Recent case law re-iterates the requirements for the admissibility of extrinsic evidence to determine the intention of the deceased where there is ambiguity in a will.
The making of a will is an important legal task but unfortunately it can often be left to the last minute, approached with haste and without due consideration. The primary purpose of a will is a definitive statement regarding the distribution of a person’s assets on their death. It therefore needs to be clear, concise, definitive and unambiguous.
The legal personal representative is obliged to administer the estate, in accordance with the terms of the will. Where terms are ambiguous court intervention may be required.
When a court is asked to intervene in the interpretation of specific clause(s) in a will, the primary duty of the court is to give effect to the intention of the testator as can be ascertained from the terms of the will. The will is often read as a whole so therefore the general intention overrides the particular one. There is great distinction however between rewriting a will, which a court cannot do, and making alterations, which they can do, so as to ensure the will is consistent with the testator’s intention.
Where there is an ambiguity in a will and extrinsic (external) evidence will assist in the construction of the will and show the deceased’s intention, Section 90 of the Succession Act 1965 is used as a guide. Section 90 sets out in what circumstances extrinsic evidence is admissible. If a will cannot be construed from its own meaning then outside evidence can be adduced, but only if:-
a) There is a contradiction or an ambiguity in the will
b) Its admission will assist in gleaning the intention of the deceased and assist in the construction of the will.
Wills should be clear and definitive. Examples of bequests which have been held to be void for uncertainty include a bequest of “some of my best linen”, and “a handsome gratuity to be given”. These bequests all lacked substance and certainty.
In the case of Bennett v Bennett the deceased gave his farm to his wife for life, with the remainder to his nephew “Denis Bennett”. The deceased had no nephew called Denis Bennett, but did have a brother named Denis, and a nephew named William Bennett. In this case extrinsic evidence was admissible to show that William Bennett was the intended beneficiary.
A recent case involving a home-made will of Dr. John O’ Donoghue was so entirely devoid of certainty, that the entire will failed resulting in an intestacy (where the deceased is treated as having made no will and legislation, the intestacy rules, are applied to distribute any estate). The court viewed the will as the perfect illustration of how a person should not make a will. The will was perfectly valid in its execution, but the terms of the will were utterly unclear and incapable of interpretation.
The terms of the will were as follows:-
I leave all my worldly possessions to Josie O’ Donoghue, my mother, to be divided equally and fairly between my family, with special care (&) extra help to be given to Mary O’ Donoghue, my sister. Also gifts of money to be given to Olivia (&) family & Marian O’Brien. Smaller gifts to Downey, Ethel, Sheila & Pat O’ Brien Laurie Johnston, Ellen Wingard, Deirdre O’ Dongohue.
As the will failed all of the named beneficiaries failed to inherit anything! This startling outcome reinforces that a will must be clearly and unambiguously drafted.
In the matter of the will of Evelyn Tomlinson, a specific bequest was made in the will to the National Society of the Prevention of Cruelty of Animals (Dogs and Cats Home), 1 Grand Canal, Quay, Dublin. However there was no such entity in existence. There were however two bodies, namely the Dublin Society for the Prevention of Cruelty to Animals and the Irish Society for the Prevention of Cruelty to Animals. The court allowed the admissibility of extrinsic evidence as a clear ambiguity existed and there was a legitimate dispute as to the meaning of the effect of the language used in the will. Extrinsic evidence showed that the deceased subscribed to the Dublin Society, and the Dublin Society owned the premises at 1 Grand Canal Quay, and operated the Dogs and Cats Home from that premises, before it moved elsewhere. On the balance of probabilities, the court leaned towards the Dublin Society for the prevention of Cruelty to Animals as the intended beneficiary.
Recent Case Law
In the case of Maureen Black v Anne Sullivan Centre Ltd, Our Lady’s Hospice and Family Solidarity Ltd (2016) the deceased in her will left an apartment at 41 Block C, Sydney Parade Avenue, Sandymount, Dublin 4 to:-
Rosemary Black (daughter of my niece Maureen Black of 51 Beechpark Ave, Castleknock, Dublin 15).
The difficulty arose as Maureen Black had no daughter Rosemary Black. She did have a daughter named Barbara Black and indeed that name was used in further sections of the will, not related to this specific bequest. Extrinsic evidence was admissible to show that Barbara Black had spent considerable time in the company of the deceased, and had built up a strong rapport and relationship with the deceased over many years and that she was the intended beneficiary.
Had the bequest failed to take effect, then it would have fallen into the residue of the estate and benefited the charitable recipients of the residuary estate. Clearly this was not the intent of the deceased, in that she wished to benefit one of the daughters of Maureen Black, and external evidence was admissible to explain the ambiguity and to clarify the intention of the deceased.
There is clear case-law to suggest courts lean towards testacy (applying the terms of a will), but not so far as to rewrite a will. Clearly it is advisable to be clear, definitive in the terms of your will, and to use plain and simple language. When describing assets and beneficiaries it is better to over-emphasise their description. In describing a beneficiary such as niece or nephew it is best to state the name and then the relationship with the brother or sister of the deceased, for example: Joe Bloggs (son of my brother David Bloggs) – lest there are more than one nephews by that name.
Applications for extrinsic evidence to be considered have cost implications for the estate so it is prudent to ensure the will is correct and unambiguous in the first instance so that such applications are unnecessary.