Rowe v Law [1978] IR 55: extrinsic evidence and the construction of wills

The facts in brief

The testatrix made her will in 1967 and died in 1972. She directed her trustees to set aside £1,000 out of a trust fund to buy and furnish a cottage for two named beneficiaries during their joint lives and the life of the survivor. The will then dealt with “any balance then remaining”, giving the income to those same persons for life, with the £1,000 or its investment passing ultimately to a named parish priest. The residue went to the plaintiffs.

The fund was worth roughly £53,000. The beneficiaries of the cottage provision argued that “any balance then remaining” meant the balance of the whole fund after debts and the £1,000, not merely what was left of the £1,000. On that reading they took the income of the whole fund for life.

The extrinsic material pointed both ways: an affidavit from one of the plaintiffs, present when the testatrix gave her instructions, and the solicitor's attendance docket gave contradictory accounts. A construction summons followed.

What the court decided

In the High Court, Kenny J held that the words used were not ambiguous: “any balance then remaining” referred to the balance of the £1,000 and nothing more. He held further that s.90 does not authorise extrinsic evidence to establish an intention conflicting with the intention clearly expressed in the will; evidence becomes admissible only where the will is ambiguous or contradictory.

The Supreme Court dismissed the appeal. Henchy J and Griffin J formed the majority and upheld the finding that the will was clear. Their reading of s.90 imposes a dual condition: the evidence must show the intention of the testator, and it must assist in the construction of, or explain a contradiction in, the will. Both limbs must be met, because the section uses the conjunctive “and” rather than the disjunctive “or”.

Where the will is clear, no assistance is needed, so the section is not engaged. Admitting evidence in those circumstances would be rectification rather than construction, and s.90 confers no such jurisdiction. Henchy J warned that a wider reading would open the way to fraud, mistake, unfairness and uncertainty. Griffin J added that a will could then be written for the testator out of declarations, defeating the execution requirements of section 78 of the Succession Act 1965.

O'Higgins CJ dissented. He read s.90 as a substantive change giving primacy to the testator's actual intention, pointing to the addition of the words “to show the intention of the testator” during the passage of the Bill. On his view evidence should be admissible wherever the will's literal meaning contradicts that intention, including where an error was made in preparing it.

The ratio

Extrinsic evidence of a testator's intention may be used by a court of construction under s.90 only where the meaning or effect of the language used in the will is genuinely in dispute. The two statutory conditions are cumulative, so where the will is clear, unambiguous and without contradiction the section has no application and the court must take the will as admitted to probate.

Two further points are supporting reasoning rather than free-standing rules: that the wider reading would invite fraud, mistake and uncertainty, and that a power to remake a will would need to be conferred expressly. The dissent is not obiter but a minority view, and carries no authority.

Statutory basis

Section 90 of the Succession Act 1965 provides that 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. Reading the two purposes cumulatively confines the section; reading them as alternatives would make the opening words self-sufficient and the rest redundant.

Section 78 of the Succession Act 1965 sets out the formal requirements for a valid will, including writing and signature at the foot or end. It supplies the structural objection to the wider reading: oral declarations would otherwise displace the words of the will, and a disposition could take effect without complying with those formalities.

Section 99 of the Succession Act 1965 directs that where the purport of a devise or bequest admits of more than one interpretation, the operative interpretation is preferred in case of doubt. It chooses between competing readings of the words used; it does not supply words the testator never used. Two neighbouring construction sections, section 95 and section 97, were repealed by the Land and Conveyancing Law Reform Act 2009; section 90 was not, and stands as enacted, which is why a 1978 decision on it still governs.

What it is authority for

• The dual, conjunctive test under s.90: evidence must both show intention and assist construction or explain a contradiction.
• A facially clear will shuts the door: with no legitimate dispute about meaning or effect, the section is not engaged.
• s.90 confers no power of rectification and may not be used to reject and supplant the language of the will.

It is not authority for the wider propositions sometimes attached to it. It does not restrict the armchair principle, under which a court may consider the circumstances surrounding the testator when the will was made in order to understand the words used; that is a common law aid to reading the will, not evidence of intention. Nor does it say extrinsic evidence is never admissible: where a genuine ambiguity or contradiction exists, the section lets it in.

Where it sits against later cases

The construction exercise that comes first was set out in Howell v Howell [1992] 1 IR 290 IE · High Court, where Carroll J adopted the staged procedure suggested by Lowry LCJ in Heron v Ulster Bank Ltd [1974] NI 44 Persuasive · NI: read the relevant words as English, test them against the rest of the will, then the scheme of the will, then rules and presumptions, then comparable decisions. Extrinsic evidence becomes a live question only if that exercise leaves the words unclear or contradictory.

In re Curtin Deceased [1991] 2 IR 562 IE is the case most often used against Rowe. There the court reached its conclusion from the language of the will itself, and a literal reading would have produced an intestacy. It was distinguished on both grounds in O'Connell v Bank of Ireland [1998] 2 IR 596 IE · Supreme Court, where a five-judge Supreme Court was invited to hold Rowe v Law wrongly decided, and declined. Keane J confirmed the double requirement and dismissed the appeal even though the trial judge preferred the plaintiffs' witnesses and was satisfied the testatrix meant to leave them her house as well as its contents. The will spoke only of the contents: the intention had been frustrated by omission, which is no ground for departing from clear terms.

Lynch and Nixon v Burke [1999] IEHC 22 IE · High Court shows the other side of the line. McCracken J held that where the testator's intention cannot be found in any form in the will itself, extrinsic evidence is being used to rewrite rather than to interpret. There the intention was apparent from earlier clauses, later clauses were inconsistent rather than uncertain, and the drafting error explained by the evidence allowed the surplus words to be disregarded.

Key authorities

• Rowe v Law [1978] IR 55 IE · Supreme Court — evidence must both show the testator's intention and assist construction or explain a contradiction; a clear will leaves nothing for the section to do, and it gives no power of rectification.
• O'Connell v Bank of Ireland [1998] 2 IR 596 IE · Supreme Court — a five-judge Supreme Court declined to overrule Rowe v Law and confirmed the conjunctive double requirement. Frustration of intention by omission is no ground for departing from the will's terms.
• In re Curtin Deceased [1991] 2 IR 562 IE — a badly drafted will may be construed from its own language to avoid an intestacy; distinguished in O'Connell, where the conclusion could not be reached from the will itself.
• Lynch and Nixon v Burke [1999] IEHC 22 IE · High Court — applies Rowe v Law: inconsistent clauses are not void for uncertainty, and surplus words may be disregarded where the intention appears in the will and the evidence explains a drafting error.
• Howell v Howell [1992] 1 IR 290 IE · High Court — the staged approach to construing a will; a gift of “all my stock and any other assets I may have” was not residuary.
• Heron v Ulster Bank Ltd [1974] NI 44 Persuasive · NI — the source of that staged procedure, approved in Howell.
• Boyes v Cook (1880) 14 Ch D 53 (1880) 14 Ch D 53 Persuasive — the armchair principle: the court may consider the circumstances surrounding the testator when he made his will.

How it is examined

Succession appears on every Irish Land Law paper in this series, usually as a problem question, with the construction of a disputed clause a recurring component. The cue is a set of facts in which somebody outside the will can say what the testator really wanted: a relative present when instructions were given, a solicitor's attendance note, or a clause that reads perfectly well but produces a result nobody intended.

Take it in order. Construe the will first, using the staged approach, and say whether the words bear a clear meaning. Only if they are unclear or contradictory do you reach the section, and then apply both limbs expressly. If the will is clear, say so and stop: the evidence is inadmissible whatever it proves. Keep the armchair principle separate, and consider section 99 of the Succession Act 1965 where two readings compete.

For a twelve or thirteen mark case note, allow two sentences for the facts, one for the issue, two for Kenny J's holding, then the bulk on the majority's dual test with one short quotation, two on the dissent, and a close on the treatment in O'Connell and Lynch and Nixon v Burke.

Related Land Law notes: wills and succession · trusts of land and settlements · all free Land Law notes.