Court of Appeal upholds High Court will construction in bequeathed land used for garden



The Court of Appeal has upheld the High Court’s construction of a will, following a dispute between the will’s executor and his nephew over the use of land as a garden.

The appellant, James Mullen, was the son and executor of the will of the late Elizabeth Mullen, while the respondent, James Mullen Junior was her grandson and the nephew of the appellant.

The appeal was against the construction of a bequest in Elizabeth Mullen’s will, which stated that “I also give, devise and bequeath to James Mullen Junior, son of my son John, a small plot or piece of land of not more than half an acre to make up the site of his proposed new house should he require same”.

The principles applicable to the construction of the will were identified as being those included in Re. Rafter :Thornton v Timlin IEHC 239 (Unreported, High Court, Laffoy J., dated 13th June, 2012), in reliance upon the guidance given by Lowry L.C.J. in Heron v. Ulster Bank Limited NI 44.

The trial judge had used the first principle, which is to read the relevant portion of the will as a piece of English and decide what it means. He concluded that:

“In my view, the words of the testatrix are clear. The clear intention of the testatrix was that she wanted to bequeath a small piece of land to her grandson. This piece of land was not to exceed half an acre. It was to be available to him if he should require it. The purpose of the bequest was to permit him ‘to make up the site’.”

The trial judge then considered the submission made by the defendant either that the gift had lapsed or that the phrase “should he require same” must be given an objective meaning because of the use of the word “require”.

He found that the Oxford English definition of ‘require’ is ‘to need something for a purpose’, and that on a subjective assessment, the plaintiff considered that he required the plot for the creation of a garden.

It was accepted by the parties that it was permissible for the court when asked to construe a will to be given certain background facts which set the context in which the will was made and also in which the bequest would take effect as at the date of death.

It was noted that prior to Elizabeth Mullen’s death, the respondent had built a house, which was on a difficult site due to a sloping road, and as a result he had used Elizabeth Mullen’s land to create a garden. This was done with her consent.

The appellant argued that the intention of the testator from the words used was to bequeath a small piece of land should the plaintiff require same for the proposed construction of a house. The further submission was that as the house had been built the plaintiff could not be considered as of the date of death to require the plot for this purpose.

However, the respondent sought to uphold the construction of the trial judge. In particular he submitted that the trial judge was correct in construing the phrase “should he require same” as having a subjective meaning, and that the word “site” could include a garden.

The Court of Appeal concluded that the trial judge was correct in the conclusion he reached. The words of the testatrix are clear. Her intention was to bequeath a small piece of land of not more than half an acre to her grandson, the purpose of which was to permit him to make up the site of his proposed new house.

Further, the words “should he require same” clearly indicated that it is the respondent’s subjective assessment as to whether he required the plot that was relevant. The trial judge was correct that the plaintiff had established that he did subjectively require the plot.

The appeal was therefore dismissed.

  • by Rachel Killean for Irish Legal News