The High Court directed the administrators of an estate to pay €25,000 each to three children of the deceased’s son Leonard McCarthy, including a daughter conceived before the deceased died but born later. The court excluded any other children or lineal descendants of Leonard from the bequest.
The ruling, delivered by Mr Justice Tony Hunt on 17 April 2015, resolved questions raised in a special summons about the meaning of a clause in Patrick Joseph McCarthy’s will. The will left €25,000 each to Leonard’s two named sons, Callum and Cian, and “any additional issue” born after the will was made.
Patrick McCarthy died on 22 June 2010. His will had been made on 4 September 2009. Leonard’s daughter Megan was born on 11 March 2011. A medical report, which was not disputed, placed her conception around 17 June 2010. The judge accepted that she was probably conceived and unborn when her grandfather died.
The plaintiffs, acting as the estate’s legal personal representatives, sought the court’s guidance because the wording could be read in different ways. The will’s drafting solicitors had expressed the view that Megan should be excluded because beneficiaries were fixed at the date of death. The plaintiffs’ solicitors considered that the wording showed an intention to include her.
Justice Hunt concluded that “issue” in this bequest included a child conceived but not yet born when the testator died, unless the will or admissible evidence showed a contrary intention. He found no such indication in the other provisions or evidence. He also read the phrase “to each of the said children” as limiting the beneficiaries to Leonard’s children born or living but unborn at the date of death, rather than grandchildren or a wider group of future descendants.
Because those beneficiaries could be identified from the will’s wording, the bequest did not fail for uncertainty, the judge said. He treated it as a series of fixed €25,000 gifts, rather than a class gift, so class-closing rules did not apply. The court directed distribution of €25,000 each to Callum, Cian and Megan, excluding other children or lineal descendants of Leonard.