Mulhern v. Brennan [1998] IEHC 81; [1999] 3 IR 528 (26th May, 1998)

Mulhern v. Brennan [1998] IEHC 81; [1999] 3 IR 528 (26th May, 1998)

The phrase 'dying without issue' in the will applies to death at any time, not just during the testator's lifetime. The last surviving son takes the residue absolutely, as the will can be construed to avoid intestacy and the defeasance provision only applies while there is a surviving brother.

Citation
[1998] IEHC 81
Parties
Testator: John O'Donoghue (deceased); Beneficiary: John Anthony O'Donoghue; Beneficiary: James Frederick Caulfield O'Donoghue; Beneficiary: David Geoffrey O'Donoghue; Beneficiary: Peter Paul O'Donoghue
Jurisdiction
Ireland
Procedural Posture
Probate / Judgment on Construction of Will
Outcome
application granted in part; will construed as last surviving son taking absolutely
Legal Topics
Construction of Wills, Gift Over Clauses, Intestacy Avoidance
Succession Law Probate Construction of Wills Gift Over Clauses Intestacy Avoidance

Case Brief

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Parties

John O'Donoghue (deceased)

Testator

John Anthony O'Donoghue

Beneficiary

James Frederick Caulfield O'Donoghue

Beneficiary

David Geoffrey O'Donoghue

Beneficiary

Peter Paul O'Donoghue

Beneficiary

Procedural Posture

Probate / Judgment on Construction of Will

Legal Issues

  1. 1 Meaning of 'dying without issue' in the residuary clause
  2. 2 Whether the defeasance provision applies only during the testator's lifetime or at any time
  3. 3 Whether the last surviving son takes absolutely or an intestacy arises

Ratio Decidendi

The phrase 'dying without issue' in the will applies to death at any time, not just during the testator's lifetime. The last surviving son takes the residue absolutely, as the will can be construed to avoid intestacy and the defeasance provision only applies while there is a surviving brother.

Court Disposition

application granted in part; will construed as last surviving son taking absolutely

Orders

  • The gifts over took effect on the death of any of the testator's sons without issue at any time.
  • The last surviving son of the testator took the residue of the estate absolutely.