O'Connell v. Bank of Ireland

Factual and Procedural Background

The deceased, a widow who lived in a private dwelling in The City, executed her last will on 15 December 1993 and died shortly thereafter. Probate issued to the Defendants (the named executors). Clause 4 of the will left “all the contents (other than cash and securities)” of the deceased’s home to the Plaintiffs, a married couple who were family friends. The house itself was not the subject of a specific devise; under Clause 6 it passed with the residue to a charitable residuary legatee.

Believing they had been left both the house and its contents, the Plaintiffs commenced proceedings by special summons in the High Court seeking (i) rectification of Clause 4 so as to include the dwelling or, in the alternative, (ii) a declaration that the residuary legatee held the house on trust for them. Evidence from neighbours and the drafting solicitor conflicted as to the deceased’s instructions. Judge Barron dismissed the claim, holding that the will was unambiguous and that extrinsic evidence of intention was inadmissible. The Plaintiffs appealed to the Supreme Court; the Defendants filed a notice to vary as to costs.

Legal Issues Presented

1. Whether Section 90 of the Succession Act 1965 permits extrinsic evidence of a testator’s intention to contradict or supplement an unambiguous will.
2. Whether the authority of Rowe v. Law should be overruled.
3. Whether the decision in In re Curtin Deceased supports rectification or a constructive trust in favour of the Plaintiffs.

Arguments of the Parties

Plaintiffs' Arguments

• Rowe v. Law was wrongly decided; Section 90 allows admission of extrinsic evidence whenever it shows the testator’s true intention.
• Even if Rowe stands, the reasoning in In re Curtin Deceased justifies rectification or a trust because the deceased’s intention was not expressed in the will.
• The High Court correctly preferred the Plaintiffs’ factual witnesses over the drafting solicitor.

Defendants' Arguments

• Rowe v. Law correctly states the law; Section 90 admits extrinsic evidence only where it aids construction or resolves contradiction within the will.
• In re Curtin Deceased is distinguishable: that case involved potential intestacy and ambiguity, neither of which is present here.
• The High Court erred in preferring the Plaintiffs’ evidence, but the result was nonetheless correct.

Table of Precedents Cited

Court's Reasoning and Analysis

1. The Supreme Court began by analysing Section 90 of the Succession Act 1965. Using a textual approach, the Court held that the conjunctive “and” links two mandatory conditions: extrinsic evidence must both reveal intention and assist construction or resolve contradiction within the will.

2. Applying Rowe v. Law, the Court reaffirmed that where a will is clear and unambiguous, Section 90 does not permit parol evidence to rewrite or supplement it. The deceased’s house was plainly part of the residue; Clause 4 could not be re-drafted to include it.

3. The Court rejected the Plaintiffs’ invitation to overrule Rowe, emphasising that doing so would undermine statutory formalities under Section 78 and invite uncertainty, fraud, and unfairness.

4. The decision in In re Curtin Deceased was distinguished on two grounds: (a) that case concerned an ambiguity giving rise to potential intestacy, and (b) the Supreme Court there construed the will internally without reliance on external declarations.

5. The Court noted procedural concerns: although charitable interests were at stake, the Attorney General had not been notified. Given assurances that the residuary charity accepted representation by the Defendants, no adjournment was ordered, but the Court reminded practitioners of their duty to notify the Attorney General in future.

Holding and Implications

APPEAL DISMISSED; HIGH COURT ORDER AFFIRMED.

Direct Effect: The Plaintiffs receive only the contents of the dwelling; the house remains part of the residue passing to the charitable residuary legatee.

Broader Implications: The ruling entrenches the restrictive reading of Section 90 and confirms the continuing authority of Rowe v. Law. Extrinsic evidence cannot be used to contradict an unambiguous will, and practitioners must notify the Attorney General when charitable gifts are at risk.