The construction of conditions attaching to gifts in wills

• Author: Albert Keating
• Position: B.C.L., LL.B., LL.M., D.Litt, Barrister-at-Law
• Pages: 171-184

2008] Conditions Attaching to Gifts in Wills 171

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THE CONSTRUCTION OF CONDITIONS

ATTACHING TO GIFTS IN WILLS

ALBERT KEATING*

INTRODUCTION

When construing a will, the primary duty of the court is to

ascertain and give effect to the intention of the testator. This is the

one fundamental rule of construction of wills. It was stated by

Dixon J. in Robinson v. Moore1 that: “[i]t is impossible to

reconcile the cases on the basis of such a rule but it is not

impossible to reconcile them on the basis of a rule less generally

stated and more in accordance with fundamental principles in the

interpretation of Wills of endeavouring to ascertain and give

effect to the intention of the Testator”.2

As the words used by the testator will be deemed to have

expressed his intention, the meaning of the words, or the meaning

ascribed to them by the testator, will provide the key to the

discovery of intention.3 The court will not however give a literal

meaning to the words, especially if such a meaning tends to

frustrate the testator’s intention.4 Furthermore, the court when

attempting to uphold a will may rely on the general presumption

against intestacy but in doing so it cannot redraft the will.

In relation to the latter matter, O’Flaherty J. in Re Curtin 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 O’Donnell v. Shuel

and Barham (High Court, unreported, Morris P., 6 May, 1997); see Keating,

The Construction of Wills (Dublin: Round Hall Sweet & Maxwell, 2001),

ch. 1; Keating, Keating on Probate (Dublin: Thomson Round Hall, 2007),

ch. 18; Keating, Equitable Succession Rights (Dublin: Thomson Round Hall,

2005), ch. 18.

3 See Heron v. Ulster Bank Limited [1974] N.I. 44 at 52; Howell v. Howell

[1992] 1 I.R. 290.

4 Re Patterson, Dunlop v. Greer [1899] 1 I.R. 324; Re Curtin [1991] 2 I.R. 562

at 573.