High Court, in probate proceedings brought by the plaintiff nephew concerning the interpretation and construction of a clause in the deceased's will, and where the plaintiff is seeking the admission of extrinsic evidence for the purposes of showing the intention of the testator and for assisting in understanding the construction of the will, finds that it will receive extrinsic evidence of the deceased's intention, despite viewing the clause as more consistent with an intention to split the lands as opposed to treating them as a unitary whole, where the court concluded that it was not unambiguously the case.
Deceased 77 year old bachelor - construction suit in respect of last will and testament - likely prepared with assistance of solicitor - plaintiff is a nephew and beneficiary under the will - plaintiff seeks various reliefs against first defendant who is executrix - remaining defendants are residuary legatees - deceased owner of four different parcels of land on four different plans - dispute over interpretation of the 2nd clause - clause relates to dwelling house, farm buildings and related farm machinery and livestock - plaintiff argues it devises him entirely of deceased's lands compromised in folio - defendants argue it is limited to just one of lands and the remaining lands fall in their residue - plaintiff relies upon extrinsic evidence - section 90 of the Succession Act 1965 - deals with admission of extrinsic evidence - evidence which shows the intention of the testator - and to assist in construction of - or to explain any contradiction in will - plaintiff pleads that instructions to solicitor were to effect all lands to him - plaintiff wants to adduce evidence of an earlier will - plaintiff in alternative makes proprietary estoppel claim - defendants plead that the deceased only intended to devise one set of lands to the plaintiff - that clause 2 is void for uncertainty and falls to be included in residue - defendants argue in relation to estoppel claim that plaintiff lives 30 miles away and only occasionally assisted on farm - that plaintiff evidence clear intention not to pursue a farming life - decided had altered the earlier will which had only bequeathed all the lands in anticipation that plaintiff would show commitment to farm - Lowry principles - construction of wills - armchair principle - extrinsic evidence de bene esse - application of Lowry principles - court finds clause 2 does not unambiguously support the plaintiff's interpretation - neither does it unambiguously support the defendants interpretation - court concludes however that clause 2 is more consistent with intention to split the lands - than to treat them as unitary whole - accordingly court will receive extrinsic evidence of deceased's intention - court to hear further argument from parties in admissibility of various pieces of evidence.