Supreme Court: Clause of farmer’s Will intended to create determinable fee that was void for uncertainty

About this case:

• Judgment:
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The subject of the appeal before the Supreme Court was the Will of Christopher Corrigan (the Testator), which was construed under the Succession Act 1965 by the High Court by a special summons issued on 21st March 2006. The appeal was brought by one of the testators son’s – Sean Corrigan, a qualified and practising lawyer.

The dispute in relation to the testamentary disposition of the property was the subject of Clause 1 of the Will – i.e. “the farm” which Sean Corrigan was allowed to benefit from until any acquisition.

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”.

One of the grounds of appeal was that the High Court failed to interpret the Will as a whole to give effect to the Testator’s intentions – Justice Laffoy stated that “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”.

The High Court

In his judgment, the trial judge gave particular regard to the application of s. 90 of the Succession Act 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”.

The use of the words ‘allow’ and ‘until’ meant that the bequest to Sean was in the nature of a determinable fee simple.

The trial judge went on to say: “I am satisfied that at common law the Testator cannot, in his will, create a determinable fee simple to the 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.”

“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.”

Thus, the disposition created a conditional fee, and the condition was void for uncertainty.

The Supreme Court

Justice Laffoy stated that the core was 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.

If he did, it was necessary to consider whether, as a matter of law, as was found by the trial judge, the determining event is void for uncertainty.

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.

Determinable fee or Conditional fee

In outlining the relevant legal principles “applicable to this very arcane area of law”, Justice Laffoy considered various case law including Attorney General v. Cummins& Ors. 1 I.R. 406 and Re Sharp’s Settlement Trusts 3 All ER 151.

Additionally, Justice Laffoy referred to “the most recent text on land law in this jurisdiction”: Wylie on Irish Land Law 5th Ed. (Dublin, 2013).

Justice Laffoy was satisfied that there was no doubt “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”.

Accordingly, having regard to the words used in the Will, the provision in relation to the definition of the determining event in Clause 1 was void for uncertainty and the entire disposition rendered void.

Therefore, the devise intended to be created in Clause 1 being incapable of taking effect, by virtue of s. 91 of the Succession Act 1965, those lands fall into the residue and are held by the Personal Representative on trust for the Residuary Legatee.

Order

Justice Laffoy made an order dismissing the Sean Corrigan’s appeal, including declarations:

(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.