Unclear Will Set Aside by High Court
"Uncertainty is the worst of all evils until the moment when reality makes us regret uncertainty"
Wise words indeed from the famous 19th-century French novelist Alphonse Karr. This brings me to the subject of this post.
Over the years, there have been numerous cases before probate courts where wills have been contested due to unclear and uncertain terms, leading to their potential invalidation. While I am not suggesting that solicitors are perfect—hopefully, we make sense most of the time!— a will made without legal advice has a higher likelihood of ending up before a High Court judge.
Take, for example, the case of O'Donohue v. O'Donohue, which was heard by Mr. Justice Paul Gilligan in the High Court back in 2011. This case involved the will of the late poet and author Dr. John O'Donohue. Dr. O'Donohue was born on January 2, 1956. He was ordained as a priest in 1979 and later gained considerable acclaim as an author and broadcaster, notably for his best-selling book Anam Cara. He died a bachelor without any children in January 2008 while on holiday in France. Dr. O'Donohue drafted his own will in 2001 shortly before a tour of Australia, and one of the clauses in the will stated:
"I leave all my worldly possessions to Josie O'Donohue, my mother, to be divided equally & fairly among my family with special care (&) extra help to be given to Mary O'Donohue, my sister".
It also included provision for monetary gifts to friends and acquaintances.
His mother, Josie as an administrator of his estate, brought proceedings to clarify the terms of her son's one-page will.
He previously executed a will in 1998 with the benefit of legal advice but the Probate Office was satisfied the 2001 will revoked his 1998 Will.
Unfortunately for the beneficiaries mentioned in the Will, the will was declared void due to the uncertainty of its terms and meaning. Mr Justice Gilligan found that the will, although valid (the terms of the Succession Act 1965 were complied with in so far as the making of the Will was concerned) and revoking a previous will, was void because it was unclear and raised several questions. The will stated that O'Donohue was leaving "all my worldly possessions" to his mother Josie "to be divided equally and fairly among my family with special care and extra help" to be given to his sister Mary. This created a contradiction, as it was unclear how the estate could be divided equally while also providing extra help to one individual.
Additionally, the will was witnessed by two intended beneficiaries, his mother and brother Patrick, which legally disqualified them from benefiting under the will. These issues led to the court's decision that the will was void for uncertainty, resulting in the estate falling into intestacy, with his mother taking the entire Estate.
Judge Gilligan expressed regret in declaring the will void.
He stated in his judgement, "As a piece of English, the Will is unclear on its face and raises a number of questions. How is the court to interpret the apparently contradictory intention that the estate is to be divided equally among the Testator's family but that his sister is to receive extra care and help?"
Justice Gilligan said "The Testator has unfortunately provided an illustration of exactly how a person should not make a will. While there can be little doubt but that the Testator was a man of considerable learning, the fact that he did not benefit from legal advice or assistance is evident from the will he drew up. Not only was it deficient in terms of the lack of certainty as to his intention but moreover he unwittingly made the classic error of having two of the intended beneficiaries act as witnesses to his signature, thereby depriving both as a matter of law from benefiting under the terms of the will".
Judge Gilligan further stated "The making of a last will and testament is one of the most important tasks most people face and unfortunately it is one often approached in haste and without due consideration for its effect. A primary purpose of a will is to make a definitive statement regarding the disposition of a person's assets on the event of their death. A properly drawn up will, prepared with the benefit of legal advice provided by a solicitor, should ensure that the testator's wishes for the disposition of their estate will be fully complied with".
Conclusion:
The case of John O'Donohue's will serves as a cautionary tale about the importance of using clear and unambiguous language in legal documents, especially in the context of estate planning. Seeking professional legal guidance can help ensure that a testator's wishes are accurately represented and legally enforceable, preventing unintended consequences and potential disputes.