The construction of conditions attaching to gifts in wills

AuthorAlbert Keating
PositionB.C.L., LL.B., LL.M., D.Litt, Barrister-at-Law
2008] Conditions Attaching to Gifts in Wills 171
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.
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
4 Re Patterson, Dunlop v. Greer [1899] 1 I.R. 324; Re Curtin [1991] 2 I.R. 562
at 573.

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