THE WILL of the late poet and author John O’Donohue has been declared void by the High Court due to uncertainty of its terms and meaning.
The decision means the entire €2 million estate left by O’Donohue passes to his mother Josie.
O’Donohue (53), author of the best-selling Anam Cara , died in January 2008 while on holiday in France and his mother Josie, as administrator of his estate, brought proceedings last month to clarify the terms of her son’s one-page will made in 2001.
An urgent hearing was sought on grounds Ms O’Donohue was terminally ill and Mr Justice Paul Gilligan heard the case over a number of days and delivered his judgment last Thursday.
The judge concluded he was “unable to decipher the exact meaning” of the will and said O’Donohue had “unfortunately provided an illustration of exactly how a person should not make a will”.
While there was little doubt O’Donohue was “a man of considerable learning”, the fact he did not benefit from legal advice or assistance when preparing his will was evident from the will drawn up, the judge said.
The will was deficient due to the lack of clarity concerning O’Donohue’s intentions and he had also unwittingly made “the classic error” of having two intended beneficiaries of the will – his mother and brother Patrick – witness his signature with the effect of depriving both from benefiting as the law provides a witness to a will cannot be a beneficiary.
In those circumstances, it was “with regret” he must find, while the will was valid under the 1965 Succession Act and also revoked a previous will made in 1998, the terms of the will rendered it void “for uncertainty”.
As a result of his findings, the entire estate falls into intestacy leading to a situation under law where Ms O’Donohue takes the entire estate, the judge said.
O’Donohue, a former priest, made the will in February 2001, just before he left for a tour of Australia, without the benefit of legal advice. He is survived by his mother, brothers Patrick and Peter, sister Mary, two nieces and two nephews.
In his will, O’Donohue stated he was leaving “all my worldly possessions” to his mother Josie “to be divided equally and fairly among my family with special care and extra help” to be given to his sister Mary.
He also stipulated gifts of money were to be given to a number of other persons.
Mr Justice Gilligan said the making of a last will and testament is one of the most important tasks people face but is unfortunately often approached without due consideration.
A properly drawn up will, prepared with legal advice, should ensure a testator’s wishes for disposition of their estate would be fully complied with.
Where there was doubt about a will, the court’s task was to determine a deceased’s wishes insofar as possible.
In this case, O’Donohue had died “a bachelor without issue” and left the will of 2001. He previously executed a will in 1998, with the benefit of legal advice but the probate office was satisfied letters of administration could be extracted for the 2001 will.
The 2001 will, as a piece of English, was unclear and raised a number of questions including how to interpret the “mutually exclusive” intention that the estate was to be divided equally among O’Donohue’s “family” but his sister was to receive “extra care and help”.
If the estate was to be divided equally, from where were the gifts for the other named persons to be sourced and, if they were to come from the estate, how were they to be quantified, he also queried.
Such issues were “a significant stumbling block” to ascertaining O’Donohue’s intention.
The “only clear fact” was O’Donohue intended a group of people to benefit from his will but, while that group was distinguishable, the manner in which the estate was to be divided between those persons was “significantly less clear”.
While it had been accepted O’Donohue’s family should benefit first from the will, it was difficult to see how the gifts to the other persons named could be given any real meaning if that happened.
The court’s task was to assess if various proposed modifications to the will were permissible as a matter of law.
Having considered this will and submissions, including the family’s submission O’Donohue intended to make a “hybrid trust”, the judge concluded there was no simple insertion or removal he could make to the will terms which would supply the proper sense intended by O’Donohue and not involve the court “remaking” the will.