Thornton v Timlin

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 13 June 2012
• Neutral Citation: [2012] IEHC 239
• Court: High Court
• Date: 13 June 2012

[2012] IEHC 239

THE HIGH COURT

[No. 752SP/2011]

Thornton v Timlin

IN THE MATTER OF THE SUCCESSION ACT 1965

AND

IN THE MATTER OF THE ESTATE OF THE LATE EDWARD J. RAFTER, DECEASED

BETWEEN

MICHAEL THORNTON

PLAINTIFF

AND

BY ORDER MICHAEL TIMLIN

DEFENDANT

SUCCESSION ACT 1965 S89

WILLS ACT 1837 S24

MARTYN & ORS THEOBALD ON WILLS 16ED 2001 PARA 18.09

SUCCESSION ACT 1965 S90

O'CONNELL v BANK OF IRELAND & ANOR 1998 2 IR 596

SUCCESSION ACT 1965 S91

SUCCESSION ACT 1965 S99

HERON v ULSTER BANK LTD & ORS 1974 NI 44

HOWELL v HOWELL 1992 1 IR 290 1992 ILRM 518 1992/2/523

CORRIGAN v CORRIGAN UNREP MCGOVERN 2.11.2007 2007/11/2261 2007 IEHC 367

O'DONOHUE v O'DONOHUE UNREP GILLIGAN 1.12.2011 2011/41/11720 2011 IEHC 511

B (E) v S (S) & MCC (G) 1998 4 IR 553 1998 2 ILRM 141 1998/1/212

PROBATE

Will

Construction - Bequest - Object of bequest - Intention of testator - Extrinsic evidence - Whether admissible extrinsic evidence available - Whether bequest void for uncertainty - Heron v Ulster Bank Ltd [1974] NI 44 followed - O'Connell v Bank of Ireland [1998] 2 IR 596 considered - Succession Act 1965 (No 27), ss 89, 90, 91 & 99 - Bequest void (2011/752SP - Laffoy J - 13/6/2012) [2012] IEHC 239

Thornton v Timlin (by order)

Facts A testator had died without issue and his personal representative (the plaintiff) sought orders from the court determining the true construction of a provision in the will. The bequest at issue involved the granting of a sum to "Mayo County Council (Ballina area) workers" and the issue fell to be decided as to whether the intended beneficiaries could be properly identified or whether the request was void for uncertainty. Submissions focused on s. 90 of the Succession Act 1965 which provided that extrinsic evidence was admissible in order to show the intention of the testator.

Held by Laffoy J in making the following order: The primary duty of the court in construing a will was to ascertain and give effect to the intention of the testator. It was not possible to identify the workers whom the testator intended to benefit, either from the plain meaning of the bequest on its own or in the context of the will as a whole. Section 90 of the 1965 did not provide assistance as there was no admissible extrinsic evidence as to whom the testator intended to benefit. The bequest was therefore void for uncertainty.

1 Judgment of Ms. Justice Laffoy delivered on 13th day of June, 2012.

The proceedings

2 1. In these proceedings, which were initiated by special summons which issued on 11 ^th November, 2011, the plaintiff, who is a personal representative of Edward Rafter (the Testator), seeks orders from the Court determining the true construction of a provision in the will of the Testator. The Testator died on 27 ^th June, 2006 at the age of eighty two having never married. He died without issue. He made his last will and testament (the Will) on 10 ^th August, 1983. Probate of the Will was granted on 16 ^th November, 2009 to the plaintiff, the surviving executor named therein. Before dealing with procedural matters, it is appropriate to outline the provisions of the Will to put in context the provision which has necessitated the initiation of these proceedings.

The provisions of the Will

3 2. The person appointed co-executor with the plaintiff in the Will, who did not survive the Testator, was Reverend Canon Martin MacManus of Bonniconlon, Ballina, County Mayo. Having directed his executors to pay his debts, funeral and testamentary expenses, the Testator made the following bequests:

4 (a) a bequest of certain shares to the trustees of Bonniconlon GAA Club "to be used for the benefit of the Club";

5 (b) the sum of IR£500 to the Committee in charge of Killaser Community Centre to be used for charitable purposes;

6 (c) the sum of IR£500 "to Mayo County Council (Ballina area) workers", being the bequest which has given rise to these proceedings;

7 (d) the sum of IR£500 to "the Association for the Blind, Hatch Street Dublin", to which bequest there was added the rider: "I forget the precise name of the organisation";

8 (e) the sum of IR£200 to the Wireless for the Blind Association;

9 (f) the sum of IR£500 to Divine Word Missionaries for charitable purposes;

10 (g) the sum of IR£500 to the Parish Priest for the time being in Knock for charitable purposes;

11 (h) the sum of IR£500 to the Parish Priest for the time being in charge of the Church on Croke ( sic) Patrick for charitable purposes;

12 (i) the sum of IR£1,000 to the Bursar in St. Murdach's ( sic) College Ballina "for a trust to be used to help a pupil most in need of financial help and assistance";

13 (j) the sum of IR£1,000 to the Vocational Educational Committee for County Mayo on trust to help a pupil in Ballina Vocational School who is in need of financial help and assistance; and

14 (k) the sum of IR£500 to "the Boy Scouts Organisation in Ballina".

15 The residuary clause in the Will was in the following terms:

"All the rest residue and remainder of assets are to be realised and invested in Prize Bonds and all of the beneficiaries in my Will are to benefit equally from them."

16 3. At the commencement of the Will the Testator was described as late of an address in Ballina and as "County Council Employee".

17 4. According to the grant of probate, an Inland Revenue Affidavit had been delivered, which showed that the net value of the estate amounted to €368,213.21. The Court was informed that the residue for distribution will be approximately €250,000.

Procedural matters

18 5. In the special summons, in which the Manager of Mayo County Council was originally named as defendant, the plaintiff seeks an order determining the true construction of the bequest to "Mayo County Council (Ballina area) workers", and, in particular, the identification of the beneficiaries of the bequest. The plaintiff also seeks such necessary ancillary orders as may appear to the Court to be just and equitable having regard to the provisions of the Succession Act 1965 (the Act of 1965) and to all of the circumstances of the case.

19 6. The special summons was grounded on a short affidavit of verification of the type appropriate to a probate action, which was sworn by the plaintiff. It was also grounded on affidavits sworn by -

20 (a) Michael Timlin, a former work colleague of the Testator as an employee of Mayo County Council; and

21 (b) John Brogan, an employee of Mayo County Council, whose late father had been a work colleague of the Testator, and who was a godson of the Testator.

22 7. In response to the special summons, Kieran Joyce, the Acting Senior Staff Officer of Mayo County Council, swore an affidavit in which he set out the following facts:

23 (a) that the Testator had been employed by Mayo County Council as a "Ganger" working as a member of the Council's outdoor staff in Ballina, County Mayo from 19 ^th September, 1945 until he retired on 2 ^nd February, 1990; and

24 (b) that Mayo County Council does not use the term used by the Testator in his Will, that is to say, "Mayo County Council (Ballina area) workers".

25 Mr. Joyce exhibited two lists of staff employed by Mayo County Council, namely:

26 (i) A list of staff employed in the Ballina area at the date of the death of the Testator, 27 ^th June, 2006, distinguishing "Outdoor" employees, "Indoor" employees and "Professional/Technical" employees. In the "Outdoor" category there were in excess of seventy workers listed, including, obviously, clerical and administrative workers.

27 (ii) A list of staff employed in the Ballina area as at 18 ^th January, 2012, which list included clerical/administrative staff, outdoor staff and professional/technical staff. That list also included in excess of seventy outdoor staff, including a number of female staff, whom I assume perform clerical functions.

28 8. By order of the Court, Mr. Timlin, being a former co-worker of the Testator, has been substituted as defendant for the Manager of Mayo County Council.

29 9. In his capacity as defendant, Mr. Timlin swore a supplemental affidavit on 20th April, 2012. At the hearing of the action on 23 ^rd May, 2012, Mr. Timlin gave oral testimony. Before considering Mr. Timlin's evidence, I propose outlining what I consider to be the relevant provisions of the Act of 1965 which govern the approach the Court must adopt to construction of the provision in the Testator's Will which the Court has been asked to construe and the consequences of a particular construction and the relevant legal principles.

Relevant provisions of the Act of 1965 and legal principles

30 10. Section 89 provides as follows:

"Every will shall, with reference to all estate comprised in the will and every devise or bequest contained in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will."

31 The words to which emphasis has been added in the above quotation were not in the corresponding section of the Wills Act 1837, s. 24. There is a marginal note in the Act of 1965 opposite s. 89 to the following effect:

"Will to speak from death of testator.

2 [1837] (c . 26) s. 24 extended so as to overrule Wild's case (1599) … ]".

32 While it is unnecessary to address the intricacies of Wild's case here, it is important to emphasise that, unlike the application of s. 24 of the Wills Act 1837 in the United Kingdom, where it applies with regard to the subject-matter of a...