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RECENT IRISH CASES
WILL
Construction of Bequest — whether
phrase "in the event of their death*'
used In relation to beneficiaries meant
"in the event of their death during the
testator's lifetime". Additional
question of creation of life interest.
Martin Porter died on 15 January,
1976 a widower leaving four children
and twelve grandchildren surviving
him and by his last Will dated 8
October, 1974 he made the following
bequest:—
"I bequeath my house to my four
children, Elizabeth Fay, Ann
Caffrey, Thomas Porter and
Mary Ivory in equal shares and
in the event of their death to
their children on condition that
my children Elizabeth, Ann and
Thomas already mentioned or
their children do not lay claim
to their share during the lifetime
of my daughter Mary Ivory. In
the event of my daughter Mary
Ivory pr edeceas i ng her
husband Patrick Ivory it is my
wish that he should be allowed
to continue to occupy the house
for so long as he should require
the same as a residence on
condition that he does not let or
sub-let the house".
The Testator did not make any
residuary bequest.
The first question the Court was
asked to decide was whether the
testator's four children took the
property absolutely or as life tenants
with the remainder to their children,
and, if they took as life tenants only,
did the grandchildren take 'per
stirpes' of 'per capita'. Each of the
children of the testator married and
had children.
Held(pet
McWilliam J.)
applying the general rule, that where
there is a gift over in the event of
death and no indication as to the time
to which the testator intended the
death to relate, that it was to be
presumed that he meant to refer to
death occurring in his own lifetime.
The general rule is stated in Jarman
on Wills (8th edition) Vol. 3, page
2003 and was applied in the cases of
Re Nearys Estate
7L.R. IR. 311 and
In Re Bourke's Trust
27L.R. IR.
573. The Court held that as there
was no indication in the testator's will
of any time other than the death of
the testator being intended held that
the four children having survived the
testator took absolute interests.
The second question for decision
was as to whether the condition that
Elizabeth, Ann and Thomas did not
lay claim to their share during the
lifetime of Mary gave Mary a life
estate.
Held
that it seemed clear that
the testator wanted to ensure that his
daughter Mary Ivory should be
entitled to occupy the house during
her lifetime and that he hoped his
other children would allow her
husband to continue there after her
death; therefore that Mary Ivory
took a life estate in the house with
remainder to the four children of the
testator in equal shares.
A further question to be decided
was as to what the interest of Patrick
Ivory under the Will was.
Held
that
the wording of the Will made it clear
that the testator was making a
distinction between the benefit given
to Mary Ivory and the benefit given
to her husband and that the use of the
word "wish" in the Will amounted to
no more than an expression of hope
by the testator and that Patrick Ivory
took no interest under the Will.
Thomas Porter
v.
Elizabeth Fay
A
On,
High Court (McWilliam J.) —
Unreported — 25 April, 1978.
LANDLORD
A
TENANT
Rent Review — whether Lessor to be
excluded as a prospective Lessee for
the purpose of determining rack rent
of premises.
Tylers Limited ("Tylers") held the
basement of No. 24 Henry Street
from Macey Limited ("Maceys") for
a term of years which provided for
rent reviews every seven years.
Maceys occupied the ground floor of
No. 24 Henry Street and Tylers
occupied the ground floor and
basement of the adjoining premises
No. 25 Henry Street. Tylers had
demolished the dividing wall between
the basements of Nos. 24 and 25 and
used the basement of No. 24 as an
extension to the basement of No. 25.
The staircase giving access from the
basement of No. 24 to the ground
floor of 24 had been removed.
Physical access to the basement of
No. 24 was possible from three
adjoining premises:—
(1) the existing access from the
basement of No. 25
(2) from the basement of No. 23
by removing the dividing wall
between Nos. 23 and 24
(3) from the ground floor of No.
24 by reinstating the staircase.
The rent review clause defined the
annual "rack rent" which the valuer
was required to determine as the rent
which "in the opinion of the person
certifying, a willing lessor would take
and a willing lessee not already in
occupation would give in the open
market for the premises with clear
vacant possession".
Maceys argued that they should be
included as prospective lessees of the
premises and Tylers argued that
Maceys should not be included. The
arbitrator found that if Maceys were
to be included as prospective lessees
and rack rent would be £4,000 but if
they were to be excluded as
prospective lessees the rack rent
would be £2,750 per annum. The
valuer stated a case to the High
Court to determine the question
"whether or not Macey Limited are
to be excluded as prospective lessees
for the purpose of determining the
rack rent of the premises in
accordance with the terms in the
agreement".
Held,
adopting the
concept of "open market" as
explained
in
Inland
Revenue
Commissioners v. Clay
(1914) 3 K
.B.
466, that the valuer should fix such
rent as the premises might be
expected to realise "if offered under
conditions enabling every person
desirous of purchasing to come in
and make an offer". It was urged to
the Court that the valuer should take
into account three parties as possible
lessees of the basement namely
Tylers, as occupiers of No. 25,
Maceys, as occupiers of the ground
floor of No. 24, and whoever might
be the occupiers of the ground floor
and basement No. 23. It was argued
that the fact that Maceys happened
also to be landlords was an irrelevant
consideration. The Court held that
the valuer was required to consider a
hypothetical situation but was
required to assume (a) that the
premises were vacant, and (b) the
existence of a willing landlord and a
willing lessee, and should then turn to
the factual situation at the date of the
review and weigh up all the facts
relevant for the purpose of
ascertaining the open market rent at
that date. He must take into account
the terms of the lease itself and if he
finds that the adjoining premises
are
occupied by a party who is the lessor
of the premises the rent of which he is
fixing then that party cannot be a