- Grant of a fee simple subject to a proviso that the land would revert to the grantor if the grantee subdivided the land without consent.
- Held: Void - doctrine of repugnancy - conditions cant be valid
- The holder of a fee simple has every sell the land or any part thereof
- have the right to give away but limits to freedom on how you give it away - restricted choice
Re: Lunham (1871)
the testator directed that the freehold should not be sold or assigned to any person “who is not a member or a descendant of a member of my family”. Budd J. held that the condition was repugnant to the fee simple and void
the testator left all his property to his executors and trustees in trust for his wife for life with remainder to his son provided that he behaved in a way satisfactory to the executors. The son died without any decision on his behaviour by the executors. He made a will devising the property left to him by his father to the plaintiff. It was held by Budd J. that the condition relating to the behaviour of the testator’s son was a condition subsequent, and on the death of the testator the son had acquired a vested interest in the remainder, and as he had not been divested by the operation of the condition, he became entitled to an absolute interest at the date of his death.
Re: McDonnell [1965] IR 354
- Bequest “subject only to the condition that my dwelling house and lands or any part thereof shall not be sold or otherwise conveyed or transferred by them or either of them, their successors or assigns, to any member of the Meredith families of O’Moore’s Forest, Mountmellick.”
- Uncertain – Who are the Merediths of O’Moore’s Forest?
- Interference with alienability
- Public Policy – the court will not lend its aid to an effort to perpetuate an old quarrel
- restrict , but not absolutely to who the land can be sold to - racist or ethnic or religious grounds excluded - courts very suspicious of that type of disposition of land
- do we know what the restriction means? - unenforceable if unclear
- gift in a will subject to condition tries to make it that it cant be sold to neighbours - but too unclear
- very slight interferance - courts: how do we know? - problematic to allow vague words to go to title documents - everyone after also potentially affected - too uncertain to be enforced
- public policy - this type of will is something we should not uphold bc purpose is to carry on dispute and make it perpetual - not uphold that - subsidiary reason - unconvincing kinda- yes it is not cool that ppl vent in a will but why they should/could not
- real reason: fails on certainty grounds - degree of certainty
Re: Dunne [1988] IR 155
- leave land to child, condition that child lives with aunt - court does not enforce it - not create a situation to make a minor live without their parents - contrary to public policy
- Property was left to a minor on condition that he reside on the property with his aunt. The aunt did not want him to live there.
- Held: Void on public policy grounds – it is undesirable to separate parents from their children
- he still got the bungalow
The court treated the “come to live…and continue to reside” requirement as a single obligation and characterised it as a condition subsequent (defeasance with gift over), not a true condition precedent.
On the facts, the obligation was not performed, and the sister’s refusal did not make performance “impossible in law” so as to excuse non‑performance; the court also stated it had no power to grant equitable relief where there is a gift over on failure of the condition.
Independently, the condition was void on public policy grounds because it tended to separate parent and child (analogous to the principle in cases like Re Boulter), and also void for uncertainty because the content/standard of “reside” required could not be determined with sufficient precision in advance; the “executors’ decision final” clause could not cure this because it addressed evidential disputes, not conceptual uncertainty.
Re: Johnston
concerns a “name and arms” clause in a will which purported to strip a life tenant of his estate if he did not adopt and continue to use the surname and arms of X
he did not adopt and use that name
Court held that this defeasance clause was void for uncertainty- how the usage looks like and what is the event that triggers the conditions-, so the tenant for life kept his interest.
Re: DeVere’s Will Trusts [1961] IR 224
The testatrix left residue on trust to apply income for maintaining, educating “in Ireland,” and bringing up Gerald Quail as a Roman Catholic, with trustees given “absolute discretion” to choose his Roman Catholic school.
The “absolute discretion” clause about selecting Gerald’s school was inoperative because it purported to override the constitutional parental right and duty regarding education under Article 42 of the Irish Constitution.
The “leave Ireland” forfeiture condition was treated as inapplicable/unenforceable in the actual circumstances (Gerald already living abroad), because the condition was framed on an assumed factual situation (residence/education in Ireland) that did not exist, making its operation effectively unworkable on the facts.
The “cease to practise the Roman Catholic religion” forfeiture was void for uncertainty because, as a condition subsequent, the court had to be able to say with reasonable certainty what conduct would trigger forfeiture, and “cease to practise” was too indeterminate to apply predictably.
Gerald took a vested interest in the residue immediately on the testatrix’s death.
Because the gift was vested and enjoyment was merely postponed, Gerald would be entitled to call for transfer of the fund on attaining 21 (majority), notwithstanding the will’s direction to pay capital at 25.
Re: Burke’s Estate [1951] IR 216
“to A for life, remainder to A and his heirs”
This was read as giving A the fee simple immediately
Rule in Shelly’s case
will saying that premises go to his brother on the condition that the brother pays sum of 4000 punds within 6 months to trustees, brother never paid that amount and issue arose whether he ever got the estate
Court laid down conditions for assesing such situation:
- look at the intention of testator from the words
- The presumption in favour of early vesting- why? void precedentcondition prevents the gift from vesting but void condition subsequent allows the grantee to keep the fee simple
Re: Porter
Testator’s Will: A man (the testator) left a fund in trust for his daughter. She was to receive the income for life, with the capital going to her issue after her death.
Condition Subsequent: The will included a specific provision stating: “provided always that if my said daughter shall marry a Roman Catholic then from and after that event she shall forfeit all benefit under this my will”.
Events: The daughter was a minor when the will was made and when her father died. Three years after his death, she married a Roman Catholic. The trustees subsequently stopped paying her the income, triggering the legal challenge.
- held the phrase “marry a Roman Catholic” was not void for uncertainty
- However, applying the policy of reading marriage-restrictive conditions narrowly where possible, the court construed this restraint as aimed at marriage during the daughter’s minority/under the age at which her interest vested (21)
- she was entitled to the trust
Re: McKenna [1947] IR 277
the testatrix left land to a nephew in a will on the condition that if the nephew “in any way” parted with possession of the lands, the bequest was revoked. Budd J. held that the condition was void as repugnant to the power of alienation
Byrne v Byrne [1953] 87 ILTR
a testator transferred part of his land (Parcel A) to his son while he was still alive. The testator left the rest of the land (Parcel B) in his will to his wife for her lifetime and thereafter Parcel B was to pass to their son. The son would only be entitled to Parcel B on the passing of his mother if he were still the owner of Parcel A at that time.
The plaintiff son was made an offer for 1.5 acres of Parcel A and was applying for a declaration that the sale of only part of Parcel A would not mean that he forfeited his right to Parcel B when his mother died.
Held: a devise in a will which was conditional on the plaintiff being the beneficial owner of land, which the testator had transferred to the plaintiff during his lifetime, was not void; it did not render the land inalienable
Fitzsimons v Fitzsimons [1993] ILRM 478:
Here an uncle left his farm on trust for his nephew on the condition that he would come and reside on the farm and marry within one year. The nephew did fulfil the residence requirement of coming to live on the farm, but did not marry within one year. As a result the trustee attempted to exercise the right of re-entry and bring the fee simple to an end, claiming that the beneficiary (nephew) had failed to abide by the condition subsequent attached to the fee simple. The nephew claimed that the condition subsequent was invalid.
A majority of the Supreme Court:
* agreed that the residence requirement was void for uncertainty;
* claimed that the condition could not be severed into two separate conditions because it was contrary to the clear intention of the testator (uncle);
* the entire condition subsequent therefore fell;
* the nephew took free of any condition subsequent.
Re Coghlan [1963] IR 246
Testator eld possession over a cottage which he built on waste land within a
manor. Died – passed on this land to his wife until she remarried or died and then to daughter Lucy Williamson. Wife remarried. New partner (defendant) moved into house. Interest of wife ceased when she got remarried. Passed to Lucy daughter. Wife and daughter died. Defendant stayed in house. Heir at law to Lucy’s possessory title the plaintiff argued that he had a better possessory right to the land than the defendant who was in actual physical possession.
Held:
- Possessory title capable of being passed on.
- Inherited right that the heir at law acquired defeated the subsequent possessory title of the defendant
- PRIOR POSSESSORY TITLE WILL DEFEAT A SUBSEQUENT POSSESORY TITLE
Asher v Whitlock (1865) Lr 1 QB 1
The Lord Chancellor held that, after ~150 years of possession and dealings treating Ballinvirick as freehold, it was legitimate to presume that before the registry era some conveyance occurred by which the fee became vested in Henry Royse, because otherwise the later devolution of title (especially between 1726 and 1770) was difficult to explain without making equally strong counter‑presumptions (trusts/wills/administrations).
Lysaght v Royse
