Supreme Court dismisses appeal; will clause creating land interest void for uncertainty falls into residue.

THE SUPREME COURT

[Appeal No. 2007/355]

MacMenamin J.

Laffoy J.

O’Malley J.

IN THE MATTER OF THE SUCCESSION ACT 1965

BETWEEN

EAMONN CORRIGAN

PLAINTIFF/FIRST NAMED RESPONDENT

AND

SEAN CORRIGAN

FIRST NAMED DEFENDANT/APPELLANT

AND

EOIN (OTHERWISE OWEN) CORRIGAN

SECOND NAMED DEFENDANT/SECOND NAMED RESPONDENT

Judgment of Ms. Justice Laffoy delivered on 5th day of October, 2016

Factual and procedural background

1. The High Court proceedings which are the subject of this appeal (Record No. 2006 No. 64SP) were initiated by a special summons

issued on 21st March, 2006 seeking to have the will of Christopher Corrigan (the Testator) construed by the Court.

2. The Testator made his last will and testament (the Will) on 23rd September, 1997. He appointed as his executors three of his sons,

named as “Eamonn, Owen and Sean”, all of whom are parties to this appeal. Having directed his executors to pay his debts, funeral

and testamentary expenses as soon as possible after his death, he went on to make “the following dispositions of my property”. Three

clauses follow, Clause 1 being the clause which the High Court was asked to construe.

3. Clause 1 of the Will in its entirety provides as follows:

“I have 21 statute acres of land in Folio 13658 Co. Westmeath and I have been advised that the said land or part thereof

is zoned for residential and/or industrial development. I direct my Executors to hold the lands upon the following trusts: –

(a) To allow my son Sean to hold and enjoy the profits of the lands for his own benefit until there is acquisition of

my lands for the purposes mentioned above. In such event, the net proceeds of the sale of my lands shall be

divided equally amongst all my children and any section of the farm not so acquired shall become the absolute

property of my son Sean”.

The Testator was survived by five children, his sons Eamonn, Eoin (otherwise Owen) and Sean and by another son, Thomas, and a

daughter, Angela.

4. The remainder of the Will is to be found in Clause 2 and Clause 3. Clause 2 deals with what the Testator referred to as “my

residence situate on half an acre registered on Folio 18004 County Westmeath”. As to that property, Clause 2 provides:

“. . . I direct as follows –

(a) If any one of my three Executors wish with the consent of the other two, to own the said house, then my

Executors can vest it in such son so as to make him full owner of same but on terms that the son who gets the

house will sell his own residence and the net proceeds of such sale shall be paid to my Executors and it is to be

then divided amongst my other four children equally.

(b) If no agreement is reached by my three Executors and if none of them desire to own my residence, then it can

be sold by Public Auction or by Private Treaty as my Executors shall decide and the net proceeds of sale in such

event, I bequeath to my children, Eamonn, Owen, Thomas and Angela in equal shares.”

Clause 3 deals with the Testator’s residuary estate and provides:

“I leave my residuary estate of every kind to my son Owen for his use and benefit”. While no issue arises in the

proceedings as to the proper construction of either Clause 2 or Clause 3 per se, the provisions of those clauses have

been outlined because one of the grounds of appeal is that the High Court failed to interpret the Will as a whole to give

effect to the Testator’s intentions. Taking a broad view of it, the Will as a whole demonstrates that the obvious objective

of the Testator was to treat his five children fairly. However, it must be emphasised that the function of the Court in

construing Clause 1 of the Will is to ascertain the Testator’s intention from the words used by him in the Will.

5. The Testator died on 5th March, 2000. On 10th January, 2002 probate of the Will issued to two of his sons whom he had named as

executors, Eamonn (the Personal Representative) and Eoin (otherwise Owen) (the Residuary Legatee), the third son named as

executor, Sean (the Appellant), having renounced his right to probate. Subsequently, when the issue as to the construction of Clause

1 of the Will arose, the Residuary Legatee, with the leave of the High Court, renounced his right to act as executor of the estate of

the Testator. The position thereafter was that the Personal Representative was sole personal representative of the unadministered

estate of the Testator. The dispute in relation to the testamentary disposition of the property the subject of Clause 1 of the Will,

which is hereinafter referred to as “the farmlands” to distinguish it from the house and lands the subject of Clause 2, was a dispute in

which, as counsel for the Personal Representative submitted, the Appellant and the Residuary Legatee were “the real legitimus

contradictors”. The Personal Representative, in that capacity, properly initiated the proceedings to have Clause 1 of the Will

construed by the High Court.

6. The affidavit evidence put by the Personal Representative before the Court addressed two factual matters which were called in aid

in relation to the construction of Clause 1 of the Will.

7. The first factual matter was the instructions given by the Testator to the solicitor who drafted the Will, Kevin P. Wallace (Mr.

Wallace), a solicitor in the firm N. J. Downes & Co. When the grounding affidavit of the Personal Representative was sworn, Mr.

Wallace was deceased. However, the Personal Representative exhibited –

(a) what were described as “the attendance notes (in hand-written and typed form) dated 26th August, 1997”, and

(b) a letter to the Testator from Mr. Wallace, and

(c) “a draft copy of the will showing one alteration by the [Testator] to its contents”.

8. Those exhibits disclose the following:

(a) The attendance notes record that, in giving instructions to his solicitor on 26th August, 1997, the Testator identified

his children, two of whom, who are not named as executors in his will, Thomas and Angela, were then in Australia. In

relation to the Appellant, he informed the solicitor that he was involved in panel-beating and used the Testator’s shed.

The Testator described his assets as –

(i) “Farm”, which was described as “zoned for residential”, and

(ii) the house, and

(iii) a credit union account.

The “Farm” and the house were described as being on two separate folios. The instructions given as to the dispositions the Testator

intended to make separately itemised the “Farm”, the residence and contents, and the residue. In relation to the “Farm” the

instruction given is recorded as follows:

“Farm to Sean, but if any is sold for residential or commercial purposes then it’s to be divided between all children equally.

Sean can keep what is not required for residential purposes, all 5 to share in such sale money.”

(b) The letter from the solicitor to the Testator was dated 28th August, 1997. It obviously enclosed a draft will. The

Testator was asked to check it carefully and “to drop in” to the solicitor when convenient.

(c) The alteration made by the deceased to the draft will was made to the part of Clause 1 which had been drafted as

follows:

“. . . I have been advised that the said land or part thereof will be zoned for residential and/or industrial

development.”

The word “will” was crossed out and the word “is” was put in manuscript over it. In fact, as is clear from Clause 1 of the Will in its

final form, as quoted above, which was executed just short of a month later, the words “is zoned” were substituted for the words

“will be zoned” in the Will.

9. The second factual matter was the zoning status of the farmlands at the date of the Will, at the date of the Testator’s death, and

when the proceedings were proceeding through the High Court. In an affidavit sworn on 30th April, 2007 by Geraldine Fahy, Planning

Consultant, it was averred that –

(a) the farmlands were zoned agricultural as at 23rd September, 1997, the date on which the Testator executed the Will,

and as at 5th March, 2000, the date of the Testator’s death; and

(b) the farmlands were rezoned in 2005 under the Robinstown Local Area Plan, with the result that –

(i) an area measuring 0.229 acres was un-zoned;

(ii) an area measuring 16.850 acres was zoned special district; and

(iii) an area measuring 3.409 acres was zoned for open space.

Ms. Fahy explained that the area zoned “special district” was intended to be “a business and enterprise district” and residential

development was not permitted in that area.

The questions posed in the special summons

10. In order to understand the approach adopted in the High Court by McGovern J. (the trial judge) in his judgment delivered on 2nd

November, 2007 ([2007] IEHC 367) in identifying the issues and in addressing them, it is helpful to consider the questions in respect

of which the Personal Representative seeks answers as outlined in the indorsement of claim in the special summons. There are fifteen

questions in all, some of which are linked, which can be summarised as follows:

(a) The first three questions are linked, the first being whether the devise in Clause 1 was conditional upon the lands

being zoned for residential and/or industrial development, the second and third questions being based on the assumption

that the answer to that question would be in the affirmative.

(b) The fourth question and the fifth question are linked, in that the fourth question is whether the statement in the Will

concerning the zoning of the land, in the events which had happened, was correct and the fifth, based on the assumption

that it was, asks whether the statement was of no dispositive effect or, alternatively, what (if any) effect it had on the

disposition.

(c) The sixth to tenth questions are linked, the sixth question being whether the disposition to the Appellant was subject

to a condition that there be an “acquisition of my land for the purposes above”. The succeeding questions addressed both

the assumption that the answer would be in the affirmative and also the assumption that the answer would be in the

negative.

(d) The eleventh, twelfth and thirteenth questions are linked. The eleventh asks whether the disposition of the farmlands

created “a determinable fee simple” to the effect that the farmlands vested in the Appellant “until there is an acquisition

of my lands for the purpose mentioned above”. The twelfth question, based on the assumption that the answer to the

eleventh would be in the affirmative, asks whether the event by which the fee simple would determine was void. The

thirteenth question, which was based on the assumption that the answer to the eleventh question would be in the

negative, asks “what nature and extent of interest” did the Appellant acquire in the farmlands. In essence, the answers

to the eleventh and twelfth questions were determinative of the outcome of the hearing of the special summons in the

High Court.

(e) The fourteenth question is whether the disposition of the farmlands to the Appellant was void for offending the rule

against perpetuities.

(f) Finally, the fifteenth question asks whether “[b]y reason of the terms of the bequest, giving rise to failure thereof,”

the farmlands form part of the residuary estate of the Testator.

The judgment of the High Court

11. In his judgment, the trial judge, having explained the factual background and the task facing the High Court, that is to say,

answering the questions raised on the special summons, made some general observations in relation to the statutory provisions

governing the interpretation of a will and, in particular, the application of s. 90 of the Succession Act 1965 (the Act of 1965), which

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”. Having outlined the test for allowing extrinsic evidence to be received in accordance with s. 90,

as laid down by this Court in Rowe v. Law [1978] I.R. 55, the trial judge stated (at para. 13):

“I am satisfied that the clause 1 of the bequest contains a lack of clarity and that there is ambiguity contained therein. I

am also satisfied that the admission of extrinsic evidence is permissible in this case. There is extrinsic evidence to be

found in notes taken by the [T]estator’s solicitor upon taking instructions for the drafting of the will.”

The trial judge also outlined certain general principles which apply to the construction of a will, including the guidelines suggested by

Lowry L.C.J. in Heron v. Ulster Bank Limited [1974] N.I. 44 at p. 52, which he quoted and which have frequently been adopted by the

courts in this jurisdiction, and have come to be known as “the Lowry Principles”.

12. The trial judge then addressed, under the heading “Construing the ‘conditions’”, the issues raised by the first ten questions posed.

He stated (at para. 18) that he had to decide whether the statement in Clause 1 was a declaration of the Testator’s belief (which

was erroneous) or whether it constituted a condition attaching to the bequest, and, if it was a condition, he had to decide whether it

was a condition precedent or a condition subsequent. He stated (at para. 19) that he took the view that “if it is a condition it must

be a condition subsequent”. He also made the point that, if a condition subsequent is found to be void, the beneficiary takes the

bequest freed from the condition, so that if the bequest in Clause 1 “is a condition subsequent and is found to be void for uncertainty

or incapable of taking effect”, the Appellant would take the bequest free from the condition. In the light of the trial judge’s final

conclusions, those statements are obiter.

13. In the summary of his findings, the trial judge reiterated (at para. 27) that, if Clause 1 contains a condition, then it is a condition

subsequent. That finding was immaterial because the trial judge went on to state (at para. 28):

“I am satisfied, however, that the bequest to the [Appellant] in clause 1 does not contain a condition. The use of the

words ‘allow’ and ‘until’ cause me to take the view that the bequest to the [Appellant] is in the nature of a determinable

fee simple. I am satisfied that at common law the Testator cannot, in his will, create a determinable fee simple to the

[Appellant] and then provide that, in the event that a determining event occurs, the land is to pass to someone else. A

testator cannot create a gift over to third parties after a determinable fee. On that ground, the entire limitation and the

entire bequest fails.”

In relation to the penultimate sentence in that quotation, the Appellant, on the appeal, drew this Court’s attention to the comment

made on that finding in Pearce and Mee on Land Law 3rd Ed. (Dublin, 2011) (at p. 84). The authors state:

“This decision overlooked the fact that the common law remainder rules did not apply to gifts by will, which are governed

by the less rigorous equitable rules, although the fact that there was an ambiguity in the description of the determining

event would still have led the gift to fail.”

14. Irrespective of what was stated in para. 28, in fact, the trial judge in the next paragraph (para. 29) stated:

“I am satisfied that the determining event specified in clause 1 of the bequest is void for uncertainty and it follows

therefore, that on this basis, the entire limitation and bequest fails.”

That led to the further conclusion (at para. 31) that the farmlands fall into the residuary estate of the Testator.

15. Understandably, having regard to the sequence in which the questions were posed in the special summons, the trial judge

considered whether the disposition in Clause 1 was subject to a condition and, if it was, the nature of the condition. However, given

the trial judge’s ultimate conclusion that what was created in Clause 1 was “a determinable fee simple”, as has been noted previously,

the specific findings in relation to a fee subject to a condition were immaterial to the outcome of his construction of Clause 1.

16. The trial judge’s analysis of Clause 1 and the presence of uncertainty therein followed on from his consideration as to whether the

disposition in Clause 1 was subject to a condition and, if so, whether it was a condition precedent or a condition subsequent. He went

on (at para. 21 et seq.) to consider the extrinsic evidence which he had found (in para. 13 quoted earlier) was admissible. Having

considered the evidence of the instructions given by the Testator to his solicitor, the draft furnished by the solicitor to the Testator

and the Testator’s slight amendment of the draft, the trial judge stated (at para. 23):

“All in all the position concerning the land is anything but clear. What does seem to emerge from the instructions and the

bequest in the will is that it was the intention of the testator to let his son Sean hold the land if it remained in agricultural

use but that if the land or part thereof was rezoned and sold or acquired at a significantly greater value than agricultural

land then all his children should share in that windfall and Sean would retain such part of the land (if any) as was not

rezoned. That is as much as can be said from looking at the will and the extrinsic evidence to be found in the solicitor’s

notes.”

17. Immediately following those observations, the trial judge went on to state that it seemed to him that a great deal of uncertainty

remained, pointing to the fact that it was not clear what was the zoning of the farmlands as understood by the Testator. In any

event, it was clear at the time of the judgment, on the basis of the evidence in the form of Ms. Fahy’s affidavit which was before the

High Court, that the farmlands were not zoned as understood by the Testator or as “advised” to the Testator and, although part of

the land had been rezoned since his death, it had not been zoned for residential or industrial development. Apart from that

uncertainty, the trial judge addressed the problem created by the use of the word “acquisition” of the farmlands for residential and/or

industrial development, pointing to the fact that it is unclear whether what was envisaged was the lands being compulsorily acquired

for those purposes or whether the Testator intended that, as he believed the farmlands were zoned for those purposes, the farmlands

should be sold and the proceeds divided among the children. The trial judge then elaborated on the problem created by the words of

the Will as follows (at para. 24):

“The problem is that the will does not say that and appears to ‘allow’ Sean to remain on the land and enjoy the profits of

same until they are acquired. When would they be acquired? Could the other children of the deceased compel the

executors to sell the land? I take the view that if clause 1 of the bequest contains a condition, that the condition is

vague and uncertain.”

18. It was at that stage that the trial judge went on to consider the possibility that the estate intended to be created in Clause 1

was a determinable fee. In that context he stated that, if the determining events are void for uncertainty or otherwise, the entire

limitation fails. He did not re-address the issue of uncertainty but, in my view, it is reasonable to conclude that, when he made the

finding (at para. 29 quoted earlier) that the determining event specified in Clause 1 is void for uncertainty, he was doing so by

reference to the various matters he had addressed earlier in the context of whether, if the disposition created a conditional fee, the

condition was void for uncertainty.

19. Finally, before summarising his findings, the trial judge stated (at para. 26) that, while the authorities suggest that one should

look at the will as a whole, in this case the Will as a whole does not offer much assistance in construing Clause 1.

Grounds of appeal

20. The notice of appeal filed by the solicitors then on record for the Appellant on 12th December, 2007 set out nine grounds on

which it was alleged that the trial judge had erred in law and in fact. It was submitted on behalf of the Residuary Legatee that two of

the grounds were not advanced in the High Court and should be struck out, that is to say, ground (1), in which it is contended that

the trial judge had failed to vindicate the property rights of the Testator and his children pursuant to Article 40.3.2 and Article 43.1.2

of the Constitution, and ground (9), in which it is contended that the trial judge’s construction of the Will was incompatible with s.

117 of the Act of 1965 and repugnant to the Appellant’s constitutional rights pursuant to Article 40 and 43 of the Constitution. The

Appellant, who is a qualified and practising lawyer and who appeared in person on the hearing of the appeal, did not in fact pursue

those grounds and, accordingly, it is unnecessary to consider them. The remaining grounds are that the trial judge erred –

(i) in holding that Clause 1 of the Will did not contain a condition;

(ii) in holding that Clause 1 created a determinable fee;

(iii) in holding that Clause 1 “was made” while the Testator acted under a mistake of fact;

(iv) in holding that the bequest in Clause 1 was void and thus denying the Appellant of any share of his late father’s

estate;

(v) in failing to give words drafted by the solicitor their legal and technical meaning;

(vi) in admitting illegible hand-written unendorsed attendance notes that contained factual errors as extrinsic evidence;

and

(vii) in not adopting the “armchair” principle, thereby failing to interpret the Will as a whole to give effect to the

Testator’s intentions.

21. In his submissions on the appeal, the Appellant invokes certain provisions of the Land and Conveyancing Law Reform Act 2009

(the Act of 2009), in particular –

(a) s. 16, which abolished certain common law rules, for example, the rules known as “the common law contingent

remainder rules”,

(b) s. 17 which defines the scope of s. 16, and which, the Appellant submits, citing Wylie on The Land and Conveyancing

Law Reform Act 2009: Annotation and Commentary (Dublin, 2009), introduced an element of retrospectivity, and

(c) s. 18 which deals with trusts of land.

In this context, the Appellant does not allude to the observations of Pearce and Mee quoted earlier (at para. 13). The Act of 2009

came into force on 1st December, 2009, that is to say, over two years after the decision of the High Court against which the

Appellant appeals. The position of the Personal Representative, which is endorsed by the Residuary Legatee, is that, as the trial judge

did not find the disposition in Clause 1 void for offending any of the rules relating to future interests which were abolished by the Act

of 2009, the Appellant’s reliance on the Act of 2009 is not understood and it is misconceived. Further, it is submitted that the law

applied by the trial judge was not altered by the Act of 2009. I am satisfied that the reliance by the Appellant on provisions of the

Act of 2009 is misconceived and that the provisions of the Act of 2009 invoked by the Appellant do not bear on any of the issues

which this Court has to determine on the appeal, to which I now turn.

Issues on the appeal

22. In the light of the findings of the trial judge and the remaining grounds of appeal, the issues on the appeal can be netted down to

three issues. First, the core issue is whether the Testator intended that the disposition of the farmlands created in Clause 1 would be

a determinable fee, as the trial judge found, as distinct from a fee simple upon condition. Secondly, if he did, it is necessary to

consider whether, as a matter of law, as was found by the trial judge, the determining event is void for uncertainty. Thirdly, if the

determining event is void for uncertainty, the remaining issue is to whom do the farmlands pass in accordance with the provisions of

the Will as a whole and, in particular, do they fall in the residuary estate, as the trial judge held. Before addressing those issues, it is

appropriate to make a number of general observations in relation to the application of the provisions of the Act of 1965.

23. First, s. 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.”

No contrary intention appears from the Will and, accordingly, Clause 1 must be construed having regard to the circumstances which

prevailed on 5th March, 2000.

24. Secondly, in applying s. 90 and in determining whether the extrinsic evidence adduced on behalf of the Personal Representative,

which has been outlined earlier, is admissible to show the intention of the Testator, as was found by the trial judge, the test to be

applied is the test laid down by this Court in Rowe v. Law [1978] I.R. 55. The test as identified in the judgment of Henchy J. (at p.

72) has –

“. . . the double requirement of

(a) showing the intention of a testator, and

(b) assisting in the construction of, or explaining any contradiction in, a will.”

(Emphasis as in original)

25. Thirdly, s. 91 provides that, unless a contrary intention appears from the will, any estate comprised in any devise contained in the

will which fails or is void or is otherwise incapable of taking effect, shall be included in any residuary devise contained in the will. No

contrary intention appears in the Testator’s Will.

26. Finally, the interest of the Testator in the farmlands at the date of his death was a fee simple interest and he was registered as

full owner of the lands on Folio 13658, County Westmeath. Section 94 of the Act of 1965 provides:

“Where real estate is devised to a person (including a trustee or executor) without any words of limitation, the devise

shall be construed to pass the whole estate or interest which the testator had power to dispose of by will in the real

estate, unless a contrary intention appears from the will.”

By virtue of the operation of s. 94, the fee simple passed to the Personal Representative on the death of the Testator. The issues of

construction which arise relate to the beneficial interest or interests which the Testator intended to create in Clause 1 in the

farmlands held by the Personal Representative on trust.

Determinable fee or Conditional fee: the law

27. In outlining the relevant legal principles applicable to this very arcane area of law, it is convenient to follow the format adopted in

the most recent text on land law in this jurisdiction relied on by the parties, that is to say, Wylie on Irish Land Law 5th Ed. (Dublin,

2013).

28. In classifying the types of fee simple interests in land, Wylie identifies two main categories: a fee simple absolute and a modified

fee simple, the latter category consisting of two types, namely, a determinable fee, and a fee simple upon condition.

29. As is explained by Wylie (at para. 4.47), a determinable fee is a fee simple which will determine automatically on the occurrence of

an event which may or may not happen. In the case of a determinable fee the determining event is specified by the original grantor of

the estate. The grantor retains some interest in the property, which is called a possibility of reverter, i.e. the possibility of acquiring

an estate in the future. A fee simple upon condition, or a conditional fee, on the other hand, as is pointed out by Wylie (at para.

4.49) is a fee simple to which is attached a condition subsequent, which may cause the estate to be brought to an end. As Wylie

points out (at para. 4.47), often it is a difficult matter of construction whether the estate is a determinable fee or a fee simple upon

condition, emphasising also that the consequences and incidents of the estates are different. Wylie goes on to consider the

distinction between the two estates, first by reference to how one recognises which estate is created by the wording used in the

relevant deed or will, and then identifying the different rules applying to the two types of modified fee.

30. As to identifying whether a particular document creates a determinable fee or a fee simple upon a condition, Wylie points out (at

para. 4.50) that this is largely a matter of the precise wording of the document. From a theoretical standpoint, the position is clear:

in the case of a determinable fee the words describing the determining event are part of the words of limitation, i.e., they delimit the

estate granted. In the case of a fee simple upon a condition, however, the words containing the condition are not part of the words

of limitation, but rather are independent words of condition, which confer a right of entry on the grantor or his successor, which must

be exercised to determine the fee simple. In relation to deciding the effect of the particular words used in a particular document,

which Wylie acknowledges is not always an easy problem to solve, he states as follows (at para. 4.50):

“The courts have adopted over the years some ‘rules of thumb’ whereby particular words or phrases are taken to indicate

one type of estate rather than another. Thus words like ‘while’, ‘during’, ‘until’ and ‘as long as’ tend to be interpreted as

words of limitation creating a determinable fee; words like ‘provided that’, ‘on condition that’ and ‘but if’ are usually taken

to mean words of condition.”

Attorney General v. Cummins& Ors. [1906] 1 I.R. 406 is cited as authority for the statement that the first group of words referred to

tend to be interpreted as words of limitation creating a determinable fee. That authority will be considered later.

31. Turning to the distinguishing features in relation to determination (that is to say, the end point) of each of the modified fees,

Wylie points out (at para. 4.51) that, in the case of a determinable fee, when the specified event occurs, the fee simple comes to its

natural determination according to the words of limitation, and the possibility of reverter takes effect automatically to confer the fee

simple absolute on the grantor (or his successor, if he has since died). On the other hand, in the case of a fee simple upon a

condition, the occurrence of the specified event, or satisfaction or breach of the condition, merely gives the grantor a right of entry

so as to forfeit the grantee’s estate.

32. Of more particular significance for present purposes is Wylie’s commentary on the approach of the courts to a determinable fee

and a fee simple upon condition having regard to matters of public policy. As Wylie points out (at para. 4.54), the courts will treat as

invalid any condition which is illegal, immoral, a violation of constitutional rights under the Constitution or which otherwise

contravenes what they regard as public policy. Moreover, it is clear that a condition may be declared void for uncertainty. If a

condition subsequent is void for uncertainty, or as being contrary to constitutional rights or public policy, the fee simple becomes a

fee simple absolute and, as is explained, only the condition fails and the fee simple itself remains in effect, provided it is conveyed

with appropriate words of limitation. However, the contrary is the position in the rare case of a limitation in a grant of a determinable

fee being held void as against public policy. In such case, the words of limitation themselves are defective and so fail to pass the fee

simple; the whole grant is ineffective and the grantee is left with nothing. Although not expressly mentioned by Wylie in this context,

by analogy the same principle obviously applies where the determining event is void for uncertainty. It is convenient at this juncture

to consider the only authorities to which this Court has been referred in which a finding of a determinable fee was made by a court.

33. While the decision in Attorney General v. Cummins dates from 1895 it was reported in 1906 as an addendum to Switzer v.

Rochford [1906] 1 I.R. 399. The dispute in Attorney General v. Cummins concerned the effect of letters patent whereby King Charles

II granted to the Earl of Castlehaven specified quit rents “to hold the same to the [E]arl, his heirs and assigns, till he or they should

receive and be paid the sum of £5,000 sterling at one entire payment”. The application before the court in 1895 was an application by

the Attorney General seeking that the Crown should be at liberty to redeem the quit rents by paying £5,000 and that the Crown be at

liberty to pay that sum into court. In his judgment Palles C.B. held that the estate created was a determinable fee. He stated as

follows (at p. 406):

“The grant passed the quit rents in fee subject to a condition determining that fee upon payment by the Crown at any

time of the sum of £5,000. Under such a grant the grantee, until the happening of the determining event, has the whole

estate in him, and the old Common Law doctrine was undoubtedly that a possibility of reverter, a possibility coupled with

an interest, remained in the grantor, and that the fee of the rents would, upon performance of the condition, revert to

the Crown. ‘If,’ says Plowden (p. 557), ‘land is given to a man and to his heirs so long as he shall pay 20s. annually to A,

or as long as the Church of St. Paul shall stand, his estate is a fee-simple determinable, in which case he has the whole

estate in him, and such perpetuity of an estate which may continue forever, though, at the same time there is a

contingency which when it happens will determine the estate’.”

34. There was a dispute in Attorney General v. Cummins as to whether the common law doctrine which was outlined in that passage

still prevailed, notwithstanding the modern rule against perpetuities. The court rejected the arguments advanced on behalf of the

defendants that the rule against perpetuities applied and defeated the estate of the Crown. In a passage on which the Appellant

relies, Palles C.B. stated (at p. 409):

“Now, there is not a trace in the books of any rule which limited the period during which the determination of an estate by

condition should take effect, and it is abundantly clear that the modern rule could not have applied, because the donor

took not by way of new limitation, but by the determination of the estate given.”

35. One other authority in which a finding of a determinable fee was made has been put before the Court, but that authority – In re

King’s Trusts (1892) 29 LR Ir. 401 – is more renowned for the observations of Porter M.R. than for the finding on the facts. There the

testatrix by her will bequeathed an annuity of £50 per annum to each of the five children of her deceased brother and directed that

the said several annuities should be payable half-yearly from the date of her decease, for their respective lives, or until any of them

should marry, and that, on the death or marriage of any of the said children of her deceased brother, the annuity to any such child

should cease and determine. It was held that the proviso determining the annuities on death or marriage was a limitation and not a

condition subsequent or defeasance. In the oft-quoted passage (at p. 410) Porter M.R. stated:

“The case is an instance of the very unsatisfactory state of the law on this question. It is little short of disgraceful to our

jurisprudence that in reference to a rule professedly founded on considerations of public policy, a gift of an annuity to AB

for life, coupled with a proviso that if he married the annuity should cease, whether there be a gift over or not, gives AB a

life estate, whether he marries or not; while a gift to CD until he marries or dies, with a gift over, is at an end if CD should

marry. The distinction is intelligible to a lawyer; but no testator except a lawyer could be expected to understand it,

much less to have regard to it in framing his will. We must, however, take the law as we find it.”

36. In Pearce and Mee (op. cit.) (at p. 78) that passage is referred to in the context of stating that the distinction between a

determining event and a condition subsequent is very narrow. The authors also refer in that context to Re Sharp’s Settlement Trusts

[1972] 3 All ER 151. There, delivering judgment in the Chancery Division of the English High Court, Pennycuick V-C referred to the

description “in an Irish case” of the distinction as “little short of disgraceful to our jurisprudence” and he continued (at p. 156):

“I am bound to say that according to modern ideas this criticism appeals to me. However, the distinction is well

established and must be accepted so far as it is comprehensible.”

Allowing Wylie the last word on the observations of Porter M.R., it is suggested (at para. 4.50) that the Master of the Rolls seems to

have had in mind wills, which the court usually interprets more liberally than conveyances inter vivos, but the author goes on to

state:

“But however nonsensical the distinction may appear to the layman the fact remains that much depends upon it. The

legal system has devised different rules with respect to the two estates . . .”

Determinable fee or Conditional fee: application of the law to Clause 1 of the Will

37. Reading Clause 1 of the Will, being, to use the words of Lowry L.C.J., “the immediately relevant portion” thereof, in his words as

“a piece of English”, in the first step of the procedure advocated by him, with a view to deciding “if possible, what it means”, Clause 1

starts with an introduction or preamble which contains a description of the property the subject of the disposition in Clause 1, the

farmlands, and a statement of what the Testator had been advised as to the zoning status of all or part of the farmlands. On a plain

reading of the introduction, it was clearly intended merely to describe the property being disposed of under Clause 1 and it was not

intended to be a dispositive provision. The actual disposition of the farmlands follows. As regards the beneficial interest or interests

intended to be created, it is helpful to consider the disposition by reference to the two elements embodied in it.

38. The words contained in Clause 1 intended to create the beneficial interest or interests follow the direction given by the Testator

to the Personal Representative to hold the farmlands upon “the following trusts”. The first element directs the Personal

Representative to allow the Appellant “to hold and enjoy the profits of the [farmlands] for his own benefit until” the happening of a

specified event. Those words are properly construed as having been intended to be words of limitation, not in a technical sense, but

in the sense that they were intended to delimit the duration of the Appellant’s beneficial interest. Accordingly, those words must be

construed as having been intended to create a determinable fee. Despite the approach adopted in the grounds of appeal, on the

hearing of the appeal on 14th July, 2016, the Appellant accepted that the words in Clause 1 do create a determinable fee, but he

argued that the determining event is not void for uncertainty.

39. It was not argued by the Appellant on the hearing of the appeal that the Court should look to the instructions given by the

Testator to his solicitor for assistance in the construction of that element of Clause 1. Indeed, as outlined earlier, it was asserted in

the grounds of appeal that the trial judge had erred in admitting the attendance notes. Being conscious, however, of the fact that

the instruction given by the Testator to his solicitor, as recorded by the solicitor, was that the farmlands were to go to the Appellant,

but that was qualified by the happening of an event which was introduced by the phrase “but if”, which traditionally has been treated

as a phrase giving rise to a condition, for completeness, I propose to consider whether the Court should have regard to the wording

of the instruction in the attendance notes under s. 90 of the Act of 1965 in construing the first element. That raises the question

whether the second requirement in the test set out in Rowe v. Law is met. In other words, do the contents of the attendance note

assist in the construction of, or explain any contradiction in, that element of the disposition? There is no suggestion of there being,

and there is not, a contradiction in the first element of the beneficial provisions of Clause 1, which is being considered. The question

remains whether the contents of the attendance notes would assist in the construction of Clause 1. In my view, they would not. The

element of Clause 1 which is being addressed is open to only one construction: that the interest thereby granted to the Appellant

would endure until the happening of the specified event. To substitute the phrase “but if” for the word “until” in Clause 1 would

amount to more than the construction of the will. It would amount to a re-writing of it, which is not permissible. Accordingly, the first

element of the beneficial provisions of Clause 1 must be construed as being intended to create a determinable fee.

40. However, it remains to consider the second element of the beneficial provisions, which is the remainder of Clause 1, and which

defines the determining event by reference to the words which follow the word “until”. The issue of construction which arises in

relation to the second element is whether the trial judge was correct in finding that the determining event is void for uncertainty.

Determining event void for uncertainty?

41. There is no doubt but that the Testator prefaced the disposition of the farmlands in Clause 1 by an equivocal and incorrect

statement of fact in relation to the zoning status of the farmlands. The affidavit of Ms. Fahy established that on 5th March, 2000

neither all of the lands registered on Folio 13658, County Westmeath nor any part thereof was zoned “for residential and/or industrial

development”. However, on a plain reading of the words of Clause 1 of the Will, the determining event was not related to the existing

or future zoning of the farmlands. It was specifically related to and dependent on “acquisition” of the farmlands “for residential and/or

industrial development”. As the Appellant put it on the hearing of the appeal, it was the acquisition, not the zoning, of the farmlands

which had the “triggering effect”. The trial judge in his judgment highlighted the problem created by the use of the words “acquisition”

and later the words “not so acquired” in that context. He rightly pointed out that it is unclear whether the Testator had in mind the

farmlands being compulsorily acquired for the purposes mentioned or whether he had in mind the children of the Testator, other than

the Appellant, being in a position to compel the executors to sell the farmlands. Another question which arises from the use of those

words is whether the Testator intended the determining event to be a single acquisition or, possibly, a series of acquisitions.

42. This Court has been referred to quite a number of authorities in which consideration was given to whether part of a limiting or

provisional clause in a will was void for uncertainty, the clause in issue in most of the cases, predictably, being a condition

subsequent. As Wylie points out (at para. 4.54), where non-compliance will involve forfeiture of an already vested estate, courts will

require sufficient certainty that it can be seen precisely and distinctly from the date of the condition coming into operation what

events will cause a forfeiture. The earliest authority cited by Wylie for that proposition, Clavering v. Ellison (1859) 7 HLC 707, is

frequently cited and the following passage from the opinion of Lord Cranworth (at p. 725) is frequently quoted:

“I consider that, from the earliest times, one of the cardinal rules on the subject has been this: that where a vested

estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that

the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the

preceding vested estate was to determine.”

43. By analogy, where a fee simple is to be automatically determined by the happening of a specified determining event, as a matter

of construction, when that event may happen must be ascertainable from the beginning, precisely and distinctly.

44. Reading the words which come after the word “until” and define the determining event in Clause 1, no certainty can be gleaned,

whether conceptually or otherwise, as to when the determining event may occur, and, adopting the words of Pearce and Mee quoted

above (at para. 13) there is ambiguity in the description of the determining event. Apart from uncertainty as to what constitutes

“acquisition”, the uncertainty is aggravated by the fact that in the last sentence in Clause 1 there is uncertainty as to how

frequently the Testator intended that a determining acquisition could occur. The precision and distinctness from the beginning as to

the happening of the determining event, which Lord Cranworth considered necessary, is definitely absent. Accordingly, having regard

to the words used in the Will, the provision in relation to the definition of the determining event in Clause 1 is void for uncertainty and

the entire disposition is thus rendered void.

45. For completeness, I would add that the instructions given by the Testator to his solicitor, as recorded in the attendance notes,

do not explain any contradiction as to when the determining event would occur, nor do they assist in construing that element of the

beneficial provisions of Clause 1, with a view to ascertaining when the determining event intended by the Testator would occur. On

the contrary, as the words used in the attendance notes to record the instructions differ from the words deployed in the Will,

consideration of the instructions in the attendance notes adds to, rather than eliminates, the uncertainty in the Will. The following

examples illustrate that. First, rather than the words “acquisition” and “not so acquired” in the Will, the attendance notes contain the

word “sold”. Secondly, whereas the Will refers to acquisition for “residential and/or industrial development”, the attendance notes

refer to the farmlands being sold for “residential or commercial purposes”. Thirdly, while the Will refers to any section of the farmlands

“not so acquired” becoming the absolute property of the Appellant, the attendance notes refer to the Appellant keeping “what is not

required for residential purposes”. The Testator, having had the opportunity to consider the draft will which accompanied the letter of

28th August, 1997, made one single amendment to Clause 1 of the draft, which has been outlined earlier. Having regard to all of the

foregoing factors, it cannot be concluded that the instructions received by the solicitor from the Testator, as recorded in the

attendance notes, assist in any way in clarifying the Testator’s intention as to when the determining event provided for in Clause 1

would occur and they are irrelevant to the construction of Clause 1.

46. Similarly, a number of other matters raised in the submissions which are irrelevant to the Court’s task, which is the proper

construction of Clause 1 of the Will, will now be considered.

Other matters raised

47. It would appear to be the case that, when he made the Will, the Testator’s understanding as to the zoning status of the

farmlands at that time was both unclear, as the reference to “the said land or part thereof” in Clause 1 indicates, and erroneous, the

source of which it is not possible to identify. Even if the farmlands had been zoned “for residential and/or industrial development” on

5th March, 2000, the uncertainty as to when the determining event was intended to occur, having regard to the words used in Clause

1 of the Will, would still subsist. Notwithstanding that it is submitted on behalf of the Personal Representative on the appeal that it

was open to the trial judge to decide that the devise of the farmlands in Clause 1 of the Will was predicated on a mistaken belief of

the Testator that the lands were zoned in a particular way and that, as a result, the entire bequest should fall, I find it unnecessary

to determine that issue, having decided to follow the route taken by the trial judge and deal with the issues identified earlier (at para.

22).

48. The Appellant’s contention that the appeal should be allowed on the ground that the trial judge failed to interpret the Will as a

whole so as to give effect to the Testator’s intentions does not stand up to scrutiny. Apart from Clause 1, the only provisions of the

Will which manifest an intention on the part of the Testator to dispose of his assets are Clause 2 and Clause 3. Clause 2 relates solely

to the Testator’s residence and Clause 3 relates solely to his residuary estate. There is nothing in either Clause 2 or Clause 3 which

gives any indication as to the Testator’s intention in relation to the disposition of the farmlands. Accordingly, each of those clauses is

immaterial to the proper construction of Clause 1.

49. Two matters were also adverted to at the hearing of the appeal to which this Court can attach no significance whatsoever in

ascertaining the proper construction of Clause 1.

50. The first is an averment which was contained in the replying affidavit sworn by the Residuary Legatee on 10th July, 2006, in

which he averred that should the Court find that –

“. . . the bequest of [the farmlands] forms part of the residue of the [Testator’s] estate, I say that I am prepared to

execute a Disclaimer in respect of the residuary clause and I say that then, accordingly, that part of the residue will be

divided between the deceased’s children equally, which I believe was the intention of the deceased.”

In his written submissions, the Appellant suggested that that averment was “perhaps inappropriate”, which proposition was rejected

on behalf of the Residuary Legatee. The Court’s task is to construe the Will, and, in particular, Clause 1, in accordance with well

established principles. The professed intention of the Residuary Legatee, dependent on one outcome of the construction of the Will,

irrespective of how well motivated, is wholly immaterial to the performance by the Court of its function and has had no bearing on the

conclusions I have reached as to the proper construction of Clause 1.

51. The other matter disclosed to this Court at the hearing, which is of no materiality to the issues this Court has to decide, is the

fact that since the hearing in the High Court, Westmeath County Council has made a compulsory purchase order to compulsorily

acquire part of the farmlands comprising 0.693 hectares for the purpose of a link road, the compulsory purchase order having been

confirmed by An Bord Pleanála on 10th December, 2008 and the Personal Representative having in 2013 entered into an agreement

with Westmeath County Council in relation to the compensation to be payable. That development has had no bearing on the

conclusions I have reached as to the proper construction of Clause 1. As has been emphasised earlier (at para. 23), the Will must be

construed as at the date of the death of the Testator, that is to say, 5th March, 2000.

Consequence of findings

52. The consequence of the findings that Clause 1 created a determinable fee but the determining event is void for uncertainty is

that the devise of the lands registered on Folio 13658, County Westmeath contained in Clause 1 has no effect. Therefore, the devise

intended to be created in Clause 1 being incapable of taking effect, by virtue of s. 91 of the Act of 1965, those lands fall into the

residue and are held by the Personal Representative on trust for the Residuary Legatee.

Order

53. I would propose that there should be an order dismissing the Appellant’s appeal. I think that it would be prudent if the order were

to include declarations to the following effect:

(a) that the intention of the Testator by the words used in Clause 1 of the Will was to create a determinable fee in

relation to the lands registered on Folio 13658, County Westmeath;

(b) that the determining event which the Testator intended to apply to the determinable fee is unclear and imprecise and

that the determining event is void for uncertainty; and

(c) that the Personal Representative holds the said lands upon trust for the Residuary Legatee.

As declarations in the foregoing terms address of the all relevant issues on the construction of the Will, I consider it unnecessary for

this Court to answer all of the questions posed in the special summons.