Where there's a will, there's a way!

Courts perform balancing-acts of the law everyday, it is one of the most fundamental elements of law. In the constructions of wills, it is no different. According to Doolan Succession is the branch of law governing the devolution of property on the owners death. The most central and fundamental aim of the Irish courts in this area of Succession Law is to realise and materialise the intention of the testator. This however, has given rise to a plethora of theoretical as well as practical problems within the courts. In many instances, the courts are left to decide the true intention of a testator which is of course a hefty and difficult task. As such, the Irish courts have favoured a conservative approach and are paramount on their basic goal of not re-writing the will of a testator. Of course in some circumstances, this has proven to be necessary.

Basic Requirements for a valid will

For your will to be valid, several components must be met. The individual must be aged 18 or over, act of her own free will and be of sound mind, memory and understanding. Further, the will must be in writing, the document must be signed at the end by the testator (or by someone clearly instructed to do so), must be acknowledged in the presence of two witnesses and must be signed by the witness in the presence of the testator.

Principles of Construction

Ever wondered how a Judge ascertains a person's intention from reading their will, especially when said will is filled with complexities, ambiguities and is generally unclear as to who something is meant for? We've all heard the tale of the post officer who managed to get a letter addressed "Yer man from Donegal with the PhD from Queen's University" to the right person, the Courts may not see it as so black and white. In many cases, the task of ascertaining a testator's wishes may be as simple as reading the will out, however undoubtedly uncertainty embeds many wills, due to their insufficient construction and lack of clear guidance. The Courts take an extremely conservative, calculated and careful approach when deciphering the intentions of a testator in order to ensure that those intentions are not in fact impacted or influenced by the Court. The Irish Courts are adamant not to re-write a will.

The case of Heron v Ulster Bank Ltd established the seminal principles of construction, later adopted in the Irish jurisdiction in the case of Re Howell and Bank of Ireland v Gaynor. In the latter case, Macken J summarised the key principles in the construction of a will. The principles highlight the precision of the courts in determining the intentions and meaning of a will, especially in the event of a will which has ambiguous provisions or the wording is unclear. The principles are as follows (sorry for this, but necessary for the exam prep...)

1. The court should read the relevant portion of the will as a piece of English and decide if possible, what it means, giving each word its natural meaning.

2. Look at other material parts of the will and see whether they tend to confirm the plain meaning or whether they suggest the need for modification in order to make sense of the whole, or alternatively, whether an ambiguity in the immediately relevant portion can be resolved.

3. If the ambiguity persists, the court may then have to resort to the rules of construction such as the presumption of early vesting, against intestacy and in favour of equality.

4. See whether any rule of law prevents a particular interpretation being adopted and,

5. Draw assistance from the opinion of other courts on similar words.

It is pertinent to note that the Irish Courts are against the re-construction, re-wording of a will and will ensure that they are not influencing the expression of the testator. In this respect, a court will not lightly interpret that a testator meant to express something contrary to the written words embedded in their will. The court, therefore, tend to stay strictly within the confined of the four corners of the will when examining a testator's intentions. There are, however, exceptions to that rule...

Extrinsic Evidence & the Armchair Principle

Before the Succession Act [1965], the courts generally did not allow for the admittance of extrinsic evidence. This is because a will had to be in writing and the testator's intention was though to be ascertained from that exact writing. Section 9 of the Wills Act [1837] governed the rule requiring a written instrument for wills of both realty and personalty and as such, it was an inflexible rule of construction that where ambiguities were evident within a will, the admittance of extrinsic evidence in the court was inadmissible due to the fact that it would substantially override the intention of the testator (Brady, 1980). It was therefore a statutory requirement that the will in its entirety was the only evidence of the testator's intention, which subsequently prohibited the courts from admitting any further evidence to establish a contrary intention, or to clarify a mistake or ambiguity within the will. As such, the language and written word employed by the testator in the construction of a will, including the persons and property associated in the will, reflected the factual intention of the testator.

In circumstances where the courts decide to step outside the confined of the written word of a will is where there is latent ambiguity on the face of the will which is known as the "armchair principle". The armchair principle basically means that the Courts position themselves in the shoes of the testator at the time and circumstance that the will was written. In doing so, the courts are attempting to ascertain what the testator really meant in a will that is vague or cryptic. Only in such circumstances will a court allow external evidence to be placed before them to aid the process of ascertaining the testator's true intentions.

Case law has been paramount, as ever, in guiding the armchair principle. For example, in the case of Thorn v Dickens, the testator made reference to his "mother." The exhibit of extrinsic evidence however adequately demonstrated that the testator had in fact meant his wife, who he commonly referred to as "mother" (being the mother of his children). In a similar case, Healy v Healy, the court allowed the admittance of extrinsic evidence to determine which nephew a testator had given his legacy to. The testator in this case had two nephews by the name of Joseph Healy (although to be fair, I don't see how he didn't see such confusion arising!) Nevertheless, what the cases show is that neither of these ambiguities could realistically have been clarified through the Judge merely placing herself in the shoes of the testator. Extrinsic evidence was paramount in securing the clarification through the courts, a reference to the will is not enough in some circumstances. However, if an ambiguity can be clarified via mentioning of other parts of the will, then extrinsic evidence will not be admitted.

Other circumstances which owe themselves to the admittance of extrinsic evidence in court is when a will appears to have a blatant inaccuracy contained within it, meaning that the description in the will does not actually represent or accurately apply to one person or thing. In such circumstances, the courts are obliged to reject the inaccurate part of the will so what remains may apply accurately to one person. The case of Re Plunketts Estate is a good example of this. In this case, the description within the will included the line "to MF now living in France with her Uncle M." The Court heard that MF was not living in France and she never had done so. Rather, her sister CF was living in France under her Uncle M. Despite however, the Court allowing the admittance of this extrinsic evidence, it continued to hold in favour of MF, as the Judge expressed that the evidence admitted was inconclusive. In the similar case of Re Callaghan, the court held that the phrase "to my god-daughter, JW" should be constructed so that the legacy went to is goddaughter who was in fact AW. Undoubtedly, it will be to the courts discretion to decide which part it finds inaccurate in a statement or description, and which person the testator ultimately intended to describe.

Patent ambiguity

As I have emphasised, the Irish courts have taken a strictly conservative approach to the construction of wills and in particular, the refusal to re-write a testator's will or intention. However, there are circumstances when their is no other option but for the court to remove ambiguities in a will or to re-write a section in the will. The courts have demonstrated a willingness to allow extrinsic evidence in order to establish the true intention of the testator when faced with difficult ambiguities or particular vagueness in a will. In the modern era, the courts have continued to reiterate their reluctance to interfere with the written expression of a testator, unless a clear ambiguity prevails and as such they must step in.

When there is a provision which is thought to be an error in the will (patent ambiguity), yet it is clearly addressed to a certain individual, the court will state that extrinsic evidence is inadmissible. The reason for this is the opinion that to admit such evidence would be to add something new to the will. In the case of Re Julian [1950], the testator made a bequest to a Protestant lady at "the Seamen's Institute, Sir John Rogerson's Quay, Dublin." However, two Seamen's Institutes existed, one that was Protestant (located on Eden Quay) and one that was Catholic (the one located on John Rogerson's Quay). The bequest was claimed by both organisations. The executors issued a construction summons at the hearing of the matter, seeking to prove the intention of the testator by requesting to admit extrinsic evidence highlighting the testator's religion as a protestant and that he intended for the bequest to go to the Seamen's Institute on Eden Quay, the court rejected their argument stating that to allow such admittance of evidence would be unnecessary as the instructions within the will were clear and no ambiguity existed. The bequest was therefore made to the Catholic Institute. Kingsmill Moore J held (albeit reluctantly) that:

"This is by no means the first - and equally certainly, will not be the last- case in which a judge has been forced by the rules of law to give a decision on the construction of a will which he believed to be contrary to the intentions of the testator. The law reports are loud with the comments of judges who found themselves in a similar plight; but I consider the law to be well established . . . and, in the absence of such evidence, I must hold that the Catholic Seamen's Institute is entitled to the bequest." The admissibility of extrinsic evidence is governed under Section 90 of the Succession Act [1965]. The marginal description within the Act has led the Chief Justice to the assumption that it was meant to redress the law deplored y Kingsmill Moore J in the Re Julian case. Section 90 provides that "Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will."

As noted by J.C Brady (1980), the responsibility fell on Parke J to construe the meaning of Section 90 in the subsequent case of Bennett v Bennet & others [1978]. In this case, the deceased had left his lands to his wife to the remained of his life and thereafter upon her death, to his nephew (Dennis Bennett) for his exclusive enjoyment. However, it was later found that the testator had no nephew with the name of Dennis Bennett with the only relative of that name being his brother. The wife expressed that the will should not be held in favour of Dennis Bennett and that it should be made void due to the patent ambiguity of the statement. Further, the deceased nephew named William Bennett, stated that he should be allowed to adduce evidence to show that the testator had meant for him to be the beneficiary and executor of his will upon his wife's death. Parke J held, guided by section 90, that such evidence was admissible "bearing in mind that the onus of proof rests upon he who asserts such a proposition." Parke J concluded in considering the entirety of the facts presented, that the intention of the testator was clear that it was William Bennett who should inherit his estate upon the death of his wife.

Seminal cases

Parke J.'s interpretation of section 90 is an important one, and one which is further consolidated by Kenny K in Supreme Court case of Rowe v Law [1978]. In this case, the ambiguity lay in the terms of the will. The court held that the terms of the will as written by the testator was clear and unambiguous and as such, extrinsic evidence should not be adduced to show any contrary intention. Henchy J found that there was a double requirement inherent in section 90, being that there must be a) a contradiction in the will and b) that the extrinsic evidence can demonstrate the intention of the testator to aid in its construction. As such, Henchy J rejected the the contention that it was sufficient for extrinsic evidence to be admissible simply because it shows the intention of the testator, as this would enable additional terms to be included in a will which would go against the requirements of a will as set out in Section 78 of the Act.

Following the case of Rowe was the case of Crawford v Lawless and O'Connell v Bank of Ireland. In the latter case, Keane J rejected the submission that section 90 allowed the admission of evidence just to show the testator's intention. In his judgement, Keane J stated that this would enable the court to not merely resolve "ambiguities or uncertainty in the language used, but to supplement, and even to contradict, what the testator had actually said, however clearly and unambiguously, in the will itself". From this, it is absolutely clear that unless there is an ambiguity requiring clarification, there will be no admittance of extrinsic evidence to show a contrary intention by the testator. In the case of Lynch v Burke [1999], an application was made to admit extrinsic evidence was allowed as it enabled the clarification of an ambiguity involving how the residue of the testator's estate would be appropriated. The case again clarified that extrinsic evidence will only be admitted if it’ll help the case.

In the more recent case of Thornton v Thornton [2012], the testator made a bequest to "Mayo County Council (Ballina area) workers." This was deemed void by the courts who viewed the evidence admitted highlighting the testator's friendly relations with the workers as inadmissible as it did not satisfy the second condition established in the case of O'Connell v Bank of Ireland. Specifically, it does not show what the intention of the testator was in the particular context, but rather only reflects an opinion and beliefs of the witnesses. To construe the will on such a basis would be effectively re-writing the will, and as demonstrated, they are vehemently against performing such practice.

Concluding thoughts

It is clear that the Irish courts do not part-take lightly in the re-writing or construction of wills. Case law evidences this, suggesting that courts lean towards testacy, ie applying the terms of a will, but will not engage in re-writing the will. As such, it is paramount for individuals to be as clear as possible, using simple language, in the construction of their will in order to avoid such issues in court. An application to admit extrinsic evidence are possible, as demonstrated above, however for success they must target the principles of Macken J as well as the necessary points expressed by Henchy J in the leading authority of Rowe v Law. There is a difficult balancing-act in which the courts must entertain with such applications, however ultimately, the court will not part-take in any exercise which will in any way re-write or override the intentions of a testator.

- Me thinking about writing a will even though I have absolutely no valuables to give to anybody