In the matter of the estate of Mary Frances Collins.

And in the matter of the will of the said Mary Frances Collins.

And in the matter of an application by Joseph and Alma O'Connell.

Joseph O'Connell and Alma O'Connell (plaintiffs) v The Governors and Company of the Bank of Ireland and the Bank of Ireland Trustees Company Limited (defendants).

Will - Construction - Omission - Admissibility of extrinsic evidence - Succession Act 1965 (No 27), section 90.

The High Court (before Mr Justice Barron): judgment delivered 27 March 1996.

EXTRINSIC evidence has always been admissible to prove the fictum of a will but not as to its contents. If no ambiguity exists or if it does not appear that the intention of the testatrix has been frustrated, there is no ground for construing the will other than in accordance with its terms.

The High Court so held in refusing the plaintiffs' application for a declaration that they were entitled beneficially to the home of the testatrix because, notwithstanding what they had been told, the will provided only for them to receive the contents of the home.

Patrick Hanratty SC and Brian E. Spierin BL for the plaintiffs; Jerry Healy SC and John Gleeson BL for the defendants.

MR JUSTICE BARRON outlined the facts of the case as follows. The husband of the testatrix had died in March 1991. On several occasions prior to his death the testatrix and her husband had made joint wills leaving their respective estates to each other. They had also provided for alternative dispositions in the event of the other having already died. After her husband's death, the testatrix executed a codicil to her will; however she did not refer to her husband's death. It would appear, from the evidence given, that the terms of the codicil were, bin part at least, prompted by the desire to carry out her husband's wishes.

The testatrix made a new will in December 1993. In this will, she bequeathed the contents of her home to the plaintiffs. The will made no reference to the home itself. Before going to her solicitor, she discussed part of what she intended to do with a very close friend. She told this friend that she intended to leave her house to her husband's godson and his wife, the first and second plaintiffs respectively. Her friend advised her to leave the contents to the plaintiffs also; otherwise they would not be entitled to them. In evidence, this friend recalled that on the evening of 15 December 1993, the day on which the testatrix had made her will, the testatrix confirmed to her that she had made a new will in which she had left house and contents to the plaintiffs.

The testatrix discussed the terms of her new will with her solicitor on 12 December. Although the plaintiffs' address had appeared on a will made by the testatrix six years previously she did not know the plaintiffs' address and had to telephone the plaintiffs' home to obtain the information. She was then in a position to furnish the solicitor with this address. This fact is verified by a telephone message form. When she obtained the address, she told the second plaintiff that she had something private to discuss with her and her husband. The testatrix went to the plaintiffs for Christmas dinner; after dinner she told them that she had left her house and contents to them.

Mr Justice Barron said that in effect, the plaintiffs were seeking a declaration that they were beneficially entitled to the home of the deceased because, notwithstanding what they had been told, the will only provided for them to receive the contents of the home.

In the opinion of Mr Justice Barron, an issue had arisen in the case as to whether the court could accept the evidence given as being the proper construction of the will of the deceased.

Counsel for the plaintiffs expressly disclaimed any right to adduce this evidence pursuant to the provisions of section 90 of the Succession Act 1965. Counsel accepted that Rowe v Law [1978] IR 55 was binding on the court and was authority that extrinsic evidence of intention would not be admissible unless at the same time there was some contradiction in the will.

Counsel for the plaintiffs sought to rely upon the decision in Curtin v Mahony [1992] 2 IR 562 where the deceased had made provisions for the distribution of her estate in the event of her home having been sold. However, the will did not provide for similar distribution in the event of the home not being sold. In that case, the Supreme Court held that the intention of the testatrix was clear and that the will should be construed so as to give effect to that intention. In fact, the house had not been sold nevertheless, the Supreme Court construed the will on the basis of the provisions of the house being sold.

Mr Justice Barron rejected the submissions of counsel for the plaintiffs and decided that the principles of Curtin v Mahony could not apply to this case. In Curtin v Mahony, the court took the view that the will had been badly drafted and the intention of the testatrix should not be frustrated for this reason. The court ascertained the intention of the testatrix from the will itself.

Mr Justice Barron left that the present case was quite different. While there was a specific request bequeathing the contents of the house to the plaintiffs, there is no mention of the house itself in the will. There was no question that the intention of the testatrix had been frustrated in any way by the manner in which the will had been drawn, nor was there any evidence from the will itself that what appeared in the will may not have been the intention of the testatrix. Her intention was frustrated by omission. In those circumstances there were no grounds for construing the will other than in accordance with its terms.

Mr Justice Barron expressed sympathy for the plaintiffs, stating that he had preferred the evidence in their favour. However, extrinsic evidence has always been admissible to prove the factum of a will, but not as to its contents.

Mr Justice Barron felt that while it might have been possible that in her concern to ensure that the contents were left to the plaintiffs, the testatrix might have forgotten to mention the house, he could not accept that the express instructions which she gave her solicitor did not include reference to either her house or its contents.

Mr Justice Barron was quite satisfied on the evidence which he had heard that the testatrix intended to leave the plaintiffs the house as well as the contents. The confusion seemed to arise when her friend strongly advised the testatrix to ensure that she also left the contents of the house to the plaintiffs, as well as the house.

Nevertheless, Mr Justice Barron said that the only order which the court could make was to refuse the declaration.

Solicitors: Margaret Campbell Crowley (Cork) for the plaintiffs; G. J. Moloney & Co (Cork) for the defendants.