Extrinsic evidence clarified intention of woman’s will despite error in name of intended beneficiary

Extrinsic evidence including affidavits from her family revealed the true intention of a deceased woman was to bequeath her apartment to a relative who had been inadvertently misnamed in her last will and testament, the High Court has held.

Three residuary legatees challenged the admission of the extrinsic evidence, however Justice White was satisfied that the woman intended to leave her apartment to a specific person and did not intend it to be part of the residual estate. As such, the Court held that it was clear that the apartment was bequeathed to a great-niece of the woman.

Pursuant to the provisions of s. 90 of the Succession Act 1965, Ms Maureen Black sought to have extrinsic evidence admitted to ascertain the true intention of Ms Eileen Curtin in her last will and testament.

In her last will and testament of 1st August 2013, Ms Curtain made the following bequest:

“I give, devise and bequeath unto Rosemary Black (daughter of my niece, Maureen Black) … my apartment together with its contents…”

Ms Curtain died in February 2015 and Probate was granted to her niece, Maureen Black in November 2015. The issue arose due to the fact that Maureen Black had three daughters – Barbara, Nicola and Jennifer – and never had a daughter named Rosemary; nor was there any Rosemary Black known to the family. It was the family’s belief however that Ms Curtain had intended to bequeath the apartment to Barbara Black, but had inadvertently stated the name Rosemary when writing her will.

The three beneficiaries to Ms Curtin’s residual estate – The Anne Sullivan Centre, Our Lady’s Hospice, and Family Solidarity – sought to challenge the admission of extrinsic evidence that would support the apartment being bequeathed to Barbara. In the alternative, the apartment would be part of the residual estate to which they were equal benefactors.

Extrinsic evidence

The evidence upon which Maureen Black sought to rely was that contained in the affidavits of Maureen Black together with exhibits; her husband Victor Black; and Ms Curtain’s solicitor, Brian Whitaker.

Maureen Black deposed that Ms Curtain “was particularly fond” of her daughter, Barbara, as she was the only daughter still living in the family home when the will was made and was usually there when Ms Curtain came to visit. Ms Black stated that Ms Curtain and Barbara “were able to converse with one another in French and they had a close rapport” and that Ms Curtain had told her “on a number of occasions that she intended to leave her apartment to Barbara”.

Exhibited to Maureen Black’s affidavit were two letters from Jennifer Black and Nicola Black confirming their agreement with the assertion that the reference made to Rosemary in Ms Curtain’s will should in fact refer to Barbara.

Victor Black gave evidence stating that in a telephone conversation with Ms Curtain, she had indicated that Barbara’s sisters “were married and in her view they were ‘well looked after’ whereas Barbara was still single and living at home and that was the reason she wanted to leave the apartment to her.”

Mr Whitaker, the solicitor who executed the will, gave supporting evidence, stating that Ms Curtain told him “she had decided to give her apartment to a daughter of one of her nieces, Maureen Black as she had visited the deceased regularly.”

The Court considered Bennett v Bennett & Ors, ; Rowe v Law IR 55; and In Re Collins; O’Connell v Governor and Company of Bank of Ireland 2 IR 596, in which it was stated that extrinsic evidence was admissible as to the intention of the testator… in every case where it assisted in the construction of, or resolved contradictions, in the will”.

A residuary clause in the will bequeathed “all the rest residue and remainder” of Ms Curtain’s estate in equal parts unto the Anne Sullivan Centre, Our Lady’s Hospice, and Family Solidarity.

Family Solidarity submitted that there was no evidence offered explaining why Barbara Black would be referred to as Rosemary Black and that the facts were distinguishable Bennett; that the extrinsic evidence offered by Maureen Black did not meet the two-part test set out by the Supreme Court in Rowe v Law; and that as per Thornton v Timlin IEHC 239, the opinions and views of relatives was not evidence demonstrating a testator’s intention to benefit such persons.


Justice White held that it was obvious that Ms Curtain intended to leave her apartment by a specific devise and did not intend it to be part of the residual estate. While accepting that the extrinsic evidence was primarily from the family members of the intended beneficiary, Justice White was satisfied that the combined evidence helped to explain the contradiction of the will and the identity of the daughter whom the testator wished to benefit.

Accordingly, the extrinsic evidence was admissible in accordance with section 90 of the Succession Act 1965, to show the intention of the testator, to assist in the construction of her will, and to explain the contradiction. In accordance with section 99, if the bequest admits of more than one interpretation the court should prefer the interpretation that facilitates the operation of the bequest. Further, the extrinsic evidence met the two-part test in Rowe v. Law and approved in In Re Collins O’Connell v. Governor and Company of the Bank of Ireland.

As such, the court emphasised that it was giving effect to the intention of the will when it was clear that there was an error in that the testator’s niece, Maureen Black, never had a daughter called Rosemary.

In those circumstances, the Court made an order directing that, in accordance with sections 90 and 99 of the Succession Act 1965, the last will and testament of Eileen Curtin had the effect of devising and bequeathing the apartment to Barbara Black.

  • by Seosamh Gráinséir for Irish Legal News
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