Lynch v. Burke [1999] IEHC 22 (30th July, 1999)

Lynch v. Burke [1999] IEHC 22 (30th July, 1999)

The Will, construed in light of extrinsic evidence and statutory principles, creates two separate discretionary trusts for Nigel and Orla Burke, and drafting errors in clauses 5 and 6 may be disregarded as surplusage to give effect to the Testator's intention.

Citation
[1999] IEHC 22
Parties
Plaintiff: Geraldine Lynch; Plaintiff: Claire Nixon; Defendant: Nigel Burke; Defendant: Orla Burke; Defendant: Liam Burke; Defendant: Dermot Burke; Defendant: Una Healy; Defendant: Richard Burke
Jurisdiction
Ireland
Procedural Posture
Special Summons / Judgment
Outcome
questions of construction determined in favour of plaintiffs
Legal Topics
Will Construction, Discretionary Trusts, Extrinsic Evidence, Rule Against Perpetuities, Drafting Error
Succession Law Trusts and Estates Will Construction Discretionary Trusts Extrinsic Evidence Rule Against Perpetuities Drafting Error

Case Brief

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Parties

Geraldine Lynch

Plaintiff

Claire Nixon

Plaintiff

Nigel Burke

Defendant

Orla Burke

Defendant

Liam Burke

Defendant

Dermot Burke

Defendant

Una Healy

Defendant

Richard Burke

Defendant

Procedural Posture

Special Summons / Judgment

Legal Issues

  1. 1 Whether clauses 5 and 6 of the Will are void for uncertainty or should be construed as surplusage due to drafting error
  2. 2 Whether the Will creates two separate discretionary trusts for Nigel and Orla Burke
  3. 3 Whether extrinsic evidence is admissible to resolve ambiguity in the Will

Ratio Decidendi

The Will, construed in light of extrinsic evidence and statutory principles, creates two separate discretionary trusts for Nigel and Orla Burke, and drafting errors in clauses 5 and 6 may be disregarded as surplusage to give effect to the Testator's intention.

Court Disposition

questions of construction determined in favour of plaintiffs

Orders

  • Clauses 5 and 6 to be construed as surplusage or drafting error; two separate discretionary trusts created for Nigel and Orla Burke; Trust period and accumulation provisions valid; Trustees not empowered to advance to grandchildren or remoter issue; entitlement under Clause 7(b) clarified.