The High Court ruled that a nephew named in his uncle’s will takes a farm and house in Carraghs, County Roscommon, free of a condition requiring him to return and live there. The court found the residence condition was a condition subsequent and void for uncertainty.
Miss Justice Laffoy delivered the judgment on 19 June 2007 in proceedings brought by Hilda McGowan, the will’s plaintiff and one of its executors, against Brian Kelly. The case concerned the construction of Patrick Kelly’s will, dated 21 October 2004. The testator died four days later, aged 85.
The will left the house and farm to McGowan in trust, on condition that she transfer them to Brian Kelly if he returned to live there. If he did not wish to take the property on that condition, the will gave it to McGowan absolutely. Brian Kelly was described in the judgment as the testator’s nephew and as living in Birmingham, England.
The plaintiff asked the court to decide whether the condition was void for uncertainty and, if not, whether it was precedent or subsequent. The defendant’s case was that it was a subsequent condition, void for uncertainty, leaving his gift effective without the condition. The judge noted that the residuary legatees’ interests were not represented at the hearing, although they had been kept informed. She said a potential conflict with them would arise if the condition were found to be precedent and void.
The judge held that the condition was subsequent. She relied on prior decisions concerning conditions attached to testamentary gifts and said the requirement to return and live on the land required time to fulfil, rather than a single act of election.
She then found the wording too vague and imprecise to meet the legal test for a condition that could defeat a vested estate. In reaching that conclusion, she followed Irish authorities concerning uncertain residence conditions in wills. She distinguished a separate case where a condition was precise and unambiguous in scope.
The court’s stated practical conclusion was that Brian Kelly takes the Carraghs farm free of the condition. The judge said the potential conflict involving the residuary legatees did not arise in light of her finding. She did not set out the final form of the order in the judgment, saying she would hear the parties on it.