Extrinsic evidence admissible to assist in the construction of a will

 

In the matter of the will of Evelyn Tomlinson, deceased.

And in the matter of the Succession Act 1965. Anna Eleanor Lindsay and Frederick Alexander Wynn (plaintiffs) v Sterling Tomlinson, Dublin Society for the Prevention of Cruelty to Animals (Incorporated) and The Irish Society for the Prevention of Cruelty to Animals (defendants).

Will Construction Handwritten document Part of residue left to non existent entity Ambiguity Admissibility of extrinsic evidence Succession Act 1965 (No 27) section 90.

The High Court (before Miss Justice Carroll) judgment delivered 13 February 1996.

WHERE ambiguity exists in a will, extrinsic evidence is admissible under section 90 of the 1965 Act to show the intention of the testatrix and to assist in the construction of the will.

The High Court so held in deciding that the Dublin Society for the Prevention of Cruelty to Animals which operated the Dogs and Cats Home at Grand Canal Quay to be the beneficiary of the residue of the estate of Evelyn Tomlinson, deceased.

Eanna Molloy BL for the plaintiffs Richard McDonnell BL for the second named defendant Kenneth Fereuson BL or the third named defendant.

MISS JUSTICE CARROLL said that the testatrix Evelyn Tomlinson by her will dated 23 September 1991 devised and bequeathed the residue of her estate "to the British Legion Republic of Ireland Area Office, 3 Crosthwaite Terrace, Dun Laoghaire in the County of Dublin and the National Society for the Prevention of Cruelty to Animals (Dogs and Cats Home), 1 Grand Canal Quay in the City of Dublin to be divided equally between them". The residue came to over £50,000. She appointed the plaintiffs herein to be her executors. Probate was granted to the plaintiffs on 6 October 1994. The will was handwritten.

Miss Justice Carroll said that Mr Wynn, the second named defendant, gave oral evidence that a letter was left for him by the testatrix saying that the will was available in a bank. He confirmed that the will was in the testrix's handwriting. He said she had worked in a solicitor's office. He also said that he did not know if any person assisted her in drawing up the will. Miss Justice Carroll said that the first defendant, who is the testatrix's brother and only next of kin, had disclaimed any intention of contesting the residue clause.

Miss Justice Carroll said that what the court had to interpret was a handwritten will obviously not drawn up by a solicitor so there was no possibility of relying on instructions to interpret it. The problem in construing the will was that there was no entity known as the National Society for the Prevention of Cruelty to Animals (Dogs and Cats Home). There were two bodies, the Dublin Society for the Prevention of Cruelty to Animals which was founded in 1840, referred to as "the Dublin Society", and the Irish Society for the Prevention of Cruelty to Animals (the third defendant) which was established in the late 1950s and was referred to as "the Irish Society". The Irish Society was a federation of independent societies and the Dublin Society was a member of it.

In the opinion of Miss Justice Carroll an ambiguity existed in this case. Extrinsic evidence was therefore admissible under the 1965 Act to show the intention of the testatrix and to assist in the construction of the will. She referred to the case of Rowe v Law [1978] IR 55 where Mr Justice Henchy said that section 90 of the 1965 Act allowed extrinsic evidence of the testator's intention to be used by a court of construction only when there was a legitimate dispute as to the meaning of the effect of the language used in the will.

Miss Justice Carroll said that the admissible extrinsic evidence was as follows The Dublin Society owned the premises at 1 Grand Canal Quay. The Irish Society was also located at the same address. Both societies moved to separate premises in 1993, the Dublin Society to Rathfarnham and the Irish Society to Rathmines. The Dublin Society owned and operated the Dogs and Cats Home when it was located at Grand Canal Quay. One of the names used for the premises was "The Dogs and Cats Home". The Dublin Society used the home for holding and caring for rescued and surrendered animals.

Miss Justice Carroll said that the Irish Society had rent free accommodation in the Dublin Society's premises at Grand Canal Quay. The Irish Society had no direct involvement in practical animal welfare work i.e. the rescue and care of animals, or in the running of the Dogs and Cats Home. Following the coming into force of the Control of Dogs Act 1986 Act the Irish Society secured a contract with the local authorities in Dublin City and County to operate dog control in their areas. They employed dog wardens and provided a dog pound by sub contract with the Dublin Society for accommodation at Grand Canal Quay. The Dublin Society continued to deal directly with injured dogs. This contract was terminated in 1993 and the Irish Society lost its contract with the local authorities except for Fingal County Council.

Miss Justice Carroll said that the second named plaintiff and his wife knew the testatrix for over 30 years. The first named plaintiff knew her for over 50 years. The testatrix was a dog lover and kept many dogs, upwards of 14 dogs at one time. When she died she had two dogs. She showed dogs and was a judge of the Irish Kennel Club and a member of the Irish Pekinese Club. She assisted in a free clinic in Dun Laoghaire in County Dublin for owners unable to afford veterinary fees. She was a member of the South Dublin Society for the Prevention of cruelty to Animals. The South Dublin Society was taken over by the Dublin Society in 1967. The first named plaintiff deposed that he believed that during the period of their acquaintance the testatrix subscribed annually to the Dublin Society and that she specifically requested the fund raiser for that Society to call annually to her home.

Miss Justice Carroll said that the first thing to decide was whether the residuary legatee was described as the National Society for the Prevention of Cruelty to Animals with an address at the

Dogs and Cats Home or whether it was described as the National Society for the Prevention of Cruelty to Animals (Dogs and Cats Home). In her opinion the entity described included the words "dogs and cats home". In the original will the words were all in capital letters with the address being written in ordinary script. In the rest of the will the names of the beneficiaries were all in capital letters. In favour of the Irish Society, the description "Irish" was closer to the word "National" than to the word "Dublin", but that would have meant disregarding the description "Dogs and Cats Home". Miss Justice Carroll said that if the testatrix intended the Dogs and Cats Home to benefit, the scales came down in favour of the Dublin Society.

Miss Justice Carroll said that, given that the testatrix was a dog lover of many years standing and an active volunteer in a clinic devoted to the care of animals and that she subscribed to the Dublin Society, and given that the Irish SPCA was an administrative body not involved in active field work, she considered on the balance of probabilities that the testatrix intended the Dublin Society for the Prevention of Cruelty to Animals, which operated the Dogs and Cats Home at Grand Canal Quay, to be the beneficiary.

Solicitors Margaret McCann (Dunsaughlin) for the plaintiffs Crowley Millar (Dublin) for the second named defendant T. G. McVeagh & Co. (Dublin) for the third named defendant.