Court interprets 'lands at Bealalaw' in will to include entire farm via armchair principle and extrinsic evidence.

THE HIGH COURT [2025] IEHC 636 Record no: 2021/5330 P

IN THE MATTER OF THE ESTATE OF WILLIAM DOYLE DECEASED, LATE OF BEALALAW, MYSHALL IN THE COUNTY OF CARLOW

BETWEEN:

PETER MURPHY PLAINTIFF

AND

MONICA BUTLER (OTHERWISE MONICA MURPHY), SEAN ROBERTS, P.J. ROBERTS, MARTIN ROBERTS, GRETTA ROBERTS AND MAURICE ROBERTS

DEFENDANTS

JUDGMENT of Ms. Justice Emily Egan delivered on the 14th day of November, 2025

The background

1. This is my second judgment in this construction suit in respect of the last Will and testament of William Doyle (“the deceased”) of 19th July 2019 (“the Will”). To recap, the deceased, a 77-year-old bachelor farmer died without issue on 12th November 2019. The plaintiff, a nephew of the deceased, is a beneficiary under the Will. The first named defendant, a niece of the deceased, is named as an executor in the will (“the executrix”). She is also the plaintiff’s sister. The second to sixth named defendants, the deceased's sister and his remaining nieces and nephews, are residuary legatees under the will (together “the Roberts defendants”).

2. The deceased's last will and testament is short and provides as follows:

“ I William Doyle of Belalaw [sic], Myshall in the County of Carlow MAKE this as and for my last Will and Testament HEREBY REVOKING all former Wills and testamentary dispositions created in the Republic of Ireland only heretofore made by me…

2. I GIVE DEVISE AND BEQUEATH my dwelling house, farm buildings and lands at Belalaw [sic], Myshall, in the County of Carlow, together with any Entitlements attaching to the said lands, together with all my farm machinery and livestock owned by me at the date of my death to my nephew Peter Murphy for his own use and benefit absolutely.

3. I GIVE DEVISE AND BEQUEATH and APPOINT all the rest residue and remainder of my property of whatsoever nature and kind and wheresoever situate both real and personal or over which I have a power of appointment as between [the Roberts defendants] as join [sic] tenants in equal shares for their own use and benefit absolutely.

3. At the date of his death, the deceased was the owner of registered lands situate at Bealalaw, Myshall in the County of Carlow as described in folio CW11156 (“the folio”). The folio contains four different parcels of agricultural land on four different plans as follows:

The Bealalaw lands

Plan No. 3 contains 8.013 hectares, “situate in the Townland of Bealalaw in the Barony of FORTH, in the Electoral Division of Myshall”. The house where the deceased lived is on the Bealalaw lands.

The Myshall lands

A short distance to the north of the Bealalaw lands (and therefore not contiguous therewith) are two other parcels of lands shown on plans Nos. 11 and 29, containing 6.999 hectares and 6.804 hectares respectively. These lands are described in the folio as “situate in the Townland of

Myshall, in the Barony of FORTH, in the Electoral Division of Myshall”.

The Raheenleigh lands

A short distance to the south of the Bealalaw lands (and again not contiguous therewith), is a parcel of land shown on plan No. 48 containing 6.31 hectares. These lands are described in the folio as “situate in the Townland of Raheenleigh in the Barony of FORTH in the Electoral Division of Myshall.”

4. These proceedings arose out of a dispute between the plaintiff and the Roberts defendants as to how clause 2 of the Will should be construed. The plaintiff argues that it devises to him the entirety of the deceased’s lands comprised in the folio. The Roberts defendants contend that the bequest to the plaintiff is limited to the Bealalaw lands and that the Myshall and Raheenleigh lands fall into residue, to be divided nine ways between the residuary legatees.

5. By judgment of 1st February 2024 (“ my module 1 judgment”), I determined that there was an ambiguity on the face of the Will. In particular, I formed the view that the words "my… lands at Belalaw [sic], Myshall” in the immediately relevant portion of the Will were ambiguous. This clause could refer to only those parts of the deceased’s lands as were situate in the townland of Bealalaw (as contended by the Roberts defendants). Clause 2 could also refer to the entirety of the deceased's residential farm identified by its postal address, which is Bealalaw, Myshall, County Carlow. I determined that the other material parts of the Will, the scheme of the Will and any relevant rules of construction, rules of law and precedents did not resolve this ambiguity. On the contrary, for reasons set out in my judgment, I held that the other material parts of the Will only served to exacerbate the ambiguity in clause 2.

6. As the Will is not clear and unambiguous, I determined that extrinsic evidence may be admitted in accordance with section 90 of the Succession Act 1965 ("section 90"). Section 90 provides that extrinsic evidence shall be admissible to show the intention of a testator and to assist in the construction of (or explain any contradiction) in1 a will.

7. I determined that, in the present module, I would hear all such extrinsic evidence as the parties reasonably wished to tender on a de bene esse basis. In the event of a dispute, I would make a determination on admissibility in the course of delivering judgment.

8. I also noted that some of the evidence which the parties, in particular the plaintiff, had indicated they intended to adduce was not, strictly speaking, extrinsic evidence. Rather, it was evidence which would in any event be admissible under the armchair principle. When interpreting a will under the armchair principle, the court places itself in the testator's armchair and considers the circumstances by which they were surrounded when making the will, to assist in ascertaining their intention. The armchair principle permits the admission of certain evidence such as the location, configuration and use of the lands. This may be contrasted with extrinsic evidence of the testator's intention, such as evidence as to his instructions to his solicitor when making the will. Extrinsic evidence of this latter kind is only admissible in a construction suit if it satisfies the preconditions outlined in section 90. In my module 1 judgment, I noted that evidence as to the manner in which the farm was worked by the deceased, in other words evidence as to the use of the lands, would merely inform one as to the character of the gift bequeathed and was therefore admissible under the armchair rule.

9. After the delivery of the module 1 judgment, the solicitors representing the Roberts defendants made an application to come off record for the second, fourth and fifth named defendants, Sean Roberts, Martin Roberts and Gretta Roberts. As there had evidently been an irretrievable breakdown in relations between solicitor and client, I granted liberty to come off record. In the course of this application, it was also indicated that P.J. Roberts and Maurice Roberts would be playing no further part in the proceedings. Shortly after this, a new solicitor came on record for Sean Roberts, Martin Roberts and Gretta Roberts (“the remaining Roberts defendants”) who instructed counsel to appear on their behalf during the course of module 2.

10. I heard viva voce evidence from witnesses tendered by both the plaintiff and the remaining Roberts defendants, leaving over the question of the admissibility of that evidence. I will now set out the main features of such evidence before considering its admissibility and the effect, if any, it has on the interpretation of the Will.

Witnesses called by the plaintiff

The plaintiff

11. The farm had been in the deceased’s family for three generations. The deceased had worked on the lands all of his life having himself inherited it as a favourite nephew from his own uncle.

12. The total landholding is 69 acres. Twenty acres are located in Bealalaw townland including the house, farmyard and crush, which are the hub of the whole farm. The Bealalaw lands and sheds are used for lambing and housing, testing, dosing, selling and loading of livestock. At the time of the deceased’s death there were a couple of dozen breeding stock and sheep which were moved between the different land parcels by walking them along the roads.

It is common case that there is no contradiction in the will.

13. The plaintiff is very familiar with the deceased's farm which he has been farming since he was about 10 or 11 years of age. The plaintiff said that it was a lot of hard work but that he grew to love it.

14. As the deceased grew older, he was diagnosed with COPD and often struggled to catch his breath if he took any significant exertion. This meant that the deceased relied upon the plaintiff’s help on the farm more and more as the years went on.

15. After he left school the plaintiff went to work for his brother in Carlow who had a cleaning company. However, as this was a family company, the plaintiff still had a lot of leeway and could help on the farm. The deceased viewed hiring outside help as a “cardinal sin” and was therefore reluctant to get any help; even for fencing, draining or shearing.

16. None of the Roberts cousins assisted on the farm in all the time that the plaintiff had worked there. On the other hand, he did acknowledge that Sean Roberts often helped the deceased with household chores and also brought him to medical appointments. So also did the plaintiff’s own mother, Sally Doyle and indeed his sister, the executrix.

17. The earnings annually from the farm would be between €12,000 and €15,000 from the sale of stock and €13,000-€14,000 from entitlements. Overall, the annual income from the farm would be less than €30,000 per annum. The farm was one unit and the three parcels of land were functionally interdependent. In the plaintiff’s view, the farm would simply not be viable if confined to the 20 acres of Bealalaw.

18. The deceased referred to Bealalaw as “home” and was very proud of being from Bealalaw. He would always say he was “of Bealalaw”. He would often explain that “Bealalaw” meant “the mouth of the gorge". The deceased was extremely interested in history and in his family tree and had a wealth of knowledge on the generations of Doyles who been working the land for some 200 to 300 years. The deceased never travelled far from Bealalaw and had never been on a plane or a train.

19. The plaintiff acknowledged that as a geographical descriptor, the Bealalaw lands could represent specific parcels of lands. However, that was not how the deceased used that term. The deceased considered all of his lands as “the Bealalaw lands”; he would say “I'm farming at Bealalaw” or “my farm is at Bealalaw”. When referring to the farm as a whole, the deceased would refer to “Bealalaw”. The deceased would never mention Myshall or Raheenleigh at all. Rather, he referred to different parts of the farm by their different field names. For example, the Myshall lands were made up of the “High Field” and across the road (which he called the “New line”), “Betty Carroll's Field” which included an area known as “Will’s Well”. The Bealalaw lands were referred to by the deceased as the “Slang Field”, the “Fox Cover(t)” and the “Field under the House”. The Raheenleigh lands were referred to collectively as “Kelly's Lands” and included “The Knock”, the “Field beside the Knock” and the “Field at the Road”.

20. The plaintiff states that the deceased was adamant that he would never split up, sell or even lease the lands, even though that would have been lucrative. In his view, the land was not for sites but for farming. The plaintiff rejected the proposition that by 2019 the deceased was more open to splitting up the farm and had discussed this with Sean Roberts. On the contrary, the deceased loved his farm more as he grew older and became ever more intent on keeping it whole.

21. The plaintiff rejected the proposition that the deceased had intended that certain of the Roberts defendants or their children could build houses on the Myshall and Raheenleigh lands all of which had road frontage. He stated that the deceased would never have done that.

22. Shortly after the Will was made, the deceased’s farm house was broken into while he was in hospital. It was put to the plaintiff on behalf of the remaining Roberts defendants, that whilst they were cleaning up after the burglary, Sean Roberts informed the plaintiff of the deceased’s intention to divide up the lands into bits and pieces. This conversation is said to have occurred in the presence of the executrix. The plaintiff responded that this never happened.

23. The plaintiff states that he often spoke with his uncle about the future and recalls several occasions on which his uncle suggested or confirmed that he would leave the farm to him. It is not necessary to detail this evidence at this point.

24. Under cross examination, the plaintiff confirmed that he did not consider himself a client of Clarke Jeffers & Co Solicitors (the firm of solicitors who had drawn up the Will) at that time or indeed to date and that he had not asked Mr. Clarke to prepare a memorandum in relation to the preparation of the Will (as to which see below at para 29).

25. The plaintiff also gave evidence in relation to a meeting attended by several members of the Murphy and Roberts family which was convened by Victor Clarke on 7 th January 2020. It is not necessary to describe the evidence adduced by the plaintiff, Victor Clarke, Sean Roberts or Gretta Roberts as to the course of this fractious meeting. This evidence relates only to the understandings or opinions of those present as to the deceased’s intention in making the Will and, as such, is clearly inadmissible.

William Clarke, solicitor

26. Mr. Clarke qualified as a solicitor in 2007 and is now a partner with Clarke Jeffers & Co Solicitors. He drew up and witnessed the deceased’s Will.

27. Clarke Jeffers had also prepared the deceased’s previous will and testament dated 24th April 1998 (“the 1998 will”), which was drawn up and witnessed by Mr. Clarke’s father, also named William Clarke. I have been furnished with a copy of this will by the consent of all parties. Pursuant to clause

2 of the 1998 will, the deceased bequeathed "my dwelling house together with the normal household contents therein together also with my farm and livestock, farm stock, farm machinery and implements and also my car and any other items on my said farm to [The plaintiff] absolutely." The residue was left to the plaintiff’s sister, the executrix.

28. The deceased rang the office on 18th July 2019 to urgently organise an appointment in relation to his will. It was office policy to see an elderly client without delay when a consultation is requested in relation to a will. An appointment was therefore arranged for 19th July 2019. A search was made in the office for the deceased's previous will. However, due to the short timeframe between the deceased’s phone-call and his attendance at the office, it could not be located. Mr. Clarke did not therefore have the deceased's previous 1998 will in front of him when drafting the Will.

29. Mr. Clarke accepts that he no longer has a full recollection of his consultation with the deceased. However, shortly after the deceased died (on 12th November 2019), the plaintiff advised Mr. Clarke that a query had arisen in relation to the Will, because the deceased had held lands in other townlands as well as in Bealalaw. Mr. Clarke therefore considered it prudent to prepare a memorandum of his consultation when the matter was still clear in his mind. Accordingly, on 26th November 2019, Mr. Clarke prepared a memorandum setting out his recollection of events relating to the drafting of the Will. Mr. Clarke confirmed that nobody had requested him to prepare the memorandum and that he did this of his own volition. This memorandum was put before the court and Mr. Clarke gave his evidence in accordance with same.

30. Mr. Clarke’s evidence is that he asked the deceased precisely what changes he wished to make to his earlier will. The deceased stated very clearly that the only change that he wanted to make was to the residue of his estate, which he had initially left to his niece, the executrix. The deceased now wanted the residue to be split equally between the named residuary legatees. The deceased confirmed that this was the only change that he was looking for, that the executors were to remain the same and that he still wanted his house and lands, together with the stock and entitlements, to go to his nephew, the plaintiff, who had been farming the lands for a very long time.

31. As far as Mr. Clarke could recall, the deceased did not ask for the inclusion of the geographical descriptor, "my… lands at Belalaw [sic], Myshall” in the Will. These words were included because Mr. Clarke asked the deceased where his farm was located, to which the deceased had replied “Bealalaw”. Mr. Clarke asked the deceased if this is where all of his farmlands were located and the deceased confirmed that this was the case. Mr. Clarke was completely unaware that the deceased held lands in other townlands at this time.

32. Mr. Clarke practices in litigation, conveyancing, probate and wills and is thus familiar with testamentary practice. Mr. Clarke acknowledged that his usual custom and practice would be to prepare an attendance note of this meeting. On the other hand, if, as in this instance, the will in question was very straightforward, he would not necessarily prioritise preparing an attendance note. His recollection is that the office was extremely busy on 19th July 2019 and that he omitted to prepare an attendance note.

33. Under cross examination, Mr. Clarke acknowledged that there were certain changes in language as between the 1998 will and the Will, such as for example appointing the plaintiff and the executrix as "executors and trustees", rather than merely as “executors”. However, he stated that such changes were merely a matter of precedent rather than substance.

34. Mr. Clarke did not see a significant difference between the language of the 1998 will pursuant to which the deceased devised his "farm", and the Will in which the deceased devised "his lands". As far as he was aware, the deceased was a farmer who had no lands other than the farm.

35. Mr. Clarke was asked why he had not had recourse to Landdirect.ie to confirm the precise nature of the deceased's landholdings and to ascertain the relevant folio number. Mr. Clarke replied that very few testators used folio numbers in their wills. Folio numbers would usually only be used when it is intended to separate out the lands. In this case, however the deceased was very clear (a) as to where his lands were located, (b) that he wanted all of his lands to go to his nephew and (c) that the only change to his previous will was in relation to the residue.

36. Mr. Clarke was asked why, rather than drawing up a new will, he had not simply prepared a codicil amending the residuary clause. Mr. Clarke’s response was that his usual practice was to redraft a will, rather than preparing a codicil. In any event, one needs the original will in order to draft a codicil. In this case, Mr. Clarke did not have access to the 1998 will and was unsure whether it could be located in early course.

37. Mr. Clarke confirmed that he had not had any dealings with the deceased or with the plaintiff prior to preparing the Will. He did not know either individual personally. Mr. Clarke further confirmed that the deceased presented to him as "absolutely fine", both physically and mentally.

Myles Fitzpatrick of Myshall, County Carlow

38. Myles Fitzpatrick and his father, Tom Fitzpatrick, are neighbours of the deceased.

39. In addition to having land in the Bealalaw townland, the Fitzpatrick's farm is broken up between townlands in a similar manner to the deceased's farm. Mr. Fitzpatrick stated that if he were asked where his farm was, he would say “Bealalaw” where the farmhouse was situated.

40. Mr. Fitzpatrick regularly met the plaintiff, who is the only person he ever encountered helping the deceased on the farm.

41. In Mr. Fitzpatrick's view, the deceased was one hundred percent well in his mind at the time of his death.

42. Mr. Fitzpatrick did not believe for a minute that the deceased would have thought of splitting up his land. The deceased had always been totally unwilling to sell any sites on the land. Mr. Fitzpatrick states that no one, including the Roberts defendants, could persuade the deceased to sell any of the sites.

43. In Mr. Fitzpatrick's view, the deceased's farm was a part-time farm already. It would be impossible to make a living out of the farm if it were split up into the different townlands.

Victor Clarke, Clarke Jeffers Solicitor

44. Mr. Victor Clarke, managing partner of Clarke Jeffers, gave brief evidence concerning the meeting held on 7th January 2020. For reasons already outlined, I do not consider this evidence either relevant or admissible.

45. Mr. Clarke also stated that he himself owned a farm on several townlands and would always refer to the farm as being situated in the principal townland.

Witnesses called by the remaining Roberts Defendants

Sean Roberts

46. Mr. Sean Roberts has lived in Myshall for over 60 years. From the time he was very small, Mr. Roberts used to go, as he put it, "to Bealalaw" and work on the deceased’s farm. He acknowledged, however, that he had not done this in recent decades. None of Mr. Robert’s other sisters and brothersthe remaining Roberts defendants and other residuary legateeshelped out on the deceased’s farm.

47. When asked what the deceased had meant by “my lands at Bealalaw”, Mr. Roberts stated that this referred to "the homeplace in Bealalaw”. If the deceased had said; “I'll see you at Bealalaw”, then Mr. Roberts would have known to meet him at the farmhouse. If the deceased had wanted to meet him in another location, he would identify it by field name. Mr. Roberts stated that that the deceased would say, for example, that he was either going up to “Kelly's lands” or up to

Raheenleigh. Mr. Roberts never heard the deceased describe the lands in Myshall and Raheenleigh as Bealalaw.

48. Bealalaw was the deceased's home and he was very proud of the place. He often referred to himself as dialling “of Bealalaw” when he made a phone call. The deceased had a sentimental attachment to Bealalaw.

49. Mr. Roberts did not dispute that the plaintiff had been farming the deceased’s lands with the deceased from age 10 or 11, in other words for almost 40 years. This was despite the fact that the defence delivered on behalf of the Roberts defendants had pleaded that the plaintiff lives 30 miles away in Carlow, works for a cleaning company and only assisted “occasionally” on the farm.

50. The plaintiff may well have been a particular favourite of the deceased but this changed when he got married. The deceased felt very let down because the plaintiff did not bring his children to see him on a regular basis. In Mr. Robert’s view he was closer to the deceased than the plaintiff, particularly in the last few years. Mr. Roberts had no doubts whatsoever as to the competency and capacity of the deceased.

51. Mr. Roberts did not dispute that over the years the deceased had made it clear that he never wished to divide, sell or lease the land. However, he was adamant that this had changed by the time he made his will. Having said that, I did not understand Mr. Roberts to contend that the deceased had told him what his will contained or what he told Mr. Clarke to draft. Notwithstanding this, Mr. Roberts stated "I know what Willie wanted". The difficulty, however, is that testators will often not reveal their true testamentary intention.

52. It was put to Mr. Roberts that if the lands were to be split up, there would be significant capital acquisition tax liability of €100,000 owing to Revenue. It was suggested that it was implausible that, if instructed to split up the lands, Mr. Clarke would not have either brought this to the deceased’s intention or suggested obtaining tax advice.

53. Mr. Roberts recalls informing the plaintiff and the executrix of the deceased’s intention to divide up the land as referenced at para 22 above.

Gretta Roberts

54. Gretta Roberts is a sibling of Mr. Roberts and another niece of the deceased. She also grew up in Myshall, close to the deceased's farm but had no involvement with the farm.

55. Ms. Roberts accepted that the deceased often referred to himself as "of" Bealalaw. He was very proud to be the last in a long line of Doyles at Bealalaw.

56. Ms. Roberts rejected the proposition that the deceased referred to his farm as Bealalaw. If the deceased wanted to refer to his farm collectively, he would simply call it "my farm". When asked how the deceased described the different parts of his farm, Ms. Roberts stated that the deceased described the Myshall lands as “The Line”. On other occasions, the deceased would say something like “I was up in Raheenleigh” or “there's a bitter wind up in Raheenleigh today”. Therefore, although, often referring to “Kelly's lands” as such, the deceased would apparently often do so by townland. It is not clear to me why the deceased would refer to the Myshall lands by their name (apparently ,“The Line”) but the Raheenleigh lands by their townland.

57. Ms. Roberts said that the deceased was a very exact man. Therefore, if his Will referred to his Bealalaw lands then that is what he intended to leave the plaintiff. Bealalaw was a sacrosanct piece of land and the deceased had chosen to give it to the plaintiff, which the deceased would have seen as a great honour.

58. Ms. Roberts accepted that the plaintiff had a very good relationship with the deceased. However, the deceased had been very hurt that the plaintiff did not bring his children to see him much. He therefore took the view that one of the Roberts defendants or their children might like a site.

Monica Butler

59. Monica Butler, the executrix, was called to address the evidence given by Mr Roberts as to the conversation which he alleges took place concerning the deceased’s intentions (see para 22 and

53 above). She remembers the occasion in question and stated that no conversation ever took place as to would happen to the lands after the deceased died.

Issues for determination in this judgment

60. Submissions were made to the court by the plaintiff, the remaining Roberts defendants and the executor. The submissions of the plaintiff addressed both the admissibility of the various pieces of evidence set out above and their effect on the interpretation of the Will. The primary submission made by the remaining Roberts defendants was that there was no ambiguity in the Will and that correctly interpreted it bequeathed only the Bealalaw lands to the plaintiff and that the remaining lands fell into residue. As such, the Roberts defendants submitted that extrinsic evidence was not admissible to show the intention of the deceased or to assist in the construction of the Will.

61. It is of course correct to say that, if the Will is clear, unambiguous, and without contradiction, then section 90 has no application. The section may not be used for the purpose of rejecting and supplanting the language used in the Will. The Court cannot rewrite the Will in whole or in part. On the other hand, if the Will is not clear, unambiguous, and without contradiction, then section 90 may be used for the purpose of giving the language of the Will the meaning and effect which the extrinsic evidence shows the deceased intended it to have.

62. As stated at paragraph 10 and 11 of the module 1 judgment, all parties were agreed that the present trial would proceed on a modular basis; with module 1 determining the issue of whether an ambiguity existed in the Will such that extrinsic evidence could be adduced, pursuant to section 90, in the construction suit.

63. For the reasons outlined in my module 1 judgment, I have found that the Will is not clear, unambiguous, and without contradiction. Although the use of townland names in legal documents would typically reflect geographic boundaries, this is not necessarily the case where the deceased’s postal addressand the hub of the farmdescribes the property in the same manner as the Will. In short, there is an ambiguity on the face of the Will. In particular, the words "my… lands at Belalaw [sic], Myshall” in the immediately relevant portion of the Will are ambiguous.

64. This issue has already been pronounced upon by the court in its module 1 judgment and is not for resolution in the present module. Therefore, it was not legitimate for the remaining Roberts defendants to seek to re-open this issue.

65. Rather, the court is now concerned to ascertain which parts, if any, of the evidence now tendered to the court are admissible, either under section 90 or pursuant to the armchair principle.

Having so determined, this court must then decide whether, having regard to such evidence as is admissible, it is possible to resolve the ambiguity found to exist in the Will, on the balance of probabilities.

Legal principles in relation to the admissibility of evidence under section 90

66. To be admitted, extrinsic must meet the meet the two prong test set out in section 90 and in Rowe v. Law [1978] IR 55. Thus, extrinsic evidence is only admissible if (a) it is necessary to ascertain the intention of the testator and (b) there is a contradiction or ambiguity on the face of the will. If either condition is not satisfied, this section does not allow the evidence to be admitted. This two prong interpretation of section 90 was upheld by a unanimous Supreme Court in O’Connell v. Bank of Ireland [1998] 2 IR 596.

67. As stated, I have determined that there is a patent ambiguity in the will. Therefore, condition

(b) is satisfied. In light of this ambiguity it is necessary to ascertain the intention of the deceased.

68. As is clear from condition (a), to be admitted such extrinsic evidence must relate to the intention of the deceased, albeit that this evidence will, of necessity, be given by others. Only evidence of the intention of the deceased himself is admissible under section 90, and the views and opinions of others as to those intentions or as to the proper interpretation of the will, as expressed in the witness box, are inadmissible. This was recently confirmed in Goodwin v. Murphy [2023] IEHC

383 in which Stack J. noted that the opinions of others as to what is meant by an ambiguous phrase in a will are not admissible, even though they had knowledge of the background to the drafting of the will, which might, ordinarily, be thought to be of assistance.

69. Furthermore, extrinsic evidence may not be admitted for the purposes of contradicting what the deceased has actually indicated in the will. Instead its purpose is to clarify his intention and to assist in the construction of or explain any contradiction in the will.

70. Moreover, as noted by Butler J. in O’Connell v. O’Connell [2021] IEHC 127, the extrinsic evidence must be capable of establishing the contended for intention on the balance of probabilities.

71. I will commence my analysis by considering the evidence of Mr. Clarke, which for reasons I explain below, I find to be both admissible and highly probative.

Application of legal principles in relation to the admissibility of evidence under section

Admissibility of the evidence of William Clarke

72. There are several reasonably recent examples of cases in which the evidence of solicitors who assisted the testators in the preparation of their wills has been admitted under section 90 as evidence of the deceased’s intention, which satisfies the twofold test for admissibility.

73. In Daly v. Murphy [2017] IEHC 650, uncertainty arose as to the purpose of a trust in the residuary clause of a will which would otherwise have failed for uncertainty. The court admitted extrinsic evidence under section 90 consisting of two attendance notes prepared by a solicitor whom the deceased had attended in connection with the drawing up his will; together with a further letter from the solicitor to the deceased. Gilligan J. determined that, in circumstances where the will admitted of two alternative interpretations, this extrinsic evidence could be admitted for the purpose of clarifying that the deceased intended that the objects of the trust be for both charitable and noncharitable purposes. This in turn meant that the trust could be given effect.

74. Likewise, in Black v. O'Sullivan Centre Limited [2016] IEHC 695 the deceased devised an apartment, together with its contents to Rosemary Black, whom she described as the daughter of her niece, Maureen Black. The plaintiff, Maureen Black, did not have a daughter named Rosemary and submitted that the deceased had incorrectly referred to her daughter Barbara as Rosemary. Several affidavits were sworn by family members and the plaintiff as to the relationship between Barbara Black and the deceased. In addition, the solicitor who prepared the will swore two affidavits. In his first affidavit, he stated that when he met the deceased about changing her will, she requested that one of the changes was to give her apartment to a daughter of one of her nieces, Maureen Black, who had visited her regularly. When the solicitor queried this, the deceased had stated that the original beneficiary was now well off and would still be benefiting from the will in any event. The solicitor also swore a second affidavit exhibiting the written attendance on the deceased. The court permitted the inclusion of all of the affidavit evidence offered, to include that of the solicitor. The court determined that whilst the extrinsic evidence was primarily from family members of the intended beneficiary, its combined effect helped to explain the contradiction that arose as between the will and the identity of the daughter whom the testator wished to benefit. It was therefore admissible and satisfied the two-part test set out by the Supreme Court in Rowe v. Law. The court was satisfied that it was not rewriting the will or changing an ambiguous clause. Rather, it was reading the will with the assistance of the extrinsic evidence and giving effect to the intention of the testator in circumstances where it was clear that there was an error in that the testator’s niece, Maureen Black never had a daughter called Rosemary.

75. Similarly, in Goodwin v. Murphy, the court heard evidence de benne esse from a niece of the deceased who had prepared the will. Ultimately, Stack J. held that the deceased’s will contained no ambiguity and that it was not necessary therefore to admit any extrinsic evidence. However, it is clear that, if the will had indeed been ambiguous, Stack J. would have been prepared to admit the niece's evidence as to the deceased’s instruction on what he wanted the will to say as evidence of his intention. Stack J. likened the evidence of the deceased's niece, who drew up the will, to that of a solicitor taking instructions. Both sets of evidence primarily consisted of the evidence of the deceased’s instructions as to what he wanted included in the will.

76. William Clarke was the instructing solicitor who attended the deceased on 19 th of July 2019.

77. Mr. Clarke’s evidence relates directly to the intention of the deceased himself and moreover is highly persuasive on that issue.

78. Mr. Clarke’s detailed memorandum was not drawn up contemporaneously with or immediately after the drafting of the will, as it should have been. Rather, it was created posthumously, albeit very shortly after the death of the deceased. Notwithstanding this, there is no reason to doubt the authenticity, accuracy or completeness of what the memorandum records. Nor is there any reason to be sceptical of the evidence of Mr. Clarke, a solicitor of considerable experience, as to his consultation with the deceased. The deceased was not personally known to Mr. Clarke but had been a client of his father. Likewise, the plaintiff was not known to Mr. Clarke and was not a client of the office.

79. The memorandum clearly records the deceased’s instructions at the time of making his Will, namely that the only change that he wished to make was to the residuary clause and that all of his lands were to be bequeathed to the plaintiff. Lawyers, particularly solicitors, are experts in taking instructions. Discerning what the client wants is key to a solicitor’s task, particularly when making a will. As counsel for the plaintiff puts it, this aspect of a solicitor’s work is second nature; it is a function that they perform all day, every day; it is a “lock, load, repeat” function.

80. I fully appreciate that section 90 should be narrowly construed to prevent the rewriting of a will based on recollection. However, in light of my finding that the Will is ambiguous, it is appropriate to admit extrinsic evidence. The viva voce testimony and the memorandum of Mr. Clarke’s consultation with the deceased, both provide evidence of the instructions received by him from the deceased as to what amendments he wished to make to his previous will. Both therefore, constitute evidence of the deceased's intention in making his Will. They do not constitute Mr. Clarke's opinion as to the deceased’s intention but comprise Mr. Clarke’s record of the deceased's communicated intention. I therefore find that both these pieces of extrinsic evidence meet the two fold test for admissibility and are therefore properly admissible pursuant to section 90.

81. I have determined that the Will admits of two alternative interpretations: the one contended for by the plaintiff, in which all of the lands are bequeathed to him and the present farm continues as a going concern and that contended for by the remaining Roberts defendants in which the lands are split and the Myshall and Raheenleigh lands fall into residue. As such, Mr. Clarke’s extrinsic evidence is not admitted for the purposes of contradicting what the deceased has actually indicated in the Will, but to clarify his intention.

82. Overall, I find that Mr. Clarke's testimony, which is independent and professional evidence of some weight and which, furthermore, is corroborated by his memorandum, is both admissible and, as I shall shortly explain, probative. These pieces of evidence therefore surpass the balance of probabilities standard referred to by Butler J. in O'Connell v. O'Connell.

Does the evidence of William Clarke resolve the ambiguity found to exist in the Will on the balance of probabilities?

83. I find that Mr. Clarke's testimony and memorandum are capable of establishing, and do establish, on the balance of probabilities, the contended for intention of the deceased -namely that all his lands would be bequeathed to the plaintiff.

84. Thus, the memorandum drawn up by Mr. Clarke on 26th November 2019, some 15 days after the death of the deceased, records the deceased’s clear instruction that the only change that he wanted to make was to the residue of his estate, indicating that the deceased intended to keep everything else, including the devise of the entire farm, as bequeathed under the 1998 will. Mr. Clarke recorded that the deceased still wanted his house, lands, stock and entitlements to go to his nephew Peter Murphy and noted that Peter had been farming these lands for a very long time.

85. In his oral testimony, Mr. Clarke verified the contents of his memorandum and emphasised that the deceased was very clear in his discussions with him that he wanted all his farmland to go to the plaintiff and not just a portion thereof. There is no reason whatsoever to doubt Mr. Clarke's recollection and record that this is what he was instructed to achieve and that this is what he tried to achieve in drawing up the Will to express this instruction.

86. I also accept Mr. Clarke's testimony that he could not locate the 1998 will on the day of his consultation with the deceased. He therefore did not have sight of the 1998 will when drawing up the will dated 19th of July 2019.

87. This explains why Mr. Clarke did not recommend that the deceased proceed by way of codicil to the 1998 will. It also fully explains the inconsistency in the description of the bequeathed lands in the 1998 will (which bequeathed “my farm”) and the description of the bequeathed lands in the Will (which of course bequeaths “my…lands at Belalaw [sic], Myshall”).

88. Further, Mr. Clarke’s oral testimony and memorandum elucidate the reference to “Belalaw [sic]”. His evidence is that when he asked the deceased where the farmlands were located, the deceased replied “Belalaw [sic]”. The memorandum also records that Mr. Clarke asked the deceased if all of his farmlands were in Bealalaw to which the deceased replied in the affirmative.

89. As in Black, the combination of Mr. Clarke’s oral testimony and his written memorandum explain the ambiguity in the Will as to the identity of the lands bequeathed and show the intention of the deceased in that regard. In accepting this extrinsic evidence and in relying upon it in the interpretation of the Will, the court is not rewriting the Will or changing any clause thereof. It is rather reading the Will with the assistance of the extrinsic evidence and giving effect to the intention of the deceased, in circumstances where it is clear that there was an error in that the deceased’s lands were not in fact all located in Bealalaw.

90. I find it inherently implausible that the deceased would instruct Mr. Clarke to draw up a will leaving his farm “in bits and pieces” but that Mr. Clarke would instead understand and indeed record that the deceased wanted to leave it all to the plaintiff. I also find it implausible that, if the deceased had so instructed him, Mr. Clarke would not have sought to clarify, by reference to folio numbers, the precise identity of the lands to be differently bequeathed. I also find it implausible that had Mr. Clarke been so instructed, he would not have asked about the identity of these specific parcels and the values of same and, furthermore explained to the deceased the tax consequences of proceeding in this manner.

91. As importantly, the remaining Roberts defendants have not even attempted to substantiate any contrary specific instructions of the deceased that could rebut Mr. Clarke's oral testimony and memorandum. I find that Mr. Robert’s testimony about the alleged informal conversations regarding splitting the farm, is unsupported and furthermore is inherently implausible.

92. In summary, this extrinsic evidence is both admissible under section 90 and further, is without more, wholly sufficient to enable and indeed compel me to conclude, on the balance of probabilities, that the intention of the deceased by the words used in clause 2 of the Will, was to devise and bequeath to the plaintiff his dwelling house, farm buildings and the entirety of his farm, being the lands comprised in the folio.

93. In light of my above finding, it is not strictly speaking necessary to consider the admissibility of the remaining pieces of evidence. However, for the sake of completeness, I will briefly explain my conclusions in relation thereto.

Admissibility of the evidence of Peter Murphy, Monica Butler, Sean Roberts and Gretta Roberts

94. Much of the evidence of Peter Murphy (and Monica Butler) is not capable of admission as extrinsic evidence under section 90 as it does not relate to the intention of the deceased himself but to the plaintiff’s understanding, opinion or belief of those intentions. Thus, the plaintiff’s testimony as to the conversations held between himself and the deceased about not wishing to split up the farm (para 20-21 above) and about leaving the farm to him intact following his death (para 23) is inadmissible under section 90. The same is the position in relation to the evidence of both the plaintiff (para 22) and Ms. Butler (para 59) concerning the conversation which Mr. Roberts maintains took place after the break in at the deceased's home in relation to the deceased’s testamentary intentions. For reasons already explained at para 25, the same is the position in relation to evidence concerning the meeting convened by Victor Clarke on 7th January 2020. The evidence of Victor Clarke himself in relation to this meeting (see para 44) is similarly inadmissible.

95. Similarly, I decline to admit the evidence of Sean Roberts in relation to the deceased's expressed intentions in relation to the lands under section 90 (see paras 50 and 51). Such evidence represents the understanding or opinions of Mr. Roberts as to what the deceased intended or should have intended in bequeathing his lands. I adopt a similar approach to the evidence of Gretta Roberts (see paras 57 and 58) who, as the plaintiff also points out, accepts that she did not personally speak with the deceased about his alleged intention to split up the lands into “bits and pieces”. As neither Mr. Roberts nor Ms. Roberts attended or were present when the deceased met with Mr. Clarke, they can only speculate about what was and what was not said in terms of instructions on the making of the Will. Clearly such speculation cannot override Mr. Clarke's direct evidence. Likewise, I will not admit the evidence of Sean Roberts or Gretta Roberts concerning the meeting convened by Victor Clarke on 7th January 2020.

Admissibility and relevance of the 1998 will

96. It is common case that this court can have regard to the deceased’s 1998 will, which is duly witnessed and signed as evidence of testamentary intent at that time. The 1998 will is similar to the Will currently under construction. At clause 2, the testator devises his “dwelling house together with the normal household contents therein, together also with [his] farm and lime livestock farm stock farm machinery and implements and also [his] car and any other items on [his] said farm to [the plaintiff] absolutely.”

97. The plaintiff relies upon the 1998 will, together with an attendance taken on the deceased at the time it was drawn up recording the deceased’s “definite wish” that his farm should not be sold, that it had been in his family for generations and that it was to “stay in his blood”. The plaintiff argues that this underscores the deceased’s persistent long held intention that the farm was to be inherited as a non-divisible unit. This may well have been the deceased's intention at the time the 1998 will was drawn up. However, intentions change over time and I do not think any weight can be placed upon the 1998 will as evidence of the deceased’s intention in 2019.

98. The defendant argues that the alteration in the description of the land bequeathed as between the two wills indicates a positive intention on the part of the deceased to confine the lands bequeathed in 2019 to “the Bealalaw lands”. However, the cogency of this argument is significantly lessened by the fact that, as Mr. Clarke explained, the 1998 will could not be located at the time he drew up the Will. This lessens the weight to be attached to this change in the description of the lands bequeathed. Further, such argument of course runs entirely counter to Mr. Clarke’s evidence that the deceased informed him that the only change that he wished to make to his will was to the residuary clause.

99. Overall, it does not seem to me that the 1998 will provides any particular assistance to the court in construing the 2019 Will.

Legal principles in relation to armchair evidence

100. As McGovern J. observed in Corrigan v. Corrigan [2007] IEHC 367, the court strives as far as it can to give effect to the intention of the testator insofar as this can be ascertained from the will. In so doing the court considers the will by placing itself in the position of the testator sitting in his armchair shortly before his death to see what he was setting out to achieve.

101. Thus, in considering the interpretation of the Will, the court is invited to sit in the deceased's armchair and using his dictionary to ask itself “what is the phrase “my… lands at Belalaw [sic], Myshall” a shorthand for?”

102. In my module 1 judgment, I note that in Goodwin Stack J. determined that evidence concerning the proximity of the deceased's house and lands to her daughter, evidence that the testator's niece used part of the lands to ride her horse and evidence that the testator saw his niece nearly every other day and had a close relationship with her, was all admissible evidence under the armchair principle without the requirements to engage section 90.

103. The plaintiff submits that the following evidence is admissible under the armchair principle to illustrate the character of the gift.

Application of legal principles in relation to armchair evidence

Evidence as to the close relationship between the plaintiff and the deceased

104. The remaining Roberts defendants accept that evidence of this nature is admissible armchair evidence. They also do not dispute its accuracy, although they maintain that the deceased was considerably less close to the plaintiff by the time of his death.

105. It would be wholly unreal to fail to have regard to the relationship between the plaintiff and the deceased. I am of the view that this is admissible armchair evidence and I have had regard to it as such.

The evidence of the plaintiff and Myles Fitzpatrick that the plaintiff assisted the deceased in farming the lands for decades

106. The remaining Roberts defendants accept that evidence of this nature is admissible armchair evidence. It is also uncontested.

107. I am also of the view that this is admissible armchair evidence and I have had regard to it as such.

108. However, I should also say that, as counsel for the Roberts defendants observed, this evidence is entirely distinguishable from evidence, also tendered by the plaintiff, to the effect that the deceased promised the land to the plaintiff (such as that set out at para 23). For reasons already set out above this is not admissible under section 90. Furthermore, it is not on any view, armchair evidence. Accordingly, I have had no regard to this evidence.

The evidence of the plaintiff as to the use of the lands, and in particular the fact that the lands were farmed as a unitary whole

109. Once again, the Roberts defendants accept that this evidence is admissible armchair evidence. I agree and also note that this is uncontested.

110. I am similarly of the view that this evidence (as summarised at paras 11 to 12 and the first part of para 17) is admissible armchair evidence and I have had regard to it as such.

Evidence as to the viability of the farm as a unitary whole and as to its non-viability if fractured into its respective town land units

111. The plaintiff’s evidence, as summarised at para 17 is that the farm would be non-viable if divided up. Sean and Gretta Roberts dispute this evidence.

112. I am in agreement with the Roberts defendants that this does not constitute either armchair evidence or admissible extrinsic evidence for the purposes of section 90. As regards the former, it does not inform one of the current use of the land, but as to alternative uses. As regards the latter, I have no evidence that this is a factor to which the deceased afforded weight. Rather, it relates to the plaintiff's understanding or opinion of the factors which might have influenced the deceased. I accordingly have had no regard to this aspect of the evidence.

Evidence of the plaintiff as to the deceased’s preferred nomenclature for the lands

113. The plaintiff's evidence, summarised at paras 18 and 19- is that the deceased referred to his farm as “Bealalaw” and did not refer to the different portions thereof by reference to their townland. In certain cases, evidence of this kind would be admissible under the armchair principle. However, in this particular case I have concluded that this evidence is not admissible. In the present case, this evidence is not tendered merely to enable the court to understand how the deceased described his lands. It is tendered as evidence of what the deceased means by the phrase “ my… lands at Belalaw [sic], Myshall” in his will. In other words, it is tendered to infer testamentary intention rather than to clarify the character of the property bequeathed. To admit this evidence would blur the line between armchair evidence and extrinsic evidence, leading to an overextension of admissibility. Furthermore, this evidence is hotly contested by the remaining Roberts defendants who maintain that the deceased referred to different parts of his land by townland (see paras 47,

55 and 56 above).

114. Finally, it is not necessary to admit this evidence in any event as, for reasons already explained, the issues arising in this construction suit are fully capable of resolution without recourse to this evidence. I therefore decline to admit this evidence and have had no regard to it.

115. For completeness, I should say that had I considered this evidence to be admissible, I would have preferred the evidence of the plaintiff in relation to the nomenclature used by the deceased.

The plaintiff’s evidence is corroborated by the admissible extrinsic evidence of Mr. Clarke which records that, when asked if all of his lands were in Bealalaw, the deceased confirmed this to be the case. It is also corroborated by the evidence of all parties -including the Roberts defendantsthat the deceased described himself as being “of” or from Bealalaw and was clearly very proud of that fact. I further find that the contention of the remaining Roberts defendants that the deceased referred to different parts of his lands by reference to their town land is unconvincing. The remaining Roberts defendants do not contest that the deceased referred to the fields that were located in the different townlands by the names he had given each one. I find it inherently unlikely that the deceased would describe himself as being “of” or from Bealalaw and would refer to the different parts of his farm by their field names but that he would at the same time also refer to different parts of his farm by townland. This would be a confusing state of affairs and I think it more likely, as the plaintiff states, that the deceased referred to his entire farm as “Bealalaw.” Despite this, for reasons just explained, I have had no regard to this evidence of nomenclature.

Evidence of Myles Fitzpatrick and Victor Clarke regarding the practice of local farmers as to the preferred nomenclature for their lands when located across different townlands

116. Mr. Fitzpatrick and Mr. Victor Clarke confirmed that the practice of rural farmers is that the postal address of the farmhouse is typically used to describe the location of the entire farm. They were not challenged on this evidence.

117. Although this evidence appeared to be non-partisan, which would usually tend to increase its weight, I have ultimately concluded that it does not assist me in determining how the deceased described his lands. I also accept the submission of the defendant that theoretically different farmers in the same area might adopt a different practice in this regard.

118. In any event, for reasons similar to those outlined in relation to the evidence of the plaintiff as to the deceased’s preferred nomenclature for the lands, this cannot properly be characterised as armchair evidence and I have had no regard to same.

Conclusion

119. Under the armchair principle the court places itself in the deceased’s position to appreciate both the character, configuration and use of his property as he would have understood it. For the reasons set out above, I have concluded that several items of armchair evidence are properly admissible. These admissible items of evidence reinforce the impression that the deceased treated the various parcels of his land as a unitary farm.

120. I conclude that the extrinsic evidence consisting of the viva voce testimony and memorandum of Mr. Clarke, properly admitted under section 90, establishes on the balance of probabilities that that the deceased’s intention was to devise all of his lands in the folio to the plaintiff.

121. I am accordingly of the view that the weight of the relevant admissible evidence, combined with the armchair principlewhich allows the court to be informed of the character of the deceased’s landsconfirms that the phrase “lands at Belalaw [sic], Myshall in the County of Carlow” in clause 2 of the deceased's Will does include all the lands comprised in the folio. I therefore conclude that the correct meaning of Clause 2 is as contended by the plaintiff.