Appointment by testator of alternative executors not necessarily void for uncertainty

 

In the Matter of the Estate of Clare Bernadette Doran (in religion, Sister Bernadette), deceased.

Succession - Will - Interpretation - Executors - Provision in will for substituted executor - Mode of interpretation - Whether will void for uncertainty.

The High Court (before Mr Justice Herbert); judgment delivered 24 July 2000.

Where a testator provides in a will for the appointment of A or B as executor, the clause is not necessarily void for uncertainty since it is possible to appoint substituted executors. The clause should be read so as to give proper sense and meaning to the clause read as a whole and to carry out the real object of the testator so as to avoid an interpretation which would render the appointment void for uncertainty.

The High Court so held in ruling that a provision in a will appointing substituted executors was not void for uncertainty, and in ruling that a grant of probate should not issue unless the conditions in section 17 of the Succession Act 1965 were satisfied.

Denise Burke BL for the applicant.

Mr Justice Herbert said that the testatrix had died in 1996, leaving her last will and testament dated 4 February 1982. The will appeared to be a type of standard form will containing a number of pre-printed provisions, including the following: "I appoint the Provincial Superior or the Provincial Bursar of the Irish-English Province for the time being at the date of my death to be the Executor of this my Will." A question had now arisen as to whether this appointment was void for uncertainty.

Mr Justice Herbert said that in his judgment it was not void. The question was one of intention, and in his judgment the intention of the testatrix in adopting this form of words unaltered was to appoint the named officers of her order of religion as original and substitute executors. It was clear that the form of words "for the time being at the date of my death to be Executor of this my Will" anticipated and resolved a problem which had troubled the court in In Re Horgan, deceased [1971] P 50, and it was fair to infer that the words, as well as the clause as a whole, had been settled by a lawyer.

Mr Justice Herbert said that words used in a will were deemed to have been used in their ordinary grammatical meaning unless there was something in the will as a whole to indicate that they were used in some restricted sense or that some special meaning was intended. There was no such indication in this will. The general and principal meaning of "or" was "a conjunction introducing alternatives", "a particle co-ordinating two or more words phrases or clauses between which there is an alternative". It had been held in a number of cases cited in Stroud's Judicial Dictionary that "or" may also be read as implying a substitution, especially where this will prevent a testamentary gift from lapsing (5th edition, 1986, volume 3, page 1782).

Mr Justice Herbert said that in his judgment this clause was intended to be read: "I appoint the Provincial Superior or alternatively or by way of substitution the Provincial Bursar . . . to be Executor of this my Will." The words "for the time being at the date of my death" qualify the words "the Provincial Superior or the Provincial Bursar" and not the words "the Irish-English Province".

Mr Justice Herbert said that he did not consider that the same lack of sufficient identification which led to the appointment of executors in the cases of In the Goods of Bayliss, deceased (1862) 2 Sw. & Tr. 613 and In the Goods of Blackwell, deceased (1877) LR 2 PD 72 being held void for uncertainty arose in this case. In the former, the appointment was made in the terms "any two of my sons", and in the latter case the words used were "one of my sisters my sole executrix" without stating which sister. In the present case, the intended executor was clearly identified as whoever might be the holder of one of two named official positions in the religious order at the date of death of the testatrix.

Mr Justice Herbert said that the decisions in In re Horgan, deceased and In re Foster (1871) LR 2 PD 304, demonstrated that the courts would construe a clause appointing an executor so as to give proper sense and meaning to the clause read as a whole and to carry out the real object of the testator so as if at all possible to avoid an interpretation which would render the appointment void for uncertainty. Mr Justice Herbert referred to Re Lewis: Goronwy v Richards [1942] 2 All ER 364 in which the testator gave his residuary estate to "Margaret Ann and/or John Richards", who were husband and wife and were both alive at the date of his death. Mr Justice Farwell in that case said that he should not conclude that the gift was void for uncertainty unless he was certain that the expression was wholly incapable of any meaning. He thought that the testator intended that the husband and wife should take as joint tenants and that if Margaret Anne Richards did not survive the testator then the property should go to John Richards as a substitutional gift, but that as both husband and wife were alive they took as joint tenants.

Mr Justice Herbert also referred to Williams, Mortimer & Sonnucks: Executors, Administrators and Probate (17th edition, 1993) at pages 27-8, where it was stated (with reference to authorities) that a testator might appoint substituted executors. The first person so to be named was termed in law the "instituted executor in the first degree" and the second the "substituted executor in the second degree" and so on. By Order 79, rule 5 (14) of the Rules of the Superior Courts 1986, the number of persons entitled to take out a grant of probate is three, unless the Probate Officer directs otherwise. Authority for the legal acceptance of substituted executors was also found in Williams on Wills (7th edition, 1995), volume 1 at page 229, and in Millar: Irish Probate Practice at pages 44-45.

Mr Justice Herbert said that in the present case, probate of the will was sought by Pauline O'Dwyer, who was at the date of death of the testatrix and was currently the provincial bursar of the order in Ireland and England. There was no ambiguity or uncertainty arising from the clause in the will appointing Pauline O'Dwyer to be executrix of the will in substitution for the first appointed executrix, the provincial superior, who at the date of death of the testatrix was Mairead O'Sullivan. Neither was their any ambiguity or uncertainty in the fact that the clause referred to "the Irish-English Province" without more. It was absolutely clear from the will read as a whole that the province in question was that of the Religious Order or Congregation of the Sisters of the Infant Jesus, otherwise known as Dames de St Maur, of which the testatrix was herself a member.

Mr Justice Herbert said that before a substituted executor can obtain probate those entitled before him must renounce or be cited to accept and refuse to accept. While it was unlikely that the "substituted executor in the second degree", who had applied for probate of the will would make such an application without the knowledge of at least the present officers of the province of the religious order and of the person who was provincial superior of the religious order at the date of death of the testatrix, and while there seemed little likelihood of a grant of probate being challenged by that person, the practice of requiring a renunciation by the person who was first entitled to prove a will had been established for so long a period that it would be wrong for the court to depart from this practice otherwise than after full argument and careful consideration in an appropriate case. The grant of probate should not issue unless the conditions in section 17 of the Succession Act 1965, were satisfied.

Solicitors: T.T.L. Overend McCarron & Gibbons (Dublin) for the applicant.