The High Court has ruled that a bequest in Elizabeth Mullen’s will entitles her grandson, James Mullen Junior, to select up to half an acre of her land adjoining his property. The court declared that the gift remained valid despite his house having been built before her death.
Mr Justice Cregan delivered the judgment on 31 July 2014 in a dispute between the grandson and the will’s executor, James Mullen, who was also the deceased’s son. The case concerned the interpretation of the will, rather than the distribution of the estate as a whole.
The 2004 will left the grandson “a small plot or piece of land of not more than half an acre” to make up the site of his proposed new house, should he require it. The executor argued that the gift had failed because the house had already been built and the grandson had not needed extra land to construct it.
The grandson said his steep, difficult site had no suitable space for a garden. He gave evidence that he had used adjoining land as a garden and play area for his children with his grandmother’s knowledge and consent. The judge accepted that the land was needed for that purpose and found no suitable alternative garden space on the grandson’s property.
The judgment held that the phrase “should he require same” left the decision to the grandson. The court also rejected the argument that “to make up the site” meant land could be used only for construction. It found that the bequest could cover land needed to provide a garden as part of the site. The court noted that the will spoke from the date of death and that Elizabeth Mullen had not changed it after her grandson’s house was built.
The judge considered the wording of the will, its wider provisions and evidence about the grandmother’s consent to the garden use. He concluded that she intended the bequest to remain effective. The court did not specify the precise boundaries or location of the plot; it declared that the grandson could select land immediately adjoining his own, up to the half-acre limit.