sp - Barron J. - 5/12/90) - [1995] 2 ILRM 578
|Prendiville v. Prendiville|
WILL
Construction
Legacy - Application - Directions - Secret trust - Validity - Legacy to be used in accordance with testator's wishes - Wishes recorded in separate document - Legatee's acceptance of directions in testator's lifetime - (1989/597 Sp - Barron J. - 5/12/90) - [1995] 2 ILRM 578
|Prendiville v. Prendiville|
Citations:
BROWNE, IN RE; WARD V LAWLER 1944 IR 90
KINGS ESTATE, IN RE 21 LR (IR) 273
BLACKWELL V BLACKWELL 1929 AC 318
MOSS V COOPER 1 J & H 352
BATEMANS WILL TRUSTS, IN RE; BRIERLEY V PERRY 1970 3 AER 817
KEENS ESTATE, IN RE 1937 1 AER 452
Judgment of Mr. Justice Barron delivered the 5th day of December 1990.
Joseph Prendiville died on the 21st June 1964 having made his last Will dated the 13th October 1961. By this Will he left everything he possessed to his wife Mary Prendiville "to be used by her according to my wishes - as she has been advised". A Grant of Administration with the Will annexed issued to Mary Prendiville on the 10th March 1965. She died on the 3rd January 1986 without having fully administered the estate. On the 5th October 1989 a Grant of Administration with the Will annexed of the unadministered estate was issued to Brendan Prendiville, a son of the deceased.
Some time before he died, the deceased informed his son Brendan that he had written out his wishes as to the passing of his estate after his wife's death. He then showed him a document in his own handwriting setting out those wishes which was dated the 7th May 1961. He did not see the document again during his father's lifetime. After his father's funeral, he asked his mother to show him the document. She did so and later in August 1964 gave it to him having retained a copy.
The document is as follows.
After my wife's death -
£1,000 4 1/2;% Nat.Loan - interest to Thomas
£1,000 5% Nat.Savings Bonds - dividend to Eileen
£3,000 5% E.S.B. Loan - dividend to Jackie
£1,500 5% Nat.Loan - dividend to Maurice
£1,000 5% Nat.Loan and 6% Nat Loan to Jim
| £3,000 - | to Brendan |
| £1,000 - | to Dodo |
| £1,000 - | to Billy |
| £500 - | Joseph Aloysius |
| £1,000 - | Michael (George's Son) |
| Aunty May wish re her own money | |
| 1,000 | £500 to Eileen, Dodo, Jim, Jackie. |
| 2,000 | Maurice J. Brendan |
| 2,000 | (250 each) |
| 3,000 | |
| 1,000 | £1,000 for Masses to be divided between the |
| 3,000 | religious orders; for the dead souls. |
| 12000 | |
| Monies to be divided after my wifes death. My wife Mary is to get all my monies property and debts due, during her lifetime |
Billy to get preference of Cluincorrig house - on a reasonable valuation - if he lives or intends to live in Killorglin.
The reference to Aunty May is to his wife being the name by which she was known in the family. On the reverse side of this document there is an apparent assessment of the total value of the testator's own estate and that of his wife, the value of his residence being apparently put at £6,000. There is however no obvious corelation between those figures and the details on the side of the document which he signed.
The deceased's widow made a statutory declaration dated the 6th June 1967 for the purpose of acknowledging her acceptance of the terms of her husband's written instructions. This document is not helpful in resolving the uncertainties contained in those instructions. She declares that she was to be entitled for life and that after her death the residence and lands of Cluincorrig should, in the first instance, be offered for sale to Dr. Billy Prendiville at the price of £6,000. She then indicated how the £6,000 was to be distributed if the option to purchase was exercised and that, if it was not exercised, the property was to be sold and the proceeds of sale to be distributed in the same way as the £6,000. No provision was made for any different price being obtained. The declaration also purports to distribute the other moneys in the estate in accordance with the instructions. However, the persons indicated as beneficiaries do not fully correspond with those referred to in the instructions.
On the 29th September 1970 Mary Prendiville made a Will. By this Will she inter alia purported to leave her husband's estate in accordance with his written instructions. On this occasion there were some minor discrepancies between the Will and statutory declaration, but again she purported to indicate that the option to purchase his father's residence was to be given to her son Billy at the sum of £6,000.
On the 29th April 1980 Mary Prendiville revoked this Will. On the same date, she made a further statutory declaration in which she again acknowledged that her husband's instructions were communicated by him to her and accepted by her, but declared that the sum of £6,000 had never been mentioned by her husband as the option price of his residence Cluincorrig house.
Following the grant of Letters of Administration to Brendan Prendiville, an application was made to have the instructions admitted as a testamentary document, but such application was unsuccessful.
The present proceedings have delevoped into a contest between Dr. Billy Prendiville on the one hand and the next-of-kin of the deceased on the other as to whether or not there is an enforceable secret trust or an enforceable half secret trust whereby Dr. Billy Prendiville should have an option to purchase the residence and lands of Cluincorrig house at a reasonable valuation. The parties have accepted that the remainder of the written instructions are insufficiently precise to be enforceable on either basis.
In In re Browne, Ward -v- Lawler, 1944 I.R. 90, the testator by his Will dated the 17th October 1935 gave and bequeathed unto the person named as his executor "all my real and personal property of what (sic) nature or kind soever. I relying on his carrying out the wishes that I have expressed to him and/or may do so hereafter".
These wishes were set out in written instructions which though dated 23rd November 1939 were not given to the person named in the Will until 25th February 1942 being the day upon which the testator died. It was made clear to the testator however that his wishes would be carried out. The executor accepted that he was not entitled beneficially, but sought the opinion of the Court as to whether the instructions were binding. It was argued on behalf of the next-of-kin that the executor took as trustee and that the instructions were not enforceable because the testator was not entitled to reserve to himself the right to make further dispositions of his property.
Overend J. held that on the proper construction of the clause in the Will the executor took beneficially and not as trustee. Accordingly, he found that by accepting the trust the elements of a secret trust had been established. He also found that if a gift had been properly construed as creating a trust the terms of which were not disclosed, it would not have made any difference. In this regard he cited with approval the following passage from the Judgment of Monroe J. in re King's Estate 21 L.R. Ir. 273 at page 277 where the relevant rules...
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