The Gazette 1978

GAZETTE

APRIL 1978

significance for them". The appeal was accordingly dismissed. Faberge Inc. v. The Controller of Patents, Designs and Trade Marks—Supreme Court (per O'Higgins, C. J. with G r i f f i n a nd P a r k e , J . J.)-unreported-2 December, 1977.

defendant. In January 1973 James Morgan, the second-named defendant, married Mary Germaine, the third-named defendant. The defendants claimed that the words in paragraph 2 "as to any balance then remaining" meant the balance of the entire Trust Fund after payment of the debts and the sum of one thousand pounds. The plaintiffs, the testatrix's two brothers-in-law who were named in the will as residuary legatees and devisees, claimed that these words meant any balance of the sum of one thousand pounds and that they were entitled to the residue after payment of the debts, the one thousand pounds and the legacy of one hundred pounds. There was available parol evidence of declarations made by the testatrix at the time of the making of the will, which showed that she intended the expression "any balance then remaining" to refer to nothing more than the balance of the one thousand pounds. As against that, there was evidence available from the solicitor who drew the will to tfie effect that the testatrix's instructions to him showed that what she had in mind was not the balance of the one thousand pounds but the balance of the trust fund consisting of her total estate—which estate was valued for probate purposes at some £50,000. Section 90 of the Succession "Act, 1965, provides: "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". In the High Court in June 1975 Kenny, J. did not think that extrinsic evidence is admissible to show the intention of the testator when the will is clear. Kenny, J. stated that the first question must always be whether the will is ambiguous or contradictory. If it is, extrinsic evidence is admissible as a result of section 90; if it is not this evidence is not admissible. Kenny, J. reached the conclusion that the words "any balance then remaining" referred to the balance of the sum of one thousand pounds and did not permit extrinsic evidence to be adduced in relation to the construction of the will. The defendants appealed to the Supreme Court. Held: (per Henchy, J.), having considered the position prior to the Succession Act 1965 and the effect of Section 90, that there was no doubt that (for the reasons given by Kenny, J. in the High Court) the words "any balance then remaining"

referred not to the whole of the trust fund created by the will but to the balance then remaining of the portion of it amounting to one thousand pounds which had been dealt with in the preceding paragraph of the will. Section 90 allows extrinsic evidence to be received if it meets 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. In this case the first condition for admissibility of extrinsic evidence was satisfied because the extrinsic evidence which was sought to be adduced had the purpose of showing the intention of the testator. There was no suggestion of a contradiction so that aspect of the second condition did not arise. The matter then reduced itself to a question of whether the proposed evidence would assist in the construction of the will. The answer was that it would not. The questioned provision of this will was clear and admitted of only one construction Extrinsic evidence could not possibly have assisted in its construction. It is only when assistance is needed—because on application of the rules of construction the will may be said to be unclear or uncertain—in order to achieve the construction of the will that recourse may be had under section 90 to extrinsic evidence of the testator's intention. Section 90 does not empower the court to rewrite the will in whole or in part. Such a power would bp repugnant to the will-making requirements of section 78. The Court must take the will as it has been admitted to probate. If it is clear, unambiguous and without contradiction, section 90 has no application. If otherwise, section 90 may be used for the purpose of giving the language of the will the meaning and effect which extrinsic evidence shows the testator intended it to have. Section 90 may not be used for the purpose of rejecting or supplanting the language used in the will. Griffin, J. delivered a separate assenting judgment and the appeal was dismissed.O'Higgins, C. J. dissented from the majority judgments. Re the Will of Mary Doran deceased—Francis Rowe and Augustus Rowe v. Robert Kenneth Law, James Morgan and Mary Morgan - Supreme Court (O'Higgins, C.J., Henchy, J. and Griffin, J.) — unreported — 20th January 1978.

WILL—SUCCESSION ACT 1965 Construction of will—If a clause In a will is clear and unambiguous and does not import any contradiction section 90 of Succession Act 1965 does not allow extrinsic evidence to be used either to explain it or to supersede it. By her will, the testatrix, Mary Doran, gave devised and bequeathed unto her trustees all her real and personal estate ("the Trust Fund") upon certain trusts, which were set out in the will in numbered paragraphs. Paragraph 1 provided for the payment of her debts, funeral and testamentary expenses out of the Trust Fund. In paragraph 2, she carved out of the Trust Fund the sum of one thousand pounds which she directed should in the first instance be utilised or applied in the purchase and furnishing of a suitable cottage residence for the use and occupation of James Morgan and Mary Germaine (who resided " with the testatrix and worked as labourer and domestic help, respectively) during their joint lives and the life of the survivor of them and subject thereto upon further trust "as to any balance then remaining" to invest the same in some Trustee Security, the income to be paid to the said James Morgan and Mary Germaine during their joint lives and then to the survivor for life. In paragraph 3, there was a legacy of £100 for masses. In paragraph 4, there was provision that the Trustees were to stand possessed of "the Trust Fund then remaining" to pay and transfer the same both as to capital and income to the testatrix's brothers-in-law, Father Francis Rowe and Reverend Father Augustus Rowe, in equal shares as tenants in common absolutely. The deceased, who was separated from her husband and had no children, died on 10 June 1972 and on 6 March 1973, probate of her will and codicil were granted to Robert Kenneth Law, the first-named