Shannon v Shannon

JurisdictionIreland
JudgeMr. Justice MacGrath
Judgment Date12 April 2019
Neutral Citation[2019] IEHC 400
CourtHigh Court
Docket Number[2018 No. 12 SP]
Date12 April 2019

[2019] IEHC 400

THE HIGH COURT

MacGrath J.

[2018 No. 12 SP]

BETWEEN
ANDREW SHANNON
PLAINTIFF
AND
HENRY SHANNON
DEFENDANT

Wills and probate – Devise of lands – Construction of will – Plaintiff seeking a determination of questions which arose on the construction of a will – Does the specific devise and bequest to the defendant comprise the real property of the testator comprised in Folio 22769 County Cork only or that comprised in both Folio 22769 County Cork and Folio 60662 County Cork?

Facts: The deceased, Mr J Shannon, died testate on 23rd March, 2013. Grant of probate issued from the District Probate Registry at Cork on 22nd August, 2017 to the plaintiff, Mr A Shannon, the deceased’s nephew and the executor of his estate. The defendant, Mr H Shannon, was a beneficiary under the will of the deceased and was described as a friend, but of no relation to him. At the date of his death, the deceased was the registered owner of lands and premises comprised in two adjoining folios – Folio 22769 of the Register of Freeholders County of Cork situated in the townland of Glanlough, Carbery West (West Division) in the County of Cork, and Folio 60662 of the Register of Freeholders County of Cork situated in the townland of Glanlough, Carbery West (West Divison) in the County of Cork. The testator’s real estate comprised of the lands in the two folios and a share in adjoining commonage. A dispute arose as to the proper construction of the specific devise of lands in the testator’s last will and testament executed on 22nd August, 2011, and whether it included the lands and premises comprised in Folio 22769 only, the lands and premises comprised in Folio 60662 only, or the lands and premises comprised in both folios. The plaintiff sought a determination of the following questions which it was stated arose on the construction of the will: (a) Does the specific devise and bequest to the defendant comprise the real property of the testator comprised in Folio 22769 County Cork only or that comprised in both Folio 22769 County Cork and Folio 60662 County Cork? (b) Is the specific devise and bequest to the defendant in the will void for uncertainty? The case came before the High Court by way of notice of motion dated 5th November, 2018, in which the plaintiff sought an order pursuant to the inherent jurisdiction of the court for directions as to the manner of trial. The plaintiff further sought an order pursuant to O. 39, r. 4 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court directing that evidence be adduced viva voce from the witnesses intended to be called at the hearing of the action.

Held by MacGrath J that the answers to the questions posed were: (a) the specific devise and bequest to the defendant comprises the lands in both Folio 22769 Co. Cork and Folio 60662 Co. Cork; and (b) no.

Questions determined.

JUDGMENT of Mr. Justice MacGrath delivered on the 12th day of April, 2019.
Background
1

John Shannon died testate on 23rd March, 2013. Grant of probate issued from the District Probate Registry at Cork on 22nd August, 2017 to the plaintiff, the deceased's nephew and the executor of his estate. The defendant is a beneficiary under the will of the deceased and is described as a friend, but of no relation to him.

2

At the date of his death, the deceased was the registered owner of lands and premises comprised in two adjoining folios – Folio 22769 of the Register of Freeholders County of Cork situate in the townland of Glanlough, Carbery West (West Division) in the County of Cork, and Folio 60662 of the Register of Freeholders County of Cork situate in the townland of Glanlough, Carbery West (West Divison) in the County of Cork. The testator's real estate comprised of the lands in the two folios, and it seems, a share in adjoining commonage. His personal estate consisted of bank accounts, livestock, machinery and farm entitlements.

The will
3

By his last will and testament executed on 22nd August, 2011 the testator made the following provision:-

‘I, JOHN SHANNON of Moulamill, Gortalassa, Bantry in the County of Cork, Bachelor, declare this to be my last Will and Testament and I hereby revoke all former Wills and testamentary dispositions at any time heretofore made by me.

I APPOINT my nephew Andrew Shannon as sole Executor of this my last Will and Testament and I direct him to pay all my just debts, funeral and testamentary expenses as soon as possible after the date of my death.

I GIVE, DEVISE AND BEQUEATH my dwellinghouse and farm of lands at Moulamill with stock and contents and farm entitlements to my friend Henry Shannon, Brahalish for his own use absolutely.

All the rest, residue and remainder of my property, both real and personal, and wheresoever situate I GIVE, DEVISE AND BEQUEATH to my nephew ANDREW SHANNON for his own use absolutely.

IN WITNESS WHEREOF I have hereunto set my hand to this my last Will and Testament this 22nd day of August Two Thousand and Eleven.’

4

A dispute has arisen as to the proper construction of the specific devise of lands in the will and whether it includes the lands and premises comprised in Folio 22769 only, or the lands and premises comprised in Folio 60662 only, or the lands and premises comprised in both folios.

The Questions
5

The plaintiff seeks a determination of the following questions which it is stated arise on the construction of the will:-

(a) Does the specific devise and bequest to the defendant comprise the real property of the testator comprised in Folio 22769 County Cork only or that comprised in both Folio 22769 County Cork and Folio 60662 County Cork?

(b) Is the specific devise and bequest to the defendant in the will void for uncertainty?

6

The case came before the court by way of notice of motion date 5th November, 2018, in which the plaintiff sought an order pursuant to the inherent jurisdiction of the court for directions as to the manner of trial. The plaintiff further sought an order pursuant to O. 39, r. 4 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court directing that evidence be adduced viva voce from the witnesses intended to be called at the hearing of this action. The motion was grounded on the affidavit of Mr. Kevin O'Donovan, solicitor. The plaintiff contends that as appears from the folios, the lands comprised in each Folio 22769 are separate and distinct although adjoining.

7

The defendant has sworn two affidavits in response to the proceedings. In his first affidavit sworn on 28th March, 2018, he avers that there is no ambiguity in the will. Within the local area and the wider farming community, he states that it is well known that the deceased's farm consisted of the lands in the two folios and a one seventh undivided share in Glanlough commonage. While the folios refer to lands at Glanlough, Moulamill is known locally as the area where the lands are situated and this address coincides with the address of the testator as stated in the will. As there is no ambiguity on the face of the will he does not believe that court intervention is required to ascertain the intentions of the testator. The deceased worked the two adjoining folios and the share in the commonage as one farm. He states that the lands were always accepted as the farm of lands at Moulamill and he is entitled to them under the will. In a further affidavit sworn on 9th July, 2018 and in response to an affidavit of Mr. Raymond Hennsessy, solicitor who drew the will, the defendant avers that the deceased did not own an outside farm and that the lands on the two folios and the commonage are inextricably linked through open gaps and gateways

8

Mr. Hennessy was engaged by the deceased to draw the will. In an affidavit sworn on 26th March, 2018, he states that the deceased attended at his office on 22nd August, 2011. Mr. Hennessy took instructions and prepared an attendance note which he exhibited to his affidavit. The deceased's name and address is recorded in the attendance notes as ‘ John Shannon, Moulamill, Gortlassa, Bantry’. The attendance note then records as follows:-

‘Client called this morning to say he wants to change his will.

He said he wishes to appoint his nephew Andrew as his sole executor.

He wants to leave his farm and dwelling house at Brahalish to his friend and neighbour Henry Shannon who is not related to client in any way.

He wants to leave the residue of his estate to his nephew Andrew Shannon.

I have pointed out to client that Henry with have CAT to pay whenever he takes the inheritance and he is no relation of client.

Client signed the new will in presence of Anne and I.’

9

Mr. Hennessy avers that the deceased's instructions were that his principal residence, and the farm folio upon which it was situate, would form part of the residue of his estate and pass to his nephew, the plaintiff. He did not believe that the deceased intended to devise and bequeath what he describes as both of his dwelling houses and both of his farms to Henry Shannon, the defendant.

10

The dwelling house of the deceased in which he resided at the time of the will and at the time of his death, is situate on Folio 22769. A semi derelict house, uninhabited for in excess of 30 years, is situate on Folio 60662. The last person to reside there was Richard Shannon, who died in 1986. This uninhabited dwelling house is and was known as ‘ Dick's Place’.

11

Given the delays in the administration of the estate, the defendant issued proceedings against the plaintiff in the Circuit Court seeking an order for the administration of the estate and/or in the alternative, an order removing the plaintiff as executor of the estate. The court is not concerned with these proceedings.

12

A notice for particulars was raised by the defendant on 12th April, 2018. Details were sought of all farm accounts of the deceased for a...

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1 cases
  • O'Connell v O'Connell
    • Ireland
    • High Court
    • 26 February 2021
    ...In that context I had been referred to and was mindful of the fact that whilst a similar approach was adopted in Shannon v Shannon [2019] IEHC 400 and oral evidence heard de bene esse, MacGrath J. ultimately decided not to admit that evidence, commenting: “In my view, if anything, to admit ......

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