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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.
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
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.