Wills

Index

Succession Act 1965

Commencement.

2.—This Act shall come into operation on such day, not earlier than the 1st day of July, 1966, as the Minister by order appoints.

Annotations

Editorial Notes:

E1
Power pursuant to section exercised (1.01.1967) by Succession Act 1965 (Commencement) Order 1966, S.I. No. 168 of 1966.

2. The 1st day of January, 1967, is hereby appointed as the day on which the Succession Act, 1965 , shall come into operation.

Interpretation.

3.—(1) In this Act, except where the context otherwise requires—

F1[“Act of 2015” means the Children and Family Relationships Act 2015;]

“administration”, in relation to the estate of a deceased person, means letters of administration, whether with or without a will annexed, and whether granted for special or limited purposes;

“administrator” means a person to whom administration is granted;

F2[ ‘civil partner’ has the meaning assigned to it by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010; ]

“conveyance” includes a mortgage, charge, lease, assent, transfer, disclaimer, release and every other assurance of property by any instrument except a will;

“the court” shall be construed in accordance with section 6;

“estate” shall be construed in accordance with section 14;

“grant” means grant of representation;

“infant” means a person under the age of twenty-one years;

“an intestate” means a person who leaves no will or leaves a will but leaves undisposed of some beneficial interest in his estate, and “intestate” shall be construed accordingly;

F3[“issue” shall be construed in accordance with section 4A (inserted by the Status of Children Act, 1987);]

F4[“legal right” means—

(a) the right of a spouse under section 111 to a share in the estate of a deceased person, and

(b) the right of a civil partner under section 111A to a share in the estate of a deceased person;]

“the Minister” means the Minister for Justice;

“pecuniary legacy” includes an annuity, a general legacy, a demonstrative legacy so far as it is not discharged out of the designated property, and any other general direction by a testator for the payment of money, including all death duties free from which any devise, bequest, or payment is made to take effect;

“per stirpes” shall be construed in accordance with subsection (3);

“personal representative” means the executor or the administrator for the time being of a deceased person;

“possession” includes the receipt of, or the right to receive, rents and profits, if any;

“probate” means probate of a will;

“property” includes all property both real and personal;

“purchaser” means a grantee, lessee, assignee, mortgagee, chargeant or other person who F5[…] acquires an estate or interest in property for valuable consideration;

“real estate” has the meaning assigned to it by section 4;

“representation” means probate or administration;

“share”, in relation to the estate of a deceased person, includes any share or interest, whether arising under a will, on intestacy or as a legal right, and includes also the right to the whole estate;

“trust corporation” has the meaning assigned to it by subsection (4) of section 30;

“valuable consideration” means consideration in money or money’s worth;

“will” includes codicil.

F3[(1A) In this Act a reference, however expressed, to a person whose parents have married or have not married each other shall be construed in accordance with section 4 of the Status of Children Act, 1987.]

(2) Descendants and relatives of a deceased person begotten before his death but born alive thereafter shall, for the purposes of this Act, be regarded as having been born in the lifetime of the deceased and as having survived him.

(3) Where a deceased person’s estate or any share therein is to be distributed per stirpes among his issue, any issue more remote than a child of the deceased shall take through all degrees, according to their stocks, in equal shares if more than one, the share which the parent of such issue would have taken if living at the death of the deceased, and no issue of the deceased shall take if the parent of such issue is living at the death of the deceased and so capable of taking.

(4) In this Act, a reference to any enactment is to that enactment as amended or extended by any other enactment, including this Act.

(5) In this Act, a reference to a Part, section, or Schedule is to a Part, section, or Schedule of this Act, unless it is indicated that a reference to some other enactment is intended.

Annotations

Amendments:

F1
Inserted (4.05.2020) by Children and Family Relationships Act 2015 (9/2015), s. 64, S.I. No. 624 of 2019.

F2
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 69, S.I. No. 648 of 2010.

F3
Inserted (14.06.1988) by Status of Children Act 1987 (26/1987), s. 28(a), (b), in force as per s. 1(2)(b).

F4
Substituted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 69, S.I. No. 648 of 2010.

F5
Deleted (20.07.2008) by Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), s. 67, S.I. No. 274 of 2008.

Modifications (not altering text):

C7
Interpretation of inheritance tax clarified (21.02.2003) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 113, commenced on enactment.

Tax, in relation to certain legislation.

113.—(1) Inheritance tax shall not be a duty or a death duty for the purposes of section 9 of the Succession Act, 1965, but it shall be a death duty for the purposes of—

(a) section 34 (3) of that Act;

(b) the definition of pecuniary legacy in section 3 (1) of that Act; and

Editorial Notes:

E2
Previous affecting provision: Capital Acquisitions Tax Act 1976 (8/1976), s. 68(1)(b), repealed (21.02.2003) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 118(1).

E3
The definition of “infant” is affected (1.03.1985) by the blanket amendment in the Age of Majority Act 1985 (2/1985), s. 2, commenced as per s. 9(2).

Meaning of “real estate” and “estate or interest”.

PART II

Devolution of Real and Personal Estate on Death

Devolution of real and personal estate.

[1881 (c. 41) s. 30; 1959 (No. 8) ss. 6, 7 (1), 15 (pt.)]

10.—(1) The real and personal estate of a deceased person shall on his death, notwithstanding any testamentary disposition, devolve on and become vested in his personal representatives.

(2) The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers.

(3) The personal representatives shall be the representatives of the deceased in regard to his real and personal estate and shall hold the estate as trustees for the persons by law entitled thereto.

(4) The references in this section to the real and personal estate of a deceased person are to property to which he was entitled for an estate or interest not ceasing on his death, and include property over which he exercised by will a general power of appointment.

(5) This section shall apply to property vested on any trust in a deceased person solely, as it applies to his real and personal estate.

Abolition of existing rules of descent, escheat, etc.

[New]

11.—(1) Without prejudice to the succeeding provisions of this section, all existing rules, modes and canons of descent and of devolution by special occupancy are hereby abolished except in so far as they may apply to the descent of an estate tail.

(2) Dower and tenancy by the curtesy are hereby abolished.

(3) Escheat to the State and escheat to a mesne lord for want of heirs are hereby abolished.

Further assimilation of law respecting real and personal estates of deceased persons.

[1959 (No. 8) s. 7 (2)]

12.—(1) All enactments (including this Act) and rules of law relating to—

(a) the effect of representation as respects personal estate,

(b) the dealing with personal estate before representation,

(d) the payment of costs of administration, and

(e) all other matters with respect to the administration of personal estate,

shall, so far as applicable, apply to real estate as if it were personal estate; and subsequent provisions of this section shall not prejudice the generality of this subsection.

(2) All jurisdiction of any court with respect to the appointment of administrators or otherwise with respect to the grant of representation as respects personal estate shall extend over, and be exercisable in relation to, real estate as if it were personal estate and the rights, as respects citations to see proceedings, of persons interested or claiming to be interested in the real estate of a deceased person shall be the same as those of persons interested or claiming to be interested in the personal estate of that deceased person.

(3) A grant of representation shall, unless containing an express limitation to the contrary, have effect as well over the real as over the personal estate.

Vesting of estate between death and grant of administration.

[1959 (No. 8) s. 13]

13.—Where a person dies intestate, or dies testate but leaving no executor surviving him, his real and personal estate, until administration is granted in respect thereof, shall vest in the President of the High Court who, for this purpose, shall be a corporation sole.

Construction of references to estates of deceased persons.

[New]

14.—References in the subsequent provisions of this Act and in any subsequent enactment to the estate of a deceased person shall, unless the contrary intention appears, include references to both the real and personal estate of that deceased person.

Construction of references to heirs.

[1891 (c. 66) s. 89]

15.—(1) The word “heir” or “heirs”, used as a word of limitation in any enactment, deed or instrument passed or executed either before or after the commencement of this Act, shall have the same effect as if this Act had not been passed.

(2) The word “heir” or “heirs”, used as a word of purchase in any enactment, deed or instrument passed or executed before the commencement of this Act, shall bear the same meaning as if this Act had not been passed.

(3) The word “heir” or “heirs”, used as a word of purchase in any enactment, deed or instrument passed or executed after the commencement of this Act, shall, unless the contrary intention appears, be construed to mean the person or persons, other than a creditor, who would be beneficially entitled under Part VI to the estate of the ancestor if the ancestor had died intestate.

(4) Subject as aforesaid, references in any enactment, deed or instrument passed or executed either before or after the commencement of this Act to the heirs of any person shall be construed to refer to his personal representatives.

PART VII

Wills

Property which may be disposed of by will.

[1837 (c. 26) s. 3]

76.—A person may by his will, executed in accordance with this Act, dispose of all property which he is beneficially entitled to at the time of his death and which on his death devolves on his personal representatives.

Capacity to make a will.

[1837 (c. 26) s. 7 amended]

77.—(1) To be valid a will shall be made by a person who—

(a) has attained the age of eighteen years or is or has been married, and

(b) is of sound disposing mind.

[1964 (No. 7) s. 7 (7)]

(2) A person who is entitled to appoint a guardian of an infant may make the appointment by will notwithstanding that he is not a person to whom paragraph (a) of subsection (1) applies.

Signing and witnessing will.

[1837 (c. 26) s. 9 and 1852 (c. 24) s. 1]

78.—To be valid a will shall be in writing and be executed in accordance with the following rules:

1. It shall be signed at the foot or end thereof by the testator, or by some person in his presence and by his direction.

2. Such signature shall be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness shall attest by his signature the signature of the testator in the presence of the testator, but no form of attestation shall be necessary nor shall it be necessary for the witnesses to sign in the presence of each other.

3. So far as concerns the position of the signature of the testator or of the person signing for him under rule 1, it is sufficient if the signature is so placed at or after, or following, or under, or beside, or opposite to the end of the will that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his will.

4. No such will shall be affected by the circumstances—

(a) that the signature does not follow or is not immediately after the foot or end of the will; or

(b) that a blank space intervenes between the concluding word of the will and the signature; or

(c) that the signature is placed among the words of the testimonium clause or of the clause of attestation, or follows or is after or under the clause of attestation, either with or without a blank space intervening, or follows or is after, or under, or beside the names or one of the names of the attesting witnesses; or

(d) that the signature is on a side or page or other portion of the paper or papers containing the will on which no clause or paragraph or disposing part of the will is written above the signature; or

(e) that there appears to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature;

and the enumeration of the above circumstances shall not restrict the generality of rule 1.

5. A signature shall not be operative to give effect to any disposition or direction inserted after the signature is made.

Appointments by will.

[1837 (c. 26) s. 10]

79.—(1) An appointment made by will, in exercise of any power, shall not be valid unless it is executed in accordance with this Act.

(2) Every will so executed shall, so far as concerns its execution and attestation, be a valid execution of a power of appointment by will, notwithstanding that it has been expressly required that a will made in exercise of such power shall be executed with some additional or other form of execution or solemnity.

Publication of will not necessary.

[1837 (c. 26) s. 13]

80.—Every will executed in accordance with this Act shall be valid without any other publication thereof.

Will not void on account of incompetency of witness.

[1837 (c. 26) s. 14]

81.—If a person who attests the execution of a will is, at the time of execution or at any time afterwards, incompetent to be admitted a witness to prove the execution, the will shall not on that account be invalid.

Gifts to an attesting witness, or spouse of witness, to be void.

[1837 (c. 26) s. 15]

82.—(1) If a person attests the execution of a will, and any devise, bequest, estate, interest, gift, or appointment, of or affecting any property (other than charges and directions for the payment of any debt or debts) is given or made by the will to that person or his spouse F45[or civil partner], that devise, bequest, estate, interest, gift, or appointment shall, so far only as concerns the person attesting the execution of the will, or the spouse F45[or civil partner] of that person, or any person claiming under that person or spouse F45[or civil partner], be utterly null and void.

(2) The person so attesting shall be admitted as a witness to prove the execution of the will, or to prove the validity or invalidity thereof, notwithstanding such devise, bequest, estate, interest, gift, or appointment.

Annotations

Amendments:

F45

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 77, S.I. No. 648 of 2010.

Creditor attesting will charging estate with debts admissible as witness.

[1837 (c. 26) s. 16]

83.—If by will any estate is charged with any debt or debts, and a creditor, or the spouse F46[or civil partner] of a creditor, whose debt is so charged, attests the execution of the will, the creditor, notwithstanding such charge, shall be admitted a witness to prove the execution of the will, or to prove the validity or invalidity thereof.

Annotations

Amendments:

F46

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 78, S.I. No. 648 of 2010.

Executor admissible as witness.

[1837 (c. 26) s. 17]

84.—A person shall not, by reason only of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of the will, or a witness to prove the validity or invalidity thereof.

Revocation of will.

[New. Cf. 1837 (c. 26) s. 18]

85.—(1) A will shall be revoked by the subsequent marriage F47[or entry into a civil partnership] of the testator, except a will made in contemplation of that marriage F47[or entry into a civil partnership], whether so expressed in the will or not.

F48[(1A) Notwithstanding subsection (1), where the parties to a subsisting civil partnership with each other marry each other, a will made in contemplation of entry into the civil partnership or during the civil partnership by a testator who is a party to the marriage shall not be revoked by that marriage and a reference in the will to the testator’s civil partner shall be construed as a reference to the testator’s spouse.]

[1837 (c. 26) ss. 19, 20]

(2) Subject to subsection (1), no will, or any part thereof, shall be revoked except by another will or codicil duly executed, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.

Annotations

Amendments:

F47

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 79, S.I. No. 648 of 2010.

F48

Inserted (16.11.2015) by Marriage Act 2015 (35/2015), s. 17, S.I. No. 504 of 2015.

Alterations in will after execution.

[1837 (c. 26) s. 21]

86.—An obliteration, interlineation, or other alteration made in a will after execution shall not be valid or have any effect, unless such alteration is executed as is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the signature of each witness is made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end of some other part of the will.

Revoked will not revived otherwise than by re-execution or codicil.

[1837 (c. 26) s. 22]

87.—No will or any part thereof, which is in any manner revoked, shall be revived otherwise than by the re-execution thereof or by a codicil duly executed and showing an intention to revive it; and when any will or codicil which is partly revoked, and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as was revoked before the revocation of the whole thereof, unless an intention to the contrary is shown.

Subsequent conveyance or other act not to prevent operation of will.

[1837 (c. 26) s. 23]

88.—Where, subsequently to the execution of a will, a conveyance or other act is made or done relating to any estate comprised in the will, except an act by which the will is revoked, the conveyance or act shall not prevent the operation of the will with respect to any estate or interest in the property which the testator has power to dispose of by will at the time of his death.

Cases on Execution

In the Goods of Rudd

[1945] IR 180
Maguire P. 180

The first question which I have to decide is whether the words “my brother Wm. in South Africa is not to benefit by my decease” in the codicil of the 26th January, 1931, are an alteration within the meaning of the words in s. 21 of the Wills Act, 1837.
I am satisfied that they are in the handwriting of the testator as is the rest of the document. They are, however, written in an ink different to that used by the testator in the rest of the codicil. It appears to be clear that before they were written, the testator went over the last letter of the word “whatsoever,” and added a full stop before writing the words mentioned. The writing of the words in the sentence with which I am concerned is more cramped than is the writing in the rest of the document. The words appear, so to speak, to have been squeezed into a space less than they would normally require. In view of all these facts and circumstances, I conclude that these words were not written as part of the same continuous act which the writing of the rest of the codicil appears to have been, and that they were inserted after the rest of the document was completed.
The next question is whether these words were inserted before the will was executed. Towards the solution of this question there is nothing to help in the evidence before me. The signature of the testator is in a different ink from that used in the alteration. Neither of the attesting witnesses are able to say whether the words were in the document at the time it was executed. I do not think that the reference in the concluding lines of the codicil to “alterations” can be taken as referring to the alteration I am concerned with.
This being the position, I must fall back on the rule stated in Greville v. Tylee (1) to be well settled, “that whoever alleges such alteration to have been done before the execution of the will is bound to take upon himself the onus probandi, Cooper v. Bockett (2).” The rule so stated was accepted and followed by Lord Cranworth in Simmons v. Rudall (3).
That onus has not been discharged here, accordingly I shall grant liberty to apply for probate of the will and codicil excluding the words to which I have referred.

Leopold v Malone

[2018] IEHC 726
Judgment of Ms. Justice Pilkington delivered on the 30th day of November 2018,
1. This matter came before the court on 24th October, 2018 and initially involved consideration of two matters;
(a) Whether a will was duly executed pursuant to the provisions of s. 78 of the Succession Act, 1965 and
(b) A possible construction issue with regard to certain aspects of the deceased’s will and codicil, for the reasons more particularly set out and described below. As this matter was ultimately resolved between the parties I propose dealing with it in summary fashion only.

Background
2. The deceased died on 24th February, 2013. She was 81 years old and died testate without parent, spouse or issue surviving. On 26th November, 2013 a grant of probate issued in respect of her estate to Noel Malone one of the executor’s named in her last will and testament dated 20th July, 2004 with one codicil annexed dated 27th August, 2010.
3. The question of due execution arises in respect of her testamentary document dated 20th July, 2004 (hereinafter “the July 2004 will”). This will was subsequently amended by codicil dated 27th August, 2010 (hereinafter “the August 2010 codicil”). The deceased had previously executed a testamentary document dated 3rd June, 1988.

4. The deceased’s estate is a relatively modest one having a net value of some €200,000. Whilst the issue in respect of the July 2004 will is a net one, I am nonetheless setting out this testamentary document in some detail. Pursuant to its terms the deceased, after the standard revocation clause:

(a) Appointed Simon Quick solicitor, Noel Malone solicitor, Elizabeth Barrett and June Stewart as her executors and trustees.
(b) Bequeathed the sum of €1,250.00 “to my friend Simon C.K. Quick,”

(d) Bequeathed to her friend Elizabeth Barrett a sum of €1,250.00,

(e) Bequeathed the sum of €2,000.00 to the trustees of the Alexandra Guild.

(f) All of the rest residue and remainder of her property she divided with a moiety to the President of the Society of St. Vincent de Paul and thereafter:

“the second moiety thereof to the Secretary of the A.G.A.A. of 1 Derry Street, London, W85 HY to be applied by the association for the charitable objects of association as the association may in its absolute discretion decide and the receipt by which such secretary/treasurer shall be sufficient discharge to my executors.”

5. The will, after the formal attestation clause, was witnessed by Simon C.K. Quick solicitor and Marie Hatton.
Pleadings
6. The Plenary Summons was issued on 30th October, 2015, a Statement of Claim on 23rd February, 2017, the Defence and Counterclaim on 2nd June, 2017 and a Notice of Trial dated 20th June, 2017. I also note the notice and replies to particulars together with the respective affidavit of scripts sworn by the defendant on 6th February, 2016, and the plaintiff on 24th March, 2017.

7. By Order of Abbott J. on 6th November, 2017, the court, on consent, directed that the following issues be determined by a judge sitting alone: –

(i) whether the testamentary document dated 20th July, 2004, was executed in accordance with the formalities required by s. 78 of the Succession Act 1965;
(ii) whether the testamentary document dated 27th August, 2010, is a valid codicil to the testamentary document dated 20th July, 2004, (in the event that the testamentary document dated 20th July, 2004 is invalid) to testamentary document dated 3rd June, 1988; and

(iii) in the event that the reply to (i) above is in the affirmative, whether that the bequest to “A.G.A.A.” appearing in the testamentary document dated 20th July, 2004, may be construed as a bequest to the charitable body currently named “Turn 2 US” having its registered office at 200 Sheppard’s Bush Road, Hammersmith, W67 ML, or fails for uncertainty.

8. I also note citations to see proceedings were sought in respect of the trustees of the Alexandra Guild, Trevor Leopold, Diane Oliver and the trustees of the Methodist Church in Ireland. By Order of the Master of the High Court on 2nd May, 2018, leave was granted pursuant to RSC O. 15, r. 12 and O. 79, r. 50 that citations to see proceedings be issued and those citations issued thereafter.
9. I further note the notification on the Charity’s Regulatory Authority (“CRA”) both in this jurisdiction and in the UK by virtue of the terms of the residuary clause to the deceased’s July 2014 will.
Due execution of the July, 2004 will
10. On the 10th July, 2014 Ms. Hatton swore an affidavit in respect of the July 2004 will. It is short and clear in its terms. She states as follows:

“I confirm that the will bears my signature as witness. I clearly recall the circumstances under which I signed my name at her home. Dorothy Leopold told me that she was anxious to sort out her affairs and requested that I sign my name on a legal document. I signed the document as requested and wrote my address. To the best of my recollection Dorothy Leopold did not sign this document in my presence. There was definitely no other person present other than myself and Dorothy Leopold when I signed my name as witness. There was no solicitor or any other person present”.
11. Ms. Hatton gave evidence which I shall deal with below but it did not deviate in any material sense from the matters deposed to within this affidavit.
12. In her evidence, in summary, Ms. Hatton stated:

“(a) She had been a member of the St. Vincent de Paul for many years and in that context had visited the deceased for some nine and half years and thereafter she had visited her to enquire after her welfare and as a matter of friendship. She estimated she would have visited her once every couple of months and had long conversations with the deceased.
(b) Ms. Hatton confirmed that in respect of the July 2014 will that her name, address and occupation which appeared on the right hand side of the page was all in her own handwriting.

(d) She recollects being asked to sign a document by the deceased but did not then know that it was a will. She had no recollection of there being any “writing” in that portion of the document she was asked to sign. Specifically, she appears to have no recollection of either a typed attestation clause nor the signatures of any other parties appearing on the document when she signed.

(e) As Ms. Hatton described it the deceased simply drew back a portion of the page and asked that she sign that portion of the page in the manner that is set out above and she did so by signing her name, address and occupation.

(f) Ms. Hatton was adamant in her evidence that at no point during that meeting at the house of Ms. Leopold (she having travelled to Ms. Leopold’s house at her specific request) did she meet Mr. Simon Quick; indeed throughout her visit, save for the deceased, no other person was present before, during or after her execution of this will.

(g) Ms. Hatton could not recollect signing any other document in any circumstances for the deceased and was only reminded of the events when she was approached at some time after the deceased’s death asking about her signature in respect of the July 2004 document which she then learnt was the deceased’s will.

(h) Ms. Hatton is 81 years of age, not a beneficiary under the will and had simply been a friend and sometime caller to Ms. Leopold in her capacity as a member of the St. Vincent de Paul down the years.

13. The other witness to the deceased’s will was Mr. Simon Quick. He gave evidence of being a retired solicitor who was well known to the deceased down the years (together with his partner in the law firm Mr. Noel Malone). He had acted for the deceased in the 1980s on a number of small matters. He has lengthy experience in probate matters. His colleague in the office had dealt with Ms. Leopold’s previous testamentary document on the 3rd June, 1988.
14. With regard to the testamentary document and surrounding circumstances of July 2004 his evidence was to the following effect:

(a) On the 14th January, 2004 Mr. Malone had received a handwritten note from the deceased setting out matters she wished to be included within her will. The note by its content makes it clear that the parties knew each other and there are warm greetings within it. More importantly it enclosed a typed list of people whom the deceased indicated she wished to benefit. For present purposes the item headed:

“Elizabeth Finn Trust,
1 Derry Street,

London W85HY

Claire Barnett,

Caseworker”

I also note the that the two solicitors Mr. Malone and Mr. Quick are also mentioned as potential beneficiaries within this typed note.
(b) Mr. Malone replied on the 26th April, 2014 indicating that clearer instructions would be required and asks that he contact her with a view to discussing these matters. That is followed by an internal memorandum from Mr. Malone to Mr. Quick on 12th May, 2004 indicating that the deceased is virtually incapacitated and that he would like to discuss her situation.

(c) There is then a letter from Mr. Quick to Ms. Leopold of 28th May, 2014 indicating that Mr. Malone is on holiday and asked if the deceased would telephone the writer to fix an appointment for Mr. Quick to drop down and see her.

(d) It was Mr. Quick’s evidence that he lived close by to Ms. Leopold and accordingly could easily travel to visit her in person.

(e) The next item of correspondence is dated 8th July, 2004 again from Mr. Quick to Ms. Leopold referring to a recent meeting with her and stating that he has now drafted and engrossed the new will. He again asks that she telephone to arrange an appointment so he can drop down to her home in the near future.

(f) Whilst this correspondence is clear in its terms unfortunately there are no notes whatsoever of the meeting referred to in the letter of 8th July, 2004; the evidence of Mr Quick was that the purpose of that meeting was to enable him to take the deceased’s instructions. Nor is there any solicitor’s attendance note with regard to his attendance upon the deceased for the purposes of the execution of her July 2004 will.

(g) At the meeting of 8th July Mr. Quick said that there was a substantial discussion regarding the appointment of executors, the persons whom she wished to benefit with regard to pecuniary legacies and the charities to whom she wished to devise the balance of her estate. She suggested the St. Vincent de Paul and thereafter they discussed that the balance of the monies would go to a charity and this is where matters become a little confusing. The name of the charity clearly set out on the face of the July 2004 will is that of the A.G.A.A. It appears that that is entirely in error and that it should have been D.G.A.A. as opposed to the A.G.A.A. In any event that parties now agree that the organisation in question was the Elizabeth Finn Trust which is now called the Elizabeth Finn Care – Turn2Us.

(h) As I understood Mr. Quick’s evidence he suggested that the inaccuracy (if I might describe it as such) of the description ‘A.G.A.A’ may have arose arising from either his error in not taking the instruction correctly, noting it down incorrectly or subsequently dictating it incorrectly.

(i) Mr. Quick gave evidence that, prior to his attendance upon the deceased on 20th July, 2014, when telephoning her to arrange that meeting he had asked her to have two persons other than the deceased and himself present for the purposes of acting as witnesses of the will.

(j) When Mr. Quick arrived Ms. Hatton was present and he met her. But as she was the only individual present he left the deceased property for some five minutes and went to neighbouring houses to see if any other person would be available to act as a witness. Apparently one person was unwilling and the other property that he tried was unresponsive.

(k) He then returned to the deceased’s house. His evidence thereafter was that he read the will over to the deceased (in the presence of Ms. Hatton). He satisfied himself that the deceased understood and was satisfied with the contents of the will and that the deceased then signed and dated the will and thereafter each of the witnesses (being himself and Ms. Hatton) then witnessed the wills with their name, address and occupation all being present together at the same time.

(l) Mr. Quick’s evidence was that he was quite certain that when he returned to the property after his unsuccessful attempt to procure a second independent witness that the July 2004 document had not been executed by the deceased nor signed by Ms. Hatton in that intervening period.

(m) In summary Mr. Quick’s evidence was that the execution of the July 2004 will was entirely in accordance with the requirements of s. 78 of the Succession Act, 1965 with which he expressed himself entirely cognisant and familiar.

(n) Mr. Quick also accepted that in acting as a witness to the will that he was ensuring that the pecuniary bequest to him would (pursuant to s. 82 of the 1965 Act) be null and void and form part of the estate’s residue. He stated that neither he nor Mr Malone wished to be beneficiaries, did not intend to take the benefit but did not wish to disoblige the deceased.

15. Thereafter, Mr. Quick’s evidence was that he returned to his office with the original duly executed will which he then entered in his wills safe.
16. Mr. Quick was as positive in his evidence that he had met Ms. Hatton on 20th July as Ms. Hatton was in her evidence that she had not met Mr. Quick.

17. The next item is the execution of a codicil to her July 2004 will and that is dated 27th August, 2010.

18. There is a comprehensive attendance note of 14th July, 2010 by Mr. Quick in this regard. It makes clear that the purpose of his visit (he again attended the deceased at her premises at her request) was both to execute a codicil to her will but also the execution of an enduring power of attorney.

19. The instructions and terms of the August 2010 codicil were relatively straightforward; two modest pecuniary bequests to the named persons appearing within clause 1 of her codicil and directions as to her burial and certain other matters with regard to tombstone engraving.

20. Mr. Quick states that in respect of the deceased’s due execution of this document that it was witnessed again by himself and by one Pamela Doyle, whom I understand was the daughter of carer in the house at the time. Again the names of the witnesses appear with their address and occupation given thereunder. Again the name of Mr Quick is on the left hand side of the document, the signature of Ms Doyle , with accompanying name, address and occupation on the right.

21. Mr. Quick in his evidence before the court stated that he did not show or furnish the deceased with a copy of her July 2004 will prior to her execution of this codicil. The error/omission is that the reference to the deceased’s will (to which this codicil – described as a “first codicil”) is said to relate is a will dated “20th day of April, 2007”.

22. The deceased executed no testamentary document on the 20th day of April, 2007 – the incorrect date in fact appears on three occasions in a relatively short codicil and is acknowledged by Mr. Quick as an error and one he cannot explain.

23. It appears that based upon Mr. Quick’s evidence that, in respect of the execution of the will and the codicil, his practice was to attend personally upon the deceased at her residence with a duly engrossed testamentary document. The date “20th day of April, 2007” is also typewritten on this document and accordingly it appears that the error was inserted prior to Mr. Quick’s attendance upon the deceased for the purposes of the execution of this codicil. It is agreed by all that the previous will is that of July 2004 and no other.
Due Execution of a Will
24. Section 78 and the requirements for due execution are well known and of long standing. They significantly predate the Succession Act 1965. In any event, s. 78(2) of the 1965 Act states as follows: –

“Such signature shall be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness shall attest by his signature the signature of the testator in the presence of the testator, but no form of attestation shall be necessary nor shall it be necessary for the witnesses to sign in the presence of each other.”
25. Accordingly, the position is: –
(a) a testator must either make or acknowledge his or her signature in the presence of at least two witnesses who are present at the same time;
(b) where a testator signs or acknowledges his or her signature in the presence of the witnesses, they need not see the signature or know that he or she is signing a will provided that they see the active signing, where the testator acknowledges his or her signature, the witnesses must have had an opportunity of seeing it, even if they did not avail of the opportunity;

(See generally Spierin; Succession Law 1965 and related Legislation: A Commentary, 4th ed . at paras. 555-558)

26. The operative part of s. 78 on the facts of this case is self-evidently the requirement that the witness’s signature shall be made or acknowledged by the testator in the presence of each of two or more witnesses present at the same time. The evidence in this case is stark; Ms. Hatton says that when she signed as witness no one was present other than the testator. Mr. Quick is equally clear that when he signed as witness that he did so in the presence of Ms. Hatton and the testator. Clearly, one is mistaken because both version of events are utterly incompatible, one with the other.
27. Counsel for the plaintiff pointed to what were described as “shortcomings” by Mr. Quick as the solicitor attending upon the deceased in or about the drafting and execution of the July 2004 will and the August 2010 codicil. It was then suggested that these matters would be a potential factor in determining whether overall due care and attention was taken by Mr. Quick in or about the execution of the deceased’s last will and testament.

28. I note the shortcomings. In particular, on the facts of this case, it is extremely regrettable that there is no contemporaneous or indeed any file or attendance notes from Mr. Quick in his initial attendance upon the deceased on 8th July, 2014 or, of greater importance and significance, upon her for the execution of the will on 20th July, 2014.

29. Nevertheless, in my view, these are separate and distinct matters. One could easily conceive of a scenario where the will is immaculately drafted and yet fails for want of due execution and equally the reverse where a will is, for some reason, improperly or inaccurately drafted but nevertheless no issue arises as to its due execution. Accordingly, the question of due execution is a discrete one and I propose to consider it in such terms.

30. Counsel for the plaintiff asserted that Ms. Hatton was merely obliging the deceased in a gesture of friendship in her request to act as a witness, had no incentive in the evidence that she gave and gave her evidence honestly and without hesitation. I entirely accept that submission.

31. Equally, I found Mr. Quick to give straightforward answers to the questions asked in examination and cross examination and whilst he is now a retired solicitor with some health issues was nevertheless in a position to give cogent evidence throughout.

32. The July 2004 will contains a proper attestation clause. The codicil of August 2010 also contains an attestation clause save that the date set out within it of 20th April, 2007 is incorrect. However the challenge is to the July 2004 will. On its face, therefore, the testamentary document (with codicil annexed thereto) appears to suggest that everything is regular on its face. To that extent, the presumption that everything was properly done ( omnia praesumuntur rite esse acta ) arises. However, that is merely a presumption of due execution arising from what appears on the face of the testamentary document before the court. Self-evidently, however, the application of such a presumption will be wholly dependent upon the circumstances of the case. Ms. Hatton could not recollect whether there was any typing or typed words above where she signed her name and if there was, gave evidence that she did not advert to them or read them. Strictly speaking, however, Ms Hatton, in appending her signature to the testamentary document, was signing not only as a witness but also confirming the matters set out in the attestation clause (of which she appears to be unaware and did not consider).

33. The original will when produced in court disclosed the signature of the testatrix was in a different coloured ink to that of the two witnesses and whilst the ink colour is the same for the two witnesses it seemed in my view that each of the witnesses appeared to have used a different pen for that purpose.

34. As the testamentary document was typed there was no suggestion that the attestation clause was added at a later time so I must assume that Ms. Hatton signed her name as witness below the typed attestation clause as it appears within the July 2004 will.

35. The attestation clause to the July 2004 will is as follows:

“SIGNED – by the said testatrix as and for her last will and testament in the presence of us who at her request and in her presence and in the presence of each other have hereunto subscribed our names as witnesses. This will having been printed on the front side only of the foregoing two pages of size A4 paper”.
36. The courts in this jurisdiction has considered the applicability of the presumption omnia praesumuntur rite esse acta . In my view the best exposition of the applicability of the presumption is set out in a judgment of Davitt J. in the case of In the Goods of McLean [1950] 1 I.R. 180 when he asserts:
“If I am correct so far, and if the maxim, omnia praesumuntur rite esse acta , is merely the expression in a short form of the application in a particular manner of the general principle of the balance of probability, then it seems to me that whenever there is a question as to due execution there is always room for the application of the principle, whether the process be described in Latin or in English. What I have been leading up to is this: if both the attesting witnesses gave evidence negativing due execution and their evidence is accepted by the court as convincing, and, therefore, true and accurate, then there is an end of the matter and the will must be condemned; but until the Court does reach that degree of conviction there is room for the principle. There is never any difficulty about accepting the evidence of witnesses who appear in every way to be truthful, whose recollection appears to be trustworthy, who are not contradicted by any other testimony, and whose evidence is entirely consistent with the probabilities of the case. Where, however, their evidence is quite inconsistent with the probabilities, then it is not to be so readily accepted. It is well to remember that human testimony is always fallible, and there maybe cases where the inferences to be drawn from facts clearly established maybe strong enough to overbear the direct evidence of truthful and apparently reliable witnesses. It seems to me that, in will suits, as in other cases, and with respect to the issue of due execution as with respect to any other issue of fact, the direct evidence of witnesses which conflicts with the probabilities of the case must be weighed with the greatest care and circumspection before it is accepted as effective proof”.
37. On the balance of probabilities, I accept that the attestation clause was on the testamentary document of July 2014 when Ms. Hatton attested the testatrix’s signature. Likewise, it was there when Mr. Quick attested the testatrix’s signature.
38. There is a clear conflict of evidence. Quite simply one of the attesting witnesses to the July 2014 will must be incorrect or mistaken.

39. In such circumstances I am applying the presumption of due execution. Where there is a direct contradiction in respect of each attesting witnesses as to the manner in which this testamentary document was witnessed then in my view, on the balance of probability, I must assume that this will was executed pursuant to its terms. Each signed as witnesses after the attestation clause. Accordingly, in applying the presumption I therefore find that the testamentary document of July 2014 was duly executed in accordance with the provisions of Succession Act, 1965.

40. I note that the presumption has been more recently considered in the Court of Appeal decision in England and Wales of Re Sherrington [2005] EWCA Civ 236 but, in my view, the judgment of Peter Gibson L.J. is entirely in accordance with the quotation from the judgment of Davitt J. above.

41. The issue of construction of the July 2004 will and the August 2010 codicil has happily been resolved between by agreement of the parties so I simply confirm that the initials A.G.A.A. with the address at 1 Derry Street, London, W85 HY does not exist but the entity at that address was D.G.A.A. being the initials of “Distressed Gentle Folks Aid Association” as it was formerly known and formerly of that same address. In or around the date of the deceased’s July 2004 will, the entity D.G.A.A. was known as Elizabeth Finn Trust and thereafter Elizabeth Finn Care and came under the name Turn2Us. Whilst the parties differed somewhat as to applicability of the so called “armchair principle” or simply an application of s. 90 of the Succession Act, 1965 Act is not, in my view, a matter that now arises in the events that have happened. I also accept that the proper date to be inserted into the codicil is that of 20th July, 2004.

42. Accordingly, in determining the issues that have been tried at the hearing of this action, pursuant to the order of Abbott J. on 6th November, 2017 I find:

(1) That the testamentary document dated 20th July, 2014 was executed in accordance with the formalities required by s. 78 of the Succession Act, 1965.
(2) That the testamentary document dated 27th August, 2010 is a valid codicil to the testamentary document dated 20th July, 2014.

(3) As the reply to (1) is in the affirmative that the request to “A.G.A.A.” appearing in the testamentary document dated 20th July, 2004 may be construed as a bequest to the charitably body currently named “Turn 2 US” having its registered office at 200 Sheppard’s Bush Road, Hammersmith, W6 7NL.”

In the Goods of Annie Maguire, Deceased

High Court.

7 March 1941

[1941] 75 I.L.T.R 66
Hanna J.

Motion seeking liberty for James J. C. Maguire and Thomas J. R. Maguire, executors of the purported last will of Annie Maguire, deceased, dated the 1st August, 1931, to apply for a Grant of Probate of the said document, as constituting the last testamentary disposition of the deceased.

The deceased, Annie Maguire, who died on 22nd June, 1939, left two wills in similar terms, dated 27th April, 1931, and 1st August, 1931, respectively. The will of 27th April was duly executed, and was witnessed by Joseph Maguire and Robert Prunty.

The will of 1st August, which was in the deceased’s own handwriting throughout, was as follows:—

“I, Annie Maguire, of 14 Elgin Road, Dublin, declare this to be my last will and testament. I will appoint my sons, James J. C. Maguire and Dr. Thomas J. R. Maguire, executors of this my will. I bequeath all that I possess at the time of my death to my daughters, Margaret Mary Brigid (Madge) Maguire and Sarah Anne Mary (Sheila) Maguire, in equal shares. In witness whereof I have signed this my will this the first day of August, One Thousand Nine Hundred and Thirty-one.

Signed by the said Annie Maguire as and for her last will in the presence of us, who at her request and in her presence and in the presence of each other hereby subscribe our names as witnesses.

(Signed)

Robert Prunty, 22 Elgin Road, Dublin.

Maura Prunty, 22 Elgin Road, Dublin.”

Robert Prunty predeceased the testatrix, and Maura Prunty deposed in her affidavit that she could not recollect the circumstances touching upon the execution of the document. She further deposed that she had known the deceased for thirty years, and was familiar with her handwriting, and that the document was in the deceased’s handwriting.

R. O hUadhaigh, for the applicants, cited In the Goods of Rosellen Eliza Torre, 8 Jur. (N.S.) 494.

Hanna, J.:

This is a somewhat unusual case. The document, however, is in the handwriting of the deceased throughout, and I consider that is sufficient signature. The case cited by counsel is similar in its facts to the present case and I propose to follow it.

Accordingly, I admit the document of the 1st August, 1931, to probate as the last will of Annie Maguire.

Gillic v Smyth

King’s Bench Division (Probate).

10 December 1914

[1915] 49 I.L.T.R 36
Palles L.C.B.

Action for trial before a judge without a jury. The statement of claim set out that the plaintiff was a lawful daughter of James Smyth and Anne Smyth, late of Lisnagun, in the County of Meath. The said James Smyth died on March 31st, 1879, having by his will, dated December 1st, 1876, bequeathed all his property to his wife, the said Anne Smyth. The said Anne Smyth died on December 26th, 1908, having by her will, dated May 1st, 1908, bequeathed all her property to the plaintiff, and also appointed the plaintiff sole executrix. Probate of the will of the said Anne Smyth was on July 22nd, 1914, issued forth to the plaintiff out of the Principal Registry of the High Court of Justice in Ireland, King’s Bench Division (Probate). The defendant is a lawful son of the the said James Smyth and Anne Smyth. On July 7th, 1914, the defendant entered a caveat against probate of the will of the said James Smyth being issued to the plaintiff. The plaintiff claims as personal representative of the said Anne Smyth that the Court shall issue a decree probate of the said will of James Smyth, dated December 1st, 1876, in solemn form of law. The defence alleged that the said will of the deceased was not duly executed according to the provisions of the statute 1 Vict., c. 26. The deceased at the time the said will purported to have been executed was not of sound mind, memory and understanding. The deceased at the time of the execution of the said will did not know and approve of the contents thereof. The will sought to be proved was as follows:—“Lisnagun, 1st December, 1876.—I bequeath everything I die possessed of to my wife, believing that she will do the best she can for my children. I have no confidence in my eldest son. I therefore direct that the place shall not be given to him.—James Smyth. Witnesses—Patrick Murphy, John Colrick.” From evidence given by John Colrick, teacher in Ballinlough School, in the parish of Kilskyre, a witness to the will, the other witness being dead, it appeared that on December 1st, 1876, James Smyth, the deceased testator, came to Ballinlough School and told Colrick to come to Kilskyre Chapel, that Father Keena (the parish priest of Kilskyre) wanted him to sign a paper. Colrick went to the chapel and found there in the sacristy Patrick Murphy, James Smyth and Father Keena. Father Keena said to Colrick: “You are to sign this paper for me,” and, putting his hand on the will, “Put your signature there.” Colrick then wrote his signaure. He further said that he did not recollect seeing the testator’s signature on the will, nor did he recollect seeing the testator sign, but as far as he recollected he was the first person to sign the paper. Father Keena said the same to Murphy, and Murphy then wrote his signature. During this time James Smyth was standing beside Colrick, and Colrick could have seen whether the name James Smyth was on the paper or not. The body of the will, the address, and the date at the top, also the word “witnesses,” were in Father Keena’s handwriting. Colrick then left the sacristy. Father Keena did not say what the document was. Colrick did not know what the document was, nor did anybody read the document to James Smyth while Colrick was in the sacristy. Father Keena was not alive at the time of the trial.

Representation
Hanna, K.C., and Dockrell, for the plaintiff.
M. B. Lynch, for the defendant.
Authorities cited:—

Hudson v. Parker, 1 Rob. 14, 8 Jur. 786;
Morritt v. Douglas, L. R. 3 P. & D. 1;
Re Swinford, L. R. 1 P. & D. 631;
Pearson v. Pearson, L. R. 2 P. & D. 451;
Ilott v. Genge, 3 Curt. 160, 4 Moo. P. C. 265, 8 Jur. 323;
Re Bishop, 30 W. R. 567;
Fischer v. Popham, L. R. 3 P. & D. 246;
Re Gunstun, Blake v. Blake, 7 P. D. 102;
In the Goods of Peverett, 1902, P. 205;
Brown v. Skirrow, 1902, P. 3;
Clery v. Barry, 21 L. R. Ir. 152.
Palles, L.C.B., in giving judgment, said that on the whole the will should be admitted to Probate. The document should be looked on as being regular on its face, and the presumption omnia prœsumuntur rite esse acta primâ facie applied. His Lordship agreed with Mr. Lynch that the signature of the testator must have been on the paper when the testator went to call for the witness. The question, therefore, arose whether there was a sufficient acknowledgment of the testator’s signature, the signature being on the paper and in a position where the witnesses could see it. The witnesses were asked in the presence of the testator to sign the paper; that clearly meant that they were to sign as witnesses, because the word “witnesses” ap *37 peared opposite to the signatures. Probate should be granted, defendant to be allowed costs out of the assets.

Murphy v O’Donoghue

County Court.

1 January 1885

[1885] 19 I.L.T.R 26

Action brought on a testamentary civil bill by Julia Murphy, one of the next of kin of John Cunningham, deceased, to revoke letters of administration with the will annexed of the said John Cunningham, which were granted to the defendant, Timothy O’Donoghue, on Nov. 6, 1883. The testator directed the Rev. James Lyons to prepare his will in accordance with certain directions. The priest drafted the will in full and put the testator’s name to it before it was finally brought under the consideration of the testator. There was no express direction given by the testator to the Rev. James Lyons to put his name to the will. Subsequently the testator acknowledged his name so put, as his signature, in the presence of the Rev. James Lyons and another person, both of whom thereupon subscribed their names as attesting witnesses.

R. M. Hennessy, on behalf of the plaintiff, contended that the will was not duly executed, as it was not signed by the testator, or for him by some some person in his presence and by his direction.

P. D. Fleming, contra.

Judgment deferred.

The Judge.—The only question is as to the due execution of the will. The testator acknowledged his signature to the will, it having been prepared by Father Lyons, one of the witnesses, and prepared and drafted by him in full, he having put the name of the testator to the will before it was finally brought under the consideration of the testator. There was no express direction given to Father Lyons to put the testator’s name to it; he had, however, prepared the will by direction of the testator. The question then is whether, the testator not having given a previous direction to sign his name to the will, subsequent acknowledgment of such signature was sufficient. The cases are collected in 1 Jarman on Wills (Ed. 1881) 108. The signature of the testator is to be made or acknowledged (the signature and not the will, as formerly, being the subject of acknowledgment) in the simultaneous presence of the witnesses; whereas, formerly the signature might be made before one, and (the will) acknowledged before the rest, or acknowledged before all the witnesses separately (without any of them having seen the signature).

The signature to be acknowledged may be made by the testator or by another for him.

A testator, whether speechless or not, may acknowledge the signature by gesture.

There is no sufficient acknowledgment unless the witnesses either saw or might have seen the signature, not even though the testator should expressly declare that the paper to be attested by them is his will. Where the witnesses either saw or might have seen the signature an express acknowledgment of the signature itself is not necessary. A mere statement that the paper is his will or a direction to them to put their names under his is sufficient. It follows from what has been stated that the will must be signed by or for the testator, and the signature must be acknowledged before either of the witnesses signs. The signature must be made or acknowledged in the presence of the witnesses simultaneously, and not at different times, and they must themselves subscribe their names in the presence of the testator, though not necessarily in the presence of each other. In this case the will was signed by Father Lyons; the testator acknowledged the signature to be his afterwards in the simultaneous presence of the attesting witnesses. That is sufficient; and it makes no difference that Father Lyons, who so put the testator’s name to the will, was one of the attesting witnesses.

Kelly v Keatinge

Court of Probate.

3 March 1871

[1871] 5 I.L.T.R 63
Warren J.

March 3, 1871

Acknowledgment by testator—Attestation—Costs.

A testator who had affixed his mark to his will in the absence of the subscribing witnesses, having been asked in their presence, “Do you acknowledge this to be your last will and testament?” replied, “I do.”

Held to be a sufficient acknowledgment of the testator’s signature.

Semble. It is sufficient, in the case of a signature acknowledged in the presence of witnesses, if it shall appear that the will was so situated as that such signature might have been seen by them, and the absence of proof, that the witnesses saw the signature at the time of attestation shall not invalidate the attestation.

The declaration in this case stated that Walter White, late of Rehan, in the parish of Tynagh, barony of Leitrim and county Galway, farmer, who died on or about 8th December, 1869, at Rehan, made his will on the 6th December, 1869, and appointed James Colahan and Walter White, executors, which, after being reduced to writing was signed by the testator, by putting his mark thereto in the presence of two witnesses, present at the same time, and who subscribed the same in the presence of the said testator and of each other, and whose names appeared on the said will; that James Colahan renounced the burthen of the execution; that Walter White being cited to accept the burthen, or show cause why letters of administration should not be granted to plaintiff had not appeared; that testator bequeathed all his property to his wife, Catherine, who afterwards died, having made her will and appointed the plaintiff her executor.

The Plea stated that the will was not executed according to the provisions of 1 Vic., cap. 26.

A Notice, that the defendant insisted on the will being proved in solemn form, and only intended to cross-examine the witnesses, was served under the 16th rule.

Armstrong, Sergt., and Price, for the plaintiff.

Purcell, Q.C., and E. N. Blake, for the defendant.

James Colahan and the witnesses to the will, Patrick Burns and Thomas Dooley were examined, and affidavits made by the two latter on a previous occasion were read, which stated that when the will was witnessed the deceased appeared to be asleep, and when asked on three occasions if he acknowledged the document to be his last will and testament, did not answer until Colahan shook him the third time, when he said in a faint and weak manner, “It is;” that deceased did not put his mark to the paper in their presence; that they believed *63 deceased was incapable of knowing what he said or did, or what was said or done in his presence, and that he did not see them sign their names.

The evidence given by the subscribing witnesses conflicted in some degree with their affidavits. James Colahan deposed that the will was written by him, and subscribed by the testator by putting his mark to it, but not in the presence of the witnesses; that the witnesses were subsequently brought into the room when the testator, in their presence, acknowledged the will to be his, upon which they affixed their signatures. According to the evidence of Dooley, the testator having been several times asked by Colahan if he acknowledged his signature, without making any answer, was asked, “Do you hear me?” to which he replied, “I do.”

E. N. Blake, for the defendant. This will was not duly attested. The proof that a will has been signed by the testator, prior to its being attested, should be positive, and the burden of proof lies on the party propounding it (Illot v. Genge, 3 Curteis, 171). The recollection of Colahan is vague, and the words stated to have been used by the testator, were in legal effect an acknowledgment not of the signature but of the will (Gryle v. Gryle, 2 Atk. 177). That case was decided prior to the passing of 1 Vic., c. 26, which requires a stricter acknowledgment than was previously necessary, and requires that the signature itself and not the will shall be attested (Illot v. Genge, on Appeal, 8 Jur., N. S. 323).

There is no evidence that the witnesses saw the signature, and although where a will has been signed in the presence of the witnesses, it may not be necessary that they should see the signature, it is necessary that they should see it in a case in which they have not been present, and the testator subsequently acknowledges it in their presence (Hudson v. Parker, 1 Robertson’s Eccl. Cases, 14, 25). [Warren, J.—In that case the signature was concealed. A signature that is concealed cannot be attested.] Subscription is a manual act, attestation a mental one. Witnesses cannot attest what they do not see or know. It cannot be assumed that these witnesses attested the signature, because they have deposed that they did not see it, and the testator’s words, “this is my will,” were not likely to inform ignorant witnesses that he had affixed his signature to it. If Dooley is to be believed, the testator did not even refer to his will, and was incapable of acknowledging it. He cited Goods of Trinder, 3 Notes of Cases, 275; Goods of Pearson, 10 Jur. N. S. 371.

Armstrong, Sergt., in reply, referred to the cases collected as to this point in Williams on Executors.

Warren, J.

The question whether the evidence of the first witness is to be relied on is one which I could have preferred to have had determined by a jury. There is no doubt that the testator put his mark to this will, and that it was not put to it in the presence of the witnesses. Two questions arise. 1. Was it there before the witnesses signed their names? 2. Was it afterwards acknowledged? I believe that Colahan intends to tell the truth. I am of opinion that I ought to believe upon the evidence that the testator’s mark was put to the will before the witnesses signed their names

If the testator said that this was his last will, according to all the authorities, that is a sufficient acknowledgment. The next question is whether he did, in fact, acknowledge it. The inference from the evidence of the last witness is that he did not, but it has been justly observed by the plaintiffs counsel that all the witnesses appear to be of the opinion that the testator did acknowledge the will, though their evidence is confused. Upon the whole, I feel bound as a juror to infer that it is true that the testator in answer to the question, “Do you acknowledge this to be your will?” said, “I do.” That appears to be sufficient. I think that the defendant ought to get his costs out of the assets. The case seems to be one which fairly called for investigation, and a jury might have come to a conclusion different from mine.

Westby v Westby

High Court of Justice.

King’s Bench Division.

2 May 1901

[1901] 35 I.L.T.R 129
Lord O’Brien C.J., Gibson, Boyd JJ.

April 17, 22; May 2, 1901

Where a will had been written by the testatrix on a printed form which provided an attestation clause, and this attestation clause had been subscribed by two witnesses, but on the trial of the action to establish the validity of the will it was sworn by M. W., one of the attesting witnesses, that when she subscribed, the other attesting witness, D. N., was not present, and the evidence of D. N. was inaccurate and therefore unreliable; and where the learned judge before whom the action was tried without a jury, entered judgment for the plaintiff, pronouncing for the validity of the will:

Held, on motion to set aside this judgment and enter judgment for the defendant, that the regularity of the attestation clause raised a disputable presumption in favour of due execution, but that this presumption was displaced by the evidence of M. W., and the plaintiff having failed to prove due execution, the judgment entered should be set aside and instead judgment entered for the defendant.

Application that the judgment entered for the plaintiff in the action by Andrews, J., on Feb. 12, 1901, pronouncing for the force and validity of a paper writing dated May 2, 1895, propounded by the plaintiff as the last will of Louisa Crofton Westby, deceased, be set aside, and that judgment be entered for the defendant on the ground that the said judgment was against evidence and the weight of evidence, and that there was no evidence of due execution of the alleged will; or in the alternative for a new trial. The action was tried by Andrews, J., without a jury. It was brought as a friendly suit to obtain a decision on the validity of the alleged will.

The defence relied on was undue execution. The will was written by the testatrix on a printed form consisting of two sheets. On the first page the testatrix set out various bequests, chiefly of personal ornaments, and having left £10 to her doctor she bequeathed the residue of any money over, after payment of her funeral and testamentary expenses, to certain charities.

The second page was a complete blank, with the exception of some seven lines at the bottom, where the printed form provided for the signature of the testatrix, the attestation clause, and the signatures of two witnesses. The testatrix had written her name in the space provided, and also the date May 2, 1895. Then followed the printed attestation clause, which read as follows: “Signed by the above-named testator as his last will in the presence of us, both being present at the same time, who in his presence and in the presence of each other have hereunto subscribed our names as witnessess.” Then followed the names and *129 addresses of the two witnesses, Maria P. Westby and Dorothy M. P. Newton.

At the trial of the action Maria P. Westby was called as a witness and gave evidence. She remembered the occasion on which she signed the document. When she had entered the bedroom of the testatrix there were only two persons in the room, the testatrix and herself. The testatrix was sitting at a table with a paper before her. She said nothing at all about the will, but pushed it towards witness, who then signed her name. Witness thought that the testatrix signed in her presence. Immediately after witness had signed Miss Newton came into the room.

Q. “Are you clear that the deceased did not sign the will in the presence of Miss Newton?”

A. “I am perfectly clear of that. When I signed the will Miss Newton was not in the room, but when she signed it I was in the room.” Dorothy Newton, the second witness to the will, also gave evidence. When she entered the room the testatrix and Miss Maria Westby were both there. The will was lying on a table, and she saw the two signatures of the testatrix and Miss Maria Westby. She could not say if she was present when Miss Maria Westby signed, but was perfectly certain that the testatrix had not signed while she (Dorothy Newton) was present. The testatrix pointed to her signature and asked Miss Newton to sign her name. On the evidence Andrews, J., came to the conclusion that the presumption in favour of due execution raised by the attestation clause was too strong to be rebutted by the evidence that had been given, and held accordingly that the will had been duly executed.

Representation
Samuels, K.C., and G. Walker, for the plaintiff.
Blood, K.C., and W. G. Gibson, for the defendant.
Cases cited:—

Sullivan v. Sullivan, 3 L. R. Ir. 299;
Kinton v. Grahame, 29 Ir. L. T. R. 127;
Wright v. Rogers, 1 P. & M. 678;
Wright v. Sanderson, 9 P. D. 149;
Blake v. Knight, 3 Cur. 547;
Cooper v. Bockett, 3 Cur. 648;
Moore v. King, 3 Cur. 243;
Woodhouse v. Balfour, 13 P. D. 2;
Wyatt v. Berry (1893), P. D. 5;
Lloyd v. Roberts, 12 Moo. P. C. 165;
Hindmarsh v. Charlton, 8 H. L. 160;
Reeves v. Lindsay, Ir. R. 3 Eq. 509;
O’Meagher v. O’Meagher, 11 L. R. Ir. 117;
Croft v. Croft, 34 L. J. (P.) 44;
In the Goods of Gunstan, 7 P. D. 102.
Cur. adv. vult.

Lord O’Brien, C.J.

The question is whether this will of Miss Louisa Westby was rightly executed— whether the two witnesses were in the room when they both subscribed. If it was subscribed by one in the absence of the other, it was not duly executed. There is no doubt that in a case of this sort, when the attestation clause is perfect, there is a strong presumption in favour of due execution; but it is a disputable presumption that may be rebutted by evidence as to the facts. It is not necessary to cite any cases to establish that proposition. In the present instance we are satisfied that that presumption has been displaced. There were two witnesses to this will, Miss Maria Westby and Miss Dorothy Newton. They both gave evidence at the trial, and as to their integrity there is no question. I put out of consideration, however, the evidence of Miss Newton. Her testimony tends to show that they were not together when they subscribed their names, but there are some passages in her evidence which throw doubt on its accuracy. Therefore I rely entirely on the evidence of Miss Maria Westby. There is no question as to the integrity and intelligence of this lady. It is true that she does not remember everything in connection with the matter, she does not remember whether the leaves were on the trees, but she speaks with great certainty as to the manner of the execution of this will. [Reads her evidence.] I am satisfied with this witness. There is here a strong presumption in favour of due execution, but it is a disputable presumption, and it is displaced by the clear evidence of this lady. So far I have not dealt with any infirmities in the attestation clause, but have proceeded on the assumption that it was perfect. This lady, however, knew nothing about law. It is not the case of a barrister’s will or of an attorney’s will. It is on a printed form which is filled up, and there are mistakes in it. Having regard to the fact that it was filled in by this lady, that there are inaccuracies in it, that there are curious bequests in the will which show ignorance of law, I think the presumption of due execution raised by the regularity of the attestation clause is really a weak one. But strong or weak, I am satisfied that it is displaced by the evidence of Miss Maria Westby.

Gibson and Boyd, JJ., concurred.

In the Goods of Ellison, Deceased

Probate and Matrimonial Division.

4 February 1907

[1907] 41 I.L.T.R 123
Feb. 4, 1907

Two persons who were intended to be appointed by the testator as executors of his will signed their names as witnesses to the testator’s signature in the body of the will at the place where their names occurred in the clause appointing them as executors.

Held, that the will was properly executed, but that no executors of the will had been appointed.

Application ex parte on behalf of Frederick John Ellison, a son and one of the next-of-kin of Robert Ellison, deceased, for a grant to him of letters of administration with an alleged will of the deceased, dated Nov. 14, 1905, annexed of the personal estate of the deceased, or in the alternative a grant of administration of the personal estate of the estate, without, in either event, giving justifying security. The deceased, on Nov. 14, 1905, called at the Royal Bank, Foster Place, Dublin, and saw Frederick Roberts and Solomon Dale, both of whom were porters in the bank. The deceased then produced his will, which had already been executed by himself, and said that he wished Roberts and Dale to witness the will. He then acknowledged his signature in their presence, and pointed out to the witnesses where they were to sign, showing them the places respectively where their names and addresses appear in the will. Roberts and Dale then wrote their names and descriptions as directed by the deceased in the part of the will reserved for the names of the executors, in the presence of the deceased, and of each other. The deceased died on Jan. 5, 1907, and Roberts died on Jan. 13, 1907. The sole nextof-kin of the deceased were the applicant and three others. These three had signed a consent that letters of administration with the said will annexed or letters of administration intestate should be granted to the applicant without justifying security. The following was a copy of the will of the deceased, the portion in italics being printed matter:—

“This is the last will and testament of me Robert Ellison, of 10 Upper Sackville Street, in the County of Dublin; Ireland, Nov. 14, 1905. I hereby revoke all wills and testamentary instruments heretofore by me made. I appoint Solomon Dale, of Foster Place, Dublin, and Fred Roberts, of 3 Foster Place, Dublin, to be the executors of this my will. I direct my executors to pay my just debts and funeral and testamentary expenses. I give and bequeath [then followed a number of pecuniary legacies]. I authorise my daughter Annie to receive the money from the George’s Hall Society, and pay for my funeral from it.

“Signed,

“Robert Ellison,

“10 Upper Sackville St.,

“Dublin.

“To my son Frederick John Ellison I give 10 pounds, £10, my watch, gold chain, and gold ring.

“Witness my hand this day of 19

“(Testator to sign here).

“Signed by the above-named testator as h last will in the presence of us, both being present at the same time, who in h presence and in the presence of each other have hereunto subscribed our names as witnesses.

“Witnesses to sign here, with their address and occupation.”

The names “Solomon. Dale” and “Fred Roberts” in the above document were written by the subscribing witness.

Pim, for the applicant, referred to Roberts v. Phillips, 4 El. & Bl. 450; In the Goods of Davis, 3 Curt. 748.

The Court made the following order:— … And the Court being of opinion and so deciding that the paper writing dated Nov. 14, 1905, and purporting to be the will of the said *123 deceased, was duly executed in pursuance of the Statute 1 Vict., c. 26, and that the names Solomon Dale and Frederick Roberts written in the blanks at the commencement of the said paper writing were written by them as the attesting witnesses of the signature of the testator, the said Robert Ellison, deceased, which was then acknowledged by him in their presence, but that the said Robert Ellison having only acknowledged his signature to the said will and not re-signed the same, the insertion of the said witnesses’ names as aforesaid, though sufficient as a subscription of the will, did not operate as an appointment of them as executors, it is ordered by the Court that the said Frederick John Ellison, a lawful son, and one of the next-of-kin of the deceased, be at liberty to apply for a grant of letters of administration of the goods of the said deceased, with the said will annexed, omitting therefrom the words and figures on the second page of the said will after the signature of the said testator.

Murphy v O’Donoghue

County Court.

1 January 1885

[1885] 19 I.L.T.R 26

R. M. Hennessy, on behalf of the plaintiff, contended that the will was not duly executed, as it was not signed by the testator, or for him by some some person in his presence and by his direction.

P. D. Fleming, contra.

Judgment deferred.

The signature to be acknowledged may be made by the testator or by another for him.

A testator, whether speechless or not, may acknowledge the signature by gesture.

Kelly v Keatinge

Court of Probate.

3 March 1871

[1871] 5 I.L.T.R 63
Warren J.

March 3, 1871

Acknowledgment by testator—Attestation—Costs.

Held to be a sufficient acknowledgment of the testator’s signature.

The Plea stated that the will was not executed according to the provisions of 1 Vic., cap. 26.

A Notice, that the defendant insisted on the will being proved in solemn form, and only intended to cross-examine the witnesses, was served under the 16th rule.

Armstrong, Sergt., and Price, for the plaintiff.

Purcell, Q.C., and E. N. Blake, for the defendant.

Armstrong, Sergt., in reply, referred to the cases collected as to this point in Williams on Executors.

Warren, J.

Scarff v. Scarff

[1927] IR 19
O’Byrne J. 19
Supreme Court.

The judgment of the Court was delivered by
FITZGIBBON J. :
18 May

This action was instituted by the widow of William Henry Scarff, who died on the 29th of November, 1924, against the eldest son of the deceased, to establish a document, dated the 4th of September, 1924, as the last will of the deceased, to prove the same in solemn form, and to obtain a grant of letters of administration with the said will annexed. The defendant, who is heir-at-law, and one of the next-of-kin of the deceased, has pleaded that the document which was propounded was not duly executed, that the deceased man was not of sound mind, memory, and understanding, and that he did not know and approve of the contents of the alleged will at the time when it was executed. The action was tried by O’Byrne J., without a jury, on the 12th of February, 1926, when, after hearing oral evidence and the arguments of counsel for each side, he found all the issues in favour of the will. As the document is entirely in the handwriting of the deceased, with the exception of two signatures, which purport to be those of attesting witnesses, and as there is no suggestion that the deceased man ever suffered from any mental debility, and as his capacity on the date upon which the document purports to have been drawn up was not disputed at the trial, he must be presumed to have known and approved of the testamentary dispositions, which he wrote out with his own hand, and to which he annexed his own signature. The only question which appears to have been seriously contested at the trial, and the only one which was argued in this Court, was whether there was any evidence to justify the finding of the learned Judge that the document was duly executed in accordance with the statute 1 Vict. c. 26, that is to say, that it was signed at the foot or end thereof by the testator . . ., and such signature was made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and that these witnesses attested and sub-scribed the will in the presence of the testator.
The will in dispute contains no attestation clause; neither of the persons whose signatures are appended as witnesses was called at the trial, no person who saw the will executed was examined, and the identity of neither of the attesting witnesses is known. The facts concerning the preparation and execution of the will appear to be as follows:The deceased had been for nearly fifty years in the employment of Messrs. Wm. Hogg & Company, and had for the last forty of those years been one of their travellers, principally in the south and south-west of Ireland. On the 2nd of September, 1924, he was in Newbridge, and wrote from thence to his employers giving Monasterevan as his next address. On September 3rd a letter was received from him which had been posted at Kildare, the next station south of Newbridge, requesting a reply to Philipstown, and on September 4th, having apparently abandoned the visit to Philipstown, he wrote from Monasterevan, saying that any reply was to be sent to his home address in Dublin. That was his last official journey as traveller for Messrs. Hogg & Co., and on September 18th, 1924, his son was appointed in his place. On the 29th of September the deceased started on a four weeks’ round with his son, to introduce him to the customers of the firm, in the course of which he was taken very ill at Thurles, and had to be brought home on the 24th of October, and he died on the following 29th of November.
The document which has been propounded was found by his widow when she was going through his papers to collect the blank order forms belonging to his employers in the attachÃ© case which he used to take with him on his rounds, and her description of the way in which she discovered it and its situation is as follows: “I was collecting those blank forms, and when I had all collected I went in the last place through the attachÃ© case. When I opened the attachÃ© case I found the document. There was a rubber strap around it, and two pieces of cardboard were on the top and the order forms between. I took off the strap and then the cardboard and then some of the blank forms, and then I took off the piece of blotting-paper, and underneath the blotting-paper was this will. I think that is the piece of blotting-paper. That was down on the writing. The will was underneath the forms. There was so much forms on the top of the blotter, and then came the will under that blotter, and then there were five or six forms under the blotter.” The document which was so found is one of the order forms of Wm. Hogg & Co. The first portion, intended for the order, is blank, except for the printed heading, but upon the back there is written in the admitted handwriting of the deceased
“G.S.W. Rail.
Wm. H. Scarff wills all to his wife at his death, and she will see to Meta’s pension.
Signed, WM. H. SCARFF.
Sept. 4th, 1924.”
Immediately under the signature of the deceased appear the signatures, “F. Kinch,” “C. Jeffares.” It has been established to the satisfaction of the learned Judge who tried the case that these signatures are not in the handwriting of the deceased, and that they are not in the handwriting of the same person, and we see no reason for differing from either conclusion. Advertisements were issued and some inquiries were made with the object of discovering the identity of the signatories, but without result; and while we are not satisfied that all that could or might have been done to discover them was done, we are not disposed to put this small estate to further expense, which may ultimately prove abortive; it is not the law that the party is bound to take every step which ingenuity can suggest to obtain the attendance of a witness to a document, and the reasonableness of the steps actually taken must depend upon the circumstances of each particular case. In the case of In the Goods of Luffman (1), the testatrix died on the 28th of October, 1846, leaving a will dated May 8th, 1844, signed by the deceased with the names of two persons subscribed as follows: “Signed in my presence, Jane Carr, Ellen Dee.” In accordance with the practice of the Court when the attestation clause is insufficient an affidavit of due execution was required, but”though advertisements were published and other means used to discover them,” neither of them could be found, nor could any clue be obtained as to who they were. Sir H. Jenner Fust granted probate. “It never could,” said he, “have been the intention of the deceased to misrepresent the fact by signing the names of the two witnesses herself. It is an unfortunate circumstance, but the paper being in the form of a will, and having the names of two witnesses subscribed to it, and notwithstanding all possible steps have been taken to obtain their evidence they are not forthcoming, can the Court refuse to grant probate of the paper? I think it cannot. Suppose the witnesses were dead? I am of opinion that the Court must accept this as proof prima facie of the due execution of the will.” The report in the Jurist (1) differs slightly: “The Court must therefore deal with the case as if their production were impossiblein fact, as if they were dead, and must come to a conclusion from the facts themselves.” In In the Goods of Peverett (2), in 1902, Sir Francis Jeune applied the maxim, Omnia praesumuntur rite esse acta, to the case of a very informal holograph document containing no attestation clause whatever, when the handwriting of one of the persons who purported to sign at the foot of the document was not proved, and when there was no evidence that either witness signed in the presence of the testatrix, or that she signed in the presence of both, and both their signatures were above hers. Sir Francis Jeune stated that he was conscious that he was going to the furthest limit, and that he was going beyond any previous decisionreferring apparently to Harris v. Knight (3), a decision of the Court of Appeal, from which Cotton L.J. dissented, in the year 1890. Both this and Luffman’s Case (1) were applications for grants in common form, and were unopposed, and Sir Samuel Evans distinguished the latter case upon “external surrounding circumstances”in the contested suit of Strong v. Hadden (4). Sir Frederick Pollock (5) remarks that: “The benevolent jurisdiction was severely strained . . . It is to be hoped that indulgence by the Court may not lead to laxity on the part of testators.” Our Irish Reports supply other instances of the application of the maxim upon which reliance was placed in Peverett’s Case (2). In Clarke v. Clarke (6), the Court of Appeal, affirming Warren J., presumed the due execution of a will attested by two illiterate marksmen, both of whom had predeceased the testator, though no evidence of due execution was offered, and it was, of course, impossible to identify the marks and this decision was followed and extended by Warren J., in In re Malins (7). While we must be careful that the provisions of the Wills Act are not repealed by unfounded presumptions, we must be influenced, as Lord Penzance has said, by a strong desire that the intentions of the testatorwhich he has himself set down in writing, and signedbe not frustrated by the lapse of time and failure of the memory of the witnesses: Vinnicombev. Butler (8). “The Court of Probate is no more restricted to direct proof than our other Courts. In all, circumstantial evidence supplies the want of direct, and presumptions are constantly drawn to compensate for the loss of positive testimony occasioned by accident or lapse of time,” per Ball C., Clarke v. Clarke (1). We are of opinion that such circumstantial evidence is to be found in the present case, and that O’Byrne J. was justified in drawing the conclusions that the testator either signed or acknowledged his signature in the presence of the other two persons whose names are annexed, and that each of them signed in his presence. The will is drawn upon an improvised sheet, the back of one of the order forms which the testator was carrying with him on his journey. It is headed, “G.S.W. Rail,” from which it is not unreasonable to infer that it was written on the Raileither in the railway carriage or upon the premises of the Great Southern and Western Railway Company. It is dated on the very day upon which he was travelling from Monasterevan to Dublin on his way home. The whole document and the signatures of the witnesses appear to have been written with the same, and that a peculiar, ink. The names of the witnesses follow immediately below the signature of the testator, and each member of this Court is individually satisfied that the document itself and the signatures of both the witnesses were blotted with the piece of blotting-paper which was found on top of the document itself in the packet of order forms in the deceased’s attachÃ© case. This piece of blotting-paper is most important, as the reverses of the heading of the will and of the signatures of the deceased and the two witnesses are easily decipherable upon it, and it affords some justification for the inference that the whole transaction occurred while the ink was wet, and therefore that the parties were all present at the same time. From the position and order in which the signatures are found, it is legitimate and reasonable to infer that the testator signed first, and that the two attesting witnesses then affixed their signatures. It is not necessary to go further to justify the finding in favour of the will, but the probability is that Mr. Scarff, while on his way home in the train on September 4th, was taken ill, or felt apprehensive that he was about to be taken ill, and hastily drew up a disposition of his property in the railway carriage or in a railway waiting-room, and obtained the signatures of two fellow-travellers as witnesses; and his widow deposed that he had been in bad health in the spring of 1924, that “he pulled up in July, when we went to Torquay and Devon. But when he went out on his journey he seemed to fail. He was not able. The journeys were too much for him,” and she swore that “One day after coming home from travelling he said, ‘I felt so bad to-day that I thought about making my will,’ or ‘I felt like making my will.'”
In justice to the able argument of Mr. Denning, for the defendant, we shall consider the points urged by him against the decision of O’Byrne J. It appears that before she discovered the present will his widow found in the pocket of an old, finished order book a paper, evidently intended as a will.
“Mgt. Scarff, my wife, gets house and furniture at my death. WM. H. SCARFF.
P. CLUSKEY.
Sept. 21st, 1909.”
Mr. Denning contends, not unreasonably, that this document shows that the deceased did not know the requirements of the Wills Act, as he carefully preserved a document which was worthless as a will, because it was insufficiently attested; and that, therefore, the maxim, Omnia praesumuntur rite esse acta,cannot be applied in this case; but the answer is that, in the first place, this Court does not justify the inference of due execution by reliance upon the application of that maxim, but by the evidence of all the circumstances attendant upon the creation of the document; and, in the second place, that there is no reason to conclude that Mr. Scarff’s ignorance of the Wills Act was as profound in 1924 as it appears to have been fifteen years before, especially as he had discussed the question of making a will with his solicitor in 1922. Mr. Denning also relied upon the evidence of his client, who positively swore that his father twice stated to him after the 4th of September that he had not made a will. The learned Judge, who saw the witness, expressly states in his report that he did not accept this evidence, and that he did not believe that the witness was telling the truth; but, even if this were not the case, nothing is more common on the part of testators than reticence, or even deliberate misrepresentation, concerning their testamentary dispositions, and declarations by testators concerning the execution of their wills have been rejected as inadmissible by the Court of Queen’s Bench (affirming the ruling of Campbell L.C.J. at Nisi Prius) in Doe v. Palmer (1), by Sir C. Cresswell in In the Goods of Ripley (2), and by the Court of Appeal in England in Atkinson v. Morris (3), where such declarations were made after the date of the will. Indeed, this case affords an instance of the reticence to which I have referred; for when the deceased arrived home with the holograph will which he had just drawn up in his pocket-book, all that he said to his wife was that he “had thought about” or “felt like making his will.”Mr. Denning relied upon this expression as an indication that the testator knew that the document was not duly executed in accordance with the requirements of the Wills Act, thus asking us to attribute to the deceased the very knowledge which a few minutes before he had denied to him. Finally, Mr. Denning has insisted that there is no evidence that persons named “C. Jeffares” or “F. Kinch” ever existed in fact. It is quite conceivable that a man in urgent apprehension of impending death, and deciding to make provision for a second wife to the
detriment of the children of a former marriage, might draw up a form of will, and, after signing it himself, might forge the signatures of two non-existent persons in order to give apparent validity to his testament. It is the possibility of such a contrivance that makes one doubt the propriety of the decision in In the Goods of Peverett (1), and of the blind application of the maxim, Omnia praesumuntur rite esse acta. But we have no such difficulty in the present case. We have the testimony of the disinherited son himself that the signatures C. Jeffares and F. Kinch are not in the handwriting of his father, and were, therefore, affixed by living persons, and are not forgeries; while even if the persons who wrote those names were not entitled to them, Re Olliver (2) and other decisions to the like effect are authorities for the proposition that a signature with a name not his own may be a valid subscription by an attesting witness.

Rolleston v. Sinclair.

[1924]IR 157

Appeal. (I. F. S.)

O’CONNOR M.R. :
23 May

This was a motion for a new trial on the ground that the learned Lord Chief Justice, who tried the action, misdirected the jury. The action was brought by the plaintiffs as executors to establish the will of Georgina Alice Sinclair, a married woman. The defendant is her husband, and he pleaded that the will was not duly executed, and also that it was obtained by undue influence. The plea of undue influence is out of the case. The only issue with which we are concerned is whether the will was duly executed.
The material facts are these:The will was made on the 18th February, 1922. It was made on a printed form, such as is sold by stationers for the assistance of testators who, either for the purpose of saving the expense of employing a solicitor or keeping their testamentary dispositions secret, wish to draft their own wills. The form provided a blank for the name and address of the testator or testatrix. This was followed by a clause of revocation of former wills, a clause appointing executors, with a blank for the names, and a clause directing the executors to pay debts, funeral and testamentary expenses. Then came an empty space, intended to be used for the several dispositions to be made. This space extended over the whole of the first page, save what was occupied by the printed clauses which I have mentioned. On the back of the page the empty space was continued for the greater part, and towards the end of the back page there was a printed clause, with appropriate blanks for the date and the signatures of the testator and two witnesses, with a full attestation clause.
The dispositions are in the handwriting of the testatrix, and do not cover the space left therefor on the front page. There remained underneath sufficient space for the signatures of the testatrix and two witnesses, and an attestation clause. The testatrix signed her name at the foot of the dispositionsthat is, of the entire willand underneath her signature are the signatures of “Anne Lloyd, spinster,” and “Ellen Rowntree, spinster.” No attestation clause was added, but there is opposite each signature on the left-hand side, “witness” in the handwriting of the testatrix. There is no writing or mark on the back of the page. On the third page of the form are printed directions for the preparation and execution of wills. These are
complete, and if attentively read by an educated and clear-headed Person, ought to convey full information to the reader of all the necessary formalities. It would, perhaps, be too great an assumption to conclude that every intelligent person who had read these directions would thoroughly comprehend them, remember them, and act upon them. Legal directions require some legal training for full compliance. In addition to the directions contained on the third page of the form, there was in the fold of the form a specimen of a will duly executed, which contained a full attestation clause. To this specimen the attention of intending testators was directed.
The will has been fairly described as a holograph will. Although certain clauses which I have referred to are in print, the document may be treated as a holograph will. It also indicates good capacity in the testatrix. The disposing part, which is entirely in her own handwriting, and presumably her own composition, is in clear language, and shows a clear conception of her legal position. The will must also be placed in the category of wills without an attestation clause. True, there is a form of attestation clause on the back, but it was not used; it was, in fact, disregarded. This disregard of the attestation clause, which is part of the form intended to be used and part of the specimen will to which attention was directed, must not merely throw doubt on the supposition that the testatrix paid attention to the directions for execution, but suggests that she did not read the directions attentively and in detail, or, if she did, that she did not fully comprehend them, or, having at one time comprehended them, that she forgot the special direction as to execution when she came to make her will.
Now, there is no doubt about her own signature to the will. There is no doubt as to the signatures of the two witnesses. There is no doubt about her testamentary intention when she executed the document in question. The only doubt is as to the mode of execution, orto put the question in its narrowest form did she sign or acknowledge the will in the presence of the two witnesses, they being both present at the same time? I have told the story of the making of the will and the circumstances leading up to it so far as that story can be told by the document itself, and I ask myselfif I know nothing more than what I have related, could I be reasonably certain that the two witnesses were together present when the testatrix signed or acknowledged the will? There is nothing on the face of the will to show it. There is nothing to show that she realized the necessity of this special formality. She was not a professional person. There is nothing to show that she had ever made a will before. She did not attend to the attestation clause, which in substance she was informed she ought to use; and by writing separately opposite each witness’s name the word “witness,” instead of writing”witnesses” once as applying to both, she did that which implies that the signatures were not a joint witnessing at the same time, but two separate witnessing operations. I am referring only to the facts as shown by the will itself, and, on this, trying to form the best opinion I can, I cannot find anything to assure me or give me reasonable grounds for holding that the will was signed or acknowledged by the testatrix before the two witnesses present at the same time. I cannot assume due execution without sufficient evidence that the testatrix realized the necessity for having both present at the same time when the will was acknowledged, and had that present to her mind at the moment of execution.
But so far I have been only dealing with the case as a layman, apart from all principles of law, and I must see whether there is any legal principle which establishes this will without positive proof. The plaintiffs propounding the will have invoked the principle, “omnia praesumuntur rite esse acta,” and say that there is a presumption that the will of Georgina Alice Sinclair was duly executed, and that that presumption must prevail unless rebutted by evidence. In my opinion no such presumption arises in this case, because of two circumstances: 1, the will contains no attestation clause; and 2, the witnesses to the will are living and were available. Counsel for the executors were not able to produce a single authority in aid of the presumption in such a case. In Peverett’s Case (1) there was no attestation clause, but both witnesses were dead. The will was admitted to probate on the presumption of due execution, Sir Francis Jeune saving, “I am going to the furthest limit.” In Trott and Trott v. Skidmore (2) there was no attestation clause, but here, again, the witnesses were dead, and the will was admitted to probate. Clarke v. Clarke (3) was relied upon by the appellants, but here, again, both the witnesses were dead, and there was an attestation clause, though an imperfect one. The attestation clause was in the words, “signed in the presence of.” The will was a holograph. Even the names of the witnesses, who were illiterate and marksmen, were in the testator’s handwriting, and the mark of each witness was attested by his handwriting. The whole document showed that the execution and witnessing were done at the same time. In these circumstances the will was admitted to probate. The feature which distinguishes the case most from the present one is that both witnesses were dead. Clery v. Barry (4) was the authority which was most pressed upon us. One of the witnesses was alive, and in that respect it is like the present case. But it differs essentially from the present case in the circumstance that there was a regular attestation clause, which means that there was on the face of the will a statement in detail describing all the formalities, and averring compliance with thema most distinguishing feature. The will was condemned by Warren J., but his decision was reversed by the Court of Appeal, and the will was admitted to probate. The foundation of the judgment was the principle, “omnia praesumuntur rite esse acta” and its application, notwithstanding the adverse evidence of the surviving witness and a third party, who was present, at the execution. But the process by which the principle was applied is most enlightening, and is in confirmation of the general rule, as I conceive it to be, that it cannot be applied when evidence is really available. The witnesses proved themselves to be wholly unreliable, and the Chief Baron dealt with the case as if it were one with no available external evidence. This is clear from his judgment; at pp. 166-7 of the Report he says: “It is merely one of the instances of the application of the doctrine, ‘omnia rite esse acta praesumuntur.’ The principle is, that where upon the face of an instrument everything is regular, and there is nothing to awaken suspicion or call for additional inquiry, then, if the evidence is defective, either by reason of the death of witnesses or by lapse of time affecting their recollection, or of other circumstances which may affect their honesty, the same presumption arises as is usually acted on in the ordinary affairs of mankind.” He then goes into circumstances showing the probability that the will was duly executed, to which I need not refer, and he says (1):”Supposing, then, that Creedon and Maguire [the two hostile witnesses] were dead, I should be unable to say that there was sufficient in the matters relied upon by the plaintiff to justify the Court in refusing to this document, regular upon its face, and upon which the signature of the testator was placed by his direction, the benefit of the principle that, in the absence of evidence to the contrary, everything should be presumed to have been rightly done.” He then analyses the evidence of the hostile witnesses; he satisfies himself that they were wholly unreliable, and that their evidence must be disregarded, and finally says (2): “I treat the case as if they were dead, or had lost their reason, or from some other cause were unable to assist the Court in arriving at the truth of the transaction. That being so, I decide the case, as best I can, by the light of the other evidence before us; and acting upon that evidence, I am of opinion that there is nothing in the case to rebut the presumption of due execution.”
I consider this judgment to be an authority for the proposition that it is only when witnesses (or other persons who, though not official witnesses, were present) are dead, or cannot give evidence through incapacity, or their evidence cannot be accepted on account of unreliability, that the doctrine of “omnia rite esse acta praesumuntur” can be applied. It is to be called in aid only when there is a void to be filled up. If there is really evidence, it must be acted on; that evidence, however, to be considered by the light of the will itself. For the purpose of this case, it is only necessary to say that this is so in the absence of an attestation clause; but in Clery v. Barry (3) there was an attestation clause, and, notwithstanding this, the Lord Chief Baron found it necessary before he applied the “omnia rite esse acta praesumuntur” doctrine to place the witnesses in the class of dead witnesses.
Before I go to the evidence which was adduced in the present case, I must deal with other cases which have been relied upon by the appellants. Dayman v. Dayman (1) was strongly pressed on us by Mr. Denning in his able argument, but I confess that I can get no light whatever from the judgment in that case. I can find no principle laid down which makes it applicable as an authority. It was just a decision on facts peculiar to the case itselfnothing more. The facts were special. In the first place, it was a suit to recall a probate which had lain unquestioned for at least six yearsa weighty circumstance in the way of a party trying to have the will condemned. The will was originally proved on the affidavit of one of the attesting witnesses, who swore to due executionan affidavit which emanated from himself, and not one of these cut-and-dry affidavits which are sometimes put before deponents. This witness afterwards swore that it was false. The other witness to the will also gave evidence against due-execution. He was also discredited. Both witnesses were, in fact, placed in the same position as the witnesses in Clery v. Barry (2). But further, the will was drafted and its execution superintended by a Dr. Carter (who had died), who, owing to circumstances, had experience in the execution of wills, and there was the additional element that there was on the back of the will a full attestation clause. This was not in its proper place, and the witnesses’ names were not in connexion with it; but the important feature of the judgment is that the learned Judge seems to have treated the will as one with a regular attestation clause. He treated the will as regular in every respect, and containing internal evidence of due execution. I think myself that the attestation clause on the back of the will was only a contemporaneous memorandum or record of the transaction, placed on it by Dr. Carter immediately after execution, in whose handwriting it was; but, even regarding it as such, it was a weighty piece of evidence, and bound to have effect. Dayman v. Dayman (1) does not govern this case.
Owen v. Williams (3) was also cited. In that case a will without an attestation clause was admitted to probate, notwithstanding that the two witnesses swore against due execution. But the case has no bearing whatever on the doctrine of presumption, because a third party, who happened to be present at the execution of the will, proved that the formalities were complied with. The will was admitted to probate on direct evidence, and not on presumption. Cases nearer the point are Gwillim v.Gwillim (4) and Cooper v. Bockett (5). In each of these cases the only issue was whether the witnesses signed before or after the testator. In neither was there an attestation clause. In both cases the witnesses were alive, but proved unreliable. In both, the wills were presumed to have been duly executed; but here again the witnesses were really treated as non-existent their evidence was rejected. There is this further to be observed: when the only issue is whether the testator signed before the witnesses, the regular order of the signatures is itself evidence of the proper sequence of events and affords evidence, while the signatures of witnesses without an attestation clause give no indication of their joint presence at the moment of execution by the testator.
On the assumption, then, that a will without an attestation clause in a case where the witnesses are alive does not of itself raise any presumption of due execution, I approach the trial in this case. The plaintiffs, as they were bound to do, produced the two witnessesboth, no doubt, in a humble rank, that of domestic service, but no less respectable for that reason. One of them could not say whether she and the other witness were present when the testatrix signed the will. The other swore that they were not, and gave a description of what happened. Now, if this evidence is credible, presumption is out of the question, for otherwise a presumption, which could not be raised until the witnesses gave evidence, would be raisable after proof that the facts to be presumed did not exist. The Chief Justice on the evidence directed the jury to find against the will. It is now contended that he ought to have left the issue to the jury, on the ground that the credibility of the witnesses was for them to decide. That would be so if there was any ground for impeaching their credibility, but there was none whatever. The witness Elizabeth Rowntree’s evidence was impeached because she met the defendant by appointment at a Northern Railway station and was interviewed by him. I cannot see how that affects her character as a witness, or the character of the defendant. It was his business to get information. Then it is said that she hid herself away in the north of Ireland. There was no justification for this attack on her. The girl was out of employment, and she went to Belfast to look for a situation there. Then, again, she was interviewed by a detective on the part of the plaintiffs, and, although he was a detective, he has really said nothing against her. She informed him of the exact point on which she was to give evidence, which, I think, was very honest and fair; but suggestions were made that this showed that she was primed by some one to swear in a particular way. There was nothing to warrant any such suggestion. Again, there was evidence of a conversation over the telephone between the other witness, Anne Lloyd, and the plaintiffs’ solicitor, who deposed that she said something inconsistent with her evidence at the trial; but little attention is to be paid to telephone conversations. Nothing whatever occurred to justify an impeachment of her credibility. There was nothing in her evidence which contradicted anything that appeared in the testamentary document. There would have been a contradiction if it contained an attestation clause. There was, no doubt, an attestation clause on the back; but the inference I drawas I have already saidis that it was disregarded; and it is very significant that the witnesses’ names are not opposite the word “witnesses,” but each witness’s name is opposite the word “witness”the word being written twice which suggests that the signing by each witness was a separate act, and that the signing of the two names was not a joint operation. The will is not merely consistent with the oral evidence; it rather supports it. The evidence was, in fact, all one way; and I think that the learned Chief Justice was right in directing the jury to find that the will was not duly executed. If he had left it to the jury without direction, and they found that the will was duly executed, the finding could not stand.
It is further to be borne in mind that even if the direction of the Chief Justice was technically wrong in law, we would have to consider whether any injustice was done; and, finding as I do, that no other verdict than that given would have been right, I am of opinion that the application for a new trial should be refused.

RONAN L.J.1:
In this case I have the misfortune to differ from my colleagues. As a general rule, in a new trial motion, when a new trial is directed, the Court is extremely anxious to say nothing that might affect the jury in the second trial; but when a new trial is refused, there is no such obligation on a Judge.
If I had to decide this case on the materials before us, I would not only say that it was a case that ought to go to the jury, but I should find, both from the facts and on the law, that there was a presumption that the will was duly executed. The Master of the Rolls and O’Connor L.J., as I understand them, limit the presumption of due execution to a case where the witnesses to the will are dead. Let us examine this proposition as a matter of common sense. Let us suppose that the witnesses in this case were dead. Is there any presumption? Yes. What does that mean? It means that the documents in the case afford prima facie evidence of the due execution of the will. Does the fact that the witnesses are alive prevent the inference from being drawn? It seems to me to be common sense that if the inference of due execution may be drawn where the witnesses are dead, it may also be drawn where they are alive, unless and until it is rebutted.
In Clery v. Barry (2), Warren J., at p. 155, says: “In dealing with cases in which the presumption is opposed to testimony, it is the duty of the Court, as was observed in Cooperv. Bockett (3), not to allow undue weight to the circumstances on which the presumption is founded, on the one hand; and, on the other, not to lose sight of them. And the Court must not forget that the burden of proving due execution, whether by presumption or by positive evidence, rests on the defendant.”Is the proposition that, unless the witnesses are dead, there must be positive evidence of execution? Mr. Fetherstonhaugh’s sole argument was that the presumption could only arise where there was a complete attestation clause, because otherwise a party could not rely on the will without calling the witnesses. He forgot that there is an overriding rule of law that where a document is required to be attested, the attesting witnesses must be called. In Clery v. Barry (4), Warren J. says: “A presumption sufficient to establish a will arises when the attesting witnesses are dead, or are quite oblivious of the facts of execution, or are discredited by the Court when they give testimony that the will was not duly executed.” In that case the witnesses, who were disbelieved by the Court, were in the same position as if they were dead; and the same presumption arises. In dealing with Clery v. Barry (4) my colleagues entirely overlooked the fact that in that case there was no jury, and that it was the Judge himself who decided on the credibility of the witnesses. The first and, to my mind, the most important question in this case is whether a Judge trying a case with a jury is justified in telling the jury that they must accept the evidence of certain witnesses. I put that question to Mr. Fetherstonhaugh, and I said: “Do not answer it unless you like,” and he elected not to deal with it. He said there is no presumption except where there is a complete attestation clause. I asked: “What about an imperfect attestation clause?” and he preferred also not to deal with that question. In Clarke v. Clarke (5) the will simply contained at the end the words, “Signed in the presence of,”followed by the names of two persons who signed their mark. The word “witness” or “witnesses” is not mentioned. Surely the words “witnessAnne Lloyd,” “witnessElizabeth Rowntree,”are as good as “In the presence of.”
With great respect, we have an attestation clause in this case. The Master of the Rolls says there is nothing to show that this lady knew that it was necessary that the two witnesses should be present when she signed. Mr. Creswell in his evidence states:”I said to her, ‘By the way, Mrs. Sinclair, have you made your will?’ She said, ‘I did,’ and I said, ‘I hope you have made it properly, as a well-known city merchant, who was a client of mine for some years, had frequently told me that he had made his will, and on his death I found his will in his safe, and there was only one witness.’ And she said, ‘I had two witnesses. I did it on one of those printed forms which contained full instructions.'”There are fourteen clauses in the printed form. The Master of the Rolls suggests that it directs that the attestation clause should be used. It does not. It says that on the other side there is a form of a complete will. Of these fourteen clauses, the only one relating to the preparation of a will is the one, I think, numbered 5, which says that the testator must sign his name at the foot or end of the will in the presence of two witnesses, at least, present at the same time. Are we to take it that she stopped in the middle of the sentence and did not notice the words, “present at the same time,” and ignored them? The clause further said that the witnesses should subscribe the will in the presence of the testator and of each other. The direction is that the testator and witnesses must put their signatures at the foot of the will, and at the foot of the will the signatures are to be found.
What is the value of an attestation clause? The value of it is that it shows that the will was prepared by a person who knew what was necessary. No one imagines that when two domestic servants signed this will they read the attestation clause. There is nothing inconsistent in the document with the testatrix having signed the will in the presence of the two witnesses. What about the presumption of due execution? What was the presumption in Clarke v. Clarke (6), to which we have been referred? Deasy L.J. says (7): “I have no doubt that the deceased intended by this will to give his widow the property which she says he, in his last illness, stated he had given her.” Has anybody any doubt that this lady intended to make these dispositions? The Lord Justice adds (8): “He knew everything that was necessary to constitute a good testamentary disposition.” Mrs. Sinclair knew, if she read the instructions from which she said she got her information, that she must have two witnesses. In Clery v. Barry (9),Warren J. says that in the circumstances existing there the presumption of an execution was of an unsubstantial character; and he says the evidence of the witnesses was not satisfactory, but that it was sufficient to answer the weak and unsubstantial presumption which arises under the extraordinary circumstances of the case (10). His decision was, however, reversed by the Court of Appeal. Palles C.B., at p. 166, observes: “The presumption does not arise from the signature being in the testator’s handwriting. It is merely one of the instances of the application of the doctrine, ‘omnia rite esse acta praesumuntur.’ The principle is that where upon the face of an instrument everything is regular, and there is nothing to awaken suspicion or call for additional inquiry, then, if the evidence is defective, either by reason of the death of the witnesses or of lapse of time affecting their recollection, or of other circumstances which may affect their honesty, the same presumption arises as is usually acted on in the ordinary affairs of mankind.” Everything is perfectly regular upon the face of the document in this case, and there is nothing to awaken suspicion. At p. 170 Palles C.B. says:

“No one can attach greater importance than I do to the demeanour of a witness, and to the view that is taken by the Judge at the trial as to the credibility of his testimony; but it would be a dangerous doctrine, and one that I am unable to countenance, that the Court of Appeal, although under the disadvantage of not seeing the demeanour of the witnesses, is not bound to apply its experience and knowledge of affairs as best it can to every material circumstance in the case, including the credit of a witness. Of course we should give due weight to the conclusion of the learned Judge, who saw his demeanour was favourable to his credibility. That, however, is but one element, although a very potent one, in our consideration of his credit; and I cannot hold that we are concluded by it; but, in my opinion, we are bound to form as best we can our own opinion upon the credit to be attached to the evidence of each witness.”
One principle firmly established in our law is that the credit to be attached to the evidence of witnesses is a question for the jury and not for the Judge; but, it being a question for the Judge in Clery v. Barry (11), where the trial took place without a jury, Palles C.B. says (12): “I treat the case as if they [the witnesses] were dead, or had lost their reason, or from some other cause were unable to assist the Court in arriving at the truth of the transaction. That being so, I decide the case, as best I can, by the light of the other evidence before us; and acting upon that evidence, I am of opinion that there is nothing in the case to rebut the presumption of due execution.” The evidence of the parties does not affect the existence of the presumption, but it may rebut the presumption. The presumption exists where the witnesses are dead, and also where there is a complete attestation clause.
Giving the result of his conversations with Miss Lloyd on the telephone, Mr. Creswell said, in reply to Mr. Lynch: “I told her I wanted her to swear an affidavit as to the execution of the will, and she said she didn’t like signing documents of any kind, but that Mrs. Sinclair signed the will all right in her presence and in the presence of Elizabeth Rowntree.” That is a perfectly clear and unequivocal statement. Anne Lloyd was not asked to deny that she had made that statement. That is not evidence of due execution; but it is evidence to go to the credit of this woman as to what she had saidnamely, that at one time she and the other witness were both present. Let us assume that the evidence of the other woman was to the same effect; that she did not prove the will, or that she did not know what happened. Suppose it were common case that the two witnesses remembered nothing whatever about the will, and that the will appeared to be all right, what would happen? It is said it cannot stand because there is no presumption. The presumption which exists where the witnesses are dead is equally effective where the witnesses are alive and the Court refuses to act on their evidence.

Both Warren J. and Palles C.B. put untrustworthy witnesses in the same position as witnesses who are dead. If the witnesses are alive and come forward, and the Court comes to the conclusion that their evidence is untrustworthy, the presumption must prevail.
All the facts are strongly in favour of the presumption in this case. The testatrix acted on the directions contained in the printed form, which did not say that she should have an attestation clause, but simply directed that the signatures should be at the foot of the will. It is a clear and well-drawn will. The testatrix was a lady of exceptional ability, as the evidence and documents show. From the evidence the inference is irresistible that when she read the directions she took very good care to have two witnesses present; and not only do I think there was evidence on which a jury would be justified in finding for the will, but I myself should have come to that conclusion. On the best view I can form there is an overwhelming presumption in favour of due execution, a presumption far stronger than that in any of the cases I have come across. The presumption exists in the case of a regularly executed document where the witnesses are dead, and where they are alive it may be rebutted by actual evidence to the contrary; but the evidence to the contrary in this case is not sufficient to rebut the presumption.

O’CONNOR L.J. :
I agree in the conclusion arrived at by the Master of the Rolls. I desire to give my own reasons for so doing.
The burden of proof frequently shifts from one side to another in the course of a case. Facts which require explanation may be adequately explained; presumptions may disappear by the way; in the ultimate result the question isis there any real evidence to go to a jury upon the issue in dispute? For example, a plaintiff in a libel action may prove the libel; the defendant may satisfy the jury that the occasion is a privileged one; the circumstances may negative the malice which the publication of defamatory matter suggests; finally, it may be the duty of the Judge to direct upon the issue of malice. So, also, I imagine that the presumption arising from the doctrine, “res ipsa loquitur,” may be completely displaced by evidence of a cogent and overwhelming character.
In the present case, how did the testimony stand at the conclusion of the case? Such actual evidence as there was negatived the due execution of the will. The evidence was that of a witness whose recollection was clear and positive, who had never made any previous inconsistent statements, and against whose character there was no shadow of imputation. In the circumstances I think the learned Chief Justice was right in withdrawing the case from the jury.

Clarke v Clarke

Probate and Matrimonial Division.

1 July 1879

[1879] 13 I.L.T.R 103
Warren J.

Warren, J.

I do not like making precedents, and would be glad to allow the case to stand if there was any chance of its being arranged, but as I find there is no probability of any settlement, I must dispose of it. I am familiar with the cases in which wills have been established that were attested by marksmen; there are a good many of them in the books, but I do not think I would gain any instruction by further investigation of the subject. There is no doubt, both from the document itself, and the evidence in the case, that this instrument was intended by the deceased to be his will; and where a person of sound mind, and free from undue influence, bonâ fide signs a paper intending it to be his will, the Court struggles if it can, consistently with the rules of law, to give effect to the document. The deceased in this case was a person who knew something of what was necessary for the due execution of a will. He knew that he should sign it in the presence of two witnesses—that appears on the face of the document itself. I think that evidence reasonably sufficient has been given that the two witnesses, Michael Dunne and John Delany, whose marks purport to be affixed to the document, are the two persons who were farm servants of the deceased, and who are dead. As the witnesses signed by marks proof of handwriting of course cannot be given. It is said that the 7th Rule of this court, non-contentious, is against probate being given in such cases as this. [His lordship read the rule.] It is impossible to hold that that rule must be taken literally, because there is no doubt that a will may be attested by a mark, and of course in that case there can be no proof of handwriting. As I understand the rule, its meaning is that where the witnesses are dead, evidence must be given sufficient to establish a presumption of due execution. I find no case in which it has been held that the Court ought not to presume in favour of execution in such a case as the present. Gardner’s case is distinguishable. In that case I admitted the document to probate; one of the witnesses was alive, and identified it as the document to which he had affixed his mark. I think this case comes within the authority of Doe v. Caperton, and although the case is briefly reported, and being a nisi prius decision is not entitled to much weight, I prefer to follow it rather than overrule it in the present case. Accordingly, I shall make an order admitting the will to probate, but as it was clearly a case proper to bring before the Court, I shall allow both parties their costs out of the assets.

In the Goods of Lemon, deceased.

Probate and Matrimonial Division.

2 March 1896

[1896] 30 I.L.T.R 127
Judge Warren.

Application on behalf of R. T. Lemon for liberty that a grant of letters of administration, with the will and two codicils annexed, of the personal estate of William Lemon, deceased, should issue to the said R. T. Lemon. one of the next-of-kin. The deceased, who died on March 19, 1895, made his will dated Oct. 22, 1888, and a codicil thereto dated Aug. 14, 1893. These documents were executed in the usual way, and the executors named therein duly renounced. He made a second codicil on Feb. 6, 1895, which was executed under the following circumstances:— The codicil was written out by the Rev. T. J. Watson at the dictation of the deceased, who was at the time in delicate health and unable to write. The clergyman then wrote the words, “signature of the testator who signed in the presence of the *127 witnesses,” and the deceased thereupon stamped his initials in wax on the paper in the presence of two witnesses, who then signed their names in the presence of the testator, and in the presence of each other. The witnesses stated that they understood the deceased to be duly executing a codicil to his will.

Chadwick appeared for the applicant. Sealing with stamped initials, together with some recognition of the seal as a signature, is sufficient: In the Goods of Emmerson (9 L. R. Ir. 443).

The President said that it was a risky thing to execute a testamentary paper in the way in which this codicil had been executed. In the Goods of Emmerson decides that where a man stamps his initials, and recognises that act as his signature, that is sufficient signature. That case has never been overruled, and I will follow it in the present case. I will give liberty to the applicant to apply for a grant of letters of administration, with the will and both codicils annexed.

M’Conville v M’Creesh

M’Creesh v M’Conville
Probate and Matrimonial Division.

27 January 1879

[1879] 13 I.L.T.R 35
Warren J.

Warren, J.

[Is there anything in the Civil Bill Acts to interfere with the Chairman’s exercising such power?]

Nothing. There are large powers of amendment in the Civil Bill Acts in the case of ordinary civil bills, and there is nothing in any of those Acts precluding the Chairman from amending. In the ordinary cases before the Chairman there are in fact no pleas. The civil bill being issued, there are no further pleadings. The defendant makes his case ore tenus at the bar, and is at liberty to go into any and every defence he pleases. We do not say there is such a wide latitude open to defendants in the case of civil bill administration processes, but we contend that there is ample power in the court to amend, by inserting an additional plea, in a fit case. That the Court of Probate will allow a plea of undue influence to be added at the trial, is established by many cases: Todd v. Simpson, 1 S. & T. 269.

[Warren, J.—I allowed a plea to be added in the case of Purcell v. Barlow, I. R. 9 Eq. 367, 9 Ir. L. T. Dig. 17, in this court.1] *36

So, in White v. White, 2 S. & T. 504, a plea of fraud was allowed to be added at the trial. Here the Chairman says that if it had been open to him to go into the question of undue influence, he might perhaps have come to the conclusion that it was proved in this case. It is submitted, therefore, (1) that the Chairman had power to add the plea; and (2) that it was a fit case for the exercise of such power. On the question of execution, we conceive that the attestation was insufficient. The signature “Hugh” was admittedly an imperfect act. If the witness had not been interrupted he would have gone on and written his surname. Somebody was coming into the room whom it was desirable to keep in ignorance of what was going on, and the plaintiff snatched the document out of the witness’s hand; his intention to attest the will was frustrated, and the execution was left imperfect. If the defendant’s contention be right, it would follow that even if a witness, intending to subscribe his full name, wrote only the initial letter, or even any portion of the letter, it would be sufficient. There must be either the name of the witness or some word or mark intended to represent the name. Here the word “Hugh” was not intended by the witness to represent his name—he intended to write his full name, but did not carry out his intention: Hindmarsh v. Charlton, 8 H. L. 167. On the third question, as to costs in the Civil Bill Court, we contend that, even if the Chairman were right in deciding against us on the other questions, he had power to award the defendant his costs out of the assets, and that, under the circumstances of the case, he would have been justified in doing so. The Chairman, in cases remitted from the Probate Court, has the same jurisdiction as the Probate Court with regard to costs; and there is no question that the Probate Court has always exercised the power, in fit cases, of awarding an unsuccessful suitor his costs out of the estate.

Porter, Q.C. (with him, Dodd ), on behalf of the respondent.—We submit, in the first place, that the court has no jurisdiction to hear this appeal. The case had been heard by the Chairman at the Banbridge April Sessions of 1878. It was there fully heard, the Judge made his decree, which was duly signed and entered, and countersigned by the Clerk of the Peace in the book kept for the purpose, and a certificate duly issued under the Act. The case stated by the Chairman is dated 1st November, 1878, seven months after the hearing. (1) We contend that the appellant should have lodged the case and civil bill process in the Principal Registry within ten days after the decree of the Chairman. We submit this is the meaning of the 1st regulation, July 12th, 1858, with respect to appeals to the Court of Probate. To attribute any other meaning would lead to an absurdity; if the Chairman signed a “case” ten years subsequently, the party might, by lodging it within ten days, bring an appeal and upset the entire proceeding. (2) We say that the Chairman had no jurisdiction to sign a case at the time he has done in this case. By the 27th of the Probate Rules, July 12, 1858, it is provided that “the enactments, practice, and forms in force, and used in the Court of the Chairman, shall be adopted with reference to proceedings in the Chairman’s Court in matters of probate or letters of administration, so far as the same are applicable, mutatis mutandis; ” and by the 43rd Rule of the Assistant-Barristers’ Courts of 1851, it is provided that appeals shall be tendered and perfected during the sitting of the court for the hearing of civil bills—that is to say, they must be perfected during the same sessions at which the decree has been pronounced. In this case the “perfecting of the appeal” consisted of the preparation and signing of the “case,” which should have been done during the sessions, and lodged along with the copy civil bill within ten days.

[Warren, J.—Might not that occasion great difficulty in some cases? Suppose a decree was pronounced on the last day of the sessions—how could it be perfected in time?]

That difficulty is in practice got over by the Chairman adjourning the decree to the next sessions. That is a course frequently adopted when the party gives notice of his intention to appeal. In the next place, on the question of allowing evidence of undue influence to be given, we admit that the Chairman had power to receive such evidence, if any were tendered to him, and if, in his discretion, he thought it a proper case to do so.

[Warren, J.—I cannot see any difficulty as to that.] There is no doubt he had power to receive the evidence, if any evidence was forthcoming; but, it appears to us he would have had good reason in his discretion for declining to receive it. The case had originated in the superior court; each party propounded a will; one party put in pleas denying execution and capacity, and alleging fraud and undue influence; the other party deliberately avoided putting in pleas of fraud and undue influence, and merely denied execution and capacity. There was, therefore, some reason why the Chairman should refuse to receive evidence of undue influence, where the party had not put in a plea to that effect. Again, the application which was made to the Chairman by the defendant’s counsel was for leave to amend the record. This the Chairman had no power to do. The application was misconceived. All he could do was to receive evidence of undue influence, had such been tendered to him. Next, as to execution, we contend the attestation was sufficient. In the Goods of Sperling, 3 S. & T. 272, one of the witnesses did not subscribe his name at all, but merely wrote his designation, “Servant to Mr. Sperling,” at the foot of the will, and this was held sufficient. So, also, Griffiths v. Griffiths, L. R. 2 P. & D. 300. According to the appellant’s contention, the omission even of a letter at the end of the surname would invalidate the attestation.

[Warren, J., referred to In the Goods of Maddock, 3 P. & D. 169.]

We say that in writing “Hugh” the witness completed his intention. He may, when he commenced to write, have intended to subscribe his full name, but in consequence of not having his spectacles he changed his mind, and, having written the word “Hugh,” he abandoned his intention of writing any more. An appeal only lies on questions of law, and the fact of execution has been found by the Chairman.

[Warren, J.—The question what constitutes a valid attestation is one of mixed law and fact.]

The Chairman in deciding there was a valid execution, must have come to the conclusion in point of fact that the witness completed his intention. Lastly, as to costs, it is enacted by 14 & 15 Vic., c. 57, s. 111, that every decree or dismiss, founded on any civil bill brought under that Act must be with costs; and it has been decided2 that the effect of rule 27 of the Probate Rules for Quarter Sessions, 1858, is to extend the application of that section to civil bill probate suits.

[Warren, J.—There are two questions: 1st, whether the true construction of the 27th rule, as regards costs, *37 is to so extend the application of s. 111 of the Civil Bill Act, 1851; and, 2nd, whether, if so, the rule be not in that respect at variance with the statute. The foundation of the jurisdiction of the Probate Court as to giving costs out of the estate is the jurisdiction which was exercised by the old Prerogative Courts, which had always assumed the power of awarding an unsuccessful suitor costs out of the personal assets in fit cases, and is derived under the Probate Act, section 6, by which the jurisdiction and authority of the Prerogative Courts were transferred to the Probate Court. The question is, whether the enactment conferring jurisdiction upon the Chairman of Quarter Sessions, which is very similar in its language, should, or should not, receive a similar interpretation. I observe from the case of Haire v. Haire, mentioned in a footnote to the report of the present case in the court below, in 12 Ir. L. T. Rep. 77, that the views of the learned Chairman on the subject of costs were, also, held by another learned Chairman.]

Frazer, in reply.—The appeal was in time, having been lodged within ten days from the signing of the case by the Chairman. The first regulation as to appeals is distinct: “The appeal shall be by a case stated and signed by the Assistant-Barrister,”“and the party so appealing shall lodge such appeal together with a copy of the civil bill process, within ten days after same shall have been signed by the Chairman.” The appeal was, therefore, in time. The Rules of the Assistant-Barristers’ Courts of 1851 have no application to the present case.

Judgment reserved.

Warren, J., having read the case stated by the Chairman, said:—Four questions were argued before me—the three questions stated by the Chairman, and, fourthly, whether the appeal was brought in due time, or was late.

The civil bill was heard on 9th April, 1878. The case was signed by the Chairman on 1st November, 1878, and was lodged in the Principal Registry within ten days after it was signed. This lodgment satisfied all the requirements, as regards time, contained in the Regulations of 12th July, 1858, as to appeals. It is my duty to act on these regulations, whether a mistake has crept into them or not; but I confess I do not see any error or mistake in their provisions. The appeal, therefore, is in time; unless, going behind those regulations, I am to investigate the jurisdiction of the County Court Judge to sign on the 1st day of November, 1878, a case by way of appeal from a decree pronounced on the 9th April previously, and after investigation to hold that the judge had not such jurisdiction. I doubt my power to go behind the regulations of this court, there being no appeal, and no appeal lying, against the act of the judge in signing the “case.” The 27th Rule of 1858 provides that the practice “used in the court of the Chairman, in respect to civil bills, shall be adopted with reference to proceedings in the Chairman’s court in matters of probate;” and the 43rd Rule of the Assistant-Barristers’ Courts, of 1851, provides that appeals shall be tendered and perfected during the sitting of the court for the hearing of civil bills. Upon those Rules it was contended that, as the signing of the case was part of the appeal not perfected during the sittings of the Civil Bill Court, the practice of the Chairman’s court had not been followed, and that the appeal was late. I do not think either of those Rules applies to appeals by way of case stated and signed. I cannot find any rule or practice that the “case” should be signed during the same sittings at which the civil bill has been heard. If I were to adopt the respondent’s contention, I would establish a practice interfering seriously with the bringing of appeals in probate cases. Supposing a case resembling the present was heard on the last day of the sittings, would it not be practically impossible on the same day to have the judge’s full report of the evidence and questions of law prepared, considered, and signed? The Rule made by the Judges on 16th June, 1843, which is referred to in Johnston’s edition of Coppinger’s work on “The Practice of the Civil Bill Court,” page 141, is not precisely in point, but in its spirit is favourable to my view, which is, that I must consider the signature of the judge conclusive as to the regularity of all matters prior to the signature.

I proceed to consider the case In dealing with it I reject all matters outside the “case,” including the shorthand writer’s notes. Those notes are not incorporated in the case. The judge merely says—“I believe they are substantially correct.”

The first question proposed by the “case” is whether the will was duly executed. The facts are stated in the third paragraph of the “case,” which I have just read. The authorities cited here, and before the Chairman, abundantly establish that not only a Christian name, but any designation or mark, made by a witness intending to attest a will, and to identify himself as the person so attesting, is sufficient. But the mark, or the designation, or name, must be a mark, designation, or name by which the witness intended to identify himself, and until his intention to attest is completed the will is not duly executed. This is the view taken in Hindmarsh v. Charlton, 8 H. L. 167, and the very point was decided, after time taken to consider it, by Mr. Justice Hannen, In the Goods of Maddock, 3 P. & D. 196. [Having stated the facts of that case, his lordship continued.] Now, the evidence stated in the present case does not prove that when “Hugh” was written the witness had completed his intention to attest the will; and it lay upon the party propounding the will to prove that. On the contrary, he stated his inability, for want of spectacles, to complete his intended signature, and the removal of the paper by Mrs. M’Conville made the completion of his intention impossible. Suppose an intending witness to a will to write his Christian name, and that, whether from caprice, or from an opinion formed on the moment that the testator was insane, or that he was under undue influence, he refused to write his surname, that would not be a due execution. I think the principle is the same, whatever be the cause which prevented the full execution. On this ground, I condemn this will.

It is not necessary to decide the remaining questions, as the first question disposes of the case. I may, however, venture to say that I see no reason why the judge should not have entertained the question of undue influence, if in his discretion he thought fit to do so.

The order will be—Let the decree be reversed and the will condemned; let all proceedings taken under the decree be set aside, and the letters of administration granted to the respondent be recalled; let the respondent pay to the appellant the costs of the Civil Bill Court. As to the costs of the appeal, I make no order. There was a fit case for appeal; and if In the Goods of Maddock had been cited to the County Court Judge, I am satisfied that he would have dealt with the case in the same manner that I have done.

In the Goods of Anthony Smythe, deceased

King’s Bench Division—Probate.

8 November 1915

[1915] 49 I.L.T.R 223
Madden J.

Nov. 8, 1915

Ex parte motion to have the will of Anthony Smythe, deceased, admitted to Probate. The testator died in 1894. At the date of his death his property consisted of a moiety of certain premises in Frere Street and Ross Street, in the city of Belfast, held under fee-farm grant. His personalty consisted of 2,100 dollars cash, which was in the hands of his brother in America. The personalty was distributed in accordance with the terms of the will. The testator devised his realty to Daniel Smythe, who was his heir-at-law. Probate of the will was never extracted. It was now found necessary, for the purpose of making title on a sale of the freehold property in Belfast, to have Probate of the will extracted. Deceased sent for his cousin, Patrick FitzSimons, to make his will, and also sent for a Mr. Edmd. Collins to witness it. Patrick FitzSimons drew the will on a sheet of paper, and it was read over to deceased, who understood and approved of the contents. Owing to bodily weakness deceased was unable to write his name, but executed the will by affixing his mark in presence of Patrick FitzSimons and Edmd. Collins. Patrick FitzSimons then signed his name in presence of testator and the other witness, Edmd. Collins. Deceased got suddenly weak and it was considered advisable to postpone the attestation by Edmd. Collins. Edmd. Collins signed next day in presence of testator, who acknowledged the will and signature.

Lardner submitted that the will should be *223 admitted to Probate. That notwithstanding the usual form of attestation clause in wills setting out that the witnesses sign in presence of each other, that it was competent for them to sign at different times, but that they should both be present when the testator signed. That the signature of the testator by affixing his mark was sufficient. Cited—Sullivan v. Sullivan, 3 L. R. I., p. 299; Baker v. Dening, 8 A. & E. 94; In the Goods of Emerson, 9 L. R. I., p. 443; Faulds v. Jackson, 6 N. of C., Sup. I.; In the Goods of Woods, 1 Jur. N. S. 1096; In the Goods of Clarke, 1 S. & W. 22; In the Goods of Blewitt, 5 P. D. 116; White v. Trustees British Museum, 6 Bin. 310.

Madden, J., in giving judgment, said that the will should be admitted to Probate. The attestation was sufficient, as decided in Sullivan v. Sullivan, 3 L. R. I. 299.

Cooke v. Henry

[1932] IR 574
Hanna J. 574

In this case the difficulty is more of fact than of law. The usual three questions were left with reference to the will of Patrick Henry, dated the 17th September, 1930. As regards the testamentary capacity and knowledge and approval of the will, I find in favour of the will. The only difficulty is the question of due execution. The relevant facts that I find upon this point are as follows:
On September 11th, 1931, the testator, who was about seventy years of age, was ill in bed, and being attended spiritually by his second cousin, the Reverend Dr. O’Doherty, a young priest. On that day he asked the priest to draw up a will for him, as he had already burned two wills. From the direct instruction of the deceased the priest prepared the substance of the will under consideration. The will is in the following terms:
“1. I, Patrick Henry, of the Townland of Cloondrihare, in the Barony of Leyney, County of Sligo, will, devise and bequeath the farm of land of which I am the owner, the dwellinghouse, the stock and outoffices, etc., to my sister, Catherine Henry, also of Cloondrihare, after my death.
2. I will and bequeath £100 sterling to my sister, Catherine Henry.
3. I will and bequeath £100 sterling to my eldest sister, Bridget Cooke, Tullinaglugh.
4. I will and bequeath £100 sterling to my second eldest sister, Sarah Howley, Gotermon.
5. I will and bequeath £100 sterling to my third sister, Anne Maxwell, Rhue.
6. I will and bequeath £20 sterling as promised to the F. Friars of Scratnon, Philadelphia, U.S.A.
7. I will and bequeath £100 sterling free of legacy duty to the Dominican Friars, Sligo, for 400 Masses to be said for the repose of my soul.
8. I will and bequeath £40 sterling, free of legacy duty, for 80 Masses for the happy repose of my soul to be said by Fr. O’Doherty, Mullanghanarry.
I will and bequeath £100 sterling for burial expenses and for the placing of a headstone to my memory over my grave in Court Abbey.
The residue I will and bequeath to my sister, Catherine.
9. I hereby name Thomas Cooke, Tullinaglugh, to be the executor of this will.
I hereby declare this to be my last will and testament, thereby declaring all former wills made by me to be null and void.

Signed by me in full possession of all my faculties and in the presence of the witnesses who are also here present, 17th day of September, nineteen hundred and thirty-one.
Pat Henry.

Witnesses:
1. James McCarrick, Farmer, Cloontariff.
2. George Mulcahy, Station-master, Carromore, Lavagh.”
There was a considerable amount of cross-examination as to how much was written on that date. It is not very relevant to the questions I have to decide, but was of some importance as testing the accuracy of the recollection of the priest as to the events, and whether they had really impressed themselves on his recollection. The will-making was interrupted on that night of the 11th owing, as far as I can judge, to the fact that the testator thought, or suggested, that there might be some dispute as to his will, and the reverend gentleman, not wishing to be concerned with it, if there was to be trouble, was anxious that a solicitor should be obtained. After some discussion the
testator said he might be going to hospital in Sligo and he could get a solicitor there. The priest took the incomplete will away with him unexecuted, and I find that it contained all the particulars as the document was subsequently executed, save as to the residuary clause, the name of the executor, the attestation clause, and the date. The testator continued ill. On the night of the 17th September a neighbour, James McCarrick, was sitting up with him, and between two and three o’clock in the morning he (the testator) asked McCarrick to go for the priest, not saying why he wanted him. McCarrick went, and on his way called on the Station-master, George Mulcahy (who had a motorcar), to go with him so that the priest could be driven there and back, as he lived several miles away.
The facts are that on their return to the testator’s house with Dr. O’Doherty the latter went into the house to administer the Sacraments to the testator, the inmates going outside while this spiritual consolation was being given. The testator was lying in a bed in the kitchen of the farmhouse, the door of which opened on the street. When the priest had discharged his religious duties the testator asked him had he “the paper” with him. The priest told him he had, but said that he thought a solicitor should be obtained. At this the testator seemed vexed, and the priest agreed to finish the document. He began by reading over to the testator what he had previously written down, and got the additional directions as to the disposition of the residue to the testator’s sister, Catherine, who had always lived with him, and also the name of the executor, Thomas Cooke.
The priest then wrote out the attestation clause. There was no one in the room up to this save the testator and the priest. Some conversation took place between the priest and the testator as to witnesses, and the priest said, or suggested, that the two men outside would do. As the only light in the kitchen was a lamp in the centre of the ceiling, and the testator was in bed, the priest called the sister in to bring a candle. She held the candle. The testator put on his glasses and wrote his name as it appears on the will. At that time there was no one in the room with the testator save the priest and the sister. The priest believed that the two men had come in with the sister and were standing behind, but when he turned round he found they were not in the room. He then went to the door and, standing inside the doorway, said to the men something with reference to the signing or witnessing of the will. I cannot determine, in the conflicting versions, the exact words he used, but I am satisfied that he intimated to them, and they knew, that they were wanted inside to witness Pat Henry’s will.
At this time the testator was in the bed, about seven or eight feet from the door, and I find that he heard or knew what the priest was doing, and that it was done at his request and with his acquiescence. The men came in, McCarrick leading, Mulcahy behind him; when they reached the middle of the room alongside the table, the priest, who had the signed will in his hand, with a gesture, holding out the will, said: “This is the will,” or “This is his will,” or “This is Pat Henry’s will, and you are to sign.”Some such phrase as that was used. The testator had signed the will sitting up in bed, the document resting on a book. The priest folded the will so that the contents were concealed, but the signature visible. He pointed out to the witnesses, in succession, where each was to sign, and each signed accordingly, as it appears on the will, after the word “witnesses.” This was done within a few feet of the testator, who was still sitting propped up in bed, and I find that he could have seen them sign. I think the testator must have been weakening at that time. The only evidence of any indication on his part that he knew what was going on is that when McCarrick came in he said to the testator: “I see, Pat, you have your glasses on.” Some feeble answer was given to this, but it was unintelligible to either of the witnesses or the priest. His sister, Catherine, says that the reply was: “I have signed my name for the last time,” but I find that that remark was made after the testator had signed his name some time previously, before the witnesses came in. The testator made no intelligible statement or remark, nor made any gesture, to either of the witnesses either with reference to the will, or otherwise. Some time laterprobably half an hour later, Mulcahy took the testator’s pulse to see what strength was in him. I find, notwithstanding the foregoing facts, that the testator was aware of what was being done, and knew that the priest had called these men in at his suggestion to “sign the will.” At the time the testator signed the priest thought the witnesses were present, and it is probable that the testator also thought they were.
Now, it is admitted that the signature as such was not witnessed. Do the facts found by me constitute a sufficient acknowledgment, and can the witnesses be held to have attested that acknowledgment within the meaning of sect. 9 of the Wills Act? The Court has always leaned in favour of testacy, and so strong has this tendency been that the provisions of the section as to signature and acknowledgment and attestation have been almost whittled away by decision after decision both in this country and in England. The latest in this country is the case of Scarff v. Scarff (1),and in my judgment the principles applied in favour of testacy should not be further extended. I am, however, bound by the principles already laid down and established by authority.
Two points arise:1, was the signature acknowledged in the presence of two witnesses present at the same time? and, 2, did the witnesses attest the acknowledgment as well as sign their names? The summary of the facts is that the testator, having signed the will in the absence of witnesses, directed the third party to call in the two witnesses who became aware, or were told by the third person, in the hearing of the testator, that they were to sign the will of the testator as witnesses. They did so; the signature of the testator being physically visible. The testator was aware that they were doing so, and was in a position to see them subscribing their names, but he uttered no word with reference to his act of having signed the will or as to what they were doing in acting as witnesses.
On the question of acknowledgment it can be put no further than thisthat the testator, having sent for the witnesses and knowing what they were doing, acquiesced in their action; and on the second question it can be put no further than that the witnesses knew they were “to sign the will” in the sense that they believed they were to verify the signature and not that they were to attest that they had seen it signed. The witnesses were two very intelligent men, and if they believed that they were to see the testator sign no doubt they would have been careful to see if he did so.
I am of opinion that this state of facts is covered by authority in favour of the will on both points. I do not intend to go over the authorities, as I have recently discussed the principal ones in my unreported judgment in Kavanagh v. Fagan (2). In my opinion there was an acknowledgment within the authorities. If a silent testator, whose signature is physically visible to himself and the witnesses, has the witnesses brought in, and can see and acquiesce in their action of signing the will as his witnesses, from his point of view that is an acknowledgment that it is his signature. It is covered by the principle lain down in Inglesant v. Inglesant (3), and Fauldsv. Jackson (4). Now, as to the attestation of the acknowledgment by the witnessesin this case there is no assistance to be derived from the attestation clause, because as far as it goes it has been proved to be incorrect. It was written, of course, before the execution and under the impression that the witnesses would be present.
Now, is there sufficient evidence to establish an attestation by the witnesses of the acknowledgment by the testator within the authorities? I think there is, within the principles laid down in Dubourdieu v. Patterson (1), and Gillick v. Smyth (2).
In order to appreciate the legal position as to this attestation, the facts may be stated as follows. Both the witnesses were present together while the testator was making what I have found to be a legal acknowledgment of his signature by acquiescing in their signing their names at the end of the document after the word “witnesses.”They knew the document to be a will, on which the signature of the testator was physically visible. These facts, in my judgment, amount to an attestation of the acknowledgment which was completed in compliance with sect. 9 of the Wills Act by the subscription of their names.
Accordingly, I decree probate in solemn form of the will and allow all parties their costs out of the residue of the estate; the shorthand writer’s fees for note-taking and transcript to be paid by the plaintiff’s solicitor and had as part of his costs in the matter.

Re Kavanagh

HANNA J. :
26. June

This is a very interesting case from the legal point of view. It was an action tried without a jury in which the plaintiff claims to be the lawful brother and one of the next-of-kin of Annie Kavanagh, late of 15 Sorrento Road, Dalkey, in the County of Dublin, spinster, deceased, who died on the 17th February, 1930, having made her alleged last will, dated 28th June, 1926, and thereof appointed Robert Fegan sole executor. He predeceased the testatrix. The plaintiff asks for a declaration to have the said will condemned as not having been executed in accordance with the provisions of the statute, 1 Vic. c. 26.
The evidence has to be considered very carefully, but before doing so I must consider the appearance and terms of the will which it is sought to condemn. The will is upon a printed form, and we must see how much can be traced to Annie Kavanagh’s own hand. The body of the will has been proved by Miss Violet Fegan to be in the handwriting of her father, Robert Fegan, the deceased executor, who was a solicitor’s assistant in the employment of a very well-known, firm. A question has been raised as to the handwriting of the date in the will (the 28th June, 1926)whether the word “June” and the figures”28″ are in the handwriting of the deceased or in the handwriting of a different personan attesting witness to the will. I am inclined to think that the figures “28”and the word “June” are in the handwriting of the deceased. At first I thought that the word “June” might have been written by the attesting witness, Mrs. Fegan, but when I consider the formation of the word “June”and of the figures “28,” I think both were written by the testatrix, though they are of a shaky character. It is, therefore, not a holograph will.
Now, as to the witnesses: one is an elderly French lady, Miss Hortense Lailhacar, and the other is Mrs. Fegan, wife of the man who wrote the will, whose family were intimate friends of the deceased. The latter witness unfortunately, as was proved before me, is so ill that she cannot give evidence either in this Court or on Commission, neither the doctor nor the members of her family being prepared to risk her life in reference to this matter. Thus, the man who wrote the will is dead, and his wife, Mrs. Fegan, one of the attesting witnesses, is incapable of giving evidence. One of her daughters, Miss Violet Fegan, says that the name, “Mary Fegan,” is in her mother’s writing, and Miss Fegan also gave evidence to prove that the signature of the testatrix was her true signature. She also stated in evidence that in her opinion the additions made in the attestation clause, where the letters “er” were added in ink to the printed letter “h” to complete the word “her,” were written by the testatrix.
There is nothing else on the face of the will to which I must refer except that there is a perfectly regular attestation clause, and, no doubt, if the witnesses were both dead the presumption of law would apply that it was properly and duly executed, and it would be admitted to probate.
Now, there are two matters in a case of this kind which the Court must bear in mind continuously when considering the facts:1, that the Court leans in favour of testacy; and 2, that there is a rebuttable presumption of law that a will, on its face made in conformity with the law, should be admitted to probate. It is a rebuttable presumption; and the question is whether the evidence of Miss Hortense Lailhacar is sufficient to rebut it. In my opinion the evidence necessary to rebut the presumption in favour of regular and due execution must be cogent and reliable in the sense that it is evidence upon which the Court can act with confidence. Reading the various cases where this question has been considered, the test which the Courts have both expressly and impliedly used, is:Can the Court confidently rely on the evidence? Now, as regards the evidence of this French lady, Miss Hortense Lailhacar, she was unwilling, in a humorous way, to tell her age, but she is apparently well past middle age. She seems to have a sufficient knowledge of the English language to express herself clearly. After full consideration of her evidence I have come to the conclusion that she has only the vaguest recollection of what took place. She only ran into the room, as she says, signed the paper, and then ran out again. I have come to the conclusion that her evidence is vague and not sufficiently reliable to rebut the presumption of law. However, it is necessary to deal shortly with her evidence, which I have had transcribed by the official stenographer. I am satisfied that when she was brought in she was told that she was wanted to witness the will of the deceased. She saw the will there either on the bed or in Mrs. Fegan’s hand. I have come to the conclusion as a matter of fact that she was told she was wanted to witness Miss Kavanagh’s will, in Miss Kavanagh’s presence and hearing, a fact that has important consequences even on the assumption that the will was signed before she came in. Miss Hortense Lailhacar was quite uncertain as to when she signed the will and where she put her name. She did not know at what period of time she signed, whether before or after Mrs. Fegan. It was only when the document was put before her that the evidence of her own signature convinced her that she had signed first. I have come to the conclusion that she has only the vaguest recollection of what took place in that room. She says Miss Kavanagh was not able to speak, and that she (witness) was asked to get a pen with which to sign. She was not able to say whether the pen was taken from Miss Kavanagh or not. She was quite definite in stating that Miss Kavanagh could see her sign her name on the will which was placed on a marble table at the foot of the bed; she cannot say whether Miss Kavanagh was sitting up in bed or lying down, but that she was very sick. Asked whether she saw Miss Kavanagh put her name to the paper she said she never saw the pen in her hand at all. She stated that the signature was “the very image” of Miss Kavanagh’s signature and she had no doubt that it was hers. She saw Mrs. Fegan put her name to the document; and, as a matter of fact, Mrs. Fegan’s name appears after hers. On these facts, in my opinion, I am entitled to infer as a matter of fact, and I do so infer, that a request was made to her by Mrs. Fegan in the presence and hearing of the testatrix to sign the will as a witness and that there was an acknowledgment by the testatrix of her signature in the presence of the witness. The evidence of this lady is not sufficiently reliable and definite to enable me with confidence to rebut the presumption of the regular execution of the will which arises from the existence of a perfect attestation clause.
Let me say a few words about the cases.
In my opinion neither Rolleston v. Sinclair (1), nor Scarff v. Scarff (2) applies. In Rolleston v. Sinclair (1) the judgment of the Master of the Rolls shows that the Court not all the Court, for Lord Justice Ronan dissented decided on the basis that, as there was no attestation clause to the will, it was to be treated as an incomplete document. In the case of Scarff v. Scarff (1), there was no attestation clause, and the facts of the case are different from the facts of the present case.
The matter is not concluded by the evidence of this lady that she did not see the testatrix sign the will or hear her acknowledge it, for I think the law goes further than that. Inglesant v. Inglesant (2) is a decision which I think supports the view I have taken of the evidence in this case. The headnote is as follows:”The deceased signed her will in the presence of one witness. On the entry of the second witness a person present directed him to sign his name under the testatrix’s signature. He did so, and the second witness also subscribed the will. The deceased was in the room, but said no word during the proceeding. The will was lying on the table open, and headed in large characters with the words, ‘This is the last will and testament of,’ etc. It also had a full and formal attestation clause: held, that the deceased acknowledged her signature in the presence of two witnesses.”
In his judgment Sir J. Hannen deals with the legal position where a witness signs in the presence of a silent testator at the request of another person to sign as a witness to the will. He relies in his judgment on Fauldsv. Jackson (3), and quotes Lord Brougham as stating:”Their Lordships therefore consider it is quite clear that Rowley was called upon to witness the signature, and that this was an acknowledgment to Rowley by the testator that this was his signature. This is still further proved, because it is sworn by Caukwell that he (Caukwell) said to Rowley (in all probability in the hearing of the testator), ‘It is Mr. Jackson’s signature, or Mr. Jackson’s instrument, you are to witness.'” There, we have a case where a witness was asked by another person in the presence of the testator to witness his will.
I have also considered two Irish cases, the first of which is Gillic v. Smyth (4), which came before a Judge without a jury. The headnote reads as follows:”The evidence of one attesting witness (the other being dead) proved that the testator called on him and said that the parish priest wanted him to sign a paper. He went to the chapel and found in the sacristy the parish priest, the testator, and the other attesting witness. In their presence he signed the paper opposite the word ‘Witnesses.’ The other witness similarly affixed his signature. All the writing on the paper was in the handwriting of the parish priest, but at no time was the paper read over to or by the testator in the presence of the witnesses or the nature of it explained to the witnesses: held, there was sufficient evidence to prove that the deceased testator acknowledged his signature in the presence of witnesses.”
The other casea more recent caseis Dubourdieu v.Patterson (1), which came before the King’s Bench, the judgment being given by Gibson J. It was an action tried before a jury who found for the will, and on a motion by the defendant to set aside the verdict and judgment it was held that the verdict and judgment should not be set aside. Gibson J., in his judgment, says at p. 25:”There is no doubt as to the law: a will must be signed, or the signature as a visible fact acknowledged, in the presence of two witnesses. It has been argued in this case that an opportunity of seeing is sufficient, and that Lowry could have turned the leaf and looked at the signature if he had chosen. But if, for example, a book had been placed over the signature which the witnesses could have moved if they had chosen, the will would not have been properly attested. If the signature is visibly apparent on the face to the witnesses of the document, they are supposed to have seen it, and the Court considers that they did see it; but it is otherwise if it is not visibly apparent. The testatrix in this case was a capable woman, she was informed how the will should be executed, the witnesses signed in the belief that the will was duly made, the will was kept by the testatrix among her papers, and there is a good attestation clause signed by the two witnesses. It is said that Lowry did not see the attestation clause, but he knew that he and the other witness were signing the document as a will, and they signed at the end of the attestation clause. The evidence afforded by that, that the will was duly signed and acknowledged, is only to be got rid of by clear evidence to the contrary. Lowry had previously indicated that he had duly witnessed the will, and if an affidavit of due execution in the ordinary form had been tendered to him at that time, he would apparently have sworn it, and probate would thereupon have been granted in common form. It was only after being interviewed on behalf of the parties seeking to upset the will that he said anything to throw any doubt on the due execution of the will. His evidence is full of suggestion that his memory is not certain. He says: ‘I believe the will was lying on the table,’ ‘the will must have been on the table.’ When there is evidence of that character on the one hand, and presumption of due execution and also a former statement which suggests no doubt on the other, there is a question for the jury, and it was quite legitimate for the jury to say that they preferred the latter, and in my opinion their verdict cannot be interfered with.”
From the principles enunciated in these cases it follows that the presumption of law cannot be rebutted where the evidence is vague and uncertain. Evidence to rebut must be cogent and reliable in order to displace the presumption in favour of the regular execution of the will.
I have come to the conclusion that the will must be admitted to probate.

Mulhall v. Mulhall

[1936] IR 712

that deceased told witness and Patrick Mulhall that he (deceased) wished them to witness his will; the deceased and witness went into the diningroom adjoining the kitchen, leaving open the door between the kitchcn and the diningroom; that deceased went to the diningroom sideboard and took out some sheets of paper pinned together and put them on the diningroom table with a bottle of ink and a pen; that deceased said to witness “this is my will and I have made yourself and Pat executors”; that deceased then proceeded to write in the date on the will and then wrote his name at the end of the last sheet of the will; that deceased then wrote the word “witness” and handed the will to witness and that witness there and then signed the will in the deceased’s presence; that while deceased and witness were signing the will the door between the diningroom and the kitchen was wide open and Patrick Mulhall, who was then sitting at the fire in the kitchen, had a clear view into the diningroom where deceased and witness were and was in a position to see everything being done and hear everything said in the diningroom, the distance between Patrick Mulhall and deceased at the time being not more than three or four feet. Witness was unable to state whether Patrick Mulhall was actually looking at deceased and witness signing the will, as witness was paying attention only to what deceased was doing, but stated that, if Patrick Mulhall were looking at witness and deceased, he could have seen everything that was going on. Witness further deposed that after deceased and witness had signed the will, deceased took it and the pen into the kitchen and asked Patrick Mulhall to witness it; that Patrick Mulhall said he would, and that deceased told him to sign his name where deceased and witness had signed it; that Patrick Mulhall took the will and pen from deceased and signed the will at the kitchen table some distance away from the kitchen fire in the presence of the deceased.
Mary Mulhall, widow of the deceased, deposed that she had been present in the kitchen with Fennelly and Patrick Mulhall when they had been asked to witness the will; that she had gone into the dining-room and had been present there when the will was signed by deceased and Fennelly; and that she had again been present in the kitchen when the will had been signed by Patrick Mulhall; and generally she corroborated the evidence given by Edward Fennelly.
Patrick Mulhall deposed that he had been living with the deceased at the time of the making of the will; that on the date in question witness had been sitting at the kitchen fire; that deceased came out of the diningroom with a pen and ink in one hand and a document in the other; that deceased asked witness to witness deceased’s signature as it was deceased’s last will; that witness took the pen and document from deceased and at the kitchen table in the presence of the deceased signed his name as a witness to the will; that he had no recollection of the events immediately preceding the entrance of deceased into the kitchen with the pen and the will in his hand.
John Hooper (with him Cecil Lavery K.C. ) for the plaintiffs referred to In bonis Trimnell (1); Winchilsea v.Wauchope (2); Scarff v. Scarff (3); Casson v. Dade (4); Davy v. Smith (5); In the Goods of Gunstan, Blake v.Blake (6).
John Farrell for Catherine Tynan.
The other defendants were not represented and did not appear.

MAGUIRE J. held that he had evidence that entitled him to hold that the will was duly executed in the joint presence of two witnesses according to the statute. He admitted the will to probate and revoked the grant of administration to Catherine Tynan. The plaintiffs and the defendant who appeared were allowed their costs out of the estate, and the plaintiffs were also allowed the costs of the motion heard by the President to be paid out of the estate.

In re Kieran

Hanna J.

[1933] 222

HANNA J. :
6. April

On February 15th, 1933, the deceased in this matter, Ernest Francis Kieran, purported to make his will, and the question for the decision of the Court is whether the will was properly signed within the meaning of sect. 9 of the Statute of Wills.
The testator was very feeble physically, but clear in his mind. He gave his instructions for a simple will to his solicitor, and the will when drafted, was read over to him. He then took the pen in his hand, and in the presence of the two witnesses endeavoured to write his name, but succeeded only in making two unintelligible hieroglyphics, which are said to be his effort to make an “E” and “K.”Unless one were told so, they could not be deciphered easily as such. At that stage the solicitor formed the opinion that the testator was not physically capable of any further effort, and apparently told the testator not to trouble any more, and that what he had done would be sufficient as his mark. I gathered from the affidavit of the solicitor that the testator in some way gave his assent to this, and the solicitor then wrote the word “his” in front of the first scrawl and the word “mark” after the second. From a practical point of view one would think that this should be sufficient to admit the will, but I left the case over for the consideration of the authorities and to satisfy myself as to the legal propriety of the admission of the will to probate.
Passing over the historical evolution of the right to express an ultima voluntas and to declare a testamentum,which were technically two different acts, the history of writing a signature to such documents is important. At common law writing is not necessary for any transaction, and has been imposed in every case, where it is a legal requirement, by statute. The 32 Hen. 8, c. 1, introduced a provision that a will of fee simple lands should be in writing, but there was no provision rendering a signature necessary, and, as Professor Holdsworth points out in his”History of English Law” (3rd edit., Vol. 3, p. 538),”Neither signature nor seal was necessary if it could be proved to be his will.”
In England in 1676 by the 29 Car. 2, c. 3, known as the Statute of Frauds, and in Ireland in 1695 by the 7 Will. 3, c. 12, sect. 3, all devises and bequests of lands or tenements had to be in writing and signed by the person devising the same or some person in his presence and by his express directions. Until 1837, when the 1 Vict. c. 26, was passed, the law stood in this condition as to lands, continuing, as regards personalty, the right to make a nuncupative will by word of mouth without writing, subject to certain formalities. By that Act (1 Vict. c. 26), sect. 9, all wills, save those of soldiers and mariners under sect. 11, whether of realty or personalty, had to conform to its requirements and be “in writing . . . and signed.”
Within a few years of the passing of the Statute of Frauds, namely in 1681, in the case of Lemaine v. Staneley , reported in 1st Freeman’s Reports (1) (it may be remarked en passantthat Freeman was subsequently Lord Chancellor of Ireland from 1707 until 1710) the Court, though dealing with the question of whether a sealing of a will was sufficient (on which there was great difference of opinion amongst lawyers) along with the name of the testator written by himself in the body of the will, was of opinion that a mark is a sufficient signing, saying “it is not necessary to write his name, for some cannot write, and there their mark is a sufficient signing.” Subsequently the better opinion seemed to be that sealing was not sufficient by itself (see note to Lemainev. Staneley (1)). The origin of the cross as a mark is referred to in Bennett v. Brumfitt (2), where it is stated “‘the practice of our ancestors, the Anglo-Saxons, in attesting their charters, was to prefix the sign of the cross to their names. Hence it comes to pass, that, when a person who cannot write is to make his mark, he usually makes a cross. And I apprehend that such Saxons as could not write made their crosses, and the scribe wrote their names.’ Pegge, Anonym. iii. 42.”
The sufficiency of a mark was established by Sir William Grant in Addy v. Grix (3), the headnote of which is that an attestation of a devise by a mark is good within the Statute of Frauds. This was following the decision of Lord Eldon in Harrison v. Harrison (4) where he referred to the unreported case of Gurney v. Corbet (1710) which was noted in a notebook the property of Mr. Justice Burnet, a case which had decided that the mark of the attesting witness was sufficient. He (Lord Eldon) accepted that as the law, but said “there might have been a great deal of argument upon it originally.” These two cases were marks of attesting witnesses and not of testators, but the same principle seems to have been applied. This view was subsequently referred to by Lord Eldon in Wrightv. Wakeford (5) where, on the consideration of the question as to whether sealing was sufficient, he pointed out that signing by a mark was an act affording no material testimony, but that upon such reasoning it was decided originally that sealing was signing, but, upon a review of that, the contrary had been held for a long time, and that sealing without signing was not a sufficient execution of a will and that attestation by a mark was good.
From the following, later, decisions it would seem clear that the practice was definitely established of accepting a mark as signature: Baker v. Dening (1); even if there was no proof that the testator could not write: In the Goods of Bryce (2), where no name appeared in the body of the will but it was signed by the testatrix with her mark; Wilson v. Beddard (3) where the hand of the testator was guided; In the Goods of Clarke (4), and In the Goods of Douce (5), in each of which the written name appeared in the body of the will. In Baker v. Dening (6), Patteson J., who was one of the Court, with Denman C.J., Littledale and Coleridge JJ., said: “It is conceded that, in all the clauses of the Statute of Frauds respecting wills, the requisite of signing is satisfied by making a mark; for Mr. Rogers [counsel for the defendant] admits that the practice cannot be disputed.” Accordingly it is now historically established that the mark has been long accepted as “signing” within the statute.
Now, as to the sufficiency of initials:In practice these are frequently used to verify interlineations and alterations in the body of the will, and in this regard they are controlled by sect. 21 of the Wills Act. There are several authorities as to their validity as a signing of the will itself. In In the Goods of Christian (7) it was held that the initials of the attesting witnesses to a testamentary paper were a sufficient subscription under the Wills Act, and that the witnesses were not required to sign their names. This was the first case in which the validity of initials was raised. In In the Goods of Savory (8) it was held that the execution by the testatrix’s initials was sufficient signing of the will. The solicitor had prepared the attestation clause reciting that the testatrix had made her will by executing her mark. When he observed that she had put her initials instead of a mark he sent the will back with the witnesses to have a mark placed thereon in their presence. The testatrix made her mark above her initials, but the witnesses did not re-attest adequately as there was no more ink in the pen, and one of them merely traced his original signature with the dry pen. It was held that the second execution failed, but the first with the initials stood. In In the Goods of Blewett (1) the Court relied upon the dicta in Hindmarsh v. Charlton (2). In Blewett’s Case (1) the initials of the witnesses and of the testatrix were attached to an alteration of the will after it had been originally executed. The question arose under sect. 21 of the Wills Act as to the validity of interlineations, that section enacting that “No interlineation or other alteration made in any will after the execution thereof shall be valid . . . unless such alteration shall be executed in like manner as is required for the execution of the will, but the will with such alteration as part thereof shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin.”Sir James Hannen said at p. 117: “A mark is sufficient though the testator can write: Baker v. Dening (3).Initials, if intended to represent the name, must be equally good. The language of the Lord Chancellor in Hindmarshv. Charlton (2) seems equally applicable to the testator’s signature as to the witnesses’ subscription: ‘I will lay down this as to my notion of the law that to make a valid subscription of a witness there must either be the name or some mark which is intended to represent the name’; and Lord Chelmsford says, ‘the subscription must mean such a signature as is descriptive of the witness, whether by a mark or by initials, or by writing a name in full.'”He (Sir James Hannen) therefore held that the initials of the testatrix were sufficient.
The same principle was applied by Warren J. in the Irish case of In the Goods of Emerson (4) where a testator, in the presence of the two subscribing witnesses, affixed a seal stamped with his initials to his will, which was entirely written by himself, placed his finger on the seal and said, “This is my hand and seal.” It was held that the will was sufficiently signed by him. Warren J. said:”It is settled that a seal, qua seal, is not sufficient . . . but it is also settled that a mark is a sufficient signature if it be intended to represent a signature. The question is, whether the testator intended this seal to be a signature as well as a seal. He said, touching the sealthe initials as well as the wax’this is my hand and seal.’ What did he mean by ‘my hand’? obviously his signature. I am of opinion, therefore, that this will was signed by the testator.”
The result of the consideration of these cases is that it is now settled law that the signing under the Wills Act may be satisfied by a name, by initials, or by a mark.
But the case under consideration is different in fact. The testator started to sign his name. In that effort he succeeded only in making two scrawls that are indecipherable, and then consented to these being treated as a mark. In fact what the testator put on the paper was neither a signature nor his initials nor the usual cross. What is the test that I am to apply? It is, in my opinion, whether I am satisfied that the two scrawls were placed there by the testator as a personal act or acknowledged as such by him, animo testandi, to verify the making of the will as his own act. If a testator cannot, or does not, sign his name, or place legible initials on the will, but, on the other hand, places on it or acknowledges something upon it as his mark, in my opinion the Court should not be concerned as to the particular character or shape of the mark. It may be the time-honoured cross, that has been referred to, or it may be some other character. I am satisfied on the evidence here that not only did the testator commence to make his signature animo testandi but continued in the same state of mind until the termination of the execution of his will, and accordingly I admit this will to probate.

Clarke v. Early

[1980] IR 223
O’Higgins C.J. 224
S.C.

O’Higgins C.J.
25th July 1980

This appeal is brought by the applicant against the refusal of Mr. Justice Gannon to accede to his application for an order giving him liberty to obtain letters of administration of the estate of the late Hugh Early, deceased, with his last will dated the 16th April, 1962, annexed.
Hugh Early lived in Glencastle, Bunahowen in the county of Mayo; he died at the age of 88 on the 11th May, 1962. He was unmarried and his only known next-of-kin were John Early, a brother, who then lived in England and a Miss Anne Early who was believed to be a cousin. Hugh Early died at Barrack Street, Belmullet, in the county of Mayo in the house of a Mrs. Sabina Geoghegan, who was a distant relative and who had cared for and nursed him for some time prior to his death. His only assets consisted of a farm of land at Glencastle, his ownership being registered in folio 23536 of the register of freeholders for the county of Mayo.
On the 26th November, 1964 (being some time after the death of the deceased) Mrs. Sabina Geoghegan handed to Mr. Liam McHale, solicitor, of Ballina a document which she said was the last will of Hugh Early and which was dated the 16th April, 1962. This document had apparently been in her possession since the death of Hugh Early and was handed to Mr. McHale for the purpose of having the same proved as a will. Its terms were as follows:
“I am leaving my land at Glencastle, Bunnahowen to Mrs. Sabina Geoghegan, Barrack Street, Belmullet who is looking after me and I am staying with her. She has to bury me and pay my funeral expenses and get a Mass said for me.”
Under this text appeared the following words:
“Signed: Hugh Early.
Witness: James Mullan, Fohera, Ballinamore, Co. Leitrim.
Witness: Patrick Callaghan, Barrack St., Belmullet.”
At the top of the text was the date “16th April, 1962.” As appears, the document contained no attestation clause nor was an executor named. Mrs. Geoghegan’s purpose in handing the document to Mr. McHale was to put her title to the lands in Glencastle in order, as she was negotiating a sale of these lands to Martin McIntyre.
It appears that Mr. McHale sought the assistance of Anne Early for the purpose of extracting a grant of letters of administration with the will annexed. This was not successful as Anne Early first demanded payment for her co-operation and later refused it, alleging that the signature on the document was not that of the late Hugh Early. It does not appear that any approach was made to John Early, the deceased’s brother. In any event, Mr. McHale’s efforts ended in failure and no further steps were taken at that time to extract a grant of administration with the will annexed. In the meantime, Martin McIntyre, the putative purchaser, went into occupation of the lands at Glencastle. Apparently, Anne Early also did so. There appears to have been a joint occupation by both these people for a period of years and this was followed by a period in which Martin McIntyre was in exclusive occupation. Eventually Mr. McIntyre emigrated to America in 1972, but he made a practice of returning from time to time to continue his occupation of these lands.
On the 2nd May, 1974, Mrs. Sabina Geoghegan died. She had previously made her will dated the 14th August, 1969, under which she appointed Patrick Lavelle as her executor, and left to her grandson, Michael Hopkins, her house at Belmullet and to her granddaughter, Vera Hopkins, her residuary estate. Vera Hopkins is now Vera Gomez. Sabina Geoghegan’s will was duly proved.
Mr. Lavelle having declined to apply, on the 22nd December, 1978, the applicant (acting under power of attorney for Vera Gomez) was granted letters of administration of the estate of Hugh Early, limited for the purpose of instituting proceedings for the preservation of the property of the said deceased. On the same day a plenary summons was issued by the applicant claiming possession of the lands of Glencastle from Mr. Martin McIntyre.
Subsequently, the applicant, as such attorney, applied to the High Court for a grant of letters of administration to the estate of the deceased, with his purported last will annexed. This application was refused by Mr. Justice Gannon by an order dated the 14th February, 1980, and against this refusal this appeal has been brought.
The facts already outlined were deposed to in a number of affidavits on the hearing of the application before Mr. Justice Gannon. In addition, it was established that both persons whose names appeared as witnesses to the purported will were dead. However, the handwriting and signature of the witness James Mullan was identified by his widow, who deposed in an affidavit to the fact that the first seven lines of the writing in the document was in his hand and that his signature appeared thereunder. She could not verify the signature “Patrick Callaghan” but she deposed to the fact that she knew a man called Patrick Callaghan who resided in Barrack Street, Belmullet, and that she knew him to be a friend of the late Hugh Early. There was, however, no evidence verifying or in any way identifying the signature “Hugh Early” as being that of the deceased.
Mr. Shanley, for the applicant, urged that this Court should apply the maxim omnia praesumuntur rite esse acta to the many shortcomings that appear in the evidence relied upon to support the document as being the last will of the deceased. It seems to me that this is far too large a step to ask this Court to take in the circumstances of this case. I am prepared to accept that the document appears to be a testamentary document. It seems essential, however, that there be evidence that it was actually signed by the deceased. The evidence in support of the application undoubtedly shows that the document was truly signed by one of the witnesses. I am prepared to accept that it was so signed by this person as a witness. The application of the presumption might also carry the apparent attestation of the second witness, since a person bearing that name and address existed and was a friend of the deceased. There is, however, a complete absence of any evidence to verify the signature “Hugh Early” as being that of the deceased. Not only is there such an absence of evidence but there is an allegation, admittedly of doubtful authenticity, by a near relative that this was not the signature of the deceased.
To apply the maxim omnia praesumuntur rite esse acta it is necessary, in my view, that two conditions be observed. In the first place an intention to do some formal act must be established. In the second place there must be an absence of credible evidence that due formality was not observed. Here it can be said that the second condition is established. But what of the first? While the document has a testamentary flavour, it is established that it is not a holograph. In the absence of any evidence that it was signed by the deceased, there is no evidence of an intention on his part to enter into the formality of making a will. Mr. Shanley cited a number of cases in which the presumption he relied upon was applied. I can, however, find no decision which goes as far as he would have this Court go in this case. The strongest authority in favour of the applicant is that of Harris v. Knight .1 In that case probate was granted of a lost will without the production of a copy but with satisfactory evidence as to the contents. Both the attesting witnesses were dead but there was evidence to identify the signature of one of them. There was an allegation that the signature of the testator was a forgery. However there was also evidence (which the trial judge accepted) that it was not a forgery but was in fact the genuine signature of the testator. In other words, in that case there was evidence which the court could accept that the document was signed by the testator and that he intended it to be his will.
Accordingly, I have come to the view that there was not sufficient evidence to justify a grant of administration in this case and that this appeal should be refused. However likely it is that the document in question represented what the late Hugh Early would have wished to do in his will, this is not sufficient to justify this Court ignoring the absence of any evidence that it was in fact his will.

Henchy J.
I agree.

Kenny J.
I agree.

Parke J.
I agree.

O’Higgins C.J.
Mr. Justice Griffin, who is unable to be present to-day, has asked me to say that he agrees with my judgment.

In Goods of McLoughlin

[1936] IR 223
In the Goods of PATRICK McLOUGHLIN Deceased.
7,14 Feb. 1936

HANNA J. :
In 1913 the testator, then resident in Greenoch, purported to make a will in accordance with Scots law. It was made in the presence of two witnesses, solicitor’s clerks, and of a Notary Public. The testator was illiterate, but on his authority and direction, the Notary Public subscribed the will for the testator in his (the Notary Public’s) own name. The testator did not make any mark, but the authorisation by the testator and the subscription by the Notary Public, were given and made in the presence of the witnesses, who attested to that fact, as well as to the making of the will, and that it had been read over to the testator. The testator died in 1928, domiciled in SaorstÃ¡t Ã‰ireann . His widow re-married in 1934, and now, as Mrs. Hannah Doran, applies that probate be granted of the will.
For reasons with which I am not concerned for the present, the will is not propounded as a Scots will. It has been submitted by Mr. Healy that it has been duly executed according to our law under sect. 9 of the Wills Act, 1837. All the requirements expressly mentioned in that section have been complied with, the only point being whether a testator, in lieu of signing his own name or mark, can authorise a third party to subscribe it for him and whether that can be done in the third party’s name.
Notwithstanding the long-standing and universal practice in this country of having some manual act of the testator, in either making a mark, or touching the pen with which the mark is made (when unable to write), it is a compliance with the provision of sect. 9 for another person “to sign”the will in the presence and by the direction of the testator.
The relevant portion of the section reads:”it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction.”The section does not say that the other person is to sign the name of the testator, and a direction to a person “to sign” prima facie means to sign his own name. Therefore I am of opinion that Mr. Healy’s contention is correct that it is no bar to due execution that the Notary Public signed his own name.
The exact point was decided a hundred years ago (and there has been no reported decision since) in In the Goods of Clark (1) by Sir H. Jenner.
Two cautions I must give when this form of execution is adopted, as such a method is open to fraud.
First, the witnesses should attest, in addition to any formal matters, such as the reading over of the will, or the making of alterations, that the testator gave the authority or direction in their presence, and that the signature in pursuance of that direction was made in their presence and in the presence of the testator.

Second, it should be the practice of the Court not to admit such a will to probate on motion only, grounded on formal affidavits, save where the case is quite clear and free from suspicion. A will not signed by the testator demands the most thorough and careful scrutiny of all the circumstances surrounding the execution, and this can seldom be done by affidavit.
In this case the Notary Public and the witnesses are dead, but though no evidence is produced of their handwriting, I am satisfied, on the facts and the appearance of the documents, as well as from the fact that the witnesses were in legal employment and the Notary Public was a public official, that everything was properly done as in the attestation clause stated.
Accordingly, being satisfied as to the due execution, I admit the will to probate.

In the Goods of Uniacke

[1964] IR 166
CATHERINE UNIACKE Deceased.
17 Nov. 1961
2

DAVITT P. :
2 March 1962

The document in question in this matter is in form a will and purports to have been executed by Catherine Uniacke as testatrix on the 27th January, 1910. She died in April of the same year. There is no evidence as to where it was originally discovered; but it appears that it was for a long time kept in a small box in the house of her son, Bernard, the principal beneficiary, before being sent to the office of Messrs. Shields and Son, solicitors, in January, 1955.
The document is in manuscript, but I have no evidence as to whose is the hand. It is presumably not a holograph document since Catherine Uniacke purports to sign it by a mark. There is no attestation clause. The names of John Hanify and John Molony appear at the foot of the document as witnesses. From a comparison of the handwriting it seems to me that the body of the document was not written by either of them; but I have, in fact, no evidence as to whose is the handwriting on any part of the document. There is no evidence to verify the signatures of the witnesses, both of whom are long since dead. Beyond what is contained in their death certificates I have no evidence as to their circumstances, or who they were. I do not know if either of them, or if the person who drew the will, whoever he was, or any other person connected with the matter, possessed any knowledge as to the requisites of a valid execution, and, in particular, the necessity, in the case of a markswoman possibly illiterate, of having a will read over to her before execution. I have no evidence as to any declarations made by Catherine as to her testamentary intentions.
I have been referred to a number of cases in which the maxim, “omnia praesumuntur rite et solemniter esse acta,”has been successfully called in aid to uphold a will despite the paucity of any direct evidence as to due execution. I propose to refer to only two of them in one of which the maxim appears to have been stretched to the absolute limit of its capacity.
In In the Goods of Peverett(1), the will in question was a holograph will. There was no attestation clause. Both witnesses were dead; but the signature of one of them was proved, and it was also established that the other was a not unlikely witness. There was no doubt that the will was in the handwriting of the testatrix and bore her signature. It was her will. In upholding it Sir Francis Jeune, President of the Probate Division, said:Two things may be laid down as general principles. The first is, that the Court is always extremely anxious to give effect to the wishes of persons if satisfied that they really are their testamentary wishes; and, secondly, the Court will not allow a matter of form to stand in the way if the essential elements of execution have been fulfilled. Those are principles which I can act upon, although I am conscious that in this case, where there is no attestation clause at all, I am going to the furthest limit.”
That limit appears to have been expressly and deliberately exceeded in In the Estate of Denning(2). There the document concerned consisted of a small sheet of paper, one side of which was completely taken up with the date and the dispositive words followed by a word intented to read, “signed”and the signature, “Alice Mary Denning, Spinster.” On the reverse side, turning the sheet upside down, appeared the names, “Edith Freeman” and “Dorothy Edwards,” in different handwritings. The handwritings on the back did not, either of them, correspond with that on the front. No persons of the names, Edith Freeman or Dorothy Edwards, could be traced. The only beneficiaries were John Harnett and his sister, Mary Jane Harnett. The testatrix had told John Harnett that she had made a will and that he and his sister were the beneficiaries. It does not appear from the report that the testatrix’s signature was verified, nor does it appear when or where the will was discovered. Mr. Justice Sachs referred to the observations of Sir Francis Jeune which I have quoted from Peverett’s Case (1), and said:Having taken into account all factors, I think it proper to take that step further because it seems to me that there is no other practical reason why those names should be on the back of the document unless it was for the purpose of attesting the will.”
In that case it will be noted that Miss Denning had in her lifetime declared that she had made a will of the exact nature of the document in question; and Mr. Justice Sachs was satisfied that the will was her will. In all the other cases on the matter to which I referred there was some evidence other than the mere document itself with date, dispositive words and three signatures purporting to be those of the testator and two witnesses. There has been some evidence tending to show that the document in question was that of the purported testator, such as evidence that it was a holograph document, or that the signature was that of the purported testator, or that the document carried out intentions declared by the deceased in his or her lifetime.
In my respectful opinion Mr. Justice Sachs went to the utmost limits in Denning’s case (2). I am not prepared to go any further. I doubt if I would have gone as far.

Cases State & Condition

In the Goods of Tiernan.

[1942] IR 572
Hanna J. 572

This is a unique case as to the execution of a will. The facts are as follows:
The testator was the Rev. J. Tiernan, Parish Priest, of Johnstown, Navan, who died on January 23rd, 1942, and his will is dated March 27th, 1935. The executors named in his will are the Rev. Patrick Drake, Administrator, Navan, and the Rev. J. Connor, Parish Priest, Kilcormac
The will, as presented to the Court for probate, is contained in three separate, single, sheets of notepaper.
They are not attached or connected with one another in any of the usual ways, either with pins, fasteners or tied with tapes. They are not fastened together. There is no catchword from one sheet to the next. The sheets are not numbered.
According to the usual practice, the testator had lodged the sheets in the Diocesan Archives at Mullingar. The sheets when handed to the executors from the Diocesan Archives at Mullingar were enclosed in an envelope endorsed on the front “Reverend John Tiernan, P.P., Johnstown, Navan,” and below were written the names of the executors, Rev. Patrick Drake, Administrator, Navan, and the Rev. John Connor, P.P., Kilcormac, bracketed as executors. Across the top of the envelope were the words “Last Will,” and on the reverse of the envelope there was an endorsement made by the Rev. Denis S. Mulvin, the Archivist, in the following words, which have caused some difficulty:”Received, 27th June, 1941; old will returned. D.S.M.” Prima facie, that would indicate that the will was retained in the testator’s possession for over six years, during which period, having regard to the nature of the sheets, the attestation clause might have been used for a new will.
The affidavits establish that the will and the attestation clause are in the handwriting of the testator, and it may be of some importance that the three sheets bear the appearance of having been folded together with corresponding creases in each, apparently before being placed in the envelope.
The application was made in the first instance upon the affidavits of James Fay, the Rev. Patrick Rooney, the Rev. Patrick Drake, and the Rev. Denis Mulvin.
Father Drake, in his affidavit of the 6th June, 1942, deposed that when he received the will on the 24th January, 1942, from the Archivist the sheets were in the natural order, the top page being the commencement of the will, the second the continuation and the third containing only the testimonium. Father Drake also deposed that the envelope contained a sheet written and signed by the testator and entitled “Instructions to the Executors,”but that document has not been produced to the Court. He also says that the Archivist returned the”old will” some time before the 27th June, 1941, and got back the will under consideration. It is suggested by him that it might have been the will under consideration that was returned and described as “Old will returned,”the suggestion being that the testator got back the will to alter the description and addresses of the executors.

Father Drake explains that, while he is described in the body of the will as the Catholic Curate of Navan, and the Rev. Father Connor as the Parish Priest of Stamullen, which were their correct residences in March, 1935, Father Connor became Parish Priest of Kilcormac as endorsed on the envelope on the 24th June, 1937, and Father Drake became Administrator of Navan on the 10th July, 1939, and therefore the endorsement on the envelope must have been written after the latter date.
Father Mulvin, who is Administrator in the parish at Mullingar, has been Archivist for over five years and has custody of the wills of the priests of the diocese. In his affidavit he says that he received the envelope on the 27th June, 1941, and made the endorsement thereon, already referred to. He adds “Some days prior to the 27th June, 1941, at the request of Father Tiernan, I sent him the will which had up to then been in the Archives, and it is to that fact I referred when I put the endorsement ‘Last will returned’ on the envelope.” It has been submitted that the words “the will” referred to this will and not to the earlier will of the 25th January, 1931.
At this point it should be noted that the testator had made two previous wills, one of which was not executed. The first will was made on the 25th January, 1931, upon a double sheet of foolscap, and the disposing part of the will was upon the first page and portion on the third page which had also the testimonium and the testator’s signature, the second page being blank. The second will be made was dated 22nd May, 1933, and was written upon two separate unattached sheets of notepaper exactly similar to those which contained the will under consideration, but that second will had not been executed. The sheets used in the second will give some assistance in the consideration of the nature of this last will.
I have said that the application was supported by affidavits, and, as to the execution, there was an affidavit by each of the two witnesses. I was not satisfied with these affidavits, and accordingly I directed that the witnesses should attend in person to give their evidence upon oath. The result was somewhat surprising.
Father Rooney, whose evidence I completely accept, said he had no recollection of the incident whatever, but he identified his own signature. He could give no evidence as to the position or condition of the sheets or the writing of the attestation clause.
The witness, James Fay, must have been a young man six years ago when he signed his name as a witness.
I am satisfied on Fay’s evidence that at least he knew he was witnessing something in connection with a will, and I believe the testator said to him “You are not in this,”meaning, of course, not in his willwhich is a natural remark which the boy might remember. But as to where the other sheets were at the time is not clear. His statement that before the testator signed the last sheet he lifted up the page and looked at some writing underneath it, is a remarkable thing to have remembered for six years. This, of course, was to indicate to the Court that there was another sheet or so of the will underneath the attestation sheet. I am not satisfied on this point. I believe there were books and papers on the table, but there is no express evidence as to what they were. Fay’s evidence seem to indicate that he saw the testator write the attestation clause before he signed his name. I am not inclined to accept that statement inasmuch as the testator’s signature seems to me to be in a different ink from the attestation clause, which I believe, as a matter of inference, was written before the witnesses arrived, although that point is immaterial. The names of the witnesses are in the same heavier ink.
The reason I mentioned these matters is that, in my opinion, the witnesses at the time only knew it was a will in respect of which they were signing their names, and that it was a single sheet. There might have been other papers under it, but I am not satisfied that it was written on the top of the other sheets of the will, which might bring it clearly under some of the authorities. But I am satisfied that the other sheets of paper containing the dispositions of the will, while not under the attestation sheet, were there or thereabouts on the table and, as a matter of inference, under the control of the testator. Therefore, the problem for decision is whether on the facts found I can admit to probate a will, the execution of which was upon a separate sheet at that time and still is unattached to the will and not in any way physically associated with it. We do not know what happened to the will between the 29th March, 1935, and the 27th June, 1941, but I will presume that the testator followed the rule of the Church and sent his will to the Archivist.
It is necessary to consider the statutes and the relevant authorities. In the first place, it is well established that the Court favours testacy as against intestacy. The Wills Act of 1837 (1 Vict. c. 26), s. 9 requires that the will should be signed at the foot or end thereof by the testator. This provision caused many difficulties and conflicting decisions which led to the passing of the Act, 15 & 16 Vict. c. 24, which enacted by s. 1 that a will should be deemed valid if the signature was “so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will. . . . but no signature under the said Act or this Act shall be operative to give effect to any disposition or direction which is underneath or which follows it.”
Many of the decisions on this Act turn on the question of the testator’s intention. As an inference from these provisions, it has been the practice of the Court that separate papers of a will must be connected to be valid, but there is an authority, to which I shall refer, that the practice is not a binding rule of law. It is clear that there is no provision in either of these Wills Acts as to wills written on several, unattached sheets, and therefore the decisions on the construction of the Statute of Frauds appear to be authorities. There are many important decisions as to the effect of the provisions of the Act, 15 & 16 Vict. c. 24, but, having read these, I do not consider them relevant to this case, save on the general principle in favour of testacy.
The earliest case that I can find that is relevant to the point is in 1765the case of Bond v. Seawell (1). In that case the witnesses never saw the first sheet of the will, nor was the same or any other paper on the table, but they were shown the codicil and the last sheet of the will which they attested. The headnote of the case, inserted in the “English Reports,” Vol. 97, p. 1092, is as follows:”It may be presumed when the witnesses only saw the last sheet of the will that the whole will was in the room.”Lord Mansfield, who gave the judgment in the case, stated he had a conference with all the Judges (except one) upon this subject, and, after indicating that it was not necessary that each page or sheet should be particularly shown to the witnesses, he said:”But the fact ‘whether the first sheet of his will was or was not in the room at the time of executing and attesting the latter’ may be material to be known. If it was, the jury ought to find for the will generally; and they ought to find all things favourable to the will. If it be doubtful ‘whether the first sheet was then in the room or not’; we all think the circumstances sufficient to presume ‘that it was in the room’ and ‘that the jury ought to be so directed.'” This is an important decision, for the sheets were not attached, and only the sheet which was attested by the witnesses was signed. It differs in the facts from the case under consideration where the witnesses only saw a blank attestation sheet, but the established principle should, I think, apply.
The next case I shall refer to is Marsh v. Marsh (1)Mr. Costello, for the executors, relied upon this, but, I think it can be distinguished by the fact that, though the testator had made 27 wills which were found after his death, and the will propounded contained 17 pages, these pages were tied together. The importance of this case is not in the actual decision by Sir C. Cresswell, but the fact that he included in his judgment as an authority, a note of the case of Gregory v. The Queen’s Proctor (2), in which case it was held that where a will is found written on several sheets, and the last only is signed and attested, although the witnesses did not observe the others, theprima facie presumption is, that they were in the room, and formed part of the will at the time of the execution. But this presumption can be rebutted by definite evidence.
The Irish case of In re Rice (3) was also relied upon, but it can be distinguished on the ground that it was decided under the Act, 15 & 16 Vict. c. 24, and also that the paper upon which the will was written was a four-page sheet of notepaper, the will being on the first page, the second and third being blank and the signatures of the testatrix and the witnesses were on the fourth. It was not written upon separate sheets.
Another Irish case, In re Madden (4), was further relied upon, but this can be distinguished from the fact that the sheets were pinned together, and though, when presented for probate, the first page contained the attestation clause only, the learned Judge (Andrews J.) found as a fact that, on the evidence of the witnesses and from the pin marks in the corners of the papers, the sheet containing the attestation clause was originally written last, and therefore at the end of the will, and might have been afterwards inadvertently misplaced in front, he accordingly granted probate.
The case of Lewis v. Lewis (5) is an interesting case, for there the testator, who had written his will in the Welsh language on two half sheets, held them together with his finger and thumb in the presence of the witnesses, and acknowledged his signature on the second sheet, the testator still holding the two sheets together while the
witnesses signed at the bottom of the first half sheet. A suit was brought for the revocation of the grant which had been taken out in 1905 by the plaintiff, who was unaware at the time of the circumstances under which the will was executed. Mr. Justice Bargrave Deane pronounced in favour of the will, although the pieces of paper were not attached by any mechanical fastening but at the time of the execution only held together by the finger and thumb of the testator.
These authorities establish, in my opinion, that if a will be written on several separate and disconnected sheets of paper and the last only be attested, although no part of the will may have been seen by the witnesses, it should be admitted to probate on the presumption that the whole will was in the room and under the control of the testator at the time of the execution. This presumption may, however, be rebutted by the circumstances of the case or by evidence, which would be a question for the Court or the jury.
In my opinion the will of the testator, the Rev. Father Tiernan, falls within this principle, for the following reasons:His previous wills were all written in his own handwriting on several sheets and show that he was acquainted with the proper method of preparing a will. The first witness to the execution, Fay, said there were papers on the table at the time and the testator made a natural remark to the young gardener: “You are not in this”meaning the will; I suppose it was a kind of joke. I am not sure about the other evidence Fay gaveas to whether I should accept it absolutely, but I rely upon the presumption that the entire will was in the room under the control of the testator and somewhere upon the table. Further, the testator put the will in an envelope, and notwithstanding that he may have had it returned to him to alter the addresses of the executors, I am satisfied that when it was received by the executors from the Archivist the sheets were in the proper and natural order with the attestation clause on the last sheet.
My opinion is that, on the decision of Lord Mansfield in Bond’s Case (1) and the authority given by Sir C. Cresswell to the case of Gregory v. The Queen’s Proctor (2)in his judgment in Marsh v. Marsh (3), the principles are established upon which this will can be admitted to probate, though the facts are very unusual.
The costs will be paid out of the estate.

Hegarty and Another v King

Probate and Matrimonial Division.

17 April 1880

[1880] 14 I.L.T.R 35
Warren J.

Andrew King, farmer, of Hiskinstown, near Castletowndelvin, County Westmeath, died on the 25th November, 1879, possessed of three farms (containing about 80 acres, and value about £1,000), and farm stock, bank shares, and other assets to the amount of a little over £2,000. Deceased was unmarried; his family at the time the will was executed consisted of two brothers, John and James; two sisters, Mary and Margaret, and the children of a deceased sister. He had also an illegitimate son. The plaintiffs, Maurice Hegarty and James King (the latter being a brother of deceased) propounded, as executors, a will dated 4th October, 1872, under which Mary was left £800 (to be reduced to £500 if she married), and was to be supported *35 in the house by the person to whom the lands were left, £300 was bequeathed to Margaret, £300 to John, £50 to the illegitimate son, and the farms and residue of the money was bequeathed to James King. This document was disputed by the defendants, John King and William Farrell, brother and nephew of deceased, on the ground of non-execution, want of capacity, and want of knowledge and approval. The case was heard before the judge without a jury.

Patrick Murtagh, one of the witnesses to the will, deposed:—I reside at Kells. I recollect plaintiff calling on me one evening in the winter of 1872. We went to James King’s house. He lived at Kells. The other witness, Farrell Tully, was with us. When we arrived at the house I saw the deceased. I had never seen him before. As well as I remember, James King introduced me to him. (Witness proved execution of will). After it was executed we had some conversation in which deceased took part. He appeared in good health and able to make a will.

Cross-examined.—I saw no part of the will written except the signatures. Before deceased signed the document there was some conversation. Deceased said a few words, but not a word on the subject of the will. I did not know that the document was a will.

James King, the plaintiff, deposed:—In 1872 I lived at Kells. Deceased was my brother. He lived at Hiskinstown, about two miles from Castletowndelvin. One of his sisters, Mary King, lived with him. He was unmarried. In the autumn of 1872 I was at his house. He accompanied me a piece of the road on my return home. He complained of disease of the stomach, or something of that kind. I said to him, “You have been so much ailing latterly that I think you ought to arrange your affairs.” He said, “I intended to speak to you about that, but forgot it.” I said, “I will drive over for you some day, and bring you to my house, and draft some form, and show it to Mr. Hinds or some attorney.” I did so accordingly in about a month after—in October, 1872. The will is in my handwriting. I prepared it in my own house on the day it bears date. No one was present but myself and deceased. It was in the evening of the 4th October. We had been driving during the day, and on our return he said, “Now, if you like, we will go at this will.” I took a piece of paper and noted down what he told me. I tore it up afterwards, but I wrote the will from it. He said Mary was to get £800 provided she did not marry, and £500 if she married. He said, “She has lived a long time with me, and has been of great assistance to me in my illness, and I have a right to do well for her.” He named the sum she was to get, and she was to be supported in the house by the person to whom he willed his house and lands. The next legacy was to his brother, John King; he said he would will him £300, that he thought it was enough. The next was to his sister, Margaret Healy. He told me to put down £300 for her. Deceased had lent £800 on mortgage; he said that money should be used for payment of the legacies, and also the stock and money he had in the bank at Mullingar. He said he would leave me his lands and whatever money remained after payment of the legacies. Deceased had an illegitimate son. I do not know whether it was he or I mentioned him first, but I said there should be something left to him. Deceased said, “Give him £50.” After I wrote the will I read it to him, and I handed it subsequently to him to read it himself. He said it would do. I went for witnesses, and brought Farrell Tully and Patrick Murtagh. I was present when the will was executed. Deceased was in full possession of his faculties. He said, “You had better show it to Mr. Hinds, or some other solicitor, at your convenience.”“I will,” said I; but I did not do so. I went down the town to look for Mr. Lynch, a solicitor at Kells, but he was away. Deceased asked me if I had shown the will to any solicitor; I said I went to Mr. Lynch, but that he was away in Dublin. The deceased sister, Mrs. Farrell, left four children. I understand their father left them £1,000 each. My brother never mentioned them to me. In November, 1879, deceased became ill. Mary had died in the August twelve months before. Maurice Hegarty and I were in the house with deceased. Hegarty suggested that the deceased should make a will. I told him there was a will already in existence, but that there was £800 left in it to Mary, who was dead, and that probably that might invalidate the will. I asked deceased then, while Hegarty was there, if he would choose to have another will drawn. He said, “No, I will see both of you down yet.” This was at night. In the morning I said to him, “You ought to settle your affairs again.”“Very well,” said he, “if you like.” So I drew a will for him. [This document, which had been lodged as a script but not propounded, was produced]. He signed it with a mark, and it was witnessed by two of his workmen. He was then very weak in bed; he died in about an hour afterwards. I showed the document to Mr. Hinds after his decease, but he advised me not to propound it.

Cross-examined.—I valued the deceased’s property at £2,446; the value I put on the farms is £200. I have not latterly been on good terms with my brother John. At the time he made his will of 1879 the deceased did not intend to give him anything—he reduced his legacy to £200 ; it was I suggested that he should leave him something. From the time the will of October 1872 was executed it remained in a desk in my office till after his death. Deceased told me to keep it. I never told John that the deceased had made a will. John is a poor man, with a young family. The deceased did not dictate the will of 1879. I suggested it to him, and when I had written it I took it to the bedside and he signed it with a mark; I read it to him. He died in about an hour after. He had cause for reducing John’s legacy, he was dissatisfied with John—he found him dishonourable.

Farrell Tully, the second witness to the will, deposed to its execution; witness did not know it was a will. He did not hear a word said by deceased about it.

Maurice Hegarty, one of the plaintiffs, deposed :—I knew deceased. He was a good man of business. He told me five or six years ago that he had made his will, and appointed me executor. I was in the house at the time of his last illness. Shortly before his death his brother James was talking to him about making another will. Deceased said he would do so next day. He said he would live longer than either of us; but he was dead next day.

To the Judge—The conversation in which he informed me that I was his executor took place at my house. We were smoking. I asked him had he left me anything in the will. He said no. He did not tell me the contents of the will.

Notice had been served by the defendants that they did not intend to examine witnesses.

Representation
Dames, Q.C., and D. Sherlock, on behalf of the defendants, argued that proof of knowledge and approbation was unsatisfactory:—(1), The first suggestion with reference to a will emanated from the plaintiff.
*36

(2), The plaintiff took an active part in the execution. (3), The original draft was not forthcoming. (4), There was no corroborative evidence.
Walker, Q.C., and Carton, Q.C. (with them Gerrard), were heard in support of the will.
Warren, J.

In the case of Panton v. Williams, 2nd N. C. Supp., Lord Brougham says:—“The course of administration directed by the law is to prevail against him who cannot satisfy the court that he has established a will. There is no duty cast upon the Court to strain after probate. The burden of proof eminently lies upon him who sets up a will.” I have to deal in this case with a will signed in due form by a competent testator, who lived for seven years after its execution. By this will he gave £800 to one of his sisters, £300 to another sister, £300 to his brother John, £50 to an illegitimate son ; and the residue of his property, including his lands, which, upon the evidence before me, I take to be worth at least £1,000, he gave to his brother James, the plaintiff.

The testator appears to have had no wish to make any will, but James pressed it upon him to make a will, and at James’s house, upon James’s invitation, this will was prepared by James himself, no other person being present. Some memoranda of instructions were made and destroyed. Two witnesses were brought in, both of whom were friends of James, but entire strangers to the testator, and it appears that they did not even know, nor was it stated in their presence, that the document was a will.

There is no evidence that the testator knew anything about the contents of the document, except the statement of the plaintiff himself, who says that he took down what the testator told him, read it for him, and afterwards gave it to him to read. The testator directed the document to be shown to Mr. Hinds, a solicitor of eminence and character, who is the solicitor for the plaintiffs in this case. This direction was not complied with; instead of that, the witness says he went to show it to another solicitor, who was not named by the testator, not referred to by him, but selected by the plaintiff himself; and when he did not find that solicitor at his house, he made himself easy about the matter, locked up the will in his desk, and it remained in his custody, without any communication whatever on the subject between him and the deceased, or any member of the deceased’s family, until shortly before the testator’s death.

Some time subsequent to the execution of the will, one of the legatees died, which threw £800 into the residue. The plaintiff says he was apprehensive the effect of it might be to destroy the will altogether, and accordingly, a very short time before the death of the testator, he got his consent—as he says (for there is no other evidence of it)—to make a new will, cutting down the legacy to John, but making no disposition of the £800 which had been given to Mary, except to let it fall into the residue which was given to the plaintiff. This document was drawn by the plaintiff himself; and it was, without the intervention of any other person, marked by the testator, and witnessed by a ploughman and by the mark of some other uneducated person. That document was, after the testator’s death, produced by the plaintiff to his solicitor, as a valid will, but he was advised not to propound it; and it is the same person who wrote out that will, so much in his own favour, and got it executed in the manner I have described, and who was dissuaded by the solicitor from incurring the danger and hazard of propounding it in a court of justice, who asks the court to rely implicitly upon his evidence to sustain the former will, which depends, as I have said, altogether upon his testimony. The only circumstance of corroboration to show that the deceased knew he was making a will at all, is the evidence of Mr. Hegarty, who says that on one occasion, when the deceased and he were smoking together, the deceased told him he had made a will, that he (Hegarty) was appointed executor, and that he had left him nothing. That is no doubt corroboration of the fact which requires no corroboration—that the deceased made a will, and appointed Mr. Hegarty executor; but it is no corroboration of the plaintiff’s evidence that the deceased read the will, or understood and appreciated the gift of the lands and residue to the plaintiff.

Now, what is the rule of law on this subject? Fulton v. Andrews (L. R. 7 H. L. 448) shows that, under such circumstances, it lies upon the party who drew the will in his own favour, to satisfy the court of the righteousness of the transaction, that the clause was explained to the testator, and that he knew what he was doing. The clause in the present case is a simple one; and the testator being proved to have been an intelligent man, if it be true (as stated by plaintiff) that he directed the clause to be put into the will, that it was read for him, and that he expressed himself satisfied with it, the evidence would be sufficient proof that he knew and approved of it. But the question is, whether that evidence is true—evidence on which the court ought to act. Cases have subsequently occurred, explaining the case of Fulton v. Andrews, and throwing fresh light upon the question, and although the cases to which I am about to refer have not appeared in the Law Reports, I have reason to believe that the reports are accurate.

In Gardiner v. Palmer, decided in 1877 in England, Sir James Hannen, in his charge to the jury, says, after referring to the fact that there were difficulties on both sides of the case:—“There was one circumstance which they should steadfastly bear in mind—namely, that the will was written entirely in the handwriting of the man in whose favour it was, that the instructions upon which he alleged he wrote out the paper were taken by him, and by him alone, and that there was no other person whatever who was alleged by him to have had any knowledge of the intentions of the testatrix, so that it rested entirely upon his evidence whether or not he did receive instructions from the testatrix to prepare the will, which substantially gave him and his family the whole of her property. Now when a man put himself in that position—when he drew himself, without the assistance or knowledge of any other person, a will in his own favour, he invited suspicion, and it lay upon him to establish, by the clearest evidence, that should bring home to the minds of the jury, conviction beyond a doubt that the will was not his will, but the will of the deceased person.” Clear evidence was given by the witness in that case in favour of the will, but the jury did not believe him. The judge said:—“I entirely concur with the verdict you have given,” and the will was condemned.

The present case is one of greatly increased suspicion, in consequence of the subsequent conduct of the plaintiff in reference to the document of 1879, which he has not ventured to bring forward. I ask myself, how, being bound to require clear and convincing evidence that the testator knew and approved of this clause, can I rely upon the testimony of this interested witness, who prepared that will, without assistance, and did not comply with the directions of the testator, by showing the document to the solicitor selected by him, and who prepared another will, which he has not dared to propound in this court, strongly in his own favour, increasing the benefits given to him by the former will.

There is another case—Cooper v. Penrose—which came recently before the Court of Probate in England. The judge said at the close of the case:—“He could not allow the case to terminate without making some observations on it in the interests of the public. It was very important that the will made by a testator should be upheld, but it was of equal—he should say even of more—importance that cases of a suspicious character should be thoroughly investigated, and if the suspicions were not removed, that a will which did not truly represent the intentions of the testator should not be upheld. *37 The law on the subject was very clear. It had been laid down by many eminent judges—lastly and lately by the present very distinguished head of the law, the Lord Chancellor—that where a will was made in favour of a particular person, and that will was drawn up by that person himself, nobody else communicating with the testator on the subject, it rested upon him to show that it truly represented the intentions of the testator, and to remove the suspicion which attached to it. There was the strongest presumption against such wills, and it was the duty of the tribunals which had to inquire into them to watch closely and see that the suspicions attaching to them were thoroughly removed.”

I have reason to know that the case to which Sir J. Hannen referred as decided by the Lord Chancellor was Fulton v. Andrews. Applying those observations to the present case as regards the gift to the plaintiff. I cannot safely rely upon the evidence of the plaintiff in this case, and the case altogether depends upon his evidence. Deficit probatio.

Probate will therefore he granted of this will, excluding the gift to the plaintiff. I will not give costs against the plaintiffs. The defendant will get his costs out of the assets.

In the Goods of Benn.

Hanna J. [1938] IR 313

This case comes before the Court to determine, having regard to certain obliterations and interlineations, in what form the will of Miss Letitia Benn should be admitted to probate.
The will is dated the 24th day of March, 1927. It is signed by the testatrix opposite a cross and it is witnessed by two witnessesDaniel Fitzpatrick and Susan Cantwell under circumstances to which I shall refer.
On the evidence of the sister of the deceased the entire will is in the handwriting of the testatrix. Two lines of the will have been completely obliterated with a blue copying pencil and stamp paper and the underlying words are quite indecipherable. There is an interlineation in blue pencil of a change in the address of one of the legatees; but the principal question has arisen over an interlineation in the main disposition of the will as follows:
“The rest of my money and poperty I die seized or possessed of, to my sister Georgina, to be divided with her daughter as she thinks best.”
the words “and poperty” being interlined above and between the words “money” and “I” with the corresponding omission mark below the line at that place.
The property of the testatrix, which was valued for probate purposes at £4,468 10s. 1d., consisted of some cash, but mainly of stocks and shares, and, as it is doubtful in law whether the latter would be carried by the word “money,”the admission of the words “and poperty” becomes of vital importance.
I have formed the opinion that the words of the interlineation were inserted with the definite purpose of making the subject-matter of the legacy quite clear.
The circumstances of the making of the will are deposed to in the affidavits of the two witnesses. The mother of the testatrix owned a shop and bakery, and on the day upon which the will was executed, the deceased informed one of the witnessesSusan Cantwellthat she had made her will, and asked her to accompany her to the bakehouse to witness the will with Daniel Fitzpatrick, who was a baker in the establishment. They went to the bakehouse, where the testatrix asked Daniel Fitzpatrick to witness her will. She thereupon folded down the top of the will so that its plight, or condition, or its terms, could not be seen by the witnesses, and it was then duly executed according to the statute. There is a cross on the will opposite to where the testatrix signed, but it is quite clear that she signed her name. There is no evidence as to the making of the cross but it is not a material fact.
When the will was executed the testatrix left the bakehouse, taking the will with her. She died on August 16th, 1937, and three days thereafter her nephews, Robert Rafter and Ivan Rafter, made a search for papers in her bedroom, at the request of the mother of the deceased, and found in a drawer an envelope upon which was written, in the handwriting of the testatrix, the words “Will of Letitia Benn, 24. 3. ’27.” This envelope, unopened, was handed to the mother of the testatrix, who locked it in a drawer and, on the next day, sent for the solicitor, in whose presence the drawer was unlocked and the envelope handed to him in the same condition as when it was found. It has remained in the solicitor’s custody until it has now come before the Court for consideration.
The will and the attestation clause are in the handwriting of the testatrixa handwriting which has some distinctive characteristics. I am satisfied from my own observation that the interlineation “and poperty” is in the handwriting of the testatrix and written with the same ink and pen as the body of the will. On the other hand, the signatures of the testatrix and of the witnesses on the execution of the will have been written with a different pen, the body of the will having been written with a fine pen while the signatures have been written with a broad pen. I have in addition the report of Captain Quirke, the handwriting expert, to the effect that the final tail stroke of the letter”y” in “poperty” collides slightly with the following”I” and is written over it; also that the manuscript examination shows that the ink of the tail of the “y” has run into the ink of the capital “I”, thus showing that the word “poperty” was written before the ink of the letter”I” was dry. The opinion of the expert is based upon the fact that if a fresh ink-line is made to intercept a bone-dry earlier line, no seepage occurs from the new line to the track of the old line. From these facts the expert draws the conclusion that the word “poperty” must have been part of the fabric of this will at the time it was signed and witnessed.
I am of opinion, having regard to the internal evidence of the document as revealed to my own observation, and to the opinion of the expert, that the words “and poperty”were inserted before the execution. There is no direct external evidence of any kind as to the time when the interlineation was made and there is no declaration of the testatrix before the execution of the will as to its contents or her intentions. Therefore the question ariseshow far am I entitled in law to rely upon the internal evidence referred to?
The provision of the Wills Act, 1837 (1 Vict. c. 26), sect. 21, is as follows:
“No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will. . . .”
and, under the Rules of our Probate Registry, Or. LXXIX of the Rules of the Supreme Court (Ireland), 1905, the subject is summarised in r. 8 as follows:
“Interlineations and alterations are invalid unless they existed in the will prior to its execution, or, if made afterwards, unless they have been executed and attested in the mode required by the statute, or unless they have been rendered valid by the re-execution of the will, or by the subsequent execution of a codicil thereto.”
Rule 9 is as follows:
“When interlineations or alterations appear in the will (unless duly executed, or recited in, or otherwise identified by, the attestation clause), an affidavit or affidavits in proof of their having existed in the will before its execution, must be filed, except when the alterations are merely verbal, or when they are of but small importance, and are evidenced by the initials of the attesting witnesses.”
As this case is peculiar in that there is only internal evidence placed before the Court in the manner I have indicated, a review of the cases is advisable.
It resolves itself into a question as to whether sufficient evidence, according to the decided cases, has been put before the Court, from which the inference can be fairly drawn
that the words “and poperty” were inserted before the execution of the will.
In some of the cases and in the text books there are statements that there is a presumption of law that the alteration or interlineation is made after the execution of the will or in the form that there is no presumption that the alteration or interlineation was made before the execution of the will.
This view as to a presumption may be a convenient way of stating the position, but I think the correct view in law is that expressed by Lord Hatherley in Williams v. Ashton (1),where he says (at p. 118):
“I do not think that it is quite a correct mode of stating the rule of law, to say that alterations in a will are presumed to have been made at one time or at another. The correct view, as enunciated in the case of Doe v. Palmer (2), is that the onus is cast upon the party who seeks to derive an advantage from an alteration in a will, to adduce some evidence from which a jury may infer that the alteration was made before the will was executed. I do not consider that the Court is bound to say that it will presume such alterations to have been made either before or after execution. With regard to a will, I do not see any necessary presumption of the kind.”
This view was approved of in Duffy v. Duffy (3), on appeal before Ball C. and Christian L.J. Lord Justice Christian in that case held that, in the absence of evidence as to whether interlineations or erasures were made before or after execution, they are to be rejected from probate, not because (as stated in Cooper v. Bockett (4), and in the case of In the Goods of Duffy (5),), it is to be presumed that they were made after, but because, as more correctly stated in Simmons v. Rudall (6), and in Williams v. Ashton (1),the burden of proof in this respect is cast upon the person claiming the benefit of such alterations; and he also held that very slight evidence will suffice to supply the want of any presumption that they were made before the execution of the will.
The head-note in this case is that:
“Where erasures and interlineations are apparent on the face of a will there must be evidence, internal or external, direct or circumstantial, that they were made before the execution of the will in order to justify their inclusion in probate.”

On the question of the character, or weight of evidence to be acted upon, there have been a few cases to which I should refer.
In the case of In the Goods of Hindmarch, (1) though the interlineations were considered trifling, Sir J. P. Wilde (at p. 308) said:
“The principle . . . is, that the Court may come to the conclusion that they were in the will at the time of the execution upon any reasonable evidence, without insisting upon the oath of the attesting witnesses, or any other particular species of evidence. The evidence of the expert, although if I were asked to criticise the grounds on which he has formed his opinion I should say that it is not very strong, is entitled to some consideration, as that of a man accustomed to deal with questions of this kind. Taking this into consideration, together with the facts that the testator was a lawyer, that the alterations are all of a trifling character, and that they bear the appearance of having been written with the same pen and ink as the rest of the will, I think that they may be admitted to probate.”
In the case of In the Goods of Anne Cadge (2), the interlineations were necessary to complete the sentence to which they belonged. But, as to the evidence that would be accepted, Sir J. P. Wilde said, at p. 545:
“All the interlineations are apparently written with the same ink and at the same time as the rest of the will. Taking these circumstances into consideration, is the Court at liberty to presume that they were made before the execution? . . . I conceive that the Court is not precluded by the absence of direct evidence of the fact from considering the nature of the interlineations and the internal evidence, if any, furnished by the document itself . . . There must be numerous cases in which interlineations were on the will at the time of execution, although no direct or positive evidence can be produced to prove when they were written.”
In the case of In the Goods of Duffy (3), Warren J., in his judgment at p. 511, said:
“The result of these cases, and especially of In the Goods of Hindmarch (1), appears to be that the presumption that alterations were made after execution only exists in the absence of all evidence to the contrary, and that very slight affirmative evidence is sufficient to rebut that presumption, and sustain the alterations as made before execution, and therefore, valid.”

The interlineation in that case was an insertion of the words “leasehold and” before the words “freehold property,” the testator having in fact leasehold property as well as freehold property, upon which fact the learned Judge also relied. Although in this case Warren J., refers to a presumption, Lord Justice Christian points out in his judgment in Duffy v. Duffy (1), on appeal from Warren J., that the learned Judge seemed to have changed his view as to there being a presumption on the hearing of that case in the Court below.
In Moore v. Moore (2), Warren J. expresses the opinion that, on the question as to whether the interlineations or alterations were made before the execution, “the Court is not confined to any species of evidence, but may act upon any evidence which, having regard to all the circumstances, reasonably leads the judgment to the conclusion that the alterations were made before execution.”
On the authority of these cases it is clear that the Court can rely upon its own judgment of the internal evidence as presented by the fabric of the will, and also upon the evidence of handwriting experts upon the appearance of the writing in the document.
My view, in favour of the admission of the words “and poperty” in the probate, is based upon the following matters:
It is a holograph will, written by the testatrix herself, at one time with the same pen and ink, and the interlineation is in the handwriting of the testatrix, and written with the same pen and ink as the rest of the will; the signatures of the testatrix and the witnesses are written with different pens, at a later time and, on the evidence, in a different place from that in which the will was prepared; the evidence of the expert that the interlineation was written before the ink of the succeeding word had dried, and, therefore, in his opinion, before the execution of the will, which was carried out some time later, at a different place, on the premises to which the will had to be brought; and, lastly, that having regard to the nature and the bulk of the estate of testatrix, it seems to me a reasonable and proper addition to have been made to the will so as to cover the stocks and shares in the bequest. The mere fact of the interlineation would make it a fair inference that, when looking over the will, the testatrix realised that the word “money” standing alone might not be sufficient.

Accordingly, I am satisfied, and order, that the words”and poperty” be admitted to probate and inserted in the grant.
As regards the obliterations with the blue pencil and stamp paper, they are indecipherable and the grant must be a blank in respect of them. The interlineation in blue pencil of the address “10 Clanroy Parade,” of one of the legatees, must be omitted and the original address restored. The plaintiff will have his costs of, and in connection with, this application (including the expenses of the expert witness) out of the estate.

Duffy v Duffy

Court of Appeal in Chancery.

1 January 1877

[1877] 11 I.L.T.R 126
Ball C., Christian L.J.

Ball, C.

Mr. James Duffy executed his will on the 21st January, 1871. Of the several interlineations and alterations which appear on the face of this document we are only concerned with five—viz. (1), “leasehold, and” (2) “Clarke’s Court,” (3) the obliteration of “seven” and the substitution of “two,” (4) the obliteration of the words “during the time,” &c., and the insertion of the sentence beginning “at a salary,” &c., and (5) the words “and the warehouse, 22 Essex-street, W.” Are these five to be inserted in the probate? The Judge of the Court of Probate thought that the first four should be admitted, but the fifth rejected; four of these alterations were neither initialed nor attested by the witnesses; one was initialed by the testator, not by the witnesses. In order to justify the admission of an alteration to probate, there must be evidence that it was made before the execution of the will; such evidence may be either internal or external, direct or circumstantial. The will was executed in testator’s office on the evening of the 21st. There is no evidence that he was engaged about it on a prior or a subsequent day. There was a previous will made in favour of his wife; it is proved by Anne Duffy that the testator had this will at Wellington-quay, and it is also proved that the composition of the later will had the advantage of the technical drawing of the former. O’Byrne, one of the attesting witnesses, swore that, when called by testator to witness the will, he (O’Byrne) found the testator engaged with the last page, and saw him draw his pen through some words, and also saw a blur or obliteration at the top of the page. One of the words alluded to by O’Byrne is “during,” and in my judgment this is positive external testimony that the alterations he has mentioned were made before execution, and accordingly are to be inserted in the probate. But one alteration being established proves a great deal more; “during” is one of the words in the inserted passage on pp. 7 and 8; and therefore, the entire of this passage was also there before execution, and must be admitted to probate. This conclusion proves that some alterations of importance were made before execution; and internal evidence proves that it was a draft, not a careful copy; the very composition shows the same. A like conviction will be produced by a view of the document, which is irregularly written, and not as a careful copy would be. Another alteration confirms my statement—an alteration unquestionably made before execution—viz., the insertion of the sentence beginning “executors and trustees” and ending “January, 1871.” The reasons I say this must have been introduced before execution are: 1st, Mr. Duffy’s own signature would otherwise have immediately followed the words “John Duffy;” 2nd, it is a passage absolutely necessary to give the will a complete form; and, moreover, he had before his eyes an example of the proper way to complete it in the prior professionally drawn will in his wife’s favour. There is nothing to suggest the improbability of alterations having been made immediately before or after composition. I now come to the special circumstances mainly relied on by the Judge of the Court below as the grounds of his judgment, and which he has investigated with extreme acuteness nor allowed more weight to than was necessary. The special circumstance with regard to the words “leasehold and” is that these words are explanatory and completing—they are not an alteration of intention, or a new plan; at the very time the testator was engaged with the will, on the 21st, he had before him the deeds, &c., which supplied him with knowledge on the point of his leasehold property. As to the words “Clarke’s Court,” the only special circumstance I see is that it is connected in locality and time of purchase with Ship-street and Chancery-lane. To see the special circumstance connected with the change from “seven” to “two,” the effect of the alteration must be looked at. This change is no alteration in the plan of the testator; it is only an alteration in detail as to the period of probation for the boys. Before the morning of the 21st the testator had intended to send his sons back to school, and in that case thought that seven years was not too long a period to elapse before giving them a share in the business; but, in the conversation which occurred on that morning between Anne Duffy and the testator, she suggested that the boys should not return to school, to which he agreed, and told them that he would make them partners in two years if steady and good. There is external evidence that, on the very day the will was executed, there was a conversation which would suggest the substitution of “two” for “seven,” which is also supported by the clause proved by external evidence to have been inserted before execution, at the end of p. 7 and top of p. 8, because that clause is more consistent with “two” than “seven” years, that is to say, the allowance for household expenses is in a certain degree connected, supposing them all to live together, with a short rather than a long period. I must here observe that this particular bequest illustrates the inconvenience of the case coming here as it has done. It is presented solely with the proposition that we should restore “seven” and omit “two,” on the fourth page. Now, the last line of the same page contains one of the most important alterations in the will, which goes to affect the ownership of property, i. e., if the “seven” is restored the whole of the accumulations would go equally among the children, but we are not asked to restore the lines which would give those accumulations; that is the inconvenience of the case being presented to us narrowed to specific issues. There are no reasons in law why the “seven” should be restored and the other omitted. My own mind is influenced by the handwriting. There are no alterations which vary the scheme—all are merely changes of details. Looking at the will as a whole, I cannot think that it was revised after execution; it is this conviction mainly that has confirmed me in thinking probate should be given to all. *127

The propriety of admitting Meehan’s evidence has been settled by Sugden v. Lord St. Leonards ; but evidence of this kind must, though I agree with the policy of admitting it, be admitted with the greatest caution, so much depends on accuracy of recollection, and surrounding circumstances. Looking at Mr. Meehan’s evidence and his affidavit, I cannot feel certain that I have an accurate account of what happened. The alteration from “seven” to “two” strikes my mind as indicating that the change was not made after an interval of time had elapsed; “seven” occurs a second time, but a person would have thoroughly carried out the change if he had begun to make it after a considerable interval of time.

For these reasons I am of opinion that probate ought to be granted of all these alterations. The decree appealed from must therefore stand affirmed, with the following variations, that is to say, that to the will admitted to probate there shall be added the words and figures: “and the warehouse, 22 Essex street, W.,” which appear written therein by way of interlineation (being the only alteration excluded by the Judge of the Court of Probate), and that those words be inserted between the words “purchased in Moffett’s estate,” and the words “I direct,” and read as part of the last will of the testator—the probate thereof to be amended accordingly. As the decree is thus varied, all parties are entitled to the costs of this appeal to be paid out of the estate.

Christian, L.J.

I am entirely of the same opinion. On two occasions before his judgment in this case, the judge of the Probate Court laid down rules as to what it is incumbent on parties propounding a will to prove with regard to alterations. The first occasion was in In the Goods of James Duffy, 5 I. R. Eq. 506, where the judge says:—“The presumption of law, according to Doe d. Shallcross v. Palmer, is that these alterations were all made subsequently to the execution; therefore, I am bound to exclude them from probate, unless I am satisfied by some means that they were made previous to execution.” On the second occasion, in Moore v. Moore, 6 I. R. Eq. 166, he says:—“The cases of Doe d. Shallcross v. Palmer, Williams v. Ashton, and In the Goods of Hindmarsh, followed by this Court in In the Goods of Duffy, seem to establish these two propositions—viz., 1. That when alterations are apparent on the face of a will it cannot be presumed that they were made before execution, and they cannot be admitted to probate without some affirmative evidence that they were in fact so made; and, 2.” &c., &c. It is clear that in the interval between these two utterances the judge’s attention had been attracted to the different way in which the rule is laid down by Lord Cranworth in Simmons v. Rudall, 1 Sim. N. S. 115, and by Lord Hatherly in Williams v. Ashton, 1 Johns. & Hem. 115. In the present case the judge held the balance evenly between these two modes of stating the rule; he says (at p. 74 of 10 Ir. L. T. R.):—“In the absence of all evidence on the subject, interlineations and erasures (save so far as any erasures may have made the original words not apparent) are to be rejected from probate, either because, as is generally said, the law, in the absence of evidence, presumes such alterations in a will, as distinguished from a deed, to be made after execution (Cooper v. Bockett, 4 Moo. P. C. C. 419); or, as Lord Hatherly said, because the law throws on the person who claims the benefit of an alteration in a will the burden of proving that it was made before the execution of the will (Williams v. Ashton, John. & H. 115).” That is extremely cautious. I must say my own opinion is that Lord Cranworth’s exposition, followed by Lord Hatherly, is the more accurate. But, very slight evidence suffices to supply the want of any presumption that the alterations were made before execution. Such is the measure of proof the defendants have been required to offer: what have they given? It is clearly some proof when, on the evening of the 21st, O’Byrne was called into Duffy’s office to attest the execution of the will, and saw the testator make three alterations. The original text proves itself to the eye to have been written at one time, in one place, and by one hand. The defendants contend for one place, the plaintiffs for another. M v opinion is that the defendants’ theory is more consistent with the evidence. They say that the draft of the will was written either on the 19th or 20th, or both. After the conversation with his daughter on that morning, he entirely changed his mind as to his boys’ destiny, and resolved to keep them at home, and take them into partnership in two years, if good and steady. It is highly improbable he would, after that conversation, have inserted a clause excluding them for seven years from business after his death; it would have kept them merely in idleness at home. The “seven” was written when his original intention continued of sending the boys back to school; therefore, the original draft was written before the morning of the 21st. The plaintiffs say this must be rejected, as the fact is impossible. They say the time from his wife’s death, when the idea of making a new will entered his head. is fully accounted for. I must confess I do not agree in Mr. Macdonogh’s argument that a husband would not engage in such a work while his wife was lying dead in the house. He may have regarded it as an act of piety appropriate to the circumstances—the very thing his wife would have urged him to do if she could. The time on the 20th is not at all exhausted, except the evening, the whole of which he spent with his family; therefore, there was ample scope as to time and opportunity to prepare the will on the 19th or 20th. Again, this will is a complicated document. Is it likely that, in a state of trouble and distress, the testator could have composed and put in writing the whole of this rough draft in the few hours he was alone in the office on the 21st? Therefore, the defendants’ theory is the better one. And the whole of the work the testator was engaged on in the office was revision. O’Byrne found him just completing the process that it would be most probable be should be engaged in; what O’Byrne saw on the last page is but the finishing touch of the operation of which we now see the whole. The alterations are all homogeneous; and, finally, this view is confirmed by the expert. I think there was a case to go to a jury—there was evidence on which a jury might fairly suppose that all the alterations, except those manifestly made currente calamo, were the work done in the office on Wellington-quav, and made before execution. I do not attach much importance to the initiating of some and the non-initiating of other words, and to the different modes of initiating. As to the words “written on eight pages, James Duffy,” at the foot of the last page, I think that, the will being written on two unattached sheets of letter paper, and the second sheet beginning with a new sentence, it struck the testator that the first sheet might be suppressed either by accident or fraud, and to prevent this he wrote these words at the end. Even if of opinion, which I am far from saying I have arrived at. that this Court would not approve of the conclusions of the Judge of the Court below if it were hearing the case now in the first instance, yet it ought not now to take upon itself to overthrow the decision of that Court.1 As to the fifth interlineation the learned Judge was bound in consistency with his own line of reasoning, to have admitted it. I only regret we cannot restore the whole of the will as altered to probate.

In the Estate of McEnroe

Matter of the Estate of Mary Philomena Maureen McEnroe (Otherwise Maureen McEnroe) Late of 20 Cypress Park, Templeogue, Dublin 6W, Retired Company Secretary, Deceased and In the Matter of the Successon Act, 1965 and In the Matter of the Application by Evelyn O’Neill, A Sister of the Deceased, and One of the Residuary Legatees and Devisees Named in the Last Will and Testament of the Deceased to Prove The Deceased’s Last Will and Testament in Common Form of Law in its Current Form and Condition
2020/195

Court of Appeal [Unapproved]

12 February 2021

unreported
[2021] IECA 28
Ms. Justice Ní Raifeartaigh

February 12, 2021

JUDGMENT
1. This is a case in which the question is whether a will which was executed by Ms. McEnroe, the testatrix, should be admitted to probate in circumstances where it has on its face a number of unexecuted alterations. These alterations consist of two obliterations and one interlineation. More particularly, the case raises an issue concerning the construction of ss.85 and 86 of the Succession Act 1965 in a situation where there has been an obliteration by pen of a relatively small number of words in a will such that those words are illegible , but where the rest of the will remains intact (including the signature and attestation of the witnesses). The matter requires careful construction of the statutory provisions in circumstances where s.86 of the 1965 Act replaced s.21 of the Wills Act 1837 by re-enacting the provision with one crucial difference, being the omission of a proviso in s.21 which would, if it had been carried through to s.86, have provided a clear answer to the problem arising in this case. The meaning of the terms “destruction” and “obliteration” in ss.85 and 86 of the 1965 and the relationship between them are central to the judgment.

The Facts
2. Ms. McEnroe, a retired company secretary, died in May 2017 at the age of 87 years. She was a single woman without children and had made and executed her last will and testament in May 2005. The will was a homemade pre-printed will, written on two sides of a single sheet of paper.

3. The will had on its face a number of alterations and the probate office therefore refused to prove the will without further evidence being adduced. A sister of the testatrix, the applicant/appellant Mrs. O’Neill, brought an originating notice of motion before the High Court on an ex parte basis requesting that the will be admitted to probate in its current form and condition, and that liberty be granted to the applicant to apply for and obtain a grant of letters of administration with will annexed.

4. Mrs. O’Neill swore an affidavit in which she exhibited the death certificate and set out the family circumstances of the testatrix. Ms. McEnroe had 7 siblings, three of whom predeceased her. Mrs. O’Neill refers to the will in issue in these proceedings and says that she is not aware of any other will before or after this one. She confirms that the handwriting and signature at the end of the will are those of the testatrix. She exhibits the latter’s driving license which also contains her signature.

5. Mrs. O’Neill explains that the two witnesses to the will, H.L. and M.L. (a married couple), were neighbours and good friends of the testatrix. Mr. L died on 4 June 2015 and his death certificate is exhibited. Mrs. L is alive but is of “unsound mind”, and the certificate of registration of Enduring Power of Attorney in relation to her is exhibited. Accordingly, neither of the two witnesses can assist in determining the circumstances in which the alterations to the will occurred. Their son B.L. made a statement confirming that at the time the will was made, his parents were living at an address which is a few doors away from the home of the testatrix. He also says that he is satisfied that the witness’ signatures on the will are those of his parents. His statement is exhibited in the affidavit of Mrs. O’Neill.

6. The applicant exhibits a draft Inland Revenue certificate which indicates that the total gross value of the testatrix’ estate at the date of her death was in the region of €1,094,094 with a net value of €1,080,629.

7. Mrs. O’Neill also says that the testatrix was suffering from end stage dementia at the date of her death in 2017. Her GP swore an affidavit of mental capacity confirming that he was satisfied that on the 11 May 2005 the testatrix had been fully capable of making a will, which is also exhibited to Mrs. O’Neill’s affidavit.

8. An affidavit was also sworn by Ms. Susan Hunter, daughter of the applicant Mrs. O’Neill. She says she had a close relationship with the testatrix who was her maternal aunt and also her godmother. She avers that sometime in January 2014, when her aunt (the testatrix) was in hospital and it became clear she would not be returning home to live in her own house, her aunt asked her to go to her house and secure the will and other important paperwork. On foot of the request and details given, Ms. Hunter went to the house and found the papers which were hidden upstairs under the floor boards in a “hidey hole”. They were stored in a biscuit tin inside the hidey hole. She confirms that the will contained the alterations thereon at the time she took possession of it. In July 2014 she handed this will over to Joe Clancy Solicitors because at that stage the testatrix’ enduring power of attorney was in the process of being registered by that firm.

9. Mr. Joe Clancy, Solicitor, swore an affidavit in which he describes the testatrix executing an enduring power of attorney on the 12 December 2012 which was registered on the 3 July 2014. The completed form includes a part signed by the GP which confirms that the testatrix had capacity to execute this document (which was 7 years after she had executed her will).

The alterations to the will
10. There are three alterations to the will (two obliterations and one interlineation), none of which were properly executed in accordance with the requirements of the Succession Act.

11. The first alteration – The first alteration to the will is an obliteration of the name of the original executor. This is done by a pen having scored out the name to such an extent that it is no longer legible.

12. Mrs. O’Neill avers that she believes that the original executor was a Mr. P.W. who was a valued work colleague of the testatrix and a manager in the same company as that in which the testatrix worked. He died suddenly on the 19 September 2006. She believes that following his death, the testatrix decided to obliterate his appointment as executor and replace him with a different executor, although she is careful to point out that she has no evidence that this is in fact the case. The identity of the proposed replacement executor is not now ascertainable by reason of illegibility. Mrs. O’Neill that she thinks that the replacement executor may be one of her siblings, but as they all have similar length names in their shortened versions (Bartle, Patsy, Peggy, Detty), she cannot make out which of those is written in. Again, she has no evidence as to whether this is so and this is merely a surmise. The testatrix’s initials appear on the left and on the right, but there was no witnessing of the change(s). Mrs. O’Neill also indicates that there is no evidence as to when the alterations to the will were made. The insertion therefore did not comply in any event with the requirements of s86 of the Succession Act in any event.

13. The second alteration – The second alteration is on line 26 of the will and consists of an obliteration of a line which appears in the body of the will. There is a list of bequests (of sums of money) and devises (of shares) in the main body of the will. Each of the bequests starts with the word “To…” and then indicates the name of the person and the precise bequest or devise. Immediately after the last of these bequests (which is a bequest of a sum of money to a religious order), a line is completely obliterated, again by pen scoring. The line after that says, “I leave the balance of my estate to my sister….” i.e. a residuary bequest.

14. The third alteration- The third alteration is an interlineation of the word “say” inserted in the latter sentence so that it reads: “….This to the say thanks for all the meals cooked and all the house-cleaning which they did for me….”.

15. Mr. Clancy, Solicitor, indicates in his affidavit that a handwriting expert was retained to inspect the will (following the first date before the High Court and as suggested by the trial judge). The expert, Mr. Dave Madden of Document Examination Ireland, examined the will on the 12 December 2019 at the solicitor’s offices. Despite applying various forensic techniques commonly used to decipher obliterated entries, he was unable to make out the original contents of the obliterated writing with any degree of certainty. He was also unable to determine if the alterations took place before or after the execution of the will. A document to this effect authored by Mr. Madden was exhibited.

Relevant Legislation
16. S.77(1) of the Succession Act 1965 provides that to in order to be valid, a will shall be made by a person who has attained the age of 18 years or who is or has been married and is of “sound disposing mind”.

17. S.78(1) provides that the will shall be signed at the foot or end thereof by the testator, or by some person in his presence and by his direction. Subsection (2) provides that such signature shall be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness shall attest by his signature the signature of the testator in the presence of the testator, but no form of attestation shall be necessary nor shall it be necessary for the witnesses to sign in the presence of each other. Subsection (3) deals with the location of the signature of the testator (“at or after, or following, or under, or beside, or opposite to the end of the will that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his will”).Subsection (4) sets out certain circumstances which will not affect the will e.g. that there is a blank space between the concluding word of the will and the signature, or particular locations of the signature. Subsection (5) provides that a signature shall not be operative to give effect to any disposition or direction inserted after the signature is made.

18. S.85(2) of the 1965 Act provides as follows:

“Subject to subsection (1)1, no will, or any part thereof, shall be revoked except by another will or codicil duly executed, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.”

On a simple parsing of this subsection, the following propositions emerge: A will or part of a will may be revoked: (1) by another will or codicil duly executed; or (2) by some writing declaring an intention to revoke it, which writing is properly executed; or (3) by engaging in an act of burning, tearing or destruction with an intention to revoke. As regards method (3), there must be a combination of the requisite act together with the requisite animus revocandi.

19. Its predecessor provision was s.20 of the Wills Act 1837 which in substance is the same although the language is a little different:

“No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner herein-before required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is herein-before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.”

20. S.86 of the 1965 Act provides:

“An obliteration, interlineation, or other alteration made in a will after execution shall not be valid or have any effect, unless such alteration is executed as is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the signature of each witness is made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end of some other part of the will.”

On a simple parsing of the above, two propositions emerge: (1) An alteration (including obliteration or interlineation) made in a will after execution shall have effect if the alteration is executed as is required for the execution of the will (with the saver that the requirement under s.78 of the signatures to be at the foot of or end of the will is modified); (2) If the alteration is made after execution and is not executed as is required for the execution of the will, then the alteration is not valid and has no effect.

21. On its face, s.86 deals only with the validity of the alteration and not the validity of the rest of the will.

22. The provision in existence prior to the enactment of s.86 was s.21 of the Wills Act 1837 which provided:

“No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as herein-before is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.” (emphasis added)

23. What may be noted is that the words italicised above were not carried through into the s.86 of the 1965 Act although the rest of the wording is almost identical. It is the absence of the underlined words (or equivalent) in s.86 which creates the problem at the heart of the present case. The underlined words can be referred to as the exception or proviso. Unfortunately, it is that precise scenario which arises in the present case i.e. there have been unexecuted alterations and the words of the will before such alteration are no longer apparent. This creates the following conundrum: the alteration is not valid and is presumptively of no effect, but the unaltered portion of the will is no longer known and therefore cannot be given effect as if the alteration had never been made.

High Court Judgment
24. The trial judge set out the facts described above and then said that the interlineation did not pose any particular problem and could be dealt with by admitting the will to probate without it, on the basis that there was no proof that it had been inserted before execution, citing In re the Goods of Adamson2 and s.86 of the 1965 Act. I agree with that point.

25. As regards the first obliteration (concerning the name of the executor), he noted Mrs. O’Neill’s surmises as to who might have been named originally and who might have been the replacement, but said that this could not be discerned from the document.

26. As regards the second obliteration, he said that the “surmise that what was obliterated was a gift appears to me to be reasonable, but it is only surmise” (para 9).

27. He noted that he had raised the question of forensic examination of the document and that the case was adjourned to enable such examination to take place. As we have seen, this did not yield any further information.

28. There were two further hearings, at one of which the trial judge raised the question of whether the application could properly be dealt with ex parte. He noted that counsel acknowledged that the obliterations gave rise to a significant legal difficulty but sought to persuade the court to follow an English case in which a particular approach had been adopted.

29. The judge said that he had no difficulty with the proposition that the will executed in 2005 was a valid will but said that he “remained of the view that the document now produced is not the document executed by the testatrix because it has been obliterated in two places”. He referred to the cases of Benn3 and Morell 4 but pointed out that they were decided before the 1965 Act; pointing out the difference between the difference in wording between s.21 of the 1837 Act and s.86 of the 1965 Act insofar as the proviso in s.21 in respect of indecipherable obliterations was not carried forward. He noted that the passage from Professor Brady’s authoritative text, Succession Law in Ireland, cited by the appellant (set out below) was based on Benn which was decided before the introduction of the 1965 Act. He accepted the opinion of McGuire/Speirin in their text on the Succession Act that the absence of the proviso was probably not intended to affect the partial revocation of a will under s.85.

30. Turning to the key submission of counsel, he noted the reliance upon Re Adams5 in which obliteration with a ball point pen was held to amount to “destruction” within the meaning of s.20 (i.e. the equivalent of our s.85(2)). He noted that “the conclusion certainly appears to assist the applicant, but it is interesting to note that … [the judge] got to the conclusion by reference to s.21 of the Act of 1837 and specifically by adopting and applying the test which is applied in England for the purpose of determining whether there has been a partial revocation – which turns on the proviso…”.

31. He noted that a separate proposition was advanced that, assuming the obliterated line was a gift, it might be void for uncertainty but commented that “the argument was not developed”.

32. The trial judge then concluded:

“25. It is acknowledged that the proviso to s. 21 of the Wills Act, 1837 which would have provided a ready answer by allowing the will to be admitted to probate as if the obliterations were blank is unavailable. Unless, then, the obliterations are taken to have amounted to destruction so as to have effected a partial revocation, the document propounded is not the entirety of the will and there is no evidence as to what has been obliterated. The argument advanced on behalf of the applicant is acknowledged to be novel and the English authority on which it is based is in turn based on legislative provisions which are not the same as ours.

26. The applicant has not engaged with the issue as to what will become of the estate if the court were not persuaded to admit the will to probate.

27. Emphasising that I am doing so because I have been pressed to decide the application without notice and that I am not pronouncing against the will, I refuse the application. There will be no order as to costs”.

33. Accordingly, the trial judge did not rule definitively on whether the will should be admitted to probate or not, but rather declined to decide that issue in the absence of “notice”, by which he appears to have meant notice to those who might be entitled under intestacy.

34. The appellant appealed on the basis that the trial judge was wrong to so rule, and that he should have ruled the will valid and admitted it to probate. She also submits that he should have made an order directing that the costs of the application be borne by the estate.

Submissions
35. As the application to the High Court was ex parte, as was the appeal, the only party who made submissions was the applicant/appellant, Mrs. O’Neill.

36. In general terms, the appellant accepts that the point is a difficult one in the absence of any Irish authority since the introduction of the 1965 Act and in circumstances where s.86 re-enacted s.21 of the 1837 Act with the specific omission of the proviso which would have explicitly governed the situation arising in this case and which was key to the analysis of the English authorities of both ss.20 and 21 the 1837 Act, in particular Re Adams. As the appellant points out, the difficulty of applying s.86 of the 1965 Act in this case is that the section requires that unexecuted alterations be treated as invalid, but the assumption is that the solution is to give effect to the underlying words the subject matter of the invalid alteration, whereas in the case of this particular will this cannot be done as the original words underlying the obliterations are indecipherable. This leads to the conundrum I described above.

37. In essence, the appellant submits that the Court could either (1) treat the scoring out of the words as an act of destruction within the meaning of s.85(2) with an intention to revoke those specific parts of the Will i.e. partial revocation; or (2) treat the obliterated portions, including the bequest, as void for uncertainty. Under either of these approaches, the rest of the will would be left intact and operative, and probate would be granted with blank spaces for the parts of the will which were obliterated. The appellant also invites the Court to go further than the trial judge did in respect of the second obliteration and find that it is likely that it was a bequest or devise, and not merely a surmise, as the trial judge described it.

38. The appellant submits that what should not be done is to treat the entire will as invalid and/or regard it as an actual or even potential situation of intestacy or regard the situation as one in which those who might benefit under intestacy have a right to be heard in these proceedings, as appears to have been the approach adopted by the trial judge.6 She submits that the only person(s) who might theoretically have a right to be heard is the person or persons who were to be the beneficiary of the bequest which was obliterated, but of course their identity cannot now be ascertained because the underlying word(s) cannot be deciphered. In this particular case, if the Court were to take the view that all potential beneficiaries on intestacy should be heard, there would be 15 persons in that position because that is the number of persons who would be entitled to share in the administration intestate of the estate pursuant to s.69(1) of the 1965 Act; the testatrix having had a number of brothers and sisters, some of whom predeceased her and who themselves had a number of children.

39. In favour of an approach which would uphold the validity of the will (with the scored-out lines in the will being treated as blanks), the appellant makes a number of more specific points, some arising from general principles applicable to the construction of wills, and some relating more directly to ss.85 and 86 of the 1965 Act arising out of the authorities on their predecessor statutory provisions, ss.20 and 21 of the Wills Act, 1837. I will discuss each of these points in the course of my own discussion, to which I now turn.

Discussion
Some relevant general principles in the area

40. The first point made by the appellant is that the common law courts lean in favour of testacy: see Kavanagh v Fegan7, where Hanna J. said:

“Now there are two matters in a case of this kind which the Court must bear in mind continuously when considering the facts: -1. That the Court leans in favour of testacy; and 2. That there is a rebuttable presumption of law that a will, on its face made in conformity with the law, should be admitted to probate. It is a rebuttable presumption…In my opinion the evidence necessary to rebut the presumption in favour of regular and due execution must be cogent and reliable in the sense that it is evidence upon which the Court can act with confidence”.

41. In Mulhern v. Brennan8, McCracken cited the memorable expression of the above principle by Lord Esher MR in the Harrison case, saying:

“There is considerable authority that, in construing a Will, the Court will presume that the testator did not intend to die intestate as to any part of his estate, for otherwise he would not have made a Will. Accordingly, where there is an ambiguity, this is very colourfully expressed by Lord Esher M.R. in In Re: Harrison (1885) 30 Ch.D. 390 where he said at p.393:-

“There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a Will in solemn form you must assume that he did not intend to make it a solemn farce, – that he did not intend to die intestate when he has gone through the form of making a Will. You ought, if possible, to read the Will so as to lead to a testacy, not an intestacy. This is a golden rule. I do not deny that this Will may be read in two ways, or that it requires a blank should be filled up. But it may be read in such a way as not to amount to a solemn farce.”

42. The second point is that the will in the present case complies with the formal requirements of s.78 of the 1965 Act (set out above) and that there is no question over the mental capacity of the testatrix at the time she made the will, having regard to the evidence from her GP. Where a will has been signed by a testator and witnessed, with a formal attestation clause, there is a presumption that the will has been properly executed. The courts frequently apply the maxim omnia praesumuntur rite esse acta in this regard.

43. The third point identified by the appellant is that none of the grounds for challenging a will arise in this case. The appellant submits that the High Court (McDonald J) in Darragh v. Darragh9 succinctly summarised the grounds upon which a will may be challenged as:

(a) The will was not executed in compliance with the statutory rules in s.78 of the 1965 Act; or
(b) The testator did not know and approve the will; or
(c) The testator was not of sound mind, memory and understanding at the time he made the will such as to lack the necessary testamentary capacity required by s.77 of the 1965 Act; or
(d) The execution of the will was tainted by duress or undue influence.
44. Further, the appellant submits, there is no presumption of duress or influence in relation to wills: Lambert v. Lyons10 That was a case in which the plaintiffs claimed an order striking down a codicil on the basis that it was extracted under duress and undue influence and there was a discussion of the authorities and texts at pp.136-9, culminating in the following conclusion:

“Irish law, accordingly, recognises a distinction between the proof of undue influence in the context of wills and in the context of transactions inter vivos. In the case of undue influence in the context of wills, the burden of proof is on the plaintiffs and there is no presumption of undue influence arising from special relationships”.

45. Fourthly, the appellant makes the point that bequests may be void for uncertainty without affecting the overall validity of a will. In this regard, the Court was furnished with an extract from Professor Brady’s text at para 6.47 where he states this principle in the following terms:

“A gift in a will may fail for uncertainty if either the subject matter of the gift, or the object or objects, are not stated with sufficient clarity to enable the court, having regard to admissible extrinsic evidence, to enforce its terms. The courts however have gone to great lengths in order to save gifts which appear to be too vague to take effect and, as Lord Hardwicke LC put it in Minshull v. Minshull “a court never construes a devise void, unless it is so absolutely dark, that they cannot find out the testator’s meaning”.

The principle is part of the more general or “golden” principle that “ You ought, where possible, to read the will so as to lead to a testacy, not an intestacy ” (per Lord Esher MR in In re Harrison11). Professor Brady points out that this approach has similarly been adopted by the Irish courts, citing Makeown v. Ardagh. 12

46. I accept that all of the above-identified principles by the appellant are indeed general and well-established principles in the area of probate.

What was originally in line 26 of the will (the second alteration)?
47. In my view, there is no great difficulty with the first and third alterations of the will. Each is an unexecuted interlineation. Neither conforms the requirements of s.86 of the 1965 Act. As regards the first alteration, the absence of a named executor can be dealt with under Order 79 rule 5(6) of the Rules of the Superior Courts. As regards the third alteration (the word “say”), the purported interlineation can be simply disregarded. The real problem is the second alteration, namely the obliteration of line 26.

48. The appellant submits that it is very clear that the second obliteration concerned a bequest or devise of money or shares, given its location within the will as a whole and falling, as it does, at the end of a list of bequests relating to sums of money and shares, and just before the residuary clause. On balance, I agree with the appellant that line 26 of the will probably originally contained some bequest of money or devise of shares to a named individual or body. Apart from what I have said above, it is also possible to discern the euro symbol “€” in the line , which is otherwise completely indecipherable. Of course, the Court on appeal is normally reluctant to disturb findings of fact by the trial judge or, as in this case, what might be said to be the reverse, namely his view that the evidence was not sufficient to make a finding and amounted to a mere ‘surmise’. However, in this case this Court is in as good a position to make a finding of fact as the trial judge by looking at the will and the evidence on affidavit and, having done so, I am of the view that the inference should be drawn, on the balance of probabilities, that this particular line of the will (line 26) originally contained a bequest or devise. I have inspected the original testamentary instrument. The jurisprudence, including In the Goods of Benn, deceased, makes clear the right of a Court to rely on its own opinion from observation of the fabric of the will under consideration.

49. The question then arises as to what impact the obliteration of this bequest or devise has upon the validity of the rest of the will.

Construction of ss.85 and 86 of the 1965 Act: obliteration, destruction and revocation
50. Can s.85(2) be construed to include a partial revocation by destruction by means of the scoring out of words by pen to the point of illegibility, as submitted by the appellant?13 While there is no Irish authority on point, the appellant drew the Court’s attention to a number of English authorities albeit, as already mentioned, with the significant reservation that their precedential value is limited by the fact that the crucial proviso or exception clause in s.21 (underlined when set out earlier in this judgment) was not carried through in the 1965 Act. The clause in question is “…except so far as the words or effect of the will before such alteration shall not be apparent…”.

51. In the discussion which follows, it may be helpful that the reader be reminded that s.20 of the 1837 Act was the predecessor to s.85(2) of our 1965 Act, and s.21 the predecessor of s.85 of the 1965 Act.

52. In Hobbs v. Knight14, a decision of the Prerogative Court in 1838, the cutting out of a signature on a will was held to be an act of destruction under s.20 such as to render the entirety of the will invalid. However, this was because the signature was an essential part of the will. Sir Herbert Jenner said:

“I consider the name of the testator to be essential to the existence of a will, and that, if that name be removed, the essential part of the will is removed, and the will is destroyed.”

At paragraph 780, he suggested obiter that obliteration could constitute destruction. This passage was, as we shall see, subsequently followed in the Adams decision, discussed below:

“It was said in the argument (perhaps it is not very material) that a will cannot now be revoked by obliteration, the term obliteration having been advisedly omitted by the legislature; but I am not prepared to say (although I now merely throw this out) that a will may not be revoked in that way, for I see no reason why, if the obliteration amount to a destruction of the will (that is, if the name of the testator, which is essential to the will, be so obliterated that it cannot be made out), a will may not be revoked in that way as well as any other. Suppose a testator had so obliterated his name from a will as to render it impossible to make it out, and I am not at liberty to supply it by evidence aliunde, how would this operate with respect to the 21st clause of the act which enacts [here he sets out the wording of s.21]. By this clause, as I understand it, where words are so obliterated that they do not appear, it is a good revocation pro tanto. Would not the same rule be applied with respect to the name of the testator? I think that it was the intention of the legislature that it should be sufficient if the name of the testator was so obliterated that it could not be made out; it never could be intended that a testator might revoke his will pro tanto, and yet not be at liberty to revoke the whole will”.

53. The important point for present purposes is that he accepted that an obliteration such that the underlying words were no longer legible could amount to an act of “destruction” and therefore revocation in appropriate circumstances.

54. Where words in a will have been struck through with a pen without obliterating the underlying words , this does not amount to destruction: Stephens v Taprell15, a decision of the Prerogative Court in 1840. In this case the will was found locked up in the testator’s office after his death and the body of the will was struck through with a pen, the name of the testator was crossed out, as well as the attestation clause and the names of the witnesses (and a codicil which had not been legally executed). Sir Herbert Jenner said:-

“When the legislature, after mentioning ‘burning’ a will and ‘tearing’ a will, speak of ‘otherwise destroying’ a will, they must be understood as intending some mode of destruction ejusdem generis, not an act which is not a destroying in the primary meaning of the word, though it may have the sense metaphorically, as being a destruction of the contents of the will. It never could have been their intention that the cancelling of a will should be a mode of destroying it.”

55. The decision in Stephens v. Taprell was followed in Cheese v. Lovejoy16, where the testator had crossed out certain lines with a pen and written “This is revoked” on the back of the will. This was held to be insufficient to constitute destruction within the meaning of s.20.

56. Going back to Stephens v Taprell for a moment, it is interesting to note that in reaching his conclusion that a crossing out of (still legible) words did not amount to “destruction” in s.20, Sir Jenner engaged in an analysis of the proviso in s.21 which was omitted in our 1965 Act. He pointed out that the Wills Act, 1837 had been framed upon the recommendations in a report of commissioners on real property but that s.21 had departed from the commissioners’ recommendation in an important respect. The recommendation of the commissioners was that “where a will is found with unattested obliterations, it should be considered to be wholly unaltered, except that if any words cannot be read or made out in evidence , in consequence of the obliteration, the will shall take effect as if such words did not form part of it” (emphasis added). The italicised words allowed for the possibility of extrinsic evidence being adduced to prove what the original words were even if they were no longer decipherable because of the obliteration. This aspect of the recommendation did not make its way into the legislation, however, and as Sir Jenner was of the opinion that “the court is obliged to reject extrinsic evidence, however strong it may be, as to the contents of the will before the attestation, and to look only to the will itself, and, when it finds a word to be utterly illegible, to omit that word as well as the word substituted.”

57. The case of Adams directly raised the question which had been the subject of obiter comment by Sir Jenner in Hobbs v Knight, namely whether a will had been “destroyed” when material parts of the will (including the signature of the testatrix and attesting witnesses) had been obliterated by heavy scoring with a ballpoint pen. The testatrix made a will with the assistance of her solicitors who retained it in their office. Several years later, she telephoned her solicitor and instructed him to destroy her will. He wrote to her enclosing the will and informed her that she should destroy it herself. When she died, the will was found among her effects, heavily scribbled on by a ballpoint pen. The heaviness of the scoring varied in different parts of the will. The signature of the testatrix and witnesses had been so heavily scored that it was impossible to see them with a naked eye. The question arose whether this fell within the meaning of “destruction” under s.20 of the Wills Act, 1837.

58. Counsel argued that there was a distinction between destruction and overlaying the words with ballpoint ink, but the court rejected the argument, saying that what was important was that it was impossible to discern the presence the signature “by the normal sense by which signatures are discerned”. The court followed the obiter remarks of Sir Jenner in Hobbs v. Knight described above. The court went on to apply the same test as had been applied in respect of s.21 for deciding whether original words were “apparent” or not, namely that words can be considered to be apparent “if experts, using magnifying glasses, when necessary, can decipher them and satisfy the court that they have done so” without any “physical interference with the document, so as to render clearer what may have been written upon”. Applying that test, the court concluded that a material part of the will had been destroyed and, the court also being satisfied from all the circumstances that there had been an intention to revoke, the entire will had therefore been revoked by the testatrix. The court refused to grant probate of the will.

59. It is material to note that that the case was decided pursuant to s.20 (and not s.21) of the 1837 Act. What is most important for present purposes is the view that the scoring out by pen to the point of illegibility can constitute an act of “destruction” in certain circumstances.

60. I pause also to note the court’s comments concerning the inference that the testatrix in Adams intended to revoke the will. The court drew two separate inferences. First, it said that it could be readily inferred that obliteration or partial obliteration had been done by the testatrix and not some third party , this being “the inevitable and proper inference to be made where it can be shown that a will was in the hands of a testatrix in unaltered form and where the will has not left those hands until the time of death and at or immediately after the death it is found to be in an in altered form”. Secondly, it could be inferred that the obliteration was done by the testatrix with the intention of revoking the will . Citing Williams on Wills 6th ed at p.154, he referred to a presumption that where a will is destroyed or found mutilated in a place in which the testator would naturally put it, the presumption is that the testator destroyed it with the intention of revoking it. He also noted that the presumption could be rebutted. Nothing before him rebutted the presumption, he said; on the contrary there was great deal that appeared to reinforce it.

61. Counsel also relies upon In the Goods of John Woodward17 and in Re Everest 18 for the proposition that there can be a revocation by destruction of a part (only) of a will. It may be noted that in both cases the act of destruction was by cutting or tearing. In Woodward, a will was found in an iron chest in which the testatrix kept important papers. It had been written on the first sides of seven sheets of paper and signed by the testatrix and witnesses on each sheet, and at the end. The first seven or eight lines had been cut and torn off, but the remainder of the will was complete. It was held that it could not be inferred that the testatrix intended to revoke the whole will from the cutting or tearing off of the early part of the will, and the will was admitted to probate in its incomplete state. Lord Penzance referred to s.20 of the 1837 Act and then quoted with approval from the case of Clarke v. Scripps 19, in which Sir J. Dodson carefully distinguished between partial and total revocations, and emphasised the requirement of an intention to revoke with regard to each:

“Upon this enactment (1 Vict.c.26, s.20) it is obvious, first, that a part only of a will may be revoked in the manner described; in other words, that the whole will is not necessarily revoked by the destruction of a part; nevertheless, I do not by any means intend to say that the destruction of a part may not under certain circumstances operate as a revocation of the whole will. Secondly, it is to be observed that the burning, tearing or otherwise destroying the instrument must be done with the intention to revoke. It is not the mere manual operation of tearing the instrument, or the act of throwing it into a fire, or of destroying it by other means, which will satisfy the requisites of the law; the act must be accompanied with the intention to revoke; there must be the animus as well as the act, both must occur in order to constitute a legal revocation. It is the animus also which must govern the extent and measure of operation to be attributed to the act, and determine whether the act shall effect the revocation of the whole instrument, or only of some and what portion thereof. Now the intention of a testator to revoke wholly or in part may, I conceive, be proved, first, by evidence of the expressed declaration of a testator, especially if such declaration was contemporaneous with the act…Secondly, the intention may, in the absence of any express declaration, be inferred from the nature and extent of the act done by a testator i.e. it may be inferred from the state and condition to which the instrument has been reduced by the act. From the face of the paper itself it may be inferred, either he did intend to destroy it altogether or did not”.

62. In Everest, the testator executed a will which was executed at his bank and deposited there for safekeeping. Two years later, he removed it from the bank and did not return it. After his death, his widow found the will with the lower half of the front page cut away. The will contained clauses appointing the bank as executors and trustees, giving his personal chattels to his widow, and providing that his real estate and residue of his personal property be held on trust; however, the details had been cut away. Court granted probate of the will, drawing the inference that testator had not intended to revoke the whole will and had intended the remaining part to be effective. It was admitted to probate in the state in which it had been found. Lane J. said:

“What is important is that even though there be no instructions as to the trust which he set up, there is sufficient remaining of the will to satisfy me that he intended that what remained should be effective. And I am of opinion that it would be wrong to refuse to give effect to the testator’s wishes, in so far as these are determinable from what remains of his will. Accordingly, I order that probate issue of the will, mutilated as it is”.

63. Counsel also referred to the following two Irish cases both of which pre-dated the 1965 Act and are of limited assistance. The case of Morell20 involved the striking out of a signature in a codicil. The testator, having made and duly executed his will, made a first codicil which he signed in two places; once below the attestation clause, which signature was struck out, and once at the end of the will and immediately above the attestation clause, which signature was left untouched. Hanna J. said that he was drawing the inference that Mr. Morell probably signed first at the end of the attestation clause and then having noticed that the will ended a few lines above the attestation clause, signed at the end of the will and struck out the first signature he had made. The codicil was admitted to probate. Not only did the case pre-date the 1965 Act but it is also distinguishable from this case because the alteration was legible.

64. The will in the case of In the Goods of Benn contained both interlineations and an obliteration. The court in its judgment was primarily concerned with the interlineations, holding that the evidence suggested that the interlined words had been inserted before the will was executed and therefore that they should be included in the grant of probate. However, as regards the obliteration, the court (Hanna J.) confined itself to saying at the conclusion of the judgment (p.322) that they were indecipherable “and the grant must be blank in respect of them”, without further elaboration.

65. There appears to be no Irish authority after the passage of the 1965 Act dealing with matter raised by the present case. The appellant relies upon a passage from Brian E. Spierin, Succession Act 1965 and Related Legislation: A Commentary , 5th edition. Referring to the words in s.21 of the 1837 (the proviso or exception) not having been carried through into s.86, the author comments:

“This exception has not been carried over…The absence of an express proviso, however, was probably not intended to affect the partial revocation of a will under s.85. Thus, if a testator were to erase or to cut or tear out a gift he or she had made by will with the intention of revoking it, this would be effective to revoke the gift. Where the act of the testator does not amount to ‘burning, tearing or destruction, though, the provisions of s.86 must prevail”.

66. Counsel also cited the following passage from Professor Brady’s text:

“If unattested alterations were made in a will after execution or, if made before execution, but there is no evidence to show that they were so made, the will can take effect as if there were blanks in the spaces which contain the alterations if the original words cannot be read. Similarly, if words in a will are completely erased or obliterated, and extrinsic evidence is not admissible, or otherwise available, the will can take effect as if there were blanks in the spaces which contained those words”. (para 3.15)

The text cites Morrell for the proposition in the second sentence in that passage, but I do not, with respect, see anything in Morrell which definitively supports that proposition as the matter of obliterated words did not arise nor was it discussed in that case.

67. Before proceeding to interpret ss.85 and 86 of the 1965 Act, it may be helpful to summarise the principles emerging from the above authorities relating to revocation by destruction under s.20 of the 1837 Act as follows:

(a) There may be full or partial revocation of a will by destruction;
(b) For there to be revocation by destruction, there must be both (i) an act of destruction and (ii) an intention to revoke ;
(c) The double requirement of an act of destruction and the intention to revoke applies whether the revocation is full or partial. In the case of a full revocation, there must be an act of destruction of at least an essential part of the will (such as the testator’s signature) together with an intention to revoke the whole of the will. In the case of a partial revocation, there must be an act of destruction of part of the will together with an intention to revoke that part of the will.
(d) Cutting out with a scissors or tearing off a part of a will constitutes an act of destruction.
(e) Scoring a will with a pen to the extent that the words are no longer legible is also an act of destruction.
(f) The mere crossing out of words which remain legible does not amount to an act of destruction.
(g) Where a portion of a will not essential to its validity as a testamentary instrument is destroyed a question of fact arises as to whether the words destroyed is so important as to raise the presumption that the rest cannot have been intended to stand without it or whether it does not assail the essence of the will but , rather, is of relative unimportance or operates independently of the other provisions of the will.
68. Arising from the above, the questions which appear to me now to arise include the following:

(a) Are any of the above principles disturbed by the fact that the proviso in s.21 of the 1837 Act was not carried through in the 1965 Act?
(b) More specifically, is there any reason that the word “destruction” in s. 85(2) of the 1965 cannot be interpreted as including scoring words through to the point of absolute illegibility and/or does the wording of s.86 (and specifically the fact that the proviso clause was not carried through) prevent such an interpretation?
(c) Does the difficulty posed by the statutory interpretation of the provisions require that the court give an audience to persons who might potentially benefit in a situation of intestacy?
69. No evidence was adduced before the Court as to why the proviso in s.21 was omitted from the equivalent section in the 1965 Act. The conspicuous absence of the proviso from the new provision which otherwise closely mirrors the old provision is notable. However, the Court is not entitled to take into account the Dáil Debates21, which do in fact contain an exchange concerning the reason for the omission of the proviso.

70. I cannot discern from the face of the legislation what the legislative intent might have been in omitting the proviso. However, the following can, I think, be stated with some certainty. The general purpose of s.86 is to discourage unexecuted alterations to wills and to set out the method by which wills can be validly altered. In construing ss.85 and 86, this should be borne in mind.

71. Further, in my view, there is nothing in s.86 from which it could be inferred that the Oireachtas intended to convey that the entire will should be rendered invalid in the event that it contained an obliteration to the point to point of illegibility irrespective of the nature or scale of the obliteration seen in the context of the will as a whole. Moreover, such an interpretation would run contrary to the very well-established principle that the law leans in favour of testacy.

72. Having regard to the above, it seems to me that the omission of the proviso in s.86 does not prevent the Court from now interpreting ss.85 and 86 in the following manner, in order to resolve the conundrum of interpretation set out earlier in this judgment. It should be noted that in all of the following points, the underlying predicate is that the alteration was not executed.

1. The mere crossing out of words which remain legible is an “obliteration” which falls within s.86 and is not a valid alteration of the will. The still-legible crossed-out words must be given effect.
2. If words are scored out with a pen to the extent that they are no longer decipherable even with the assistance of the techniques used by a handwriting expert, this is also an “obliteration”, but of a more fundamental kind.
3. If words are scored out with a pen to the extent that they are no longer decipherable even with the assistance of the techniques used by a handwriting expert, this obliteration also amounts to an act of “destruction” within the meaning of s.85(2), akin to a cutting or tearing or burning. The rest of the will remains intact and the revocation may be held to operate only in respect of the obliterated illegible portion (i.e. it is treated as a blank, as was done in the Benn case), subject to the important caveat that the whole will should be held invalid if the destruction related to an essential part of the will such as the signature of the testatrix/testator.
4. For the court to conclude that there was a partial revocation by destruction pursuant to s.85(2), in addition to the act of destruction by obliteration, it must also be clear (a) that the testator or testatrix was the person who engaged in the act of destruction and not some third party, although in the usual way, this is a matter to be addressed by way of inference from the will and the surrounding circumstances; and (b) that the testatrix or testator engaged in the act of destruction with an intention to revoke, and again this can of course can be inferred, if appropriate to do so, from the surrounding circumstances.
73. It seems to me that this interpretation of the legislation does no violence to the English language; is reasonably logical; and is consistent with the purposes of each of s.85 and 86. Furthermore, it is an interpretation which is more consistent with the general principles of probate law than the alternative of treating such an obliteration as inevitably leading to intestacy, because it gives effect to the remainder of the testator’s intentions as appear from the rest of the will rather than rendering the will invalid in its entirety by reason of the obliteration(s).

74. I also draw support for this view from the fact that this is what Professor Brady considered the position to be in his authoritative text on Irish succession law, albeit that I am not convinced that the authority he cited in support of the proposition in fact does provide the support in question.

Application to present case
75. I now turn to apply these principles to the facts of the present case. I have earlier in this judgment found on the balance of probabilities that line 26 was probably a pecuniary bequest or a devise. Having regard to the evidence as to the will being recovered from its hidey-hole on the instructions of the testatrix, I am satisfied to draw the inference that the testatrix herself carried out the pen-scoring in question. It seems to me also that her intention to carry out a partial revocation only can also be clearly inferred given the relatively limited nature of the obliterations. In the circumstances, I would hold that the first obliteration (of the executor) should be treated as blank with the result that the position is then governed by Order 79 rule 5(6) of the Rules of the Superior Courts (SI 469/2015), while the second obliteration (of the bequest or devise) should be treated simply as a blank, in light of the approach of Hanna J. in the case of Benn. The rest of the will can be treated as valid.

76. It follows from what I have said that there is no need or entitlement for those who might benefit under intestacy to be represented at a hearing in relation to the will.

77. I should perhaps add that I would emphasise that this is a case in which (a) there was no suggestion whatsoever of third party interference; (b) the intention of the testatrix to partially revoke was clear; and (c) the scored-out portions of the will were relatively minimal, constituting a small fraction of the overall will and did not involve any essentials such as the testatrix’s signature or those of the witnesses to the will.

Legislative clarification

78. The question of statutory construction which has arisen in this case can be said to arise in part from the legislative history to which I have referred (the omission of the proviso) but also from the conundrum described above whereby the purpose of s.86 – to treat unexecuted obliterations as invalid- and the literal language of the section simply cannot, in practical terms, be given effect to in cases where the underlying words are illegible. I have sought to reach a reasonable interpretation of the statutory provisions without over-straining language and while honouring the legislative intent as far as it can be ascertained. However, it may well be that ss.85 and 86 would benefit from the attention of the Oireachtas in the future in order to put beyond doubt the proper approach of the courts to wills in which words have been obliterated to the point of illegibility. The risk of improper alterations of wills is a serious matter and there should be no ambiguity or lack of clarity as to how the court should deal with wills which present the problem discussed in this judgment. I would make the additional observation that any potential review of the ss.85 and 86 might usefully include a consideration of whether a court may receive extrinsic evidence as to what the underlying words were in a situation where words in a will have been obliterated to the point where they are no longer legible. As noted earlier (paragraph 64), Professor Brady appeared to think that, in a case where there has been an obliteration of words in a will, extrinsic evidence, if available, would be admissible to prove what the original words were; while Sir Jenner in Stephens v Tapprell thought not ( see paragraph 54 above). This issue did not arise in the present case because no extrinsic evidence was available.

Bequest void for uncertainty
79. I would be inclined to take the view that the Court should in any event uphold the validity of this will having regard to the principle that bequests which are void for uncertainty should be treated as blank, but as the matter was not the subject of detailed submissions, I prefer to rest my conclusion upon the above.

Costs
80. In relation to the issue of costs, counsel cited the Chubb decision22 and submitted, on the basis of s.168(1)(b) of the Legal Services and Regulation Act 2015, that the costs should come out of the estate. It seems to us that this application should be acceded to. S.168(1)(b) provides that a court may, where proceedings before the court concern the estate of a deceased individual order that the costs of or incidental to the proceedings of one or more parties to the proceedings be paid out of the property of the estate. The issue raised in this case was novel and the probate office directed that the application to be brought. The appellant had no choice but to bring the application in order to get a grant and administer the estate, and the difficulty arose out of the actions of the deceased herself, not by reason of any conduct on the part of the appellant. Accordingly, we will grant the costs of the appeal and reverse the High Court decision and award the High Court costs to the appellant also, both to come from the estate in due course.

Summary
81. In the interests of clarity, I will re-state my conclusions:

(a) The first obliteration (of the executor) should be treated as blank with the result that the position is then governed by Order 79 rule 5(6) of the Rules of the Superior Courts (SI 469/2015);
(b) The second obliteration (of the bequest or devise) should be treated simply as a blank.
(c) The interlineation (the insertion of the word “say”) should be ignored as if the word had not been inserted.
(d) The rest of the will can be treated as valid.
(e) All costs to come out of the estate in due course pursuant to s.168(1)(b) of the 2015 Act.
82. This judgment is being delivered electronically, I wish to record that both Whelan J. and Binchy J. have indicated their agreement with it.

In re the Estate of Myles Deceased

[1993] ILRM 34. Lardner J

This is an application by Sarah Robinson, a niece of the deceased, Margaret Ismay Myles, for liberty to apply for a grant of probate of an alleged last will dated 21 October 1970 of the deceased. The applicant is the daughter of a deceased brother of Margaret Ismay Myles. The deceased was a spinster and died on 13 March 1991 leaving only two brothers and the applicant as next-of-kin. She made what, on the evidence, appears to be her last will viz a handwritten document dated 21 October 1970.

It is written on two sides of a sheet of writing paper. It contains a revocation clause and appoints her brother, who pre-deceased her, as sole executor and trustee. It then makes a number of pecuniary bequests and leaves the residue of the estate in equal shares between the said brother and the National Association for Cerebral Palsy. There are in all six paragraphs in this will. It is dated at the foot 21 October 1970 and below there are the signatures of two witnesses Bridget McDevitt and Angela Kearns, though no proper attestation clause. It is clearly a home-made will. At its foot is the signature ‘M.I. Myles’ which I am satisfied is the testatrix’s signature.

There are a number of difficulties in this will.

Firstly five of the paragraphs are crossed out. At the top of the will in the margin is a note ‘remake cancelled’ and it appears to be signed by the testatrix but her signature is not witnessed. In the margin of paragraph two appointing an executor and trustee there is a further note ‘cancel this’. These words are initialled by the testatrix: but not signed by witnesses.

Clause 3(a), (b) and (c) bequeath certain pecuniary and specific legacies. 3(a) is:

To the trustees of the Central Presbyterian Association £500 towards the upkeep of their premises number 16 St Stephen’s Green Dublin.

This has lines of deletion drawn through it.

Clause 3(b) is:

To Mrs Byrne, widow of Cherbury Cottage, Booterstown Avenue, Dublin the sum of £500 for her sole use.

This is also crossed out by lines of deletion and in the margin is written:

Moved to new address.

*36

Clause 3(c) is:

Every content of my flat to my brother R.B.M.

This appears to be crossed out.

And clause 3(d) is:

The balance of my estate to be divided equally between my brother Major Robert Bradford Myles Carnbeg, Dundalk and the National Association for Cerebral Palsy Ltd, St. Brendan’s, Sandymount Avenue, Dublin.

This clause is crossed out with four lines of a pen. At the side is written:

Between Cerebral and Institute for the Blind.

One of the two witnesses remembers being asked by the deceased to witness her will but cannot positively say the testatrix signed in her presence. She says the testatrix kept her hand over the contents of the will while the witness signed it. The other witness believes the deceased did sign in the presence of both witnesses. She says:

I do have a recollection that the deceased did cross out part of the will before signing it but as to what part or parts thereof were so crossed out I cannot recall.

In these circumstances the first question is what parts of the will had been crossed out before execution and what parts after execution. The other question is when were the writings in the margins made. In regard to the crossed out clauses, if any of them was deleted after execution, it is clear from s. 86 of the Succession Act that such deletion would not effect a revocation of the clause unless it was executed in the manner required for the execution of a will. None of the deletions in the present will are so executed. There are the initials of the testatrix but no signature of witnesses. In these circumstances I do not conclude that any of these deletions, if made after execution of the will, effected a revocation of the will or any part thereof as originally made.

The next question as to when the writings in the margins were made is not dealt with in the evidence on affidavit. From an examination of the will I should be inclined to come to the conclusion that these marginal writings were made after the body of the will had been written out and, at least as to some of them, probably after the will had been executed. The difficult question, in the light of the evidence, is what was contained in the body of the will uncrossed out at the time of its execution or to put it another way which deletions and alterations were made before execution and which after. Insofar as they were made before execution, they were validated by the execution of the will. Insofar as they were made after execution, they are ineffective and do not constitute part of the executed will. I note that there is a rebuttable presumption that an alteration, *37 obliteration or interlineation was made after execution. See In the Goods of Adamson (1875) LR 3 PD 253. This presumption may be rebutted by reasonable evidence including evidence afforded by the will itself. See In re Hindmarch (1866) LR 1 PD 307. Hanna J in In the Goods of Benn [1938] IR 313 considered interlineations in a holograph will where there was no direct evidence forthcoming as to whether the interlineation was inserted before or after execution. He decided that the court might rely on its own judgment on the internal evidence as presented by the fabric of the will and also upon the evidence of a handwriting expert as to the appearance of the writing in the document and whether the interlineation was inserted before or after execution. In that case he was satisfied that the interlineations were inserted before the will was executed.

I have examined the present will carefully. I find it difficult to make any judgment whether the crossings out and the writings in the margins were made with the same pen and ink as the original text. There has been no evidence as to the date of sale of 16 St Stephen’s Green or of Mrs Byrne’s move from Cherbury Cottage. It may be that in these instances the crossings out relate to these events. Further there have been no submissions made by counsel for the applicant or for the residuary legatees as to what was the state of the will at the time of its execution and no expert evidence in regard to the handwriting and the lines of deletion has been offered. There remains to be considered the rebuttable presumption that the alterations were made after execution. In addition I must have regard to the evidence of the attesting witness:

that the deceased did cross out part of the will before signing it but as to what part or parts thereof were so crossed out I cannot recall.

It seems to me that I cannot disregard this evidence. If it is accepted it tends to rebut the presumption. But one is left in an altogether uncertain mind as to what part or parts were crossed out before execution and what after and so as to what was the extent of the will at the time of execution. The applicant by applying for probate takes on the burden of proving on the balance of probabilities what constituted the will at the time of execution. I do not find that burden has been discharged by the evidence which has been adduced. In the circumstances I decline to grant liberty to apply for a grant of probate. But as the applicant is clearly entitled to a grant of administration (as was submitted to me in the alternative) I will allow that application.

In re Brennan.

Hanna J.

[1932] IR 633

HANNA J. :
27. Jan.

This is an application that instructions for a will be admitted to probate as a last will under rather unusual circumstances.
Catherine Brennan died on the 12th January, 1927. She had made and executed on the 11th April, 1922, a complete and perfect will disposing of her entire property. This had been prepared by her solicitor. Three years afterwards, on the 24th April, 1925, she returned to her solicitor and informed him that she desired to make a new will that day. She was told that owing to pressure of business it could not be arranged, but that her instructions would be taken and she could return on a subsequent day to execute the will. She then gave full instructions to be embodied in the new will and dealt with all her property. These instructions were taken down on a sheet of paper by the solicitor, and on it he made some notes for his own information. The beneficiaries were her children, the same as in the previous will, but the distribution of the property varied. She informed her solicitor that she had a marriage settlement, and he asked her to bring that to him for consideration. As she was leaving, she made the shrewd suggestion, that as a matter of precaution she should sign the instructions. The solicitor acquiesced, and she signed them in the presence of the solicitor and his typist, who signed as witnesses in her presence in conformity with the statute, but there was no attestation clause. She never returned to the solicitor’s office and died as stated.
The title of the document is “Mrs. Catherine Brennan, Coolnariska. Instructions for new will.” Then follow the notes of the bequests. At the end of the instructions, and before the signature there are the notes made by the solicitor:”Her husband died twenty-nine years ago, 21st October, 1898, and left no will; she took out administration. There is a marriage settlement which she is to bring in.” The executors, her two sons, apply for probate to issue of the “Instructions for new will” as her last will.
Now, it is obvious that in the first instance, and even when this document was signed, it was expected and intended that it should be followed by a more formal and properly drawn will. It is also important that it contains no clause, or instructions, revoking the former will.
It is not the duty of the Probate Court in this case to construe the two documents before it. Its function is merely to decide what document, or documents, conforming to law, the testatrix intended to be her last will and testament, and as such to be admitted to probate. In respect of this inquiry parol evidence of the surrounding circumstances and of the statements of the deceased prior to execution are admissible: In the Estate of Bryan, deceased (1). We have these in the solicitor’s affidavit.
In considering this evidence, the principle to be applied by the Court is stated in O’Leary v. Douglass (2) by Ball L.C. as follows:”In cases of such a character, the testamentary Courts have always admitted parol evidence to show quo intuitu the act was done. To illustrate this, I refer to three cases, two of them before, and one since, the new Wills Act: Methuen v. Methuen (3) before Sir John Nicholl; Busteed v. Eagar (4) before Dr. Radcliffe, and Birks v. Birks (5)before Lord Penzance. Sir John Nicholl expressly says that the same rules do not apply in a case relating to thefactum of a will, as if the inquiry were respecting its construction. In the Court of Probate, the whole question is one of intention, and the animus testandi and the animus revocandi are completely open to investigation in this Court. Accordingly he received and acted upon the parol evidence of the drawer of a second instrument that it was meant to be in lieu of a former.”
There is also involved the consideration of the question whether there was an intention to revoke the previous document, or whether deceased intended that the two documents should stand together. Having regard to the facts set out in the affidavit as to the circumstances of the drawing of the instructions, the lady’s statements and actions, and the use of the word “new” in the document signed by her, I am satisfied that she intended, when she signed the instructions, to revoke her previous will and substitute these instructions until a more formal document was drawn up. And the mere fact that she executed the instructions indicates that she had in her mind that a more formal document might never be drawn up. The informality of the document or its brevity is no bar to its being admitted to probate once I find that she intended it to be her last will, but the surplusage in the form of notes, added by the solicitor for his own information, will be omitted from the grant. Accordingly I make the order in that form.

In the Goods of Patrick M’Kenna, Deceased

King’s Bench Division (Probate).

10 February 1908

[1908] 42 I.L.T.R 50
Andrews J.

Feb. 10, 1908

Andrews, J., said that a grant of probate could not operate as an estoppel; that, though it established the right of the executor to deal with such property as was assets of the testator, it did not establish the fact that any particular property was assets of the testator. Security could under no circumstances be required from an executor, but, of course, any person damnified by any improper dealings of an executor with property that was not in fact assets of the deceased would have an action against the executor. He was unable to accede to Mr. Wylie’s application for costs, but he would make up his order in such a way that Mr. Wylie’s client would not be prejudiced. He made the following order:—

“… The Court doth order that the said James Meegan, as executor named in the paper writing dated Aug. 6, 1907, purporting to be the last will of the said Patrick M’Kenna, deceased, be at liberty to apply for probate thereof, incorporating therewith so much of the revoked will of the said deceased, dated April 16, 1907, as directs the application of the legacy of £10, bequeathed to the Rev. P. M’Kenna, by the said will of the said 6th day of Aug., 1907, and it is further ordered that this order and the grant made in pursuance thereof are to be deemed to be without prejudice to the rights of the said Mary M’Kenna, Bridget M’Crory and Susan Timoney in respect of the assets of their father …”

In the Matter of the Estate of Patrick John Mannion

Late of Killoran, Ballinasloe, County Galway, Deceased and In the Matter of an Application by Virginia Guadiano, of 7870 Triple Oaks Drive, San Antonio, Texas 78263, United States of America
20/9671

High Court [Approved]

22 February 2021

unreported
[2021] IEHC 117
Mr. Justice Allen

February 22, 2021

JUDGMENT
Introduction
1. The ingenuity of testators – I use the word in its loosest sense – when applying themselves to making their wills is often remarkable. In Dixon v. Treasury Solicitor[1905] P. 42Gorell Barnes J. characterised what the testator in that case had done as “… just one of those stupid acts without which this court might almost cease to exist .” That might be thought to have been a little harsh on the deceased but as I will explain, it was not at all intended to be gratuitously offensive either to the deceased in that case or to testators in general. Moreover, the same short sentence accurately conveys that the probate judges have long and varied experience of the eccentricity of testators, and of the resolution of problems thereby created.

2. On this application I have had, besides, the very valuable assistance of Mr. Hourican who prepared a written submission that was comprehensive as well as concise and who made a focussed oral presentation.

The facts
3. Patrick John Mannion, late of Killoran, Ballinasloe, County Galway, died on 3rd September, 2017, aged 82 years. He was a Roman Catholic priest, who died a bachelor without issue or parent surviving him, survived by two siblings and three children of a pre-deceased sibling.

4. Fr. Mannion was born in Ireland and was an Irish citizen. He served as a parish priest in San Antonio, Texas, between 1989 and 2007, when he returned to Ireland.

5. In about the middle of 1997 Fr. Mannion asked his friend Ms. Virginia Guadiano whether she would be willing to act as his executrix and (Ms. Guadiano having given her assent) shortly after handed to her, for safe keeping, an original form of will dated 11th June, 1997, together with a document called a “ Self-proving affidavit ”. At the same time Fr. Mannion gave a copy of the will and affidavit to Ms. Guadiano’s daughter, Ms. Maria Guadalupe (who informally is called Lupe) Beckett.

6. The 1997 will was slightly unusual. All the appearances are that Fr. Mannion prepared it himself. Ms. Guadiano, who knew him well, believes that this would have been his preference, to avoid the expense of an attorney. The will comprised five typed pages, each marked “ PAGE ONE [TWO, THREE, FOUR, FIVE] OF MY LAST WILL ”, and on each of which Fr. Mannion signed his name. Peculiarly, the font on the third page is different to the font on the other four pages but that page is marked “ PAGE THREE OF MY LAST WILL ” and the text continues the section and paragraph numbering on the previous page. The attestation clause on page four shows that it was signed by Fr. Mannion in the presence of Raul Hernandez and Juan Martinez, who signed as witnesses in his presence and in the presence of each other. The self-proving affidavit was an affidavit signed on the same day by Fr. Mannion and the two witnesses before Ms. Margarita Lozano, notary public.

7. The 1997 will provided that it had been drawn and executed in the State of Texas and that all questions concerning its validity and the meaning and intention of any of its terms should be determined in accordance with the laws of that State. The affidavit of Mr. Kyle Robbins, attorney at law, of Austin, Texas, shows that the requirements for due execution of testamentary documents in Texas are the same as those that apply in Ireland. Mr. Robbins also explains that under Texan law a self-proving affidavit is attached to a will after it has been executed as a formal confirmation that it was properly executed in accordance with law and allows the will to be proved there without, he says, testimony or evidence from the witnesses, but I think that he likely means without any other such evidence.

8. The due execution and witnessing of the will is confirmed by the affidavit of Mr. Raul Hernandez, who was shown a copy if it in about June, 2020 and remembered the circumstances in which the original had been signed and witnessed. The authenticity of the copy of the 1997 will was confirmed by the affidavit of Ms. Beckett who when she was given the copy saw the original and noticed at that time that the third page was in a different font and who confirmed the provenance of the copy exhibited by her mother.

9. The Hague Convention on the Conflicts of Law Relating to the Form of Testamentary Dispositions was transposed into Irish law by s. 102 of the Succession Act, 1965. This provides that a testamentary disposition is valid as to its form if it complies with the internal law of either the place where the testator made it or of a nationality possessed by the testator, either at the time when he made the disposition or at the time of his death, or of the place in which the testator had his domicile. I am satisfied that the 1997 will was duly executed in accordance with the requirements of both Texan law and Irish law and that the copy will now before the court is a true copy of the original.

10. In his will dated 11th June, 1997 Fr. Mannion made his intentions very clear. He left any motor vehicles he might own at the time of his death and his Kimball upright piano to the Presentation Sisters of the Blessed Virgin Mary at Bexar County, San Antonio, Texas. He gave his books to Ms. Guadiano. And he gave the remainder of his estate to the Missionaries of Charity at 335 East Street, Bronx, New York.

11. Fr. Mannion retired in 2007 and returned to Ireland. Before doing so he collected his original will from Ms. Guadiano, at which time he told her that he intended to replace her as executrix with his nephew, Mr. Michael Shields. He did not at that time recover from Ms. Beckett the copy he had given to her.

12. Mr. Shields had a close relationship with his uncle. He confirms that Fr. Mannion returned to Ireland in 2007 but it was not until April, 2014 that he was asked and agreed to act as executor. Fr. Mannion then handed Mr. Shields a sealed envelope which he said contained his will and asked that the envelope not be opened until his death. The envelope is a reused manila envelope to which white adhesive tape has been stuck, upon which is printed, in large capital letters, “ LAST WILL, FR. J. J. MANNION ” and was sealed with white adhesive tape.

13. When, after his uncle’s death, Mr. Shields opened the envelope he discovered that it contained two documents. The first document was a typed A4 page entitled “ When I die ” with a list of names and contact details. The other was what the applicant in her affidavit describes as a curious document and what her solicitor in his correspondence described as a confection. It is not absolutely clear when this document was created but since it was given to Mr. Shields in 2014 I will refer to it as the 2014 document.

14. The 2014 document is described in the grounding affidavit as a five page document but there are six sheets of paper, stapled together. The first five pages are each marked, as the pages in the 1997 will were marked, “PAGE ONE [AND SO ON] OF MY LAST WILL ”. In common with the 1997 will, the first five pages of the 2014 document are signed at the end of each page by Fr. Mannion. Unlike the 1997 will, at the end of each of the first four pages of the 2014 document, beside Fr. Mannion’s signature, are the initials “JM” and “RH”. Mr. Juan Martinez has since died but Mr. Raul Hernandez has sworn that he does not believe that he initialled those pages and that he does not recognise the initials “R.H.” as his writing. The sixth page of the 2014 document is a photocopy of the self-proving affidavit dated 11th June, 1997.

15. The 2014 document follows the format of the 1997 will, being divided in the same sections and obviously based on the same template. The first three pages are photocopies, but they are not photocopies of the first three (or any) pages in the 1997 will. There is no evidence forthcoming as to what might have happened to the original three pages. The first and second pages are in the same font as each other, but a different font to the third page.

16. On the first page of the 2014 document (as he had on the first page of the 1997 will) Fr. Mannion describes himself as resident and domiciled in San Antonio, Bexar County, Texas, and as an ordained priest of the Archdiocese of San Antonio, Texas. There is a revocation clause. Mr. Michael Shields is appointed as executor with Mrs. Claire Shields O’Driscoll as successor or substitute.

17. The second page of the 2014 document has the same boilerplate directions to the executor as the 1997 will and goes on to give any motor vehicles, if any, that might be owned by Fr. Mannion at the date of his death and his upright piano to Mr. Shields; all of Fr. Mannion’s books to anyone who wishes to have them; and (at the top of the third page) the remainder of his estate to the Missionaries of Charity at East 145 Street, Bronx, New York or in Ireland at Missionaries of Charity, 223 South Circular Road, Dublin 8.

18. The third page of the 2014 document has the same boilerplate “Additional Powers and Guidance for my Executor” as the 1997 will and is – surprisingly is the wrong word, I will say coincidentally – in the same font as the third page of the 1997 will.

19. The fourth page, which has the first part of the attestation, and which bears Fr. Mannion’s signature, appears to be the original of what was the fourth page of the 1997 will and so to be his original signature, but the page has been embellished by the addition, beside Fr. Mannion’s signature, of the initials “J.M.” and “R.H.”. This page on its face suggests that the document was executed on 11th June, 1997.

20. The fifth page of the 2014 document, which is the second part of the attestation, is a photocopy of what previously was the last page of the 1997 will. It has the signatures of the two witnesses but because it is a photocopy, it bears only copies of the signatures of the attesting witnesses.

21. The applicant suggests that “the indications are ”, and I accept that the irresistible inference from the plight and condition of the 2014 document is, that Fr. Mannion, having returned to Ireland, decided to change his will in the manner appearing in the first three pages of the 2014 document but rather than making a new will, he replaced the first three pages of his 1997 will by stapling them to the original penultimate page of his will and a photocopy of the last page and of the self-proving affidavit, in the hope that the whole would be carried by his original signature. I am satisfied that Mr. Shields received and kept safely the envelope given to him by Fr. Mannion and that it was Fr. Mannion who put the enclosed document together. I can only think that the initials of the witnesses were added at the end of each page in the belief that they might add verisimilitude what Fr. Mannion was trying to do.

22. Whatever Fr. Mannion may have hoped when he sealed the envelope which he gave to Mr. Shields in April, 2014 – and I will need to come back to that, for it is on his intention at that time that the case must turn – it was fairly obvious when the envelope was opened that it was not a valid will. It was, however, apparent that Fr. Mannion had made a will in Texas on 11th June, 1997. The papers now before the court do not disclose how he did it, but Mr. Shields tracked down Ms. Guadiano and, presumably through Ms. Guadiano, Ms. Beckett who still had the copy of the 1997 will which she had been given and the application now before the court is a motion on behalf of Ms. Guadiano, as executrix of the 1997 will, supported by Mr. Shields, for an order admitting that will to probate in the terms of the copy of the first three and the fifth pages of the copy that has come from Texas, and the original fourth page which was part of the mélange later created by Fr. Mannion, disregarding the initials later added to it.

23. In the meantime, I should have said, from an abundance of caution, extensive enquiries were made by Mr. Shields’ and the applicant’s solicitor with all of the solicitors in the locality where Fr. Mannion lived, with the diocesan offices of Galway and Clonfert, and by advertisement, to ascertain whether the deceased might have left any other testamentary documents. Given that Fr. Mannion had – I think that the best way of describing it is – put together two wills without legal assistance and entrusted the 2014 document as his will to Mr. Shields, I am satisfied that any possibility that there may be any other testamentary document is extremely remote.

24. Fr. Mannion’s estate comprised a motor car, a piano, and two bank deposits, one in Ireland and the other in Texas. Mr. Shields arranged for the car to be sold and has safely kept the proceeds for the benefit of the estate. It is unclear what became of Fr. Mannion’s piano. I infer from the fact that it was described in the 2014 document simply as his upright piano that he may have left his Kimball piano behind in Texas. I am confident that whichever of the Presentation Sisters in Texas or his family in Ireland to whom it might have technically have devolved would be more than happy if it has found a good home.

The application
25. Fr. Mannion, as I have said, was survived by two siblings, and by three children of a predeceased sibling. All were given formal notice of the application. One only, Ms. Aine Cunningham, appeared. Ms. Cunningham was interested to follow the application and did, but she did not oppose it. As an afterthought, the papers were sent to the Charities Regulator and the Missionaries of Charity in South Circular Road but any interest on the part of the sisters in South Circular Road could only have been founded on the validity of the 2014 document, which was an impossibility.

26. The issue on this application is not whether the 2014 document was a valid testamentary document but whether the 1997 will was revoked.

Proper law
27. The 1997 will was made in Texas and provided that any question as to its validity was to be determined in accordance with Texan law but the question to be decided is not whether that will was valid – which when it was made it clearly was – but whether it was later validly revoked. Although the validity of that will is governed by Texan law, the question whether it was revoked is to be determined by the law of the testator’s domicile. See: Dicey, Collins & Morris, Conflict of Laws (15th Ed.), para. 27R-086).

28. Fr. Mannion was born in Ireland and so had an Irish domicile of origin. If any question might have arisen that at any time during his time in Texas he might have acquired a domicile of choice there, it is clear that when he returned to Ireland in 2007 he did so with the intention of permanently residing here. While the evidence is not absolutely clear as to when the 2014 document was created, it is clear that Fr. Mannion recovered his 1997 will shortly before he left Texas and I find that whatever happened to it happened in Ireland. There being no immovable property, it does not immediately matter where what was done was done but rather the question is where Fr. Mannion was domiciled when he did what he did. I am satisfied that that was done was done after he had abandoned any domicile of choice that he might have acquired and resumed his domicile of origin. I am satisfied on the evidence that at the relevant time Fr. Mannion was domiciled in Ireland so that the question whether his will was revoked depends on Irish law.

Legal principles
29. Section 85(2) of the Succession Act, 1965 provides that:-

“… no will, or any part thereof, shall be revoked except by another will or codicil duly executed, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.”

30. The 2014 document contained a revocation clause, but it was not a valid will duly executed and so there is no question that the 1997 will was revoked by the 2014 document. However, the evidence is that the original will came into the possession of Fr. Mannion in 2007 and it was not to be found after his death.

31. The applicable law in such circumstances was set out by Kenny J. in In the Goods of Coster, deceased (Unreported, Supreme Court, 19th January, 1979) as follows:-

“When a testatrix makes a will and retains the original or subsequently comes into possession of it and it cannot be found after her death and there is no evidence to show what has become of it, there is a presumption that she has destroyed it with the intention of revoking it. This presumption, which was applied in the ecclesiastical courts before 1857, is of ancient origin. It is however a presumption only and not an absolute rule so that it can be rebutted. Thus the occurrence of a fire at the testatrix’s home or the character or the deceased’s custody (see the judgment of Chief Justice Cockburn in Sudgen v. Lord St. Leonard(1976) 1 Prob. Div. 154 at p. 217 ) or the possibility of a disappointed beneficiary having removed the original will have to be taken into account as matters which may rebut the presumption.”

32. Kenny J. went on to quote what he said was the classic statement of the rule in the advice of the Privy Council in Welch v. Phillips(1836) 1 Moore’s P.C. 229 which emphasised that the onus of proof in such circumstances was undoubtedly on the party propounding the will.

33. In this case, Mr. Hourican submits that the presumption of revocation can be displaced by the application of the legal doctrine of dependant relative revocation.

34. This doctrine is explained by the authors of a leading English textbook which in its 13th Edition is called Parry and Kerridge: The Law of Succession at para. 7-39 as follows:-

“Revocation of the whole or part of a will or codicil by destruction, or by another will or codicil, or by duly executed writing requires an intention to revoke. The testator’s intention to revoke may be absolute or conditional. If it is absolute, revocation takes place immediately. If it is conditional revocation does not take place unless the condition is fulfilled. Often the condition makes revocation dependent upon the validity of another will or codicil and this conditional revocation has in the past been referred to as the doctrine of dependent relative revocation…

Whether the testator’s intention to revoke is conditional is a question of fact where revocation is by destruction, and evidence as to the testator’s declarations of intention is therefore admissible.”

35. It may better be explained by example. I referred earlier to the case of Dixon v. Treasury Solicitor[1905] P. 42. A man called James Alexander Shaw, who had no family, made a will on 7th July, 1894. In early February, 1904 he sent for his solicitor who brought with him the 1894 will. There and then, in the presence of his horrified solicitor, Mr. Shaw cut his signature from the will using a pair of scissors and erased parts of it, explaining that he wished to cancel the will as he intended to make a new one. The solicitor took instructions for the new will and prepared a draft, but the deceased died on 8th February, 1904 without having executed it. The executor, Mr. Dixon, propounded the will. The Treasury Solicitor, representing the interests of the Crown – who would have succeeded to the estate on intestacy – made the case that the will had been revoked by destruction. The case turned on the intention of the testator. Specifically, the question was whether the acts of revocation were accompanied by an intention to make a new will and so were conditional on a new will being executed. Gorrell Barnes J. left two questions to the jury, (1) whether the testator cut his signature off the will with the intention of revoking it, or (2) whether he had done so with the intention that the will should be revoked conditionally on his executing a fresh will. The short report of his charge to the jury makes it clear what the judge’s view was and his dismissal of the testator’s acts as foolish and commonplace appears to me to have been calculated to take the harm out of them. The jury answered the questions “ No ” and “ Yes ” and the judge pronounced for the will.

36. An interesting Irish example of the application of the doctrine is In the Goods of Irvine[1919] 2 I.R. 485. An application was made to the King’s Bench Division of the High Court of Justice in Ireland for a grant in common form of what appeared to be the last will of the deceased dated 5th February, 1914. The document was a printed will form in which the blanks had been filled in in manuscript and on its face appeared to be valid, but the attesting witnesses disclosed that at the time of execution the document consisted only of the printed form. One of the printed clauses was a revocation clause so that the document as executed was if not “ another will or codicil duly executed ” then “some other writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed .” The deceased had executed a will on 25th June, 1913. If that will was revoked by the 1914 document, he would have died intestate.

37. The issue identified by Kenny J. was whether the revocation contained in the paper executed by the deceased was an absolute revocation or a dependant relative revocation. He found that the attempted revocation in the 1914 document was merely the first act in his design to make a new will; that it was dependant and conditional on a new will being made; and that no new will had been made: and he refused probate.

38. An example of a case in which an argument of dependant relative revocation failed is In the Goods of John Joseph Walsh, deceased(1947) Ir. Jur. Rep. 44. The deceased in that case had made his will in November, 1944 and in the following June taken it away from his solicitors expressing the intention of destroying it and making a new will. He later confided in a friend that he had destroyed his will and discussed making a new one. After his death on 1st June, 1946 an application by his niece for a grant of administration intestate was opposed by those who would have benefited from the will. Haugh J. distinguished Dixon v. Treasury Solicitor focussing in particular on the much longer gap in time between the destruction of the will and the death and on the fact that the testator in Dixon had given instructions for a new will, which the solicitor had drafted “ but when he came back with it he found his client dead.”

39. Another case in which reliance on the doctrine failed was In the Goods of Coster, deceased, to which I have referred. The deceased in that case made her will on 1st October, 1971 and left it with her solicitors but about two years later, on 18th October, 1973 called to collect it. She did not say why she wanted it. After she died on 16th October, 1976 the will was not to be found but what was found among her papers was an uncompleted printed Eason will form which somehow or other had been shown to have been purchased by her between 1st February, 1973 and 31st January, 1974. There was nothing else to rebut the presumption of revocation, so the question was whether the revocation by destruction had been conditional. The Supreme Court decided that it was not. Kenny J. approved of what he said was the pithy summing up of the rule by Lord Justice Roskill in Re Jones, deceased[1976] 1 All E.R. 593 at 603 (which like Coster and like this case, was one of mutilation):-

“… a mere intention to make a new will, however clearly shown, is not enough in itself, as the authorities show, to make the revocation conditional.”

40. Noting the judgment of Haugh J. in In the Goods of John Joseph Walsh, deceased Kenny J. found that the revocation by destruction was absolute and the Supreme Court declared that the deceased died intestate.

Decision
41. The principles of law are well settled. The 1997 will is shown to have come into Fr. Mannion’s possession in 2007 and – save as to the fourth page – was not among his papers when he died. The other four pages are presumed to have been revoked. The question is whether the revocation was conditional on the validity of the 2014 document. That is a matter of the deceased’s intention.

42. Fr. Mannion’s declared intention when he recovered his will from Ms. Guadiano was to appoint a new executor as opposed to make a new will. I think that the intention evident from the 2014 document as to what he intended might become of his motor car and piano were ancillary to that object and dictated by his change of residence. The 2014 document shows that Fr. Mannion then had in mind the Missionaries of Charity in South Circular Road as well as the Bronx but that is not material. The fundamental premise of the doctrine of dependant relative revocation is that which might have been better should not be the enemy of the good.

43. There is no direct evidence as to when the 2014 document was created. The envelope was handed to Mr. Shields long after Fr. Mannion had declared to Ms. Guadiano his intention to appoint him as his executor, but I have the evidence of Ms. Guadiano that the 1997 will was given to her shortly after she had agreed to act as executrix and I have the evidence of Mr. Shields that the envelope containing the 2014 document was given to him immediately after he was asked and agreed to act. To do the same thing twice may not always amount to a pattern, but Fr. Mannion consistently entrusted the original of what he intended to be his wills to his executors. I think it unlikely that Fr. Mannion would have prepared the 2014 document and then kept it for any significant length of time before giving it to Mr. Shields.

44. I accept Mr. Hourican’s submission that I can properly have regard to the fact that the original pages of the 1997 will are not only missing but were physically replaced by pages which Fr. Mannion appears to have believed would be entitled to probate. It is, I think, a matter of very considerable significance that page four of the 1997 will not only survived but was central in the manufacture of the 2014 document. Although I have no direct evidence of what happened I think that I am entitled to confidently infer that the deconstruction of the 1997 will and the construction of the 2014 document took place at the same time. Rather than saying that it would not make sense, I will say that I think it unlikely that Fr. Mannion might have destroyed all but the fourth page of the will and then set it aside for use at some indeterminate time in the future for incorporation in whatever alternative will he might decide to make. I am satisfied that the deconstruction of the will and the confection of the 2014 document were contemporaneous and that the two were wholly interrelated. Fr. Mannion went to a good deal of trouble to put the 2014 document together and clearly did not intend to die intestate. I am satisfied that I have sufficient evidence from which I am entitled to infer that Fr. Mannion’s intention to revoke his will was dependant on the validity of what he intended would be its replacement.

45. For these reasons my conclusion is that the revocation by Fr. Mannion of his will dated 11th June, 1997 was conditional. The condition of the validity of what was intended to replace it was not fulfilled. No new will was made and the copies of the original pages, with the one original page, are entitled to probate.

46. There is a further element to the application. Ms. Guadiano in making this application has honoured her promise to her friend but declares that she is 87 years of age and not in particularly good health. The administration of the estate will later entail an application in Texas to secure the release to the estate of the bank deposit there in Fr. Mannion’s name but will have to start with the extraction of the grant of probate in Ireland. Besides, she says, it was Fr. Mannion’s wish that Mr. Shields would administer his estate. Ms. Guadiano asks, with the concurrence of Mr. Shields, for an order pursuant to s. 27(4) of the Succession Act, 1965 appointing him as administrator with will annexed.

47. As to the practicalities of the administration of the estate, I think that at this stage most of what needs to be done in Ireland probably has been done already. While I am entitled to look at the 2014 document as evidence of Fr. Mannion’s intention as to the revocation of his will I think that I would be on extremely thin ice jurisprudentially to have regard to it as his testamentary intention. Nevertheless, Mr. Shields has demonstrated his ability and energy and Ms. Guadiano, who could have simply renounced, has done as much and more as could reasonably have been expected of her. I am satisfied that there are sufficient special circumstances that make it is expedient to order that administration be granted to Mr. Shields.

48. If, in a roundabout way, Fr. Mannion’s object that Mr. Shields should administer his estate has been achieved, his object in avoiding lawyers’ fees has fairly spectacularly failed. The costs of this application must be borne by his estate.

In the Goods of Elizabeth Raghtigan, Deceased

Probate and Matrimonial Division.

15 March 1892

[1892] 26 I.L.T.R 93
Warren J.

March 15, 1892

A will contained no residuary clause in the body thereof, but one was added at the bottom below the attestation clause:

Held, that probate of the residuary clause could not be granted, nothing appearing on the face of the will to take it out of the provisions of the Wills Act.

A. F. R. Stritch, applied for a grant of probate of the last will and testament of Elizabeth Raghtigan, deceased, dated Jan. 1, 1890. The said will was written on the blank pages of a former will dated Oct. 1, 1888, which former will the testatrix did not revoke. An application had been made to the Chief Registrar to admit the second will to probate, which had been refused on the ground that there was a clause below the signature of the testatrix of which probate was asked. He cited In re Ffrench, 23 L. R. I. 433; Re Coombes, L. R. I. P. & D. 303; Re Kempton, 3 Sw. & Tr. 427; Re Ainsworth, 2 P. M. 151; Re Streatley, 39 W. R. 432; Robert & Phillips, 4 E. & B. 450.

The President.—There is a distinct proviso in the Wills Act that no signature shall give effect to any disposition or direction which is underneath, or which follows it. There is nothing in this will to take it out of the Act. Here there is a complete will written to the third page, carried down on the fourth page, and there signed; below that the words “ all the residue ” down to the end of the residuary clause. I can find no similar case in which probate was granted, but I can do all the parties want in another way. The intention of the testatrix was to revoke her former will; her intention failed because the residuary clause was invalid in point of law. The intention of the testatrix would be carried out by granting probate of the two paper documents of Oct. 1, 1888, and Jan. 1, 1890, omitting the said residuary clause. I therefore declare the said two paper documents omitting the said residuary clause to be her last will and testament, and admit them to probate. The application being on behalf of the executors, no order as to costs.

Cases Revocation

In the Goods of Mulock

[1933] IR 171
Hanna J.

HANNA J. :
3. March

Questions similar to that which arises in this case have in many instances caused considerable difficulty. It is a question of the construction of the terms of the will and codicil.
The first question is whether, on the construction of the terms of the documents, the Court can delete from the codicil to the testator’s “last will” the identification of the latter document by a date which is alleged to be incorrect; and the second question is, whether there has been shown from the circumstances of the case and having regard to the terms of the codicil, such a latent ambiguity as would admit extrinsic parol evidence that the date was inserted through a blunder of the solicitor in drafting and engrossing the codicil.
The circumstances relied upon to show that there is a latent ambiguity are as follows: The testator was Francis Berry Mulock, of Bellair, King’s County, who died on the 17th September, 1932. He had been in the habit of executing wills and codicils at short intervals, and during the preceding years from 1920 had executed no less than 15. The last testamentary document that he executed was a codicil, dated the 11th August, 1931. After his death this codicil and a will, dated the 13th May, 1929, were found in the testator’s Bank both together in a sealed envelope, endorsed “Will and one Codicil.” In the codicil itself he refers to it in these words: “I declare this to be a first codicil to my last will dated the twenty-first day of November, 1927.” At the end of the codicil he says:”In all other respects I confirm my said will,” and in the attestation clause it is described as “a first codicil to his last will and testament.” In neither of the two last declarations is the date of the document mentioned. He had undoubtedly made a will on the earlier date mentioned, 21st November, 1927. But he had also made two wills subsequently, one on the 2nd July, 1928, which revoked that of the 21st November, 1927, and another on the 13th May, 1929, which in its turn revoked all wills previously made including that of the 2nd July, 1928. The wills of 1927 and 1928 had therefore, at the date of the execution of the codicil in 1931 both been revoked and his last will in fact was that of the 13th May, 1929. Further, the evidence of the surrounding circumstances shows, and I would so find, that the revoked wills had both been destroyed by the testator on the execution of the succeeding wills. Further, it must be observed that the codicil contains this recital: “At the suggestion and by the express wish of my daughter Enid Nutting I hereby revoke the life interest in my Bellair estate given to her by my said will and instead I hereby devise and bequeath my Bellair estate unto my grandson Edward Christian Frederick Nutting absolutely subject to the following conditions . . .” The will of 1927 as well as the will of 1929 did grant a life interest in the Bellair estate to his daughter Enid Nutting, but, with this difference, that the earlier will gave an ultimate contingent remainder in the Bellair estate to the testator’s son Edward if the two preceding contingent remainders failed. This ultimate remainder does not appear in the will of 1929. This is a slight difference and it may not be sufficiently substantial to point definitely as a guide to one will rather than another.
Apart from the extrinsic evidence which has been tendered in the case, the question that arises on the documents is whether the declaration in the codicil when considered in the light of the authorities, does clearly and unequivocally, firstly, revoke the will of 1929 and, secondly, revive the revoked and destroyed will of 1927.
There are four lines of authorities as to the effect of a codicil to the last will referring in testamentary terms to an earlier will, On the first point we have to consider, some of the cases are difficult to reconcile, but, on a consideration of the more important of them, they can be divided into four classes: 1, where the reference in the codicil to the earlier will entitled the latter to be included in the grant along with both the later will and the codicil; 2, where the reference revoked the later will and revived the earlier, so as to include it in the grant with the codicil; 3, where it was sufficient to revoke the later will but not to revive the earlier, and resulting, therefore, in an intestacy; and 4, where the reference was held to be of no effect, being merely “falsa demonstratio.”
In considering all these classes of cases it has been pointed out that, even though the reference to the previous will be due to the carelessness of the solicitor, once the document is executed it must be treated by the Court as a declaration by a competent testator himself. The Court is not over willing, even in modern times, to alter the words of a will on the allegation of mistake, and in the earlier cases it had to be coerced by the evidence to such a conclusion, the view being that making such a course easy would open a path to much contention, conflict of evidence, fraud, perjury and mere conjecture. These cases have always to be considered with great care for, as Sir James Hannen said in In the Goods of Stedham (1): “It is always extremely difficult to apply any principles of law to a gross blunder.”
I shall now proceed to consider the various lines of cases I have indicated, which I think can be distinguished into their several classes. Of the first class, where both the earlier will, the later will and the codicil are all three admitted to probate, we have several illustrations. In In the Goods of Stedham (2), the testator made a will and afterwards another, which by implication revoked the former will. Subsequently, by the terms of a duly executed codicil, he by mistake referred to the former, instead of the later, will. It was held that the codicil by its language revived the former will, and that as the later will was not revoked by the codicil, all three documents must be admitted to probate. At p. 206, Sir James Hannen said: “The solicitor who was instructed to prepare this codicil, instead of making a codicil to the will of 1878, made a codicil to the will of the 21st of May, 1877, and I was asked to treat it as a mere mistake as to the date and to allow probate of the codicil together with the last will of February, 1878. I am unable to do so, for this reason, that it was not a mere mistake as to the date of the will to which it was intended to append the codicil, but the mind of the solicitor, which must be treated as that of testator, was actually applied to the provisions of the will of 1877, and he employed the terms and language of that will of 1877. . . . Having given the case the best consideration I can, I have come to this conclusion, that the codicil thus referring to the will of 1877, so far confirms, and brings that will into existence, that it must form part of the probate in order that the codicil may have an interpretation put upon it; and that as the will of 1878 does contain also the most important of the testamentary dispositions which the testator has made and which have never been revoked, the will of 1878 must also be admitted to probate.”
In In the Goods of Dyke (1) a second will, dated the 9th October, 1878, had been prepared by a solicitor, but subsequently a codicil was prepared by a layman from instructions given him by the testator from the first will, dated the 29th October, 1878, and which was produced. The codicil professed to be a codicil to the first will and confirmed it save in respect of the alterations which were made thereto. In giving judgment Sir James Hannen said (p. 208): “Where a simple mistake has been made as to the date of an instrument, the mistake can be set right, but in a case like this, where the mind of the draftsman, whether the testator himself, or someone employed by him, has been really applied to the words of a particular instrument, it is impossible for me to say that it was by mistake that that instrument was referred to instead of another. It is plain that that was the actual instrument which the then draftsman had in his mind, and it is not possible to avoid the conclusion that the codicil, which purports to be a codicil to the will of the 29th of October, 1878, and which, after making certain alterations, confirms that will in all respects, does revive that will. But has it by implication revoked the intermediate instrument of the 9th November, 1878? It does not do so in terms or except where it deals with the same subject matter. The result, therefore, seems to be that in consequence of the unfortunate error which has been fallen into, I must grant probate to all three instruments, and leave it to a Court of construction to interpret them together.”

In In the Goods of Edge (1), Warren J. followed the principle laid down in Stedham’s Case (2) and Dyke’s Case (3)The testator made a will on the 13th March, 1876; a second will on the 29th April, 1876 (by which he revoked the former will, and made some changes in the dispositions of his property); and a codicil, dated the 9th June, 1880, commencing thus: “I make and publish this codicil to my will, dated the 13th March, 1876. I cancel the gift of £400 willed to my son William, I having paid him that amount since I made said will.” It was held that the codicil revived the first will, and that all three documents should be admitted to probate. Warren J. said (p. 518): “It is impossible, in the absence of clear evidence of mistake if such evidence was admissible to hold that the testator did not mean that the codicil should be a codicil to his will of the 13th of March, 1876, and that shows a clear and necessary intention to revive that will. . . . It appears to me that I must grant probate of the three documents propounded.”
In In the Goods of Chilcott (4), a testatrix in 1889 made a will, and in 1892 instructed her solicitor to prepare a codicil, which she took away with her, but never executed. Later in 1892 she executed a fresh will, prepared by a different solicitor, revoking the former will. In 1893 she executed a codicil, prepared by her original solicitor, who was ignorant of the existence of the second will, and believed that the codicil to the first will had been duly executed; this codicil purported to be a second codicil to the will of 1889, and to confirm “my said will and the first codicil thereto.” It was held that the codicil, by its language, revived the earlier will, and that both the wills, together with the codicil, must be admitted to probate. Gorell Barnes J. at p. 225 said: “The point taken by learned counsel is that the testatrix in signing the codicil of 1893 made a mistake owing to the fact that her solicitor was not informed of the true state of the facts, and that she really desired to confirm the will of 1892. The difficulty in the way of acceding to this application lies in the express language of the codicil. In distinct terms it refers to the will of 1889, and it expressly confirms that will and what the solicitor supposed to be the first codicil. . . . There can be no doubt that the solicitor, who only knew of the existence of the first will, and supposed that the intended codicil to it had in fact been executed, applied his mind to the first will, and then drew the codicil of September 7th, 1893, which was duly executed. The result does not express, I am aware, the real intention of the testatrix; but I can only deal with the documents as they stand. I think, therefore, that all three documents must be admitted to probate.”
In In the Goods of Carlton (1), Madden J. followed Stedham’s Case (2). The facts were that a testator made a will, and afterwards another which contained the usual clause revoking all prior wills and testamentary dispositions. Subsequently he duly executed a codicil, which, by mistake, was endorsed on and referred to the earlier will. It was held that all three documents must be admitted to probate. The codicil endorsed on the earlier will dealt only with a legacy to the testator’s son, which was contained in the earlier will and codicil thereto, as well as in the testator’s later will.
Now, in the cases under this first head, it is clear that if the Court was satisfied that the draftsman, whether by mistake or not, had in fact referred to, or had in his mind, the terms of the earlier revoked will, and there was no revocation of the later will, then the three documents must be admitted to probate, leaving it to a Court of construction to reconcile them, if possible.
Now, let us consider the second class of cases where the reference in the codicil to the earlier will was held not only to revive it but to be sufficient evidence of intention to revoke the later will. The earliest case is Walpole (Lord)v. Cholmondeley (Earl) (3), also reported on an equity reserved, sub. nom. Walpole (Lord) v. Orford (Lord) (4).This case was, of course, before the Wills Act. The facts were, that the testator, Lord Orford, by a codicil in 1776 reciting that he had devised his real estate by his last will, dated 25th November, 1752, charged his real estate with his debts and the legacies given by the codicil and appointed executors. He had executed another will in 1756 in pursuance of an agreement with Lord Walpole to execute mutual wills with reciprocal limitations in the instruments in favour of each of their families in case of the failure of issue of either of them. In Lord Orford’s codicil of 1776 he declared it to be a codicil to his last will and testament as follows: “Whereas I have made my last will and testament, dated the 25th day of November, 1752, . . . whereby I have devised all my real estate. . . .” The recital was correct as to the contents of the will of 1752 in respect of the real estate. The attestation clause to the codicil was: “This writing was signed
and sealed by the above-named George, Earl of Orford, and by him published and declared, as and for a codicil to his last will and testament. . . .” Evidence was offered to show that a mistake had been made as to the document to which the testator desired to add the codicil. This evidence was held by the Court of King’s Bench to have been properly rejected at the trial of the issue as to the revocation of the will of 1756. In the report of the actual trial (7 T. R. 138), where the facts appear, the grounds for excluding parol evidence are set out by Lord Kenyon, Chief Justice, which I consider later. He held that the codicil operated to revoke the will of 1756 and to revive and republish the will of 1752. Apart from the question of the admissibility of the parol evidence, upon which it is the leading case, the principle of the decision on the construction of the words of the will would seem to be that there was no latent ambiguity and that the description of the contents of the earlier will was so definite that it ear-marked that will as being intended as the operative will of the testator. It would seem also that the intermediate will of 1756 was not forthcoming and that the blanks left in the codicil for the particulars of the earlier will had been filled in by the testator himself after it had been drafted by the solicitor. (See Lord Kenyon’s judgment at p. 149.)
The other Judges, Grose J. and Lawrence J., were of opinion that, as used in that case, the words “last will”meant no more than “a will,” meaning the last disposition the testator intended to make of his property. In the report of the case (1), upon an equity reserved, the Lord Chancellor, Lord Loughborough, accepted the decision of the common law side and (at p. 416) said: “. . . the only disposition made by testament is comprised in the will of 1752 and the codicil of 1776; which united make but one instrument.”
In In the Goods of Chapman (2), which goes on the same lines, the documents were a will of the 29th January, 1842, and two codicils of later dates in the same year; a will of the 30th May, 1843, followed by a codicil of the 10th June, 1843 (which commenced in these words: “This is a codicil to my will, bearing date, the 29th January, 1842”); and then there was a codicil dated 24th August, 1843, declared to be a codicil to the will of the 30th May, 1843. Dr. Lushington, the presiding Judge, held that the effect of the codicil of the 10th June, 1843, purporting to be a codicil to the will of 1842, by reason of its terms revived the will of 1842, and the effect of the codicil of August, 1843, was to revoke the revived will of 1842 and the reviving codicil of June, 1843, to that will, and to reinstate the will of May, 1843. He held further that he was not entitled to consider parol evidence of mistake as “a case, long since decided, has set that question at rest; it is the well-known case of Walpole v. Cholmondeley (1). Since that case was decided the present Statute of Wills has been passed; but I apprehend that this statute has made no difference, with regard to the reception of parol evidence, in the rule laid down under the Statute of Frauds. The only difference (and it is not a distinction) is this this Court now acts the part of both Judge and jury; but can receive no other evidence than what might have been received under the Statute of Frauds.” He then cites the facts of Walpolev. Cholmondeley (1) and continues: “No doubt it was a mistake, but in the codicil were words by which the testator referred to the will of 1752, and the codicil was declared to be ‘a codicil to his said will.’ Now, in that case, there was parol evidence offered which would, beyond all doubt, have established the mistake; but it was held that the parol evidence could not be received.”
In Payne v. Trappes (2), one entire part of a will in duplicate was in the possession of the testator undestroyed, the other part, which had been in the possession of his solicitor, had been destroyed by the testator on the execution of a subsequent will, made in 1838, in terms revoking the prior will. The undestroyed part of the will was held to be revived by a codicil made subsequently to the second will, though referring to the first will merely by date, and it was held that that reference sufficiently showed the intention to revive required by sect. 22 of the Wills Act, and that parol evidence was not admissible to establish a mistake in the date. Sir Herbert Fust, in giving judgment, followed the principle laid down in Chapman’s Case (3) and said (p. 591): “It is undoubtedly true that when a will is revoked an intention to revive the same must be shown; but it was said that in the present instance there is merely a date given in the codicil and that alone cannot show that intention, as the date was inserted by mistake, and that something more is required. I cannot act on the mere suggestion of a mistake; were I to do that I would have to substitute one set of figures for another a most dangerous precedent to start. I must gather the intention from the codicil itself.”
In Thomson and Baxter v. Hempenstall (1), Dr. Lushington explains the decision in Payne v. Trappes (2) as being one grounded upon a submission that the testator had destroyed a duplicate of the earlier will in 1837 and that, no parol evidence being admissible, the words used could not by any possibility revive and republish the later will.
In In the Goods of Reynolds (3), Sir James Hannen gave a decision which must be placed under this head, though in view of the fact that the case was subsequent to In the Goods of Steele (4), it is difficult to explain, inasmuch as it was the same Judge, Sir James Hannen, who, in the Canadian Appeal before the Privy Council of McLeod v.McNab (5), said that the principles laid down by Wilde J. in Steele’s Case (4) “had been acted upon ever since.”In In the Goods of Reynolds (3) Bryan Reynolds executed a will in May, 1866, and a codicil to it in May, 1871. In November, 1871, he executed a will which revoked all previous testamentary papers . In 1872 he executed a paper headed: “This is a codicil to the will of Bryan Reynolds, dated May, 1866.” It concluded with the appointment of his son as executor of the will and codicil, and the attestation clause commenced: “Codicil to the will of Bryan Reynolds, dated May, 1866.” It was held that the only intention to be gathered from the words of the codicil was that the testator intended to revive the will of 1866, but not the codicil thereto of May, 1871. The only reason given by the learned Judge (p. 36) was “There is nothing to show that the testator did not mean what he said, namely, that it should be a codicil to that will. The result is that, in effect, he revived that will.”
The principle to be derived from this second class of case would seem to be that they were cases to which the reference to the earlier will was so ear-marked either by the contents of the codicil or by the other testamentary documents, that the Court held it showed an intention to revive it alone as the last will and revoke the later: in some of the cases nothing more was shown than the unexplained insertion of the earlier date, and the earlier will was not referred to as the last will, save in Walpole v.Cholmondeley (6), where it may be explained by the fact that the finding of fact by the jury was accepted by all the Courts as an indication that there was no latent ambiguity such as to admit parol evidence. In all these cases the earlier wills were in existence as wills at the time of the application to the Court.
In the third class, the important Irish case of Newtonv. Newton before Keatinge J. (1), and the Court of Appeal in Chancery (2), stands by itself in its final decision, though the principle of the previous class was accepted. The Court of Chancery Appeal, in reversing Keatinge J. on the application of the principle of dependent relative revocation, held that there was an intestacy by reason of the destruction of the final codicil. The facts were that the testator made a will on the 4th February, 1858, which he subsequently destroyed. After its destruction he made a will on the 11th of January, 1859, containing a disposition of his property different from that contained in his former will. These two wills were prepared by different solicitors. He afterwards applied to the solicitor who prepared the will of 1858, and was ignorant of the existence of the will of 1859, to prepare a codicil. The codicil, dated the 16th of February, 1859, on its face professed to be a codicil to the will of 1858 and referred specifically to the provisions of that will. This codicil of 1859 the testator afterwards destroyed with the intention, it was alleged, of setting up the will of 1859, and he died without making any further testamentary disposition.
Keatinge J. held that the final codicil could not revive the will of 1858 inasmuch as that will had been already revoked and destroyed, and that there was nothing in the codicil to revoke the will of 1859 and that, on the doctrine of dependent relative revocation, taking all the documents together, he was entitled “to extract from them an intention”the words of Dr. Lushington in Hale v.Tokelove (3)that if the codicil of the 16th February, 1859, should fail to set up the will of 1858, the will of 1859 should prevail. The Court of Appeal agreed with the first proposition of the judgment of Keatinge J. that the revoked and destroyed will of 1858 could not be revived, but disagreed with his view that an intention could be extracted from the documents that the testator intended that if his will of 1858 should not be established his will of 1859 should prevail. They accordingly held that an intestacy resulted. The Lord Chancellor (at p. 130) said: “I am, therefore, of opinion that the judgment of the Court below is erroneous, so far as it declares that the will of 1859 was not revokedthat the effect of the codicil [of 16th February, 1859] was to revoke that will, and to declare that nothing but the will of 1858 should be the will of the testator; and as that will had been previously destroyed, and could not be incorporated in the codicil, the result is, that we must declare that John Newton died intestate.”Lord Blackburn, Lord Justice of Appeal (at pp. 131, 132) said: “But this will [i.e., that of 1858] had been destroyed and revoked in 1859; it was, therefore, a mistake no matter from what cause, to describe it as this codicil does, but a mistake that the Court has no power to correct: . . . This mistake, never made known to the testator, and which was found out after he had died, showed that what he had intended and expressed his intention to do was not practicable.”
Lord Blackburn also said (at p. 135): “I am, therefore, of opinion that it would be unsafe and unwarrantable, by the rules of evidence, otherwise to expound this codicil, than by referring to its own language, or to infer that he meant to provide for a casualty of which he then had no idea or apprehension, and the occurrence of which never could have been anticipated by him.”
The fourth class of case, is that, mainly of more modern instances since 1868, in which the erroneous reference in the last codicil to the earlier will has been rectified by the Court. The leading case on this is In the Goods of Steele (1),with which are associated in the same report the cases of In the Goods of May , at p. 581, and In the Goods of Wilson ,at p. 582. These cases all turn on the true construction to be given to the words of sect. 22 of the Wills Act, the relevant portion of which is: “No will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same.” The decisions in these cases were given by Wilde J.; he held that, in order to satisfy these words of the statute, the intention must appear on the face of the codicil either by express words referring to the will as revoked and importing an intention to revive the same, or by a disposition of the testator’s property inconsistent with any other intention, or by some other expression conveying to the mind of the Court, with reasonable certainty, the existence of the intention. He also was of opinion that since the passing of the statute a will could not be revived by implication and that in the cases before him the references in the codicils to revoked wills by their dates, was insufficient to revive them, there being no internal evidence on the face of such codicils of an intention to revive the wills so referred to. In these three cases the wills had not only been revoked but also destroyed. In each of them the revoked and destroyed will was described as the last will. At p. 578 the learned Judge points out that before the Act all codicils were held to revive the will to which they were codicils, if such wills had been previously revoked, and he decided that the wording of the section was to do away with this revival of revoked wills by mere implication. At p. 579 he says: “I conceive that, in the vast majority of cases, when a man declares his intention that a particular paper, varying his previous dispositions, shall be taken as a codicil to his ‘last will and testament,’ he means that which is really his last will and testament, his then existing will, and the dispositions of his property then in force. . . . The Court ought to be slow to conclude that a testator has manifested in this indirect way a desire to revoke his last will, and it should scrutinise narrowly the language of a codicil which is said to show such an intention.”I am not aware of any case expressly supporting the last sentence of the proposition, though it is not open to question as a general statement of practice in modern times. Keatinge J. in Newton v. Newton in his judgment (at p. xiii. of the Appendix to 12 Irish Chancery Reports) said: “There are strict rules of law which may work injustice in particular cases, and may compel a Judge to attribute to a testator an intention which he may be quite satisfied the testator never entertained; and he may feel himself obliged, therefore, to decide against what appears to him to have been his real duty.” Dr. Lushington, in Thomson and Baxter v. Hempenstall (1), says: “Questions which arise with reference to latent ambiguities are often of great difficulty, but the principles which ought to govern are, I apprehend, satisfactorily settled. It must be my duty rigidly to adhere to the principles so fixed.” In more recent cases the Courts have not taken such a strict view, and the principles laid down by Wilde J. have been accepted: McLeod v. McNab (2). The facts of the three cases before Wilde J., as to which he made the general observation I have quoted, differed. In Steele’s Case (3)the learned Judge held (p. 581) that there was a latent ambiguity, but he did not refer to the affidavits filed, as he found that on the face of the documents themselves there was no intention shown with “anything like sufficient distinctness to revoke the testator’s last will and revive the former one.” The codicil of the 12th January, 1868, which was declared to be a codicil “to his last will and testament, which will bears date the 16th day of January last past,” (i.e. the 16th day of January, 1867), referred to a legacy to his nephew of £100 which was contained in the will of the 16th January, 1866. That will had been revoked by a will of the 25th October, 1866, which reduced the legacy to £50. The Judge held that the memory of the testator, an old man past 80, was at fault, and that there was “no trace of a desire to depart from it” to be found on the face of the codicil. He accordingly gave probate of the will of the 25th October, 1866, and the codicil. This case is strongly relied upon on the present application.
In May’s Case (1), the codicil referred to the earlier will as “the last will” and by date. There was no internal evidence in the contents of the codicil varying the contents of the earlier will. Some months after the execution of the earlier will the testator had been married and made a fresh will, in terms revoking his former one, from which he had torn the signature. The learned Judge held that the date of the earlier will on the face of the codicil itself, was not sufficient evidence that the testator entertained an intention to revive the former will, and he added that he could conceive no motive for it “In a word, the codicil read by the surrounding circumstances of the case fails to show the necessary intention.” He did not decide the case on the parol evidence of mistake made by the attorney but on the facts disclosed by the testamentary documents themselves. In Wilson’s Case (2) he decided there was no intention to revive the earlier will because in the final codicil, which referred to the first will by date, “it was plain to demonstration, from the contents of the codicil itself, that he was really referring to the [later] will of 1861.”There were specific references to bequests referred to by the number of the line in the later will, which he established with the codicil. This case would seem to me to fall under the first class of cases. No parol evidence was relied upon.
The case of Thomson and Baxter v. Hempenstal (3), though an early decision (1849), is interesting under this head, inasmuch as the reference in the last will to the earlier will was correct in date but wrong in the description of its contents. The testator left several wills, but by the last, executed in 1844, he revoked all former wills, “except my will, bearing date the 13th December, 1831, which relates exclusively to the reversion in fee of the Tong Castle Estate.” No will was found fully answering this description. The will of 1831 had been revoked in 1835, and did not relate “exclusively” to the reversion in fee of the Tong Castle Estate. The only will that did relate”exclusively” to the reversion in fee of the Tong Castle Estate was one dated May 22nd, 1839. It was held upon the construction of the testamentary documents and the state of the testator’s family that the will of 1831 was not revived, and that the will of 1839 was intended. Dr. Lushington held that there was a latent ambiguity and said (p. 786): “Apparently this passage” (in the last will)”is not subject to doubt, for the instrument referred to is described by its date and contents. If any doubt can be raised, it must arise from facts and circumstances dehors the will of 1844; in other words, if there be a doubt, it is a latent ambiguity.”
The case of Rogers v. Goodenough (1) falls into line with the cases where there was a failure to revive the revoked earlier will by a last codicil. The testator made a will in 1858 and another in 1859, the latter containing a clause of revocation, whereupon the earlier will had been destroyed. In 1860 he made a codicil and expressed the wish “that this should be added as a codicil to my last will, made in 1858.” It was held that the codicil of 1860 could not, by its reference to the will of 1858, give it validity as a will in writing to satisfy sect. 9 of the Wills Act, and that, as the codicil did not contain any express intention to revoke, and did not set up an inconsistent will, it did not, in law, under sect. 20 of the Wills Act, revoke the will of 1859. Probate was granted of the will of 1859 and the codicil of 1860.
If we follow the more recent cases in order of date we find the same principle applied. In McLeod v. McNab (2)Lord Hannen, in delivering the judgment of the Privy Council in a Canadian case, where a similar question of revival and revocation arose, said: “It has been decided in many cases that the intention must be found in the instrument itself; and it may be taken that the recent decisions have established that a mere reference to the document intended to be dealt with, whether will or codicil, by its date, is not sufficient in itself. The date is an important element in the consideration, but it is not to be taken by itself it becomes necessary to look to the context, and to anything else in the document which may explain whether the intention of the testator was to confine the action of the testamentary disposition under consideration to the document of that date, or to extend it to something more.”
In In the Goods of Gordon (Lady Isabella) (1), the facts were that a codicil made in 1891 was described by the testatrix as a codicil to her will of the 29th March, 1887, which had been revoked by a later will of 1889. The argument proceeded on the ground that it was a mistake, and evidence was given in support of this contention. Jeune J. granted probate of the will of 1889 and of the codicil with the erroneous date excluded, but he gave no reasons for his judgment. Counsel had relied upon the case of In the Goods of Anderson (2) where the facts and decision were similar. In that case Lord Penzance was of opinion that there was nothing in a codicil to a will made in 1864, which showed an intention to revive that will, and he also referred to the fact that the codicil alluded to the death of the testator’s son, which occurred after a later will had been made in 1865. On these grounds he thought there was clearly a mistake in the codicil as to the date of the will intended, and he granted probate of the later will and the codicil. Finally, in In the Goods of Reade (3), Gorell Barnes J. followed Rogers v. Goodenough (4). The solicitor who had prepared the first of two codicils to a will made on the 10th day of January, 1895, but was unaware of a subsequent will of 1898, which revoked the will of 1895 and its codicils, which had been destroyed in 1900, prepared a codicil, dated the 20th July, 1900, which was described as a “codicil to my will dated the 10th day of January, 1895,” and which concluded with a confirmation of the will “as altered by the codicils thereto.” The learned Judge held in a short judgment that the last codicil did not disclose any intention to revoke the later of the two wills, and that he could see no objection to leaving out of the codicil the words of reference to the earlier will, a course which he admitted to be in accordance with the decision in Rogers v. Goodenough (4). See also Jane v. Jane (5), and In the Goods of Ince (6).
From the consideration of these four classes of cases it would seem that the facts of the present case fall most probably under the last head. On the construction of the testamentary documents, in my judgment the will of 1929 is not revoked merely by the reference to the earlier will by date and as “my last will.” In the codicil the testator purports by its contents to alter his devise of the life estate in Bellair to Lady Nutting. This estate is mentioned in both the will of 1927 and that of 1929, with this slight difference, that there is a very remote contingent remainder given in the earlier one to his son Edward, which is omitted in the later will. Notwithstanding that I have the consent of the son to the establishment of the will of 1929 with the codicil, I do not think that the difference in the terms of the devise in the two wills is sufficient to coerce me, in face of the other matters in the documents, to come to the conclusion either that the solicitor who prepared the codicil had the will of 1927 before his mind or that the testator intended to deal with that will. I think that the recital under the circumstances can be taken as a neutral fact.
If the will of 1929 has not been revoked, the will of 1928 goes out as revoked thereby, and the next question is whether the will of 1927 has been revived? Sect. 22 of the Wills Act enacts that no will or codicil, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner thereinbefore required, and showing an intention to revive the same. It has been submitted that there are two answers to the revival of the will of 1927 which should prevent the Court from including it in the grant along with the will of 1929 and the last codicil. The first argument is that the mere reference to the revoked will by date is not a sufficient showing of an intention to revive it; and the second argument is that the revoked will was destroyed and that there is only forthcoming a copy.
On the first point, as to the revival, the principles to be applied were set out in an authoritative judgment by Cresswell J. in Marsh v. Marsh (1). After setting out sect. 22 of the Wills Act he proceeds: “The codicil, therefore, must show the intention to revive. It may be assumed that a codicil to a will shows an intention that some will should be operative, and, prima facie, the last existing will, especially, if that revoked all others, must be taken to be the will intended. . . . It appears to have been the object of the Legislature to put an end equally to implied revocations and implied revivals.” This was a case where the last codicil was physically attached to revoked testamentary documents and he held it was no evidence of an intention to revive them within the statute. The question of revival was also considered by Wilde J. in Steele’s Case (2) where he accepted the principle laid clown in Marsh v. Marsh (1) and gave his own view (which has since been accepted) with great clearness. Dealing with the law before the Wills Act he says (p. 578): “In brief, it would not be wrong to say that all codicils to wills were held before the Act passed to revive the wills to which they were respectively codicils, if such wills had been previously revoked. . . . Such being the state of the law before the Act, I hesitate to accept the conclusion, that the express words of the section meant to leave the matter in the same state in which it would have stood if they had never been introduced. If the merely declaring that a particular paper was to be taken as a codicil to a particular will was all that the Legislature required, when it enacted that the codicil should ‘show an intention to revive’ a revoked will, the words ‘showing an intention to revive the same’ were quite needless, for every codicil to a revoked will, by force of being a codicil to such will, so showed it. I therefore infer that the Legislature meant that the intention of which it speaks should appear on the face of the codicil, either by express words referring to a will as revoked and importing an intention to revive the same, or by a disposition of the testator’s property inconsistent with any other intention, or by some other expressions conveying to the mind of the Court, with reasonable certainty, the existence of the intention in question.” His view, therefore, was that the reference to the will by date was not sufficient to revive it and he accepted the view of Cresswell J. that the words “last will,” prima facie referred to the real last will. And in Steele’s Case (2) even the co-operation of that phrase “last will” with an erroneous date was not sufficient without some indication of intention.
In the Goods of Reynolds (3) has given me some difficulty. The only distinction I could make from the above case, with which the decision conflicts, is that the earlier will which was held to be revived was not described in the codicil as his “last will” but only as his will.
But even if the words of this codicil had been sufficient to revive the will of 1927, it has been argued that probate could not be granted of it inasmuch as it had been destroyed before the execution of the codicil, and that the exhibition of a copy to the Court is not sufficient. As this point has not arisen for many years I think it advisable to state briefly the law with reference to it. I think it is well settled since the decision in Hale v. Tokelove (4), the judgment of Keatinge J. in Newton v. Newton (1), and that of Wilde J. in Steele’s Case (2).
In Hale v. Tokelove (3) (at p. 327), Dr. Lushington dealt with the destruction of a will which had been revived by a later codicil. He said: “One of the most important facts pleaded in this allegation, and which I must assume to be true, is that the will of 1842 was destroyed destroyed of course animo revocandi, by the testatrix prior to January, 1846, when the codicil of that date was executed. . . . I can construe that codicil to revive and confirm the will of 1842 only, because to that will alone the words can by any construction refer; but that will is gone destroyed animo revocandi the codicil cannot in effect revive that will.” At p. 330 he says: “The testatrix purports to revive a will not only revoked animo revocandi, but destroyed. Probate of this is impossible. Can I decree probate of the draft? What would be the case, if such a will had been accidentally lost or destroyed,sine animo revocandi, I say nothing; for it is not this case. This is the case, according to the plea, of a will destroyed and revoked animo revocandi, yet purported to be revived by the codicil of January, 1846: in other words, it is a revival or republication of that which is not in existence. Can I decree probate of its draft? I am inclined to think not; for the draft is an unexecuted paper, and not specifically adverted to, or recognised by the codicil.”In Newton v. Newton (1) Keatinge J. in his judgment (reported in the Appendix to 12th Irish Chancery Reports) gives a very full and learned judgment on this question, a judgment which was approved by the Court of Appeal. At p. v. he says: “Though the draft may be good evidence of the contents of the will, it cannot be treated as the document referred to in the codicil as ‘the last will and testament.'” At. p. vi he says: “I think that a will or other instrument, to be revived or incorporated, must be in actual existence at the time of the execution of the testamentary instrument by which it was intended to be revived, or with which it was intended to be incorporated; and its identity as the very document referred to must be fully and clearly proved. Now, that the document intended to be incorporated must be in actual existence, and, if not in actual existence, that it is incapable of incorporation, is a proposition which no lawyer can argue against.” He then refers to the opinion of Dr. Lushington in Hale v.Tokelove (3) with approval, saying: “The matter is decided by one of the first Judges in the country.” Lord Blackburn in the Appeal Court (1) said: “He had made the will itself, described and expressed to be existing, the very document to be confirmed; but it was destroyed; it had no existence; it was as if it had never been; and, non-existing, it could not be confirmed. This is the answer to the cases in which secondary evidence has been admitted to prove written documents. The testator here meant the will itself; and no court can substitute for it a copy. The fact was, that there was no will to be confirmed; and the copy, accidentally preserved, only represented what it had been, and no longer was. . . . In my opinion, therefore, as the testator has described the will, he has bound us to require the production of it, and we cannot substitute for it a copy made before it was destroyed or revoked.”
In the case of Rogers v. Goodenough (2), Cresswell J. held that a codicil could not revive a will that had no existence, and expressly followed Hale v. Tokelove (3) and Newton v.Newton (4). In Steele’s Case (5) Wilde J., in his third proposition (p. 576) said: “It has been decided by no less than three very remarkable cases, that if the codicil refer to a will with the intention of reviving it, and it turned out that such will had been entirely burnt or destroyed by the testator animo revocandi, the codicil cannot effect its revival.”
Accordingly, considering the construction of the testamentary documents alone in this case, according to the principles I have mentioned, it would seem to be indicated that I should admit to probate the last will of 1929 and the codicil thereto. It is a question of the construction of the words of the testator in his will and codicil, and the rules applicable thereto must be applied.
But there has been tendered before me a body of parol evidence bearing on the question of intention, and as to how the mistake is alleged to have been made by the solicitor or his staff. I think it right to state the limits upon the acceptance of such evidence. The general principle is that extrinsic evidence is not admissible to alter the terms of a will unless it is sought to establish that there was fraud in the preparation of the will, a fraudulent alteration or addition before execution, or, as alleged in this case, that there was a latent ambiguity or mistake in the terms of the will without the knowledge of the testator. Such exceptions are difficult to establish and must always be supported by clear and convincing evidence. The nature of such extrinsic evidence as will be accepted by the Court has been the subject of consideration by the Courts. The Court will not accept evidence of the testator’s expressed intention contrary to the terms of the will itself, but will consider the terms of the documents themselves and evidence of the surrounding circumstances, so as to place itself in the position of the testator at the time of the execution of the testamentary document. The probability of the existence of a latent ambiguity can be established only by evidence of extrinsic circumstances. Once a doubt is prima facie raised by such extrinsic evidence, the Court may look at such parol evidence dehors the document to solve the doubt or to determine whether a variation in the document shall be accepted.
In Thomson v. Hempenstall (1) the learned Judge said:”If any doubt can be raised, it must arise from facts and circumstances dehors the will of 1844; in other words, if there be a doubt, it is a latent ambiguity.”
The principle goes back to Bacon’s Maxim (No. 23):Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verificatione facti tolletur.
In the case of Walpole (Lord) v. Cholmondeley (Earl) (2),Lord Kenyon C.J. (p. 148) said: “There is no doubt but that parol evidence may be received in many cases to explain doubts in wills; and the rule is correctly described in the maxim of Lord Bacon, which has been alluded to. Where extrinsic circumstances let in by parol testimony, explaining the situation of the testator’s family and of the legatee’s, introduce a doubt of the testator’s intention, the same kind of evidence that introduced the doubt may be admitted to explain it. . . . But this, I think, we may safely lay down as a rule, that in order to make such evidence admissible, the party proposing it must put his case into a situation to enable the Court to receive it; he must show a latent ambiguity, without which the Court cannot rece ve it.” As to the nature of the evidence to be received, in Hale v. Tokelove (3), Dr. Lushington said (p. 327):”I can receive no evidence of declarations of intention, though I may look to the circumstances of the case to assist me in discovering the meaning of the written instruments, but no further.” The phrase “circumstances of the case”used by Dr. Lushington would include not only the situation of the testator’s family and of the legatee’s, referred to by Lord Kenyon, but also the nature of his property.

The rules with reference to this subject have been codified by Sir James Wigram in his authoritative work on extrinsic evidence often quoted with judicial approval. In proposition V., p. 56 (fifth edition, 1914), he states them as follows: “For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a Court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purposes of enabling the Court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. The same (it is conceived) is true of every other disputed point, respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary to the right interpretation of a testator’s words. This would cover a dispute or mistake as to a will or other document referred to in the testamentary papers.”At p. 60 (par. 67) Sir James Wigram has an authoritative subsidiary statement as follows: “So, a description, though false in part, may, with reference to extrinsic circumstances, be absolutely certain, or, at least, sufficiently so to enable a Court to identify the subject intended; as where a false description is superadded to one which by itself would have been correct. . . . To such cases, the maxim,falsa demonstratio non nocet, may, with propriety, be applied; and this is the proper limit of that maxim.” In Steele’s Case (1) Wilde J . summarises these rules as follows (p. 576): “Although evidence of the testator’s intention is excluded, the Court ought always to receive such evidence of the surrounding circumstances as, by placing it in the position of the testator, will the better enable it to read the true sense of the words he has used.” These principles are equally applicable to the question of a wrong date of a document, as to that of a wrong name of a legatee, or a wrong description of property. I am, accordingly, in so far as it is relevant to the question of construction in this case, entitled to receive such of the evidence tendered to me as relates to the fact and conduct of the deceased with reference to his testamentary documents and the custody and execution thereof. I am also entitled to receive evidence of the solicitor and his staff, as to how the mistake was made and, though it is a vague conjecture, I am of course quite prepared to accept the evidence that the mistake was made in their office. I am not entitled to rely upon any evidence of expression of intention of the deceased, or the opinions of his wife Or children or solicitor as to his intentions. The facts that I have admitted and considered place me in the position of the testator at the time of the execution of the codicil and at the time of his death. He had a copy of the will of 1929 only in his own possession. The original was in the bank. He sent to his solicitor a rough draft of the new codicil for his last will of which he left the date blank. It was returned to him in form for execution with the blank filled in with the date of the will of 1927. From these facts I have come to the conclusion that the mistake made by the solicitor in the draft and engrossment was made without the knowledge of the testator; that he executed the will in the presence of another member of the firm who was not aware of the mistake and could not draw his attention to it; and that he really intended to refer to the will of 1929, and with that intention included it in the envelope with the codicil. As I have indicated earlier, the only difficulty I had in the consideration of the case was raised by the difference in the dispositions of the ultimate contingent remainder in Bellair, after the life estate of Lady Nutting, in the event of the prior contingent remainders failing. But, having regard to the destruction of the earlier revoked will, and to the consent of the last contingent remainderman, Edward Mulock, I do not consider this itself sufficient to alter my final decision in the case.
Accordingly I admit to probate the will of the 13th May, 1929, together with the codicil of the 11th August, 1931, as being together the testator’s last will and testamentary disposition, with the omission from the codicil of the words”dated the twenty-first day of November, 1927.”
[Note. A question subsequently arose as to the form of the grant of probate. The testator in his will appointed his solicitor and Mrs. Mulock as his executors, but expressed therein his desire that, in the event of the death of Mrs. Mulock, his daughter, Lady Nutting, should be his executor along with his solicitor. Hanna J. after consideration of the question and the cases of In the Goods of Lighton (1); In the Goods of Johnson (2); and In the Goods of Foster (3),ruled that the proper practice was to make the grant in the first instance to the two named executors without any limitation upon Mrs. Mulock’s executorship for life. If the occasion arose for an application by Lady Nutting as substituted executor, the question of a double grant could be considered. But it would not be advisable for the Court to embarrass itself at present by making any other grant.

Pinnions v Smith

County Court.

1 May 1903

[1903] 37 I.L.T.R 116
His Honor Judge Barry

Enniscorthy, May 1, 1903

Application by Equity Civil Bill to establish the last will and testament of Mrs. Keegan, deceased. It was proved in evidence that the deceased shortly before her death came into the office of Mr. Huggard, solicitor, of Wexford, and stated that she wanted to make her will. She had previously made a will which she now desired to revoke, and Mr. Huggard wrote out a will from her instructions, putting in the usual clause of revocation. She was quite clear as to leaving £100 to each of her two daughters, but she was uncertain and wavering as to a residue of £25, and Mr. Huggard told her that as time was pressing she could execute the will which he had drawn up, and, if she so desired, she could afterwards alter it by a codicil. The will was accordingly executed. This will she subsequently destroyed by burning. A few days afterwards she met the Rector of the parish, and in discussing her affairs with him she said she was dissatisfied with the will which Mr. Huggard had prepared. It left nothing to Johnny, and she wanted to leave something to Johnny. The Rector suggested she might add a codicil to the will, but she said that would not do, for the will was then destroyed. He understood from her that the reason she destroyed the will was because she wanted to leave something to Johnny. She did not say how much she wanted to leave him. There was no mention of making a new will. The assets were of small amount, and there was a large number of next-of-kin who opposed the application and sought to establish intestacy.

Corvan, for the plaintiff.—The execution of two wills raises a strong presumption that she did not intend to die intestate. She was dissatisfied with this will, and destroyed it merely because it made no provision for Johnny. The inference is that in other respects she was satisfied with it. The doctrine of dependent relevant revocation applies: Maxwell’s Probate, p. 144. The lady destroyed the will because she wished to add to the bequests in it.

[His Honor Is there any reported case of dependent relative revocation where there has been a total destruction of the will?]

I have not found such a case, but there are several cases where the total destruction of a will has been held not to revoke it: Quinn v. Butler, L. R. 6 Eq. 225; Goods of Nelson, Ir. R. 6 Eq. 569; Goods of Middleton, 3 Sw. & Tr. 583; Goods of Eeles, 2 Sw. & Tr. 600; Goods of Bode, 5 Notes of Cases 189; Onions v. Tyrer, 1 P. Wm. 343; Welch v. Gardner, 51 J. P. 760; Stanford v. White, L. R., 1901, P. 46; Powell v. Powell, L. R. 1 P. 210.

O’Byrne, for the next-of-kin.—The prima facie presumption of revocation has not been rebutted. In all the cases cited except two the Court was dealing with the setting up of a former will. In Goods of Bode and Goods of Eeles they were dealing with a new will, but there was an express intention proved of making a new will. Here no such express intention is in evidence: In the Goods of Applebee, 1 Hagg. 143, cited in Williams on Executors, at p. 129.

His Honor.

This is a case in which it would be most desirable that this small property should go in two substantial sums, instead of being split up amongst so many next -of-kin, and, accordingly, if I could possibly declare in favour of the will which it is sought to establish, I would do so. The question is whether this is a case of dependent relevant revocation? Was the intention in this lady’s mind when she destroyed the will, that the will should stand, although it should be to some extent altered? Only a few days previously she had gone into Mr. Huggard’s office and stated she wanted to make her will. She was very clear as to what she would do with £200, but she was in doubt as to what she would do with the residue of £25. Mr. Huggard told her she could add to the will afterwards, and from the evidence it appears that she understood the nature of a codicil. She took the will away with her, but only kept it for a short time, and a few days afterwards when the Rector saw her she said she was dissatisfied with the will, as it made no provision for Johnny, and she had destroyed it. I think that the destruction of the will by her, knowing that she might have added to it, raises a strong presumption that it was destroyed animo revocandi. To displace that presumption it must be shown affirmatively that it was her intention at the time of destroying the will that the provisions of the will should stand, but with an addition to them. The evidence fails in this respect. She destroyed this will, and how is the Court to know what will she intended to make? If she did intend to make a subsequent will, it was open to her to make an entirely different one. The principle of depen *117 dent relevant revocation allows the person disputing the animus revocandi in a case of this sort to show that the intention at the time of the destruction of the will was not to revoke the will in toto and for ever, and there does not appear to me to be affirmative proof in this case that the lady meant to make a disposition of her property that would be dependent on the revocation of this will. It may be, and they may have shown, that she had no intention of dying intestate, but that is not sufficient. In all the cases cited it seems to me there was material to show exactly what the will which was proposed to be established was to be; in most of them there was evidence that it was to be merely a modification of the old will, and if there was evidence here to show that this was to be a mere modification, I would decide in favour of the propounders of the will. But that onus is not, in my opinion, discharged. I must declare that this lady died intestate, but under the circumstances I will declare all the parties entitled to their costs.

In the Goods of Rudd.

[1945] IR 180
Maguire P. 180

In the Goods of Patrick Carmody, deceased

High Court (Probate).

21 March 1944

[1944] 78 I.L.T.R 112
Haugh J.

Patrick Carmody, late of Lockbrooder, Knocknagoshel, in the County of Kerry, executed his last will on the 17th day of October, 1943, and died on the 27th day of December, 1943, leaving Margaret Carmody his widow, and Kathleen Carmody, Michael Carmody and Cornelius Carmody, his lawful children and next-of-kin, him surviving. On the death of the testator it was found that he had altered his said will subsequent to its execution, by wholly erasing the words setting out the amount of a pecuniary legacy or charge in favour of his son Michael so that the same were entirely illegible, and by substituting over the erasure the words, sign and figures “Three Hundred and Fifty (£350),” the remaining words of the gift or charge being left unaltered. The testator had further altered the will by drawing a pen line through the words “I bequeath Five Hundred Pounds to my daughter Kathleen.” This alteration was such that the said original words were clearly legible notwithstanding the line drawn through them. The will, as so altered, was not executed or attested in compliance with the provisions of the Wills Act. The original will was written at the request of the testator by one Denis Curtin, who deposed on affidavit that the words of the original text which had been wholly erased were “Four Hundred Pounds.” Margaret Carmody applied to the Court for liberty to apply for and receive a Grant of Letters of Administration of the Personal Estate of the deceased with the will in its original unaltered text annexed. All parties consented to such Order as the Court should make.

Maurice Danaher, for the applicant: The evidence of the terms of the original text of the will contained in the affidavit of Denis Curtin is admissible and should be received by the Court. The alteration made by the erasing of the words contained in the gift to Michael Carmody, being merely an alteration of the amount of the gift, without any alteration in the name of the beneficiary or any attempt to remove the name of the beneficiary from the text of the will, and the attempted alteration not being properly executed in accordance with the provisions of the Wills Act, the doctrine of Dependent Relative Revocation applies, the attempted revocation is ineffectual, and the original words as deposed to in the affidavit of Denis Curtin stand as a part of the will. In the Goods of William Nelson, I. R. 6 Eq. 569. *112

In regard to the attempted alteration of the will by striking out the legacy in favour of the testator’s daughter, this alteration is also unattested. Had the testator, in striking out the gift, rendered the words of the will wholly illegible, the gift would fail, and would not form a part of the will, but as the words are not rendered illegible, the gift forms an “apparent” part of the will, and should be admitted to Probate as a part thereof, by virtue of the provisions of section 21 of the Wills Act, 1837.

The Court ordered that the applicant be at liberty to apply for and obtain a Grant of Administration of the Estate of the said deceased, with the will, in its original and unaltered text, annexed.

West v. West

[1921] 2 IR 34

K. B. Div. (Probate.)

MOORE J. :

I have set out my findings in this considered judgment so that the conclusions at which I have arrived may be more easily discussed should it be desired to have them reviewed.
I have no doubt as to the law applicable to cases of dependent relative revocation. I have derived much assistance from the able argument of Mr. Leech, and indeed I do not gather that the legal propositions laid down by him are disputed by Serjeant Sullivan or Mr. Swayne for three of the defendants, their real contention being that on the facts established such propositions
do not apply. I do not go back to the older cases to which Mr. Leech has referred me, though I have consulted them, as they are amply borne out by the more recent ones, beginning with Dancer v. Crabb (1), Dixon v. The Solicitor to the Treasury (2), Irwin, deceased (3), and ending with In the Goods of Irvine (4),of which I may observe Irwin, deceased (3), seems particularly in point.
In the judgment of Mr. Justice Kenny in Irvine’s Case (4), at p. 489, occurs the following passage (following the prior authorities), which I unreservedly adopt:”If the act of revocation, whether by another will duly executed, or by the destruction of the existing will, be without reference to any other act or event, the revocation may be all absolute one; but if the act be so connected with some other act or event that its efficacy is meant to be dependent on that other act or event, it will fail as a revocation. If that other act be efficacious, the revocation will operate, otherwise it will not. It is altogether a question of intention.”The intention in turn must be established as a matter of evidence, and it is my duty to see what the evidence is in the present case.
[His Lordship stated the facts, as set out above, and proceeded:]
I infer from the above facts that it was prima facie not the testator’s desire to die intestate. The first question of fact is: Is document No. 2 an imperfect will, or, as Serjeant Sullivan suggests, merely a draft? In form it is, as a testamentary document, perfectly regular, save for the execution, which fails for want of witnesses. It was found in a looked drawer in the testator’s writing-desk, along with document No. 3, in an envelope marked “my last will, made January 26th, 1918.”
I can only draw one inference from this: that it was intended on that date, in 1918, by the testator to be his last will. There is no proof, in spite of Serjeant Sullivan’s ingenious suggestion, of the existence of any other document of that date of which this could be a copy or draft. The imperfect will contains a bequest to his son, Aubrey Fenton West, of £2,000. Captain Aubrey Fenton West was examined before me, and gave evidence which I entirely accept: that while serving in Palestine in 1918 he had, in the end of March or beginning of April, 1918, received a letter from his father (not now forthcoming), in which he said that he, Captain West, would benefit materially by his will, and he, Captain West, understood it to mean that he had made a will by which he would benefit, No. 2 is the only document before me to which such letter can refer, and I therefore hold, in the circumstances, that document No. 2, in the testator’s own pencilled writing and signed by him, was, in the foregoing circumstances, an original attempted will which failed only for want of due execution.
This attempted will purported to revoke all previous wills, and therefore, if valid, would have revoked the will of February 25th, 1913. The envelope containing the imperfect will had also a note on its face which was proved to be in the testator’s handwriting:”One made February, 1913, destroyed.”
That this will was, in fact, destroyed I have no doubt. Though search has been made through the testator’s papers, it is not now forthcoming, and for myself I see no reason for disbelieving this memorandum by the testator. The question in the case is whether or not this destruction of the will of 1913 was dependent or conditional on the testator’s belief that he had made a valid will in substitution for the old one. It would equally be a question, did the evidence warrant it, whether the destruction was brought about because he intended to make a new will?
Mr. Swayne is quite right when he lays stress on the fact that one of the difficulties in the present case, distinguishing it from the others referred to, is the fact that, save what may be gathered from the facts proved, there is no evidence of any express declaration by the testator of his desire to make, a new will in substitution for the old one; and the question for me is: Is there sufficient evidence in the facts proved that he did so desire?
The first will contained a bequest to his then butler, William Boyce, of £500. There is evidence that the testator and his wife had often talked over the will, as husband and wife would do, and, though the lady in a very doubtful way inclines to think this may have been before the execution of the will, yet I believe from her evidence that there was also conversation about it afterwards, to which the testator assented, all tending in the direction that the amount of the legacy was excessive. Prior to the drawing up of the imperfect will it appears that for some reason Boyce had left the testator’s service; and I think it is safe to infer that the testator wished, probably in consequence of these conversations, to reduce the legacy, which he could only do by a fresh will or codicil. Secondly, the testator’s son, Captain Aubrey West, who, with the other children, was not mentioned in the first will, was serving in Palestine; he was not mentioned in the earlier will, and from the testator’s letter to him, already referred to, I am satisfied that the testator specially intended to benefit him, which again he could only do in a testamentary way by a new will or codicil. Thirdly, the charitable legacies amounted in 1913 to £300. In 1918, after three and a half years’ war, with increase of expenditure and taxation, I think it quite probable that, like so many other persons similarly situated, the testator desired to reduce his charitable bequests, as he purported to do, by exactly 50 per cent., and this could not be done without a new will or codicil.
There may have been other reasons connected with the dropping out of the names of some of the other legatees, or the insertion of the names of others, but these I cannot deal with for want of evidence; but, taking the above three grounds for altering his will, I find that the testator had a desire for some alteration which led him to the attempt to carry them out in his imperfect will of 1918. In other words, it was reasonable and probable that he might desire to substitute these terms in the new will for the provisions of the old. The real question is, did he do so? Or, as suggested by Serjeant Sullivan, did he destroy the will of 1913 at some period antecedent to the making of the imperfect will with a desire for an intestacy, or, at any rate, without any intention of making such revocation conditional in his own mind on the substitution of a later disposition in its place? This is exactly the proposition with which the Court was confronted in argument in Dixon’s Case (1); at p. 44 Gorell Barnes J. asks: “The point seems to be, what interval of time (if any) between the act of physical destruction and the intention to execute a fresh document will debar the testator from having the benefit of the doctrine of dependent relative revocation?” Counsel, in reply, pointed out that the physical act of destruction, and the intention to execute a fresh will, were in that case simultaneous. This was also so in Middleton’s Case (1),referred to by Mr. Leech in his excellent argument. In Irwin’s Case (2) it was proved that the testatrix destroyed her will of 1901 at the time of making her imperfect will of 1907.
If therefore on the evidence, such as it is before me, I can legitimately arrive at the conclusion that the destruction of the will of 1913 was contemporaneous with or subsequent to the preparation of the imperfect will, I should then find a great preponderance of the facts pointing to the inference that the older will was only destroyed because the testator believed he had rendered it nugatory by the provisions of the later document. How, then, do matters on the evidence stand as regards this? There is no doubt that the will of 1913 was for some time contained in the envelope produced endorsed in ink in the testator’s handwriting, “My last will, made Feb., 1913.” To hold otherwise would be to falsify the testator’s statement. The will is not now forthcoming; the envelope is. Putting myself in the testator’s place, I reason in this way: the envelope with its endorsement, if the will were destroyed, say, in 1914, 1915, or 1916, as suggested by Mr. Swayne, would be absolutely useless. There would be no possible motive for preserving it until 1918 with a false description on its face. The most reasonable method in which, as a juror, I account for its preservation is to suppose that the testator kept it as a cover for the old will while it existed, and eventually took the old will out of it and converted the envelope to the only reasonable use to which it could there and then be put, namely, to contain the new one, which was found in it after his death; and that thereupon he rectified the endorsement probably by the same pencil with which he had drafted and signed the new one. This is not, perhaps, if it stood alone, sufficient to carry the plaintiff’s case that the destruction was contemporaneous or subsequent to the making of the imperfect will the whole way, but it is consistent with what further appears on consideration of the two documents.
The first will opens with a revocatory clause, which, in this respect, is followed verbatim by the second. Then comes the bequest to William Boyce, already mentioned. This is also the case in the second document. Then in each succeeds a bequest to Charles Coster. The second will inserts a legacy to his wife’s maid, and then exactly, as the old will does, gives a year’s wages to each of his domestic servants who have been three years in his employment. By his second will he then adds the legacy, already mentioned, of £2,000 to his son; a bequest of £100 for repair of Kilbride Church; the National Hospital for Consumptives, £50, already mentioned in his first will at £300; legacies to his three nieces; then in both documents a residuary bequest to his wife: in the first will the appointment of his executrix, and in the second the appointment of the same executrix, and his solicitor as co-executor. Allowing therefore for necessary alterations, the frame and structure of the two documents, and the order of the various bequests, so far as they go to the same persons, are identical. Secondly, many of the clauses are verbatim the same, showing that in that respect the second is nearly a copy of the first. I have alluded to the revocatory clause, and without dwelling on the other verbal identities in the will, there are the residuary clauses, and, mutatis mutandis, the appointment of executors, and the attestation clause, except for the special addition in the older will. Thirdly, the use of words, not of art, which I find in each will, such as “pay days”and “pay day.”
I think there is only one possible inference to be drawn from this similarity of, frame-work and repetition, and that is that the draftsman of the imperfect will had the will of 1913 actually before him as a base when drawing up the document of 1918.
When drawn up from this will of 1913, he plainly utilized for containing the new will the existing envelope, and made the superscription on it correct by striking out with his pencil the words in ink, “Feb., 1913,” and writing instead the words”Jany. 26, 1918,” making the description of the contents read “my last will, made Jan. 26, 1918,” which, as amended, would be correct.

But as he only struck out in pencil the words “Feb., 1913,” it must have occurred to him that those who came after him might naturally wish to know what had become of the will of that date, and to meet this inquiry he wrote, also in pencil, underneath, towards the left-hand corner, “one made Feb., 1913, destroyed.”I draw the inference that it had been destroyed accordingly, after the document of 1918 had been drafted, and I so hold.
I have then the position that the testator, having at one time the two documents together in esse at the same moment, destroys one, the earlier, and places the later in the envelope previously containing the first, and amends the writing on the envelope to conform with the change in the circumstances. Can I, or should I, draw from this the further conclusion that the earlier one was thus destroyed because the testator (who, I have found, did not desire an intestacy) considered that he had revoked or cancelled it by the preparation of the later one? As against this, it is urged that the testator had previously executed two wills, and must be taken to have known that two witnesses were necessary, and that without them no will would be valid. It is true that he had executed one will in 1889, but it might well be that in an interval of nearly thirty years he had forgotten the requisites of valid execution. It is also true that he had executed the will of 1913 before two witnesses, but he did so under express instructions in writing (which were produced) from his solicitors.
I have no evidence that these were before him when he composed the document of 1918; in fact, I would assume they were not. It is true that to a certain extent he copied out the attestation clause into the imperfect will of 1918 from the will of 1913, and this is the strongest point as against the plaintiff’s contention; but, on the other hand, he may have considered this, with a subsequent signature by witnesses, as a mere formality not affecting validity. As against this, the testator wrote to his son in March, 1918, saying in effect that he had made a will, and that the son would materially benefit thereby. He could not have written this had he imagined that he had made no valid will, and, on the whole probabilities of the case, I cannot see any reason why he should in the foregoing circumstances have destroyed the earlier will had he not believed that he had provided another equally
effective in its place. In my opinion, therefore, on the best judgment I can form, there is evidence on which I should hold that the revocation of the earlier will was conditional on the testator’s belief that the revocatory clause in the later will would be effective; and, once it transpired that this belief was unfounded, the doctrine of dependent relative revocation applies, and the earlier will is set up, notwithstanding its revocation.
The contents of the destroyed will of 1913 have been sufficiently proved from the draft sworn to by Mr. Warren produced before me, and I accordingly think that probate should be granted of that will in the words of the draft so far as set out in the statement of claim. All parties will get their costs of this action, brought to solve a difficulty created by the testator himself, which I direct the executrix to pay, and to include in her own costs as against the estate.

KENNY J. :
20 June

I think I have all the evidence relating to this alleged will that could possibly be offered, and that I can on this motion determine the questions that have arisen without requiring the document to be propounded in solemn form. The case is a small one, the assets being sworn at about Â£600, and it is not desirable to incur further costs if they can be avoided.
The applicant, the Rev. John P. Irvine, is the executor named in the alleged will, and also residuary legatee. He is a son and one of the next-of-kill of the deceased, and his application now is that so much of this document as revokes all other testamentary documents be alone admitted to proof. The parties who have got notice of this application, and who have appeared by counsel, are named as beneficiaries in former wills, and are also next-of-kin of the deceased.
The case is a peculiar one, the facts relating to the execution of the document which is the subject-matter of the motion being as follows:Previously to its execution the deceased had duly executed a will dated the 23rd June, 1913, and a codicil dated the 31st March, 1914; and some time in the beginning of the year 1918 he duly executed, in accordance with the terms of the Wills Act, the document in question. At the time of its execution it consisted of a printed form for a proposed will, with a number of blanks, none of which was filled up until subsequently. It was, in fact, a skeleton will, without a word of manuscript on it, save and except the signatures of the deceased and the witnesses not even the name of the deceased in the opening paragraph. But the language of the printed matter is of a testamentary character, and it is that printed matter which the applicant now applies to have admitted to proof as constituting the will of the deceased. This document was, as I have said, executed in the beginning of 1918, and on the 5th February, 1918, the deceased proceeded to fill up the blanks in the print, and therein to put his dispositions in writing, without any re-execution or republication, so that to all outward appearance the document seems to be a complete will, and it might probably have passed as such in the Probate Registry but for the fact that the name of one of the principal legatees had been interlined, and proof was required that the interlineation was made before execution. The attesting witnesses having been applied to, disclosed the fact that there was no writing of any sort on the form when the deceased and they affixed their signatures. The document as an operative instrument is now confined to the following printed matter:”This is the last will and testament of me . . . of . . . in the county of . . . made this . . . day of . . . in the year of our Lord one thousand nine hundred and . . . I hereby revoke all wills by me at any time heretofore made. I appoint . . . to be my execut . . and I direct that all my just debts, funeral and testamentary expenses, shall be paid as soon as possible after my decease. I give and bequeath unto . . .” The dispositions subsequently made on the 5th February, 1918, and which admittedly are not valid as testamentary dispositions within the 9th section of the Wills Act, would, if regular, have conferred a life estate on his (testator’s) daughter, Ethel Irvine, in some house property in Drumcondra, Dublin, with remainder to his son, Michael E. Irvine, then resident in Canada. The testator left also to his daughter a legacy of Â£50 and all his furniture, and, after some gifts of personal belongings and a legacy of Â£50 to the applicant, he appointed the latter residuary legatee. It is manifest, apart from any admission by the parties, that these dispositions fail.
The deceased had been a trustee for an Insurance Company, and was in the habit of attending periodically at the office of the latter, and it was at one of such attendances that he executed the document in question. The witnesses to it are the secretary to the company and one of the clerks. Both gentlemen depose that they were in the habit of witnessing documents such as share transfers for the deceased, and their affidavits establish that at the time when they attached their signatures to this alleged will none of the blank spaces in it was filled in. They also say that towards the end of the year 1918 they again witnessed the signature of the deceased to another printed form of will, which was also in blank. What became of that document does not appear, nor is there any evidence of its contents, or of any dealing with it after its execution; but if it were a blank form such as that which was used in the present case, I see no reason for thinking that like considerations would not apply in judging of its effect as are relevant to the document which is the subject-matter of the application before the Court. With reference to the will of the 23rd June, 1913, and the codicil of the 31st March, 1914, one of which if unrevoked would constitute the last testamentary disposition of the deceased, the principal beneficiaries under them are the said Ethel Irvine and testator’s son, Harold Irvine, both of whom have appeared on and oppose this application, which, if successful, would result in causing an intestacy.
The question, therefore, that has to be determined is whether in the circumstances the revocation contained in the paper executed by the deceased was an absolute revocation, or merely what is known in our procedure as a dependent relative revocation. If the act of revocation, whether by another will duly executed or by the destruction of the existing will, be without reference to any other act or event, the revocation may be an absolute one; but if the act be so connected with some other act or event that its efficacy is meant to be dependent on that other act or event, it will fail as a revocation. If that other act be efficacious, the revocation will operate; otherwise it will not. It is altogether a question of intention, and if, as part of the act of making a fresh will, there will be a revocation of a previous will, that revocation will be absolute provided the fresh will be made. On the other hand, if the fresh will be not made, it would defeat the testator’s intention to hold the revocation to be absolute. It had no existence, unless subject to a condition which is not fulfilled. The principle will be found stated in Williams on Executors and Theobald on Wills, and is established by such cases as Onions v. Tyrer (1), Hyde v.Hyde (2), and Ex parte The Earl of Ilchester (3). Cases in which a testator destroys a will with the intention of setting up a previous disposition introduce the same principle. In Powell v. Powell (4),the testator had destroyed a will with the expressed intention of validating an earlier will and substituting it for the destroyed will. The destruction of the second will did not give effect to that intention, and it was held by Sir J. P. Wilde (afterwards Lord Penzance) that such conditional destruction did not work a revocation, inasmuch as, the sole condition upon which revocation was intended not being fulfilled, the animus revocandi was not present. To the same effect are Gentry’s Case (1); Dancer v.Crabb (2); and Dixon v. The Solicitor to the Treasury (3). In Gentry’s Case (1), while the principle was admitted, the revocation was, on the facts, held to be absolute and not dependent. In Dixon’s Case (3) it was held by Gorell-Barnes J. that the doctrine might apply to a case where the document intended to be substituted is non-existent and has never existed as a valid testamentary paper. Almost the last case on the subject is that of Irvin, deceased (4). In 1901 the testatrix had made a valid will. In 1907 she signed a paper purporting to be a will, but which was not attested, and was consequently invalid. At the same time she destroyed the will of 1901 in the belief that the unattested paper of 1907 was a valid disposition. Dixon’s Case (3) was cited, and the Court on motion held the case to be one of dependent relative revocation, and granted probate of the destroyed will of 1901, as contained in a completed and verified draft of it.
In my opinion, there can be no doubt that the principle of dependent relative revocation applies in the case before me. From the evidence I draw the following conclusions of fact:1, that the attempted revocation was merely the first act towards accomplishing the design of the testator to make a new will; 2, that it was dependent and conditional on a will being actually made; and 3, that no will was made, and consequently that the intention failed in execution.
I must refuse the application.

In the Estate of McDermott

[2015] IEHC 622

JUDGMENT of Ms. Justice Baker delivered on the 14th day of October, 2015
1. This judgment relates to the application to admit to probate the will of the deceased Mary McDermott in circumstances where the original of her will has been lost or mislaid. It is known that the will was in the custody of the deceased for a number of years prior to her death and the applicants claim that they have adduced sufficient evidence and argument from circumstance to rebut the presumption that it was destroyed by her with the intention to revoke it.
Background facts
2. Mary McDermott died on 6th November, 2013, a widow without children. She was predeceased by her husband who had died 18th October, 2008 and the applicants are two of his four children from a previous marriage. The respondent is the sole surviving sibling of the deceased, and is the person who is entitled to succeed on intestacy to the entire of her estate.

3. The deceased made a will on 28th March, 1988 by which she appointed one of her four step-children, David McDermott, to be the sole executor thereof and by which she bequeathed her share of a dwelling house at 47 Dufferin Avenue, Dublin 8, to her sisters, Kathleen Kennedy, who predeceased her, and Sarah Kennedy, the respondent, or the survivor of them, for their respective joint lives, and the remainder interest, together with the residue of her estate, to her four step-children, of whom the applicants are two.

4. The dwelling house at 47 Dufferin Avenue, Dublin 8 was in fact held by the deceased and her sisters as joint tenants and will have passed by survivorship to Sarah Kennedy as sole surviving joint tenant on the death of the deceased.

5. The respondent is a Ward of the High Court having been taken into wardship by order of the President of the High Court made on 3rd October, 2013, and one of her four stepchildren, Paul McDermott, was appointed committee of her person and estate. The General Solicitor acts in these proceedings on behalf of the ward because Paul McDermott is one of the persons named as a beneficiary in the will.

6. The estate of the deceased comprises a bank account with a value of €360,000 in round figures which had been held by her jointly with deceased husband, and it is assumed for the purposes of this application that the monies in that joint account have passed to her by survivorship on his death.

7. The deceased married her late husband Arthur McDermott on 28th December, 1978. He was a widower with four children who at that time were aged between 13 and 23 years. Arthur McDermott died on 18th October, 2008 having previously made his last will on 4th April, 2008, the legal effect of which was to place the entire of his estate on trust for the deceased for her life, with the remainder over on trust for his four children equally.

8. Arthur McDermott had previously made a will on 12th August, 1981, by which he had bequeathed his entire estate to the deceased, and a short time later, on 2nd September, 1981, he executed pursuant to s.113 of the Succession Act 1965 a renunciation of his right to the legal right share in her estate to which he would become entitled on her death testate under Part IX of the Act. That renunciation was presumably made in the circumstances where the deceased was, at the date of her marriage, living in the house in Dufferin Avenue with her two unmarried sisters, and presumably without regard being had to the fact that that premises was held by the three sisters as joint tenants.

9. The evidence suggests that at the time the late husband of the deceased executed his second will on 4th April 2008, the deceased was suffering from dementia and incapable of looking after her own affairs. She first exhibited signs of dementia in 2001 and 2002 and her increased cognitive impairment, and the serious sight problems experienced by Arthur McDermott, led the couple to sell their former family home in Chapelizod, Co. Dublin, and to move together to a retirement home in 2007.

10. The deceased was made a Ward of the High Court on 3rd October, 2013 and was then found to be of unsound mind and incapable of managing her personal property.
Searches for original
11. The evidence points to the fact the deceased retained custody of the original of her will after she executed it in March of 1988, and nothing is known of its whereabouts since that date. It was not found following her death, nor after she was taken into the wardship of the High Court.

12. After the death of the deceased, enquiries were made of Austin Dunne, the solicitor who had prepared and witnessed her will and that of her husband. Mr. Dunne had acted as solicitor for Arthur McDermott and had also advised him with regard to the execution of the renunciation. He was confident that as he had retained only a copy of the two wills in accordance with his usual practice that the deceased must necessarily have taken away the original. The wills’ register of that firm has not been located and it is not known what happened to it when the firm was taken over by another firm, Niall Murphy & Co.
Evidence of control and custody
13. The uncontroverted evidence is that after her husband’s death in 2008 the deceased lived for long periods of time with her stepchildren, and indeed in the years 2008, 2009 and 2010 she lived with them and their families in a system of rotation that had the practical effect that she lived full time with one or another of them until she was admitted to a nursing home in January, 2010 when her dementia made it impossible for her to live without intensive nursing care. The relationship between the deceased and her stepchildren was close and the children stayed living at home with their father and stepmother until each of them set up their own independent lives. The relationships remained close and good, and they shared holidays, including summer holidays, and the children continued to maintain a good relationship and frequent contact and visits after they had their own families. The relationship remained close and caring after the father of the children died. It is fair also to extrapolate from the facts that as the children continued to reside with their father and stepmother well into their 20’s and 30’s, and when each of them was independent, that the relationship with their stepmother was very good.

14. It would be fair to say that there is not any certain evidence that the original will was ever in the custody of the deceased, although counsel for the applicants do accept as a matter of probability that given the evidence of Mr. Dunne her solicitor, which was by way of surmising from his general practice, that she did take away the will.
Findings of fact
15. I find, as a matter of probability, that the original will of the deceased was given into her possession at or near the time it was executed on the 28th March, 1988. I also find that as a matter of fact the deceased had a good and close relationship with her four stepchildren, and that she would have wished to benefit them by the bequest of any property of which she should die seized. I also find as a matter of fact that from the year 2000 or thereabouts the deceased had become cognitively impaired, and that the decision that she and her husband made to move to a retirement home in 2007 was motivated by his failing eyesight and his perception that his wife’s dementia condition was becoming progressively worse and that she would be unable to take care of her own or of his needs should his blindness become total. I also find as a matter of fact, and this evidence is uncontroverted, that the respondent, who is the person who would solely inherit the estate of the deceased should she be found to have died intestate, did not, in 1988, nor at any time before or at the date of death of the deceased, have any financial needs, and she had worked all her life and had the benefit of two pensions.

16. The will of the deceased made a specific bequest of the property at Dufferin Avenue and on the mistaken assumption that her interest in that property did not pass by survivorship to her two sisters. In that context the will that she made in 1988 by which she made a specific devise of the property at Dufferin Avenue to her sisters and the survivor of them for their respective lives was prudent and rational. It is critical in that context to note that the deceased devised what she believed to be her interest in remainder expectant upon the death of her sister in these premises in equal shares to her four stepchildren, whom she also appointed as her residuary legatees. That particular fact is important to understand the choice that she made then, some ten years after she married their father, and when each of them had passed the age of majority, namely to benefit each of them after the death of the survivor of her sisters. I also regard it as significant that the relationship was such that she chose to appoint as executor one of her stepchildren, David McDermott, who died on the 23rd October, 2009, and she clearly had sufficient confidence in her youngest stepson to vest in him that role. It is important also to note, and I find as a matter of fact, that the deceased’s mental condition was such that by the time her executor David McDermott died on the 23rd October, 2009 her cognitive impairment was such that she was no longer capable of making a new will, or a codicil to her exiting will, by which she might have replaced her executor.

17. Thus all the circumstances point to the deceased having, well into the majority of each of her stepchildren, an intention to benefit each of them by her will of 1988, and equally an intention to preserve for the benefit of her sisters and each of them, a right to reside for their respective lives in the house at Dufferin Avenue.

18. There is no evidence before me that would suggest that at some stage before the deceased lost cognitive capacity, that she became aware of the nature of the joint tenancy in the premises at Dufferin Avenue, and that she therefore would have considered it to be either morally appropriate or prudent to die intestate. It should be noted in that context that the operative part of the deed by which the three sisters purchased the property of the 18th September, 1962 does identify the joint tenancy, but as late as 1988, some 26 years after the property was purchased by the sisters, the deceased herself certainly believed, and must have been so advised by her solicitor, that the property was held by them as tenants-in-common as she referred in her will in 1988 to her “share” in the dwelling house and specifically dealt with it in her will.
The law: presumption of revocation
19. Counsel agree that the application invokes the presumption that where a will is shown to have been in the custody of the testator and is not found at his or her death, that a presumption arises that it was destroyed by the testator with the intention of revoking it. Counsel also agree that the presumption is rebuttable. Counsel for the respondent argues that the presumption is a rule of law, but counsel for the applicant asserts that it is a presumption of fact which may be rebutted by evidence, and that the evidence can include circumstantial evidence from which certain conclusions can be drawn.

20. The presumption is of considerable antiquity and it was first explained and identified in Welch v Phillips (1836) 1 Moo PC 300 where Parke B. explained the underlying rationale as follows:

“the rule of the law of evidence on this subject, as established by a course of decisions in the Ecclesiastical Court, is this: that if a Will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary.”
21. The Supreme Court quoted that passage with approval in the decision of In Re the Goods of Coster (Deceased) (Unreported 19th January, 1979) when Kenny J. gave the judgment of the Court. The deceased in that case had made a will with the assistance of her solicitor and some two years later called to her solicitor’s office and asked for the original will which she took away. She said nothing to indicate why she wanted it. She purchased a printed form of will from Messrs. Easons, and after her death this printed form with nothing written on it was found amongst her papers, but the will made some years earlier in the office of her solicitor was not. Gannon J. in the High Court refused an application to declare that the deceased had died intestate on the grounds that he thought that the will might have been mislaid, or that even if it had been destroyed, it was not destroyed with an unconditional wish to revoke it, but that the revocation was conditional upon the execution by the deceased of another valid will, and that this assumption could be made from the fact that she had purchased a form of will from a stationers. The Supreme Court disagreed.
22. Kenny J., quoted with approval of the statement of Parke B., referred to above, and pointed to the ancient origin of the presumption. He went on to say the following:

“It is however a presumption only and not an absolute rule so that it may be rebutted. Thus the occurrence of a fire at the testatrix’s home, or the character of the deceased’s custody (see judgment of Chief Justice Cockburn in Sugden v. Lord St. Leonards (1876) Prob Div 154 at p.215) or the possibility of a disappointed beneficiary having removed the original will have to be taken into account as matters which may rebut the presumption.”
23. The Supreme Court rejected the argument that if the will had been destroyed, that the destruction was conditional on the testatrix making another will. It held that, as there was nothing to rebut the presumption, the deceased had destroyed her will of 1971 with the intention of revoking it, that she had died intestate.
24. Kenny J. indicated a number of factors that might rebut the presumption, and although the occurrence of a fire at the home of a testatrix might be an obvious example of destruction without an intention to revoke, the other example he gives is the possibility of a disappointed beneficiary having removed the original will, not as a matter where evidence shows that this had happened, but where evidence points to it being a possible explanation for the loss of the will.
Statutory context: revocation requires intention
25. It seems to me that the presumption must also be seen in the context of the general rule with regards to revocation of a will, namely that stated in Harris v. Berrall (1858) 1 Sw & Tr 153 that:

“If it is once proved that a will has been duly executed, I hold that it is entitled to probate, unless it is also shewn that it has been revoked by one of the several modes pointed out by that statute….”
26. The reference was to s. 20 of the Wills Act 1837, similar to s. 85 (2) of the Succession Act 1965.
27. Thus, the starting point for the consideration of the question of revocation has to be that the revocation of a will cannot happen without an accompanying intention to revoke it, and this is clear from s. 85 (2) of the Succession Act 1965:

“no will, or any part thereof, shall be revoked except by another will or codicil duly executed, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.”
28. An animus revocandi is an element in revocation, thus the presumption of that animus from the mere fact that a will known to be in the possession of a testator was not found at his or her death, is one which points to an intention but no more. Accordingly I consider that counsel for the respondent is incorrect in arguing that the presumption is a rule of law, and the presumption is in my view a presumption of evidence or fact, such that in the absence of any other fact or evidence, the court will presume that the will was destroyed and the intention to revoke was present, but many cases will involve a consideration of the available evidence of an intention to revoke.
Standard of proof
29. I accept the argument of counsel for the applicants that the presumption, if it is to be rebutted, is to be rebutted on evidence which shows that the loss of the will does not impute a destruction and/or destruction with the intention to revoke, and that the proof must be on the civil standard of the balance of probability. The application being a civil case, the civil standard of proof must apply, and as stated by Hardiman J. in Boliden Tara Mines Ltd. v. Cosgrove & Ors. [2010] IESC 62, at p. 19:

“It appears clearly established in Irish law that there are but two standards of proof: that applicable in criminal proceedings, which require proof ‘beyond reasonable doubt’ and that applicable in civil proceedings, where proof on the balance of probability is required.”
30. As the presumption is one that may be rebutted on the civil standard the role of the court is to weigh the evidence and assess which argument from the evidence is more probable than the other.
The nature of the presumption
31. The nature of the presumption was considered recently by the English High Court in Wren v. Wren [2006] EWHC 2243 (Ch), where Rimer J. admitted a copy of a will to probate and held that the original had been destroyed or lost by accident. Explaining the presumption he said at para. 94 the following:

“It is, however, only a presumption and it is open to Michael to adduce evidence rebutting it; that is, evidence pointing to the higher probability that any loss or destruction of the will was accidental and not accompanied by any intention on Peter’s part to revoke it. That evidence can include the contents of the will itself. Put simply, it may be improbable that the maker of a highly elaborate will, containing detailed bequests in favour of a wide range of beneficiaries, should decide to substitute for it a disposition of his estate under the laws of intestacy. It can also include oral declarations of the testator. Repeated affirmations by him following the execution of the will of the dispositions made in it may tend to support the view that he cannot have voluntarily destroyed it with the intention of revoking it”.
32. That Court found statements by the testator down to the date of his death which were consistent only with the will representing his final testamentary intention, and the Court did not find it possible to reconcile those statements with a deliberate decision by the deceased to destroy the will with the intention to revoke it. The Court did not look to the circumstances of how the will was lost, although it did note that the deceased had a propensity to hoard documents and possessions, and accepted one form of evidence and argument from that evidence which it was held was sufficient to suggest absence of intention to revoke.
33. I consider this approach to be correct.
The operation of the presumption
34. There is little authority on the operation of the presumption in this jurisdiction, although there is some useful authority in other jurisdictions, including authority under the old Wills Act of 1837, which must be treated as authoritative. It is well established that the burden of rebutting the presumption lies on he who sets up the will. In Sugden v. Lord St. Leonards (1877) 1 PD 154, referred to by Kenny J. in In Re the Goods of Coster (Deceased), Cockburn C.J. said the following:

“Now, where a will is shewn to have been in the custody of a testator, and is not found at his death, the well-known presumption arises that the will has been destroyed by the testator for the purpose of revoking it, but of course that presumption may be rebutted by the facts. Although presumptio juris, it is not a presumption de jure, and of course the presumption will be more or less strong according to the character of the custody which the testator had over the will.”
35. Earlier in Patten v. Poulton & Ors [1858] 1 Sw.& Tr. 55, Sir C. Cresswell explained the presumption as follows:
“…in the absence of circumstances tending to a contrary conclusion, to warrant an opinion that the maker of the will destroyed it. But it is a presumption that prevails only in the absence of circumstances to rebut it, and is, therefore, commonly called a prima facie presumption. It may be fortified or it may be rebutted by many circumstances….On the other hand there are many circumstances tending to negative the presumption. …it may be said, that the contents of the will itself shew the improbability of its destruction.”
36. The case law would suggest that the courts will look at the combination of circumstances from which the probabilities may be assessed and weighed. I also consider that the case law points to the court weighing those possibilities in the light of the arguments advanced as to the most likely explanation for a particular happening, and that one important circumstance is the content of the will itself. Thus I consider that the evidence on which the court must form an opinion can be, and perhaps almost always will be, circumstantial evidence. Certain factors will guide that opinion such as the character of the testator, the character of possession and the contents of the will itself.
37. Counsel for the respondent points me to a considered judgment by the Supreme Court of British Columbia in Canada in Thierman Estate v. Thurmann & Ors. (2013) BCSC 503 and to the practical guidelines expressed there as to the type of evidence that might be considered in attempting to rebuff the presumption of revocation. A similar presumption operates in that jurisdiction and the judgment of that Court referred to Sugden v. Lord St. Leonards, and Welch v. Phillips itself. The Court identified a number of factors to be considered. The relevant ones of which are as follows:

a. Whether the terms of the will itself were reasonable.
b. Whether the testator continued to have a good relationship with the beneficiaries identified in the copy will which is propounded in the action.

c. Whether the personal effects of the deceased were destroyed prior to the search for the will being carried out.

d. The nature and character of the deceased in taking care of personal effects.

e. Whether there were any dispositions of property that might support or contradict the terms of the copy sought to be admitted to probate.

f. Statements made by the testator which confirm or contradict the terms of the will.

g. Whether there is evidence that the testator understood the consequences of not having a will and the effects of intestacy

h. Whether the testator made statements to the effect that he had a will

38. I consider this to be a useful modern summary of the factors. I turn now to consider these various factors in the light of the circumstances of this case.
The circumstances of the custody of the will
39. In Patten v. Poulton itself Sir C. Cresswell regarded the nature of the custody of the will as an important indicator of intention. He noted that the testatrix had changed her residence twice after the will was made and that she did not appear to have any place for the deposit and safekeeping of papers of importance. In that context he regarded the possibility of the will being lost by accident as not being excluded. He also noted that her brother had destroyed some papers, the particular nature of which was unclear, and therefore that the possibility of destruction by another person was also not excluded. The same approach is noted by Cockburn C.J. in Sugden v. Lord St. Leonards where he noted that:

“…the custody was anything but a close custody. The box was kept in a room on the ground floor, common not only to the inmates of the house, but to anyone who had obtained access to it. It was kept in a common box easily opened….”
40. In the present case the evidence does not point to any care being kept by the deceased of her personal papers. It is also clear that she moved many times in her later years, and that she and her husband moved from their family home to a retirement home in 2007. It was said that at one stage important paperwork was kept by her in a wardrobe, but there is no evidence that the couple had a special and secure place in which they kept important documents. It is noteworthy in that context that no person appears to have seen the original in the lifetime of the testatrix.
41. I accept the argument of counsel for the respondent that there is no direct evidence as to the nature of the practice of the deceased and of her late husband with regard to the keeping of papers, and that therefore the circumstances of the custody of the will are not such as would raise an argument or might rebut the presumption.

42. What is more problematic, however, and this was pointed out by counsel for the applicant, is the fact that there is no evidence that the original of the will was in the custody of the deceased from the time it was made in 1988. It could well have been mixed with her other papers or of her husband, and there is also no contemporary evidence as to what was done with the various papers and belongings of the couple when they moved from their home to a retirement home. In that context it should be noted that the will was a small will of one page only and more bulky paperwork might well have been more obviously important, and thus less easily accidentally destroyed.

43. I consider that were the only circumstances to which I might have regard those of the care and custody of the papers of the deceased, that little or nothing is available from which I can draw a clear conclusion.
Circumstance of the will itself
44. The authorities suggest that the circumstance of the will itself may be a key to the consideration of the presumption. This is evident from Wren v. Wren mentioned above, and from the old case of Saunders v. Saunders 6 NC 522 where Sir H. Jenner Fust said:

“The strongest proof of adherence to the will, and the improbability of its destruction, arises from the contents of the will itself.”
This dicta was quoted with approval by Sir C. Cresswell in Patten v. Poulton.
45. The circumstances of the will of the deceased are of particular importance. It seems that the deceased believed that she co-owned the property at Dufferin Avenue with her sisters as tenants-in-common. Counsel for the respondent suggests that on the death of her first sister on the 23rd of March 1994, the deceased must have known that the property passed by survivorship to herself and her sister Sarah. He argues that the misunderstanding as to the nature of the tenancy must have become clear to the sisters then, and that by then, the deceased would have regarded her will as redundant, as its primary objective, to ensure that her surviving sister or sisters would have a right of residence in the house no longer needed to be preserved. That argument would have force were one to consider that the “primary objective” of the will of 1988 was to protect the right of residence of the sisters of the deceased in the house they jointly owned. However, one might also read the will as protecting the remainder interest of the four stepchildren of the deceased with whom she had by then a long-established relationship. It must also be borne in mind in that context that in 1988 the deceased was almost 70 years of age, and it would have been reasonable for her to have given some weight to the remainder interest to which she believed she was entitled in the house in Dufferin Avenue, and to the benefit that she wished to give to her stepchildren.

46. Further, there is no evidence that the deceased ever became aware of the joint tenancy in the house in Dufferin Avenue, and it seems more likely that had she known of that fact she would have then considered making a new will if, as counsel for the respondent suggests, the primary purpose of her 1988 will had been achieved. Thus it seems to me that the contents of the will itself point to a considered position by the deceased.

47. Further, I accept the argument made by counsel for the applicants that nothing happened in the lives of the couple, or of their children, or of the surviving sister of the deceased, which might have created a moral imperative to provide differently for any of them.

48. Thus I conclude that the contents of the will, the circumstances of which are a factor which must weigh in my mind in assessing the probability that the will was destroyed with the intention of revoking it, point me to the will being the product of a rational choice and decision by the deceased to benefit both her sister and her stepchildren, and more especially to preserve the full beneficial interest in her estate for those children after the life estate which she purportedly bequeathed to her sister. This is a rational choice and the character of that choice is also a factor to which I must have regard and to which I now turn.
The character and position of the deceased
49. The authorities suggest that certain elements of the character or position in the life of the deceased may be considered probative and counsel for the applicants argues that this case is close to the facts found in Patten v. Poulton. The testatrix in that case had married a man she believed to be single and had children by him. It turned out that he had been previously married and had a lawful wife living and, on discovering this, the testatrix separated from him and afterwards married a Sicilian nobleman with whom she had no children. She had great affection for her children and maintained a strong bond and contact with them although they all lived in different countries. She was known to have made a will bequeathing all of her property between her three children equally, but after her death the original could not be found. Sir C. Cresswell admitted the copy will to probate, finding that there were many circumstances tending to negative the presumption that she had destroyed the will animo revoncandi. He expressed these elements as follows:

“the constant undeviating affection manifested by the deceased for her children – that the will was made under the influence of that feeling as expressed at the time and afterwards – that she never expressed a desire to benefit by her will any other person, and above all the fact that she perfectly well knew that her children were illegitimate (although not by any fault of hers), and that consequently, if she died intestate, they would receive no part of her property, but the whole would be divided amongst others.”
Sir C. Cresswell followed Saunders v. Saunders as he believed that the “contents of the will itself shew the improbability of its destruction.” He held that the combined circumstances:
“render it so improbable that the deceased would wilfully destroy a will made in favour of her children, that I cannot, from the mere circumstances of its not being found, presume that she did so.”
50. Were the will of the deceased to have been destroyed by her with an intention to revoke it, she would have died intestate, as a result of which her estate would ultimately have passed to her remote relatives, her sister having died without issue, and her other sister being single and also having no children. Further, the facts suggest that she and her husband believed that she held an interest in the house at Dufferin Avenue in common with her sisters, and this belief is evident from the contents of her will, and from the fact that her husband, after their marriage, waived his rights to his legal right share in her estate at a time when her only asset was her interest in that house. The execution of the renunciation by the husband of the deceased is telling and indicates a view on his part, and on the part of his wife, and presumably the legal advice available to them, that in order to protect the rights of the sisters of the deceased in that home which they had occupied and owned jointly since 1962, that a waiver of his legal right share would be prudent. Furthermore, it must also be recalled that the deceased was almost 60 at the date of her marriage, and it is to be expected that she would have been acutely aware of the accommodation needs of her sisters and that neither she nor either of them had any children to whom she had any moral obligation or emotional connection.
51. On the other hand the evidence points to a very strong bond between the deceased and her stepchildren, a bond that continued well into her illness which led to a degree of cognitive impairment that commenced several years before she died and which is evident in their unfailing care for her after their father died and she was in her eighties and unwell. The facts point quite clearly in my view to a desire on the part of the deceased that she would benefit her stepchildren, provided the accommodation needs of her sisters, and the survivor of them, were adequately protected and preserved. That interest is also evident from the disclaimer executed by her husband not long after their marriage.

52. Counsel for the applicant urges upon me that I ought to presume the deceased was aware of her husband’s financial affairs, and of the terms of his first will. I accept that this is a reasonable proposition and would flow from the fact that the couple considered it important that Mr. McDermott, and not the deceased, would execute a waiver of succession rights. I consider it important that mutual waivers were not executed, and this fact would suggest that the deceased’s own will was made in contemplation of providing for her stepchildren. I consider it highly probable that the deceased knew the terms of her husband’s first will which was made at the same time he disclaimed his right to take his legal right share on her death testate. Therefore I consider it probable that she intended by her will to preserve any inheritance she might have taken from her husband for his children, and not for her remoter relatives, with whom it is not established she had any strong bond or connection.

53. Counsel for the respondent also argues that the estate of which the deceased died possessed comprises wholly of the proceeds of sale of the house that she shared with her husband, and that as this was held in a joint account, it passed by survivorship to her and not under the terms of his will by which she was entitled to a life estate only. It is submitted that the supposition that the deceased intended to benefit her stepchildren on her death has no real basis in fact as she was likely to be unaware of the joint account or any inheritance she might take from her husband. I accept his argument to the extent that by 2000, and almost certainly by 2007 or 2008, the deceased was suffering from a degree of cognitive frailty which makes it unlikely that she understood the nature of the assets that she might inherit, or that were held in joint names and subject to a right of survivorship. However, I consider it significant that she never executed a renunciation of her own inheritance rights in the estate of her late husband, as he had done in hers. I consider it more probable than not that this couple discussed their own respective joint and several financial needs and those of their children, and of her siblings, and that the will she made in 1988 reflected a wish which was rational and in respect of which no evidence was being adduced that would suggest might have altered over the period between 1988 and the time frame when she became frail of cognition.
Conclusion
54. This case does engage the presumption of revocation. The presumption is rebuttable, and the evidence of rebuttal may be circumstantial, and the exercise engaged is a consideration of the circumstances of the deceased, the contents of the will, and the probability of the testator wishing to die intestate. I consider in this case that the presumption has been rebutted by such circumstantial evidence, and that the relevant circumstantial evidence includes the careful contents of her will which protected both the interests of her siblings and those of her stepchildren, allied to which is the fact that the husband of the deceased had renounced his succession rights in her estate, and that she had not renounced her rights in his estate. This circumstantial evidence points me to the conclusion that as a matter of probability the deceased did not intend to die intestate.

55. The evidence also points to the deceased being conscious of her financial means, and of having a sufficiently strong bond with her husband for him to have disclaimed his interest in her estate, but she not to have done so in his estate. The degree of complexity in thought, and the degree of mutual agreement that was necessary for that arrangement to be put in place, suggests that the couple was careful about their affairs, and the evidence therefore points to it being improbable in those circumstances that the deceased would have elected to have died intestate and thus to have denied her stepchildren the benefit of the monies which she inherited or took by survivorship following the death of her husband. Intestacy would have had the effect that her entire estate would pass to her surviving sister who is unmarried and has no children, and that the ultimate intestate successor would be remote relatives with whom she had no close connection or moral obligation. The relationship between the deceased and her four stepchildren was close and caring, and continued to be so close that she lived with them in an organised way for long periods of time in her later years, until she became incapable of living without full time institutional care.

56. I accept that some 25 years have passed between the time the deceased made her will and the date of her death, but I consider that the length of time makes it more probable that the will was lost rather than it was destroyed. Furthermore, counsel both accept that from the year 2000 or shortly thereafter the deceased was probably incapable of having the cognitive ability to revoke her will by destruction or otherwise and the period of 25 years is in effect shorter. Therefore in the circumstances I will make an order admitting the copy will to probate in common form of law.

In the Estate of Curtin [2015] IEHC 623

JUDGMENT of Ms. Justice Baker delivered on the 14th day of October, 2015
1. Carmel Curtin deceased died on the 9th February, 2013 having made and executed a testamentary instrument on the 17th August, 1998. The original of the will has been lost or mislaid as is not now forthcoming. There is in existence a photocopy of the will and evidence is available to confirm due execution of the will and the accuracy of the copy. This judgment deals with an application to admit the copy to probate in the absence of the original will and the applicants claims that there is evidence to rebut the presumption that in the absence of the original will it is to be presumed that the deceased had destroyed it with the intention of revoking it.

2. This judgment should be read in conjunction with the judgment delivered by me today in the estate of Re McDermott deceased where a similar issue arose.
Background
3. The deceased died divorced and without issue, leaving her surviving a brother and the children of four predeceased brothers, numbering fifteen in all, as the persons entitled to her estate on a death intestate. The application is made by motion to have the copy will admitted to proof by three of the four persons named as executors in the testamentary instrument.

4. The matter was heard on motion grounded on affidavit and the applicants were represented by counsel. Some of the beneficiaries who have opposed the application appeared as litigants in person, and some others expressed their opposition in letters to the Court. Counsel for the applicants sensibly accepted that the respondents who opposed the application be permitted to make submissions in writing, and that no oral evidence was required to be adduced by them under oath. The majority in number of the next of kin of the deceased oppose the application.

5. The grounding affidavit was sworn by the first applicant Kathrein Curtin, one of the named executors and a sister-in-law of the deceased. She swore the affidavit with the authority of the other surviving executors.

6. The deceased became unwell in May 2010 and came to suffer a degree of cognitive impairment such that on the 1st December, 2010 an enduring power of attorney which she had previously executed came to be registered in the High Court. The enduring power of attorney had been executed on 25th May, 2006 and her solicitor Eileen Lee has sworn two affidavits with regard to her knowledge of the affairs of the deceased, and exhibited copies of the deceased’s diaries for the years 2005, 2006 and 2007.

7. After the deceased became unwell some time in the summer of 2010, one of the applicants, Kathrein Curtin, found an envelope in the home of the deceased and took it to Ms. Lee solicitor for safe keeping. The envelope was sealed and Ms. Curtin says that she did not know what it contained. After the deceased died the envelope was opened and it contained a copy of the will made on the 17th August, 1998 and an original note on purple paper.

8. It is accepted by all of the relevant parties that should the copy will not be admitted to proof, the deceased will be deemed to have died intestate.
The will
9. The will of the deceased is a “home made” will made in her own handwriting and by it she makes a number of specific pecuniary bequests, devised her interest in her home equally between three identified persons, her brother Brendan and two nephews, and the residue of her estate was bequeathed to all of her nieces and nephews equally.

10. There is a note at the end of the copy found, also in her handwriting, but possibly written with a different pen, which is as follows:

“Note:-This will was composed and written by myself, C. Curtin, while alone in my own house, as above on Saturday 15th August 1998 and witnessed by above on 17th Aug, 1998 before they visited their elderly (84 yrs) mother who lives next door and has a live-in carer.”
There is also a line of script in what has been identified as Gregg shorthand immediately below the signatures of the two attesting witnesses and this has been translated as stating “original under mirror on chest in back bedroom”.

11. Further the copy will had a note inscribed on the back thereof:
“25th July, 2006
CURRENT WILL

made on Sat 15th August, 1998 witnessed by Mary & Vincent Redmond originally from 51 Beaumont Drive Presently at address as stated on Will

C. Curtin”

12. The sealed envelope found in the home of the deceased in 1998 contained only a copy of the will but it also contained an original note on purple paper which reads:
“Glenhelen, 53 Beaumont Drive, Ballintemple, Cork City
Thurs 3 Aug 2006

Most valuable document I have

C. Curtin

Get copy May 2007.”

The lost original: presumption of destruction with intention to revoke
13. When a will is known to have been in the possession of a testator and is not found after his or her death there is a presumption that the will was destroyed by the deceased with the intention of revoking it. The nature of the presumption was considered by me in the judgment of Re McDermott deceased. The presumption is a presumption of fact and may be rebutted by evidence, and, as discussed in Re McDermott deceased, that evidence may be circumstantial evidence. The court is required to assess whether the weight of the evidence and the circumstances, taken together, point to the fact of revocation. The onus of displacing the presumption lies on the party who sets up the will.
14. The applicants assert that the evidence points to the will still being in existence in 2006, probably in 2007, and argues that thereafter the deceased did not have sufficient mental capacity to destroy the will with the intention to revoke it. This case therefore raises two questions:

1. Whether the presumption that the will was destroyed with the intention to revoke it has been rebutted, and
2. The separate question of whether the deceased could have had the animus revocandi to revoke the will after 2007.

15. The latter question raises a different onus of proof, and, as will appear later in this judgment.
16. This case thus raises two questions of law and fact. The first question arises from the fact that the original will has been lost and involves consideration of whether the person setting up the will can establish sufficient evidence to rebut the presumption that it was destroyed during the lifetime of the deceased with the intention to revoke it. The second question relates to the capacity of the deceased to revoke the will, and thus that raises a separate question of fact and law, and whether sufficient evidence is available to establish that the deceased had the cognitive capacity to form an intention to revoke the will after 2007.

17. I will deal with each question in turn.
The loss or destruction of the original will
18. The presumption that if an original will was known to be in the possession of a testator and was not found after his/her death, that the will was destroyed, animo revocandi, is of considerable antiquity, and was found in the old Ecclesiastical Courts. I have considered the force of this presumption in the judgment of Re McDermott deceased and will not repeat that law here, save to say that the onus of rebutting the presumption lies on the person setting up the will. It is clear that the presumption may be more or less strong depending on the quality of the circumstantial and other evidence available.

19. One particular fact which has been noted as important in the case law is the quality of possession or custody of the will by the deceased: Re Sugden v. Lord St. Leonards (1876) 1 PD 154. It is also established that declarations of goodwill towards the named beneficiaries or adherence to the content of the will made by the deceased can amount to evidence which would suggest that the will was not revoked.

20. The applicants point to the fact that the deceased was known to be a woman who took considerable care of her possessions and papers, and this is shown by a number of means. The medical evidence from her GP Dr. David Flynn was that she was conscientious and perhaps even, in his words, “obsessional about detail”. He describes her as “a very capable lady, bringing lists of her concerns, and fastidiously writing any advice or instruction dispensed”. He noted that the deceased had worked in the Civil Service all her life and that she herself believed that her fastidiousness and care of detail arose from her training in the Service.

21. The deceased kept diaries, and her diaries for 2005, 2006 and 2007 were exhibited in the second affidavit of Eileen Lee sworn on the 4th June, 2015. Certain entries in that diary will come to be considered in the context of an examination of her state of mind in those years. For the present certain factors are to be noted: on the 27th November, 2005, there is an entry that she must “update my present will”, identified expressly by her as the will which was witnessed by Mary Roche and her husband Vincent, which I consider as a matter of probability to be the one now sought to be admitted to proof. This would suggest that the will was still believed by her to be in existence and valid on the 27th November, 2005. It is also clear that she made several appointments through 2006 to see Ms. Lee with a view to giving her instructions on a new will, and as late as 30th March, 2007 the deceased said she would call to Ms. Lee’s office to attend to payment of an outstanding invoice and to make a new will. On the 25th May, 2006 the deceased told Ms. Lee that her original will, which she identified as a handmade will, was at her home. There is evidence of various cancelled or delayed appointments to attend at Ms. Lee’s office through the summer of 2006 and a diary entry of the 26th May, 2006 suggest that she was to make a “new apt for concluding my will”.

22. The evidence also is that the deceased spoke to Ms. Lee on a number of occasions with regard the need to keep the handwritten will safe, although the last such conversation seems to have occurred on the 26th May, 2006.

23. All of the persons who oppose probate in respect of the copy point to the fact that the deceased wrote “not valid now July 2006/7” on the copy. I would deal later in this judgment with the reasons why the probable date of this note is 2007, but I consider that the personality and character of the deceased and the care she took of her documents and paperwork would suggest that she knew that she was writing on the copy, and I accept the argument made by all parties that she was unlikely to have written on what she believed to be an original. The respondents who opposed the admission of the copy to probate also point to the care that the deceased took with her personal belongings, and most especially with her paperwork.

24. They argue that a person who was so meticulous with her paperwork is unlikely to have lost or mislaid the old 1998 will and that is a factor that I must take into account. All of them now accept, as they must, that the notation on the copy which suggests that the original was not valid is not sufficient at law to revoke the will, but they argue that this notation, together with the diary entries, which suggest that the deceased did intend in 2005 or 2006 to make a new will, point to the fact that she did intend to revoke the 1998 will, that it did not express her wishes by that time, and that these factors taken together with her personality and the care she would likely have taken to preserve original documents, point to the conclusion that the fact the original was not found means that the will was destroyed by the deceased with an intention to revoke it.

25. There are also the rather curious and ambivalent entries on the purple note found with the copy will. The first of these is the note “Most valuable document I have” and, I accept that it is reasonable to assume this denoted the original will, and that the purple paper and the copy were companions to that will and that the notes on the copy can be read usefully together with the purple document.

26. What is more curious however is the note “Get copy May 2007”. I accept what was pointed out by a number of the objectors namely that this note must refer to a document other than the 1998 will as the deceased had a copy of that will and she in fact used it as a form of reference document from time to time, and certainly up to 2006 or 2007. This note does suggest that some other document was made in May 2007 or thereabouts of which the deceased wished to make a copy. It is difficult however to extrapolate with any certainty from this fact, as it is also clear from the evidence of Ms. Lee and from some of the diary entries that the deceased did have at least in mind that she would make a will through her solicitor, and she made and cancelled several appointments to do so in the relevant years of 2006 and 2007.

27. One of her nieces who lived with her as a child had a special relationship with her and believes that the deceased would have mentioned her specifically in the will. That factor does not it seems to me advance the argument, nor do the assertions made by many of the objectors that the will of 1998 did not in their view express what they believed would have been their aunt’s wishes.

28. No person who has opposed the applicants can show evidence of any conversation with the deceased that would suggest that she did destroy the will, although it must be noted that equally the applicants cannot show any evidence of a conversation with the deceased where she voiced adherence to the content of the will or the existence of the will, after 2006 or perhaps 2007.

29. It is important however not to engage in speculation, and the question for the Court is whether there is sufficient evidence from circumstance to rebut the presumption that the will was destroyed animo revocandi. It is quite clear that the original was in the possession of the deceased in the relevant years, and I consider the evidence quite clearly points to the fact that it was in her possession in May 2006 and in her home and she herself recorded that fact as did Ms. Lee. The matter must, however, be considered in the context of the argument as to capacity.
The second argument: lack of capacity to revoke?
30. The applicants argue that while it can be said that circumstances do point to an intention on the part of the deceased to make a new will, that she did not do so and that the documentary and other evidence available would suggest that the will of 1998 was still in existence in 2006, and that this fact, and the fact that the deceased spoke of it as her last will to her solicitor, and made certain entries both in her diary and on the copy which she treated as a class of reference document, all point to the fact that at least up to 25th July 2006, the date of the note on the back of the copy will which indicates that this was the “current will” of the deceased, the will of 1998 was still in existence and considered to be valid by the deceased at that time. They argue that thereafter the deceased came to suffer from a degree of confusion of mind and cognitive incapacity such that it is likely that the will could have become lost or mislaid while it was in her possession, or that she did not, as a result thereof, have the capacity to form an intention to revoke the will, even if she herself did destroy the original. With that argument in mind, I now turn to examine the other proposition of law to which this judgment relates.
The capacity to revoke
31. Counsel for the applicants points to the statement in Harris v. Berrall (1858) 1 Sw & Tr 153 by Sir C. Cresswell, as follows at pp. 154 – 155:

“If it is once proved that a will has been duly executed, I hold that it is entitled to probate, unless it is shewn that it has been revoked by one of the several modes pointed out by that statute; and I am of the opinion that the burden of shewing that it has been so revoked lies upon the party who sets up the revocation.”
32. The Court was satisfied in that case that the will of the deceased had been duly executed and that, on the evidence, it had remained in a perfect state until the deceased became of unsound mind and it was torn up by her in her insanity.
33. As Sir C. Cresswell said in that case, “an insane person cannot be said to have any intention”, and as the will was in the custody of the deceased and was torn by her, when she was not of sound mind, the tearing was not sufficient to revoke the will. Sir C. Cresswell identified the burden of proof as follows:

“The burden of shewing that it was not done after she became insane, but at a time when she was of sound mind, is cast upon the plaintiff, who sets up the revocation of the instrument.”
34. It may appear somewhat difficult to reconcile that judgment with the judgment in Welch v. Phillips (1836) 1 Moo. PC 302 as discussed in Re McDermott deceased but it must be recalled that the two lines of authority deal with different questions. The question in Harris v. Berral was whether the animus revocandi could be said to have been present at the time a will was destroyed, and the evidence in that case pointed to the will being in existence up to the time the incapacity was found. That particular factor is engaged in this case as it is clear the deceased did become of unsound mind in the years before she died and, as the will was known to have been in her custody during a period of unsoundness of mind, it could be said that the presumption of destruction with intention to revoke is not engaged. I consider that the dicta of Sir C. Cresswell is correct as a matter of law and it does no more than state the proposition that the act of revoking a will may not be done by a person without the requisite cognitive capacity to understand the nature and effect of the act he or she does. Thus, if it is known that an original will was in the custody of a deceased, and if it is known that he or she became of unsound mind, the presumption of revocation found in Welch v. Phillips will have no application. The question then becomes whether the original was in existence when the incapacity of mind arose. Thus two separate legal propositions are in play: the presumption of revocation if an original will is not found; and the legal principle that a will cannot be revoked by a person who lacks capacity to understand the act of revocation.
35. The applicants assert that the presumption of destruction with the intention to revoke does not apply as the evidence points to the deceased having become incapable, as a matter of fact, of revoking her will after 2007. Harris v. Berral was followed in Sprigge v. Sprigge (1868) LR 1 P & D 608, when Sir J.P. Wilde held that the presumption as stated in Harris v. Berral was correct and stated as follows:

“The short proposition is, that the burden of shewing that the revocation was done not after the testator became insane, but when he was of sound mind, is cast on those who set up the revocation. In this case there was no evidence to shew when it was done. Therefore those who sought to set up a revocation failed in establishing the facts on which the presumption of revocation would rest.”
36. The principle as stated by Sir J.P. Wilde seems to suggest that where mental incapacity arose, those who set up a revocation have to adduce evidence to show when the revocation was done, and the burden is on that party to show that it was done with the requisite intention.
37. Sir J.P. Wilde, after he had become Lord Penzance in 1870, delivered a similar judgment in Benson v. Benson (1870) LR 2 P & D 172. He stated the general proposition, namely that:

“when a will is once proved to have been duly executed, the Court must be satisfied that it has been revoked before pronouncing against it.”
38. He then usefully went on to deal with the question of where the burden lay in regard to proof of revocation, and he, correctly in my view, stated that there is no presumption in the absence of proof that the destruction of a will was done before a testator became insane, or indeed after this had happened. He pointed to the question being one of fact as follows:
“The answer is, that the Court always refuses to presume one way or the other, but holds that the party who alleges that it was done at a time when it would amount to a revocation must prove his allegation, and in the absence of proof the revocation falls to the ground.”
39. I adopt these statements of the law and consider that the burden lies on the persons opposing the admission to probate of the copy will to show that the deceased did have an intention to revoke this will at a time when she had capacity to effect a revocation at law.
40. I accept also the argument of counsel for the applicants that the fact that the deceased showed an intention to make a new will, or even to revoke her old will is not sufficient evidence that she did do so.

41. Counsel for the applicants makes the point that the medical evidence points to the fact that the deceased had come to suffer a degree of dementia or cognitive impairment, and to manifest a degree of incapacity, possibly as early as 2005, although her treating doctor describes her condition as a class of “so-called pseudo-dementia” present “where cognitive function is impaired in tandem with more severe depressive symptoms that does not amount to actual dementing illness”. He says the cognitive impairment in those circumstances can be exacerbated by the use of sedative drugs such as sleeping tablets, and the evidence is that the deceased did take sleeping tablets or sedative drugs for sleeping difficulties as early as 2006. Neither Dr. O’Mahony nor Dr. David Flynn, who acted as GP for the deceased for over 30 years, now holds her original medical notes. Dr. David Flynn however points to the fact that the deceased ceased driving in 2007, and that she did suffer from anxiety and depression throughout her life.

42. Dr. Flynn executed a certificate for the purpose of the putting in place of an enduring power of attorney by the deceased on the 22nd May, 2006 by which he confirmed that she did have capacity to understand and execute an instrument creating an enduring power on that date. Dr. Flynn confirms that her mental status “gradually deteriorated from the years 2008 to 2010 when she became more confused and forgetful” and on the 25th June 2010 he signed a certificate for the purposes of the registration of the enduring power of attorney based on his view that she no longer had capacity to manage her own person and affairs.

43. Apart from the medical evidence, there is the evidence from dairy entries from 2005 to 2008. The deceased, in a poignant entry on the 27th March, 2007, said, “the long lonelinesses drains me of energy”. On the 28th September, 2006 her entry refers to her depression “building up every day, causing loss of energy”. She said she had “no heart to ring anyone anymore”. On the 14th November, 2006 she made the entry “must fill in diary everyday as memory failing!!” On the 27th March, 2007, with reference to the sedative drugs that she took for sleeping, she entered the following, “must take the sleeping pill now every night now – which leaves me ‘dopey’ when I wake.” On the 28th March, 2007 the entry is “all my ‘private business’ is in Limerick Brain is ‘winding down’ so no mental energy anymore.”

44. There was an incident in October 2008 when the deceased paid money to a builder in advance to do some work on her house who then did not do the work and could not thereafter be contacted. The matter was reported to the Gardaí and the exhibited Garda report suggested that the deceased was unable to “piece together what happened”, and that her memory of the incident was confused and unreliable. The applicants places some considerable importance on this incident as an example of an objective observation of her lack of ability and Dr. O’Mahony also notes this incident, and he also notes that her friend who attended with the deceased when he assessed her in 2010 suggested that the dementing illness was manifest in 2008, and this is consistent with Dr. Flynn’s evidence that her mental state did deteriorate from 2008 onwards.

45. The parties opposing probate of the copy will point to the fact that the persons appointed as attorneys under the EPA did not become sufficiently concerned to register the enduring power of attorney until the 1st December, 2010, and that one of the chosen attorneys had experienced a dementia condition with her own mother and must have as a result been aware of the difficulties the condition could cause and her obligation to seek registration of the instrument creating the power. Some of them point to conversations with the deceased, in December 2009, at the funeral of her late brother Brendan, when she was coherent and lucid and completely familiar with family members and activities. One of them describes contact with her by phone and a letter from her in March 2007, copies of which were exhibited and which it is argued show her to be lucid.
Conclusion on the evidence
46. As I have said it is important not to fall into speculatation and hypothesises with regard to the available evidence as to the cognitive impairment from which the deceased suffered. It seems moderately clear that by 2008 the deceased was suffering from some degree of cognitive impairment but not sufficient to trigger the registration of the enduring power of attorney, and she continued to live alone, albeit with some daily help, until 2011. Her condition is described by the medical advisors as progressive. A key date is the date of the execution of the enduring power of attorney in 25th May, 2006, when both medical and legal persons dealing with that instrument were confident of her ability. The other key date is 1st June, 2010 when the instrument came to be registered.

47. I return now to the note on the copy of the will of 1998 which contains the note “not valid now July 2006/7”. I consider it more probable that the relevant date is 2007. Had this note been made in July 2006 it would be difficult to reconcile with the note, also on the copy will, dated the 25th of July, 2006 where she records or declares that the copy is her “current will”. It is more likely that the date was 2007, and that this reflected something that occurred or was thought to have occurred between the 25th of July 2006 and July 2007. Certain evidence is available of the activities of the deceased in the winter of 2006/7. On the 19th of February 2007 she makes an entry in her diary, “lot of document sorting in bedroom…” There is also the rather elusive note on the purple note which says, “get copy May 2007”, which as I have said, must be a reference to a document other than the 1998 will. It might suggest that another will was made of which she might have wanted to make a copy.

48. I accept that it is clear that the deceased did at least consider making a new will after 2005 or 2006, and I consider that she had then formed an intention to make a new will. She herself notes that she found it “too difficult” and “hates deciding” in her diary note of the 31st January, 2006 and it must be remembered that she had a large number of nephews and nieces. I consider it possible that she kept the copy will as a template for the purposes of drawing up a new will but this is difficult to reconcile with the fact that she certainly seemed to consider it prudent to make a will through the assistance of a solicitor, and no new will was found among her papers.

49. I also consider it significant that the deceased was described as the repository of family documentations, photographs, letters, family paperwork, family correspondence, newspaper clippings, certificates etc. No other important document has been noted to be missing.

50. I conclude on the best evidence available that the deceased did come to suffer from cognitive impairment but not until 2008 and that her deterioration between 2008 and 2010 was gradual.

51. I conclude therefore that it was possible for the deceased to revoke her will up to 2008 or 2010 at the latest and that there was a window between 2005, when she first expressed dissatisfaction with the wishes expressed in the will of 1998, and 2008, or perhaps 2010, when she might have revoked the will. This results in a conclusion that those seeking to oppose probate in the copy have established to my satisfaction that the presumption of destruction does apply in those years between 2005 and 2008 or up to 2010 and that it was possible for the deceased to have formed an intention to destroy the will in those years.
Conclusion
52. I conclude then that the presumption of destruction with intention to revoke is engaged in this case and that there was a window up to 2008 or even to 2010 in which the deceased could have validly revoked her will of 1998. I consider in that context that certain factors led me to the conclusion that she did destroy the will with the intention to revoke it. There are not in this case many of the elements which are found in other authorities where a copy will was admitted as proof. There is no declaration consistent with the contents of the will; there would be no absurdity or irrationality in the deceased dying intestate, and the persons that she would wish to benefit would be identical or more or less identical with those persons who would succeed on intestacy; the practical effect of the will of 1998 and succession on intestacy is slight; the deceased had made an earlier will in 1995 in which she made a number of substantial chartable bequests, none of which were found in the will of 1998 and this difference shows that she regarded the making of a will as a matter of some importance and this is consistent with her personality and character. Allied to this is the fact that one test which is frequently applied in cases where a copy will is sought to be admitted is the character of the custody of the original, and it is clear that the deceased was a meticulous person, that she did at least at some point in time keep the will under a mirror in a bedroom in her house, that she did herself confirm that the copy will was in her home as late as July 2006, and that she did express disquiet about the contents of the 1998 will in writing and to her solicitor.

53. All these facts point to me to the conclusion that the presumption has not been rebutted by the applicants, and that the evidence points to the fact that the original will of the deceased was not lost or mislaid, but was destroyed by her with the intention to revoke, at a time when she did have mental capacity to validly revoke the will at law.

54. Therefore I refuse the application to admit the copy will to probate.

In re Plunkett. McCarthy v. Dillon.

[1964] IR 259
Budd J. 259

BUDD J. :
This summons is brought by the executors of John Plunkett, deceased, for the determination of certain questions arising on the construction of his will in the events which have happened. He made his said will on the 14th August, 1951, and a codicil thereto on the 8th August, 1960. He died on the 27th August, 1960. By his will the testator disposed of various items of property, but it is only necessary for me to deal with two items. In relation to these the will provides:I give devise and bequeath all my estate and interest in the houses and premises hereinafter mentioned as follows:1) Number Three Selskar Terrace to my niece Eilis Cullinane absolutely. 5) Number Six Belgrave Road Rathmines Dublin to my nephew Michael Dillon absolutely.”
The residue of his property he gave to “such of the children of my deceased brother George Oliver Michael Plunkett as are living at the date of my death in equal shares as tenants in common.” By the codicil to his will he deals with the two above-mentioned properties again. The relevant portion of the codicil reads as follows: “I John Plunkett wish to add the following codicil to the above written will.
1. As I have sold No. 6 Belgrave Road its bequest must be cancelled.
2. I hereby cancel the bequest of No. 3 Selskar Terrace to Eilis Cullinane.
3. I give devise and bequeath all my estate and interest in No. 3 Selskar Terrace to my nephew Michael Dillon absolutely.”
There are two other paragraphs in the codicil dealing with a workshop and a bank guarantee, not relevant here.
The issues before me concern the revocation of the gifts of the houses at Belgrave Road and Selskar Terrace and arise because the house at Belgrave Road had not in fact been sold, contrary to what was thought by the testator and stated by him in the codicil. No difficulty arises as to the law which applies in a case of this kind. There is an Irish case, a decision of Meredith M.R., In re Faris, deceased, Goddard v. Overend (1), which is very much in point. It is not necessary to go into the facts of that case, but the principles of law stated are of value and apply to the facts I am dealing with. At page 472 of the report, the Master of the Rolls says: “Mr. Theobald, in the 7th edition of his valuable work, says (p. 750):’It has been said that a revocation grounded on the assumption of a fact which turns out to be false does not take effect “being, it is considered, conditional and dependent on a contingency which fails” (1 Jarm. 147). Probably the proposition is too broadly stated. There is little or no authority directly in point. The true view may be that a revocation grounded on an assumption of fact which is false takes effect unless, as a matter of construction, the truth of the fact is the condition of the revocation, or, in other words, unless the revocation is contingent upon the fact being true: see Thomas v. Howell (1).’ I adopt that statement of the law, merely substituting for the words ‘may be’ the word ‘is.’ The true view is, in my opinion, the view so clearly stated by Mr. Theobald.”
I accept that what the Master of the Rolls says is the true view of the law, namely, that a revocation grounded on an assumption of fact which is false takes effect unless, as a matter of construction, the truth of the fact is the condition of the revocation. That then is the true view of the law applicable to this case. I am fortified in my view by the fact that In re Faris, deceased, Goddard v. Overend (2) was approved and followed by the Court of Appeal in England in In the Estate of J.R. Southerden. Adams v. Southerden (3), and recently followed by Cross J. in In re Feis, deceased. Guillaumev. Ritz-Remorf (4), and I am happy to know that no difficulty arises as to the law which is applicable.
I now have to consider the effect of the clauses in the codicil. The testator clearly indicates the reason which led him to revoke the gift of No. 6 Belgrave Road. He says:As I have sold No. 6 Belgrave Road its bequest must be cancelled.”The use of the word, “as,” gives a clear indication of the reason why he was revoking the bequest, namely, the supposed sale, and it was thus based on a false assumption of fact. It is then a matter of construction whether the truth of the reason so stated was a condition of the revocation. The correct inference to be drawn as to the testator’s intention from the words used is that but for the (supposed) sale he would not have revoked the gift. The revocation in my view was therefore conditional and, as such, being based on a false assumption of fact, was ineffective to revoke the gift.
A matter of some difficulty, however, arises in relation to the revocation of the gift of No. 3 Selskar Terrace. This property is clearly given to Eilis Cullinane in the will. My attention has been called to the fact that the relevant part of the codicil is drawn in three numbered paragraphs and that as the document stands physically there are three separate paragraphs relating to the revocation of the gifts of the houses at Belgrave Road and Selskar Terrace and the new gift of the house at Belgrave Road. While it is not my function to make the testator’s will for him it is nevertheless my duty to ascertain the testator’s intentions from the document before me, and I think Mr. Murphy is correct in submitting that I should regard the separate paragraphs as merely the mode of approach of the testator to the setting out of his intentions. I also attach force to what Mr. Murphy says regarding the first clausethat it is based on the acceptance of a fact and that it betakes somewhat of the nature of a recital. It seems to me that though these paragraphs are separated by fullstops and are on separate lines they are yet linked together. I say this because of the sequence and effect of the clauses. By the first clause the testator revokes the gift of No. 6 Belgrave Road to Michael Dillon for the reason stated, while by the second he revokes the gift of No. 3 Selskar Terrace to Eilis Cullinane, and by the third he gives No. 3 Selskar Terrace, bequeathed in the will to Eilis Cullinane, to Michael Dillon. He thus indicates, as it seems to me, that the reason that the gift to Eilis Cullinane was revoked was only because the testator was under the impression that the gift to Michael Dillon was ineffective. It is therefore proper to conclude that all three paragraphs should be read together and that all three flow from the original error. Applying In re Faris, deceased, Goddard v. Overend (1) the proper construction of the relevant portion of the codicil is that the cancellation of the bequests in the first two paragraphs was conditional only, being based on the false premise of the sale of 6 Belgrave Road. The codicil is therefore ineffective to revoke the bequest of 3 Selskar Terrace to Eilis Cullinane and the bequest to her in the will of this house stands good and effective.

In the Goods of Elizabeth Raghtigan, Deceased

Probate and Matrimonial Division.

15 March 1892

[1892] 26 I.L.T.R 93
Warren J.

March 15, 1892

A will contained no residuary clause in the body thereof, but one was added at the bottom below the attestation clause:

Held, that probate of the residuary clause could not be granted, nothing appearing on the face of the will to take it out of the provisions of the Wills Act.

In Re Jermingham Trusts

[1922] IR 115
In re JERMINGHAM TRUSTS. GORMANSTOWN and Another v. NICHOLL and Others
(1922. No. 367.)
26,27, 31 July 1922

O’CONNOR M.R. , having stated the facts as above, proceeded:
The events which happened are theseGeorge Stanley Carey, the third tenant for life mentioned in the will, died on the 4th April, 1896, without issue. His death is mentioned in the codicil. Agnes Mary Stanley Carey, the first tenant for life, survived the testator, on whose death she went into possession of the lands, and so remained until her death, which occurred on the 16th July, 1921.
Iltyd Nicholl, the second tenant for life under the will, survived the testatrix, but died, in the lifetime of Agnes Mary Stanley Carey, on the 9th October, 1914. He had married and left him surviving two sons, who are still living, and are under the age of twenty-one years. The eldest of these is Iltyd Andrew Antonius Lawrence Nicholl, the first-named defendant in the summons. His younger brother Paul has not been made a party to the proceeding.
Bernard Nicholl, the fourth tenant for life named in the will, survived the testatrix, but died on the 9th October, 1914, in the life-time of Agnes Mary Stanley Carey. He left issue, and the defendant Robert Arthur Francis Nicholl is his eldest son.
During the lifetime of Agnes Mary Stanley Carey parts of the lands devised by the will were sold under the Land Acts, and the proceeds of the sale were invested in and are now represented by £7,799 19s. War Loan 5 per cent. Stock, which stands in the joint names of the trustees of the will, who are trustees thereof for the purposes of the Settled Land Acts. They are the plaintiffs in the matter. The defendant Robert Arthur Francis Nicholl, conceiving that under the will and codicil he was tenant in tail of the lands and stock immediately expectant on the life estate of Agnes Mary Stanley Carey, mortgaged his estate in remainder by indenture dated the 17th September, 1920, to John Abercrombie Holdsworth to secure the sum of £820. This indenture was enrolled as a disentailing assurance, but created only a base fee, as it was executed in the lifetime of Agnes Mary Stanley Carey. After her death the base fee was enlarged into a fee-simple by indenture dated 16th September, 1921.
On the death of Agnes Mary Stanley carey the defendant Robert Arthur Francis Nicholl entered into possession of the lands and receipt of the rents and profits thereof, and is still in possession.
The defendant Iltyd Andrew was at the death of Agnes Mary Stanley Carey and still is resident in Australia with his mother. Owing to his absence and his infancy, his right, if any, was not asserted on the death of the tenant for life, and the title of Robert Arthur would have remained unchallenged were it not that the fund which was in the hands of the trustees had to be dealt with. The defendant Robert Arthur called upon the trustees to transfer this fund to him as absolute owner in the events which had happened. The trustees were advised that they could not safely do so without getting the opinion of the Court, and hence the present summons.
The question at issue arises on the codicil. Had it the effect not merely of revoking the devise of the life estate given by the will to the testatrix’s grandson Iltyd, but also of revoking the gift to his issue of the estate in tail next in remainder? His eldest son is the first-named defendant. He is an infant, and has appeared by his guardian ad litem. It is contended for him that the codicil only revoked the devise of the estate for life given to his father, and did not revoke the devise in tail male to his first and other sons, and that he became entitled thereto in possession on the death of Agnes Mary Stanley Carey, the effect of the codicil having been to accelerate his estate tail. This is purely a question of construction, and in approaching it I am fully impressed by the principle insisted, and properly insisted, upon by Mr. Lavery, counsel for the infant, that when there is a clear gift by a will it must remain unless it is clearly revoked by a codicil. In other words, the Court must be satisfied that the testator or testatrix intended to revoke and did in fact revoke the gift given by the will. Let us see then what the will and codicil did. The will gave the lands to Iltyd Nicholl (the grandson) for his life, with remainder to his first and other sons in tail male. The codicil revokes the clauses, directions, limitations, and provisions contained in the will so far as relates to the said Iltyd Nicholl and George Stanley Carey (he being then dead), and directs and declares that the will shall be read and construed as if the names of Iltyd Nicholl and George Stanley Carey had been omitted therefrom; but in lieu of the share and interest which the said Iltyd Nicholl would have taken under the will if the codicil had not been made, she directed that the trustees should pay after her decease to her grandson Iltyd Nicholl the annual sum of £100 out of the income of her estates during his life. Now, on the first reading of this clause there seems to be nothing that would justify its application to more than the life estate of Iltyd Nicholl, although, no doubt, the words “clauses, directions, limitations, and provisions”are more than sufficient for reference to a mere life estate. But in a close reading, I think that the words must be held to refer to more than the life estate. They are to be construed with reference not merely to Iltyd Nicholl, but also to George Stanley Carey. Now, he had died without issue before the codicil was made, so that he and his issue were in effect struck out of the will. Therefore, when the testatrix revoked her will, so far as he was concerned, she must have intended to revoke the limitation to his issue as well as the life estate. It was unnecessary for her to do either, but having proceeded to make the revocation she must be taken to have intended that the whole line of limitations, so far as George Stanley Carey and his male issue were concerned, should be obliterated. If that is the construction, so far as relates to the George Stanley Carey line, must not a like construction be applied to the Iltyd Nicholl line? I think that this follows of necessity, because the names of both Iltyd Nicholl and George Stanley Carey are dealt with together in one clause. But there is more than this in the codicil to help the construction. If the codicil had the effect of striking out from the will the estate in tail limited to the issue of Iltyd Nicholl, the only other estate tail which could arise under the will would be in the issue of Bernard, and any remainder over on cesser of that estate tail would be in default of the issue of Bernard irrespective of any other issue. It is then strongly confirmatory of the construction of the codicil that we find at the end thereof a further limitation in default of issue by Bernard in favour of Francis Stanley Carey for life, with remainder to his sons in tail. If the issue of the testatrix’s grandson Iltyd had any interest, the limitation ought to have been “in default of and subject to the limitations aforesaid,” and not merely in default of issue of Bernard. No doubt, in an unbroken series of limitations the words “in default of issue” or “such issue”are aptly used when it is intended to create a further remainder on determination of all prior estates; but here we have in the codicil a further remainder given by a different instrument from that in which the prior series of limitations is given, instead of a continuous series of limitations in one sentence. However, I only dwell upon this as confirmation of the construction which, independently of it, the clause of revocation in my opinion bears.
During the argument my attention was directed to the clause in the codicil which directs that on the happening of certain events the whole of the interest of the said Iltyd Nicholl (the grandson) should go and be disposed of as if the said Iltyd Nicholl were then dead. It occurred to me at the time that this direction favoured the view that the estate in tail male given to his sons by the will was accelerated and not destroyed; but on reading the clause in connexion with what goes before, it appears that it referred only to the cesser of the annuity of £100 bequeathed by the codicil to Iltyd Nicholl for his life or until bankruptcy or alienation. These are the only events provided for, and they only affected the annuity.
So far I have not referred to any authority, because the case is purely one of construction, and I think that the best way of getting at the meaning of a document is from the document itself; and if it can be interpreted without reference to what was decided on other wills, it should be so construed.

Of course a rule of law, as distinguished from a rule of construction, must be obeyed, and I have been pressed by the rule that the revocation of the gift of a life estate does not destroy the estate tail given next in remainder to the issue of the tenant for life, but accelerates it. I fully accept this rule; but before it is applied it must first be established that it was only the gift of the life estate which the testator or testatrix intended to revoke. In this case I think that the testatrix intended to revoke both the estate for life and estate tail next in remainder.
In re Whitehorne, Whitehorne v. Best (1), was strongly pressed on me by Mr. Lavery as an authority on a will almost precisely similar to the will now before me. There there was a revocation of the life estate, and the will declared that the direction and trusts thereof should be carried out as if the name of the tenant for life had never appeared therein. It was held that the estate in remainder was not destroyed. But the case turned on the intention as expressed by the will, and it was clear that there was no intention to revoke the estate in remainder. I cannot follow it, because I am of opinion that in the present case the testatrix did intend to destroy the estate in remainder. This was the sole question raised by the summons, and I answer the question put by declaring
1. That the defendant Iltyd Andrew Antonius Lawrence Nicholl did not take any estate or interest in the lands mentioned in the said will and codicil or the investments representing the same.
2. That the defendant Robert Arthur Antonius Lawrence Nicholl in the events which happened took an estate tail in possession in the said lands under the said will and codicil immediately on the death of Agnes Mary Stanley carey, deceased.

MURNAGHAN J. :
The deceased in this matter made four wills, the first on 4th January, 1929, the second on 10th March, 1930, the third on 5th May, 1931, and the fourth on 7th November, 1933, and the substantial question is whether the second will, made on 10th March, 1930, is a valid testamentary disposition, or whether it has been revoked.
The case is one of difficulty because the testatrix got possession of the fourth will and subsequently destroyed it, while there is no copy to prove its contents. The fate of the original will of 5th May, 1931, is unknown, and there is likewise no copy to prove its contents.
The first will was made by the late Charles H. Denroche, solicitor, on 4th January, 1929, and he retained the original will. He also made the second will, dated 10th March, 1930, and the original will was also retained by him. Mr. Charles H. Denroche gave up practice as a solicitor on 31st December, 1930, when his son, Mr. Charles T. Denroche, took over the office. After the death of the testatrix the original wills of 4th January, 1929, and 10th March, 1930, were found among the papers in the office.
Mr. Charles T. Denroche can recall from memory very little of the circumstances of the making of the wills of 5th May, 1931, and 7th November, 1933, but there are certain entries among his papers dealing with the making of these wills. He can give no detailed evidence of the contents of these wills, but he recalled that the will of 7th November, 1933, was at the request of the testatrix made in a hurry a fact which is confirmed by his entriesand that no copy was made. Mr. Denroche also wrote a letter in November, 1935, which bears on these transactions.
Sect. 20 of the Wills Act (7 Wm. 4 & 1 Vict., c. 36) enacts:”No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid [viz., by marriage] or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.” On the facts of the case the only question arising under this section is whether the second will was revoked by the third will or by the fourth will.
Revocation of a will by another will duly executed is not a question of form but of intention. It may accordingly be stated as a proposition of law that a will may be revoked by the making of a later will which is so inconsistent with the terms of the prior will that it is impossible that both wills can stand together. In our law, unlike the Roman law, any number of wills can be made without revoking the others, and if these wills are in part inconsistent the later will effects only a partial revocation of the earlier will. In Roman law the testament was in its nature the opening of a universal succession to the heir or co-heirs and, the succession being a universal succession, there could be only one testament. After the passing of the universal succession to the heir, gifts by way of subtraction from the inheritance could be given as legacies, or the heir could be bound by, fideicommissa,but the documents creating these gifts were not testaments. In our law where there are more wills than one it is always a question of intention whether the will later in date effects a total revocation of an earlier will.
A second proposition of law may be stated:that even a will which is lost may revoke a previous will if the making of the will and its contents are sufficiently proved. Whatever doubts may have been expressed on this point by certain Judges after the passing of the Wills Act, this doubt has disappeared after the decision given in England on Lord St. Leonard’s will: Sugden v. Lord St. Leonards (1). At a much earlier date it was recognised in Cutto v. Gilbert (2)that parol evidence may be given of a lost instrument, with the result that the lost instrument may revoke an earlier will.
Does there exist in this case clear and satisfactory evidence to prove beyond reasonable doubt that the will, dated 10th March, 1930, was revoked? Counsel for the plaintiff quote insistently the note of warning found in Cutto v.Gilbert (3) that to accept oral evidence as proof that a lost will revokes a previous one is “a course of proceeding not unattended with danger, and, consequently, that such oral evidence ought to be stringent and conclusive.” The same warning is found in other authorities in much the same language.
The will of 10th March, 1930, differs from that of 4th January, 1929, especially in that it omits a legacy of Â£3,000 in favour of Mrs. Esther Collins and the residue is given to the Sustentation Fund of St. Peter’s Church, Aungier Street, instead of to the children of Mrs. Esther Collins. Each will is drawn in the same formappointment of executors, bequest of pecuniary legacies and bequest of residue. As each of these wills severally intended to dispose of the whole property of the testatrix it has been accepted that the second will revoked the first will. Mr. Charles T. Denroche is not able from memory to say what the contents of either of the wills, dated 5th May, 1931, and 7th November, 1933, were, but he says it was his practice to draw wills appointing executors and in a form which disposed of the entire assets, and that, if he departed from this practice, he would remember doing so.
On the original will of 10th March, 1930, there is written in pencil in the margin: “To my niece, Mrs. Esther Collins, of Waterpark, Kimmage, Co. Dublin, Â£2,000. To Sarah Hickey, of Aungier St., Â£200.” The evidence is that the handwriting is that of Mr. Charles H. Denroche, and if this be correct the notes must have been made before 31st December, 1930. But at all events these notes tend to show that after the making of the will of 10th March, 1930, the testatrix wished again to give legacies to Mrs. Collins and Miss Hickey who had been beneficiaries in the will of 1929. Certain instructions for an intended fifth will were written down by Mr. Charles T. Denroche on 13th November, 1935, which included legacies amounting to about Â£4,500of which Â£1,000 was in favour of Esther Collins and Â£300 in favour of Sarah Hickey. At question 278 Mr. Charles T. Denroche was questioned about these instructions and he was asked: “Did you gather from her that these were persons who benefited under the will which she had destroyed,”and he answered: “Yes. I think I must have, but she was not clear then, you must remember.” A passage in an entry, dated 13th November, 1935, confirms this recollection.
A question arises whether Mr. Denroche’s evidence, if accepted, is legal evidence of the nature of the contents of the wills of 5th May, 1931, and 7th November, 1933. On this point authority can be found in Brown v. Brown (1),where it was alleged that a second will which was lost contained a clause revoking an earlier will. Coleridge J. said at p. 888: “Even if we assume that his recollection”he refers to the solicitor who drew the will “on this point was no more than that it was his invariable routine to insert such a clause, that would be to my mind the most satisfactory evidence of a matter of routine.” Crompton J. said at p. 889: “It is said he only gave that evidence [of a clause of revocation] because it was his course of practice to insert one; if it were so, it would not affect his testimony; it is every day’s practice to act on the evidence of clerks who remember nothing but that they would not have signed a receipt unless they had received the money; and there are many similar cases.” Wightman J. said at p. 888:”There was no need to prove the precise words of the last will if enough appeared to show that it revoked the first.”Accordingly Mr. Denroche’s evidence, as to the form of will which it was his practice to make, was legal evidence, and, as it was accepted by Mr. Justice O’Byrne, this evidence justified him in coming to the conclusion that the will of 5th May, 1931, disposed of the entire property of the testatrix. Entries dated 30th April, 1931, and 5th May, 1931, show that the dispositions of this will were different from some at least of the provisions of the previous willat least it is reasonable so to interpret the entry: “She altered her will.” I have also referred to evidence which justifies an inference that Mrs. Esther Collins and Miss Sarah Hickey received legacies which were not given by the will of 10th March, 1930.
Such being the form of the will of 6th May, 1931, was it compatible with the will of 10th March, 1930, so that both wills could stand together? If these wills could stand together all the legacies specified in the will of 1930 as well as those specified in the will of 1931 would equally be valid bequests. Having regard to Mr. Denroche’s evidence such a result seems to me to be directly opposed to the intention of the testatrix. In my opinion Mr. Justice O’Byrne was entitled to interpret Mr. Denroche’s evidence as meaning that the dispositions in the will of 1931 were to be substituted in the place of those contemplated by the earlier will. A further piece of evidence in writing aids this conclusion. On 12th November, 1935, Mr. Denroche wrote a letter to the testatrix which in substance informed her that the consequence of her destroying the will of 7th November, 1933, was that she would die intestate if she did not make a new will. Mr. Denroche wrote this letter at a time when his recollection of the wills of 1931 and 1933 was much more fresh than it now is, and it seems to me the more reasonable inference is that he knew the effects of the wills which he himself had made rather than to accept the suggestion that this statement was made in error due to ignorance of the existence of the will of 10th March, 1930.
Counsel for the plaintiff in support of the will of 10th March, 1930, urge again and again the admonition given in Cutto v. Gilbert (1) and other cases that the evidence of revocation should be “stringent and conclusive.” The meaning to be given to these words is not precisein Brownv. Brown (2), already referred to, the Court of Queen’s Bench accepted the evidence of a solicitor that it was his practice to insert a revocation clausein one sense such evidence was not “stringent and conclusive.” Having regard to the gravity of the matter, the Court should not lightly accept evidence seeking to set up a lost will; but, if there is clear and satisfactory evidence proving beyond all reasonable doubt that a will was in fact made, that it dealt with the entire property and was intended to be in substitution for a previous will, it is not in my opinion right that the perhaps accidental preservation of a testamentary document such as the will of 10th March, 1930, should give this document a sanctity so great as to override the proved intention of the testatrix, carried into legal effect in accordance with s. 20 of the Wills Act.
In my opinion the judgment of Mr. Justice O’Byrne was correct.

In the Goods of Francis McLoughlin, Deceased

High Court.

28 July 1950

[1951] 85 I.L.T.R 63
Haugh J.

July 28th, 1950

Eugene McLoughlin applied to the Court for an order that the Court “being satisfied as to the due execution of the two testamentary paper writings both dated the 19th day of March 1943, and as to their plight and condition and that they together constitute the last testamentary disposition of the above-named deceased, the Court do give liberty to apply for and obtain a grant of letters of administration of the personal estate of the above-named deceased, with his last will annexed as hereinbefore constituted, or for such other or further order as to this Honourable Court shall seem right …”.

The documents were as follows:—

19th March, 1943

in the name of God amen this my last will an testament I Francis McLoughlin leave to my son edjune my farm of land in Aughadruminchin

Francis McLoughlin.

Witnesseth by

Charles Blessing

Patrick McLoughlin.

19th March, 1943.

in the name of God amen This my last will an testament I Francis McLoughlin leave to my son edjune my farm of land in corrala an all goods an chattles an to my daughter sara kate I leave £150 one hundred an fifty pounds an to my daughter Bridget cristienia I leave £150 one hundred and fifty pounds an to my wife Bridget McLoughlin I leave a right to live in the house an to get her support during her natural life

Francis McLoughlin

Witnesseth by

Charles Blessing,

Patrick McLoughlin.

The affidavit of Charles Blessing in support of the application deposed as follows. The testator was a small farmer who resided at Corrala, Carrigallen, County Leitrim. He was possessed of two farms, one at Corrala with a poor law valuation of £4 10s. 0d., and one at Aughadruminshin, County Leitrim, with a poor law valuation of £2 10s. 0d., the subject of a folio in the Irish Land Commission. The farm at Corrala had been bought out prior to 1891 and was, accordingly, not registered. The Irish Land Commission records of the farm at Aughadruminshin were still in the name of the testator’s father. The wills were executed some days prior to the testator’s death, but he was mentally clear. They were drawn by one James Reynolds, who was now very old and was not approached to swear an affidavit, in the matter. One witness, Patrick McLoughlin, was now dead. The deponent was the other witness. When he reached the testator’s room both documents were handed to the testator who was sitting up in bed. He signed each of them and they were then attested, without any person adverting to the fact of, or the reason for, there being two documents. There was an idea prevalent in the district that land registered in a name different from that of the testator could not be included in the same will with lands of which he was registered owner. The deceased might have intended two wills in view of his desire to charge only one of the two farms with the support of the widow.

Haugh, J., gave liberty to apply for a grant of administration with the last will annexed, the two documents being regarded as comprising the last will. The shorter document should precede the other. A copy of the last will so constituted was to be prepared and certified by counsel.

In the Goods of John Baker, Deceased

[1985] IR 102
1 I.R. Re John Baker Decd.
Gannon J. 102
H.C.

P
Gannon J.
25th March 1985

John Baker, late of 121, Brookwood Avenue, Artane, in the city of Dublin, died on the 2nd of December, 1983. He is survived by his wife Margaret, whom he married on the 17th of August, 1954. There are no children of this marriage. On the 23rd of April, 1951, the deceased executed a will in which he declared:
“I give, devise and bequeath all my real and personal estate of every nature and kind whatsoever and wheresoever to Miss Margaret Gaffney of 109 Summerhill in the City of Dublin and I appoint Leslie E. Kearon, solicitor, of 31, College Green in the City of Dublin to be executor of this my Will.”
On that date he was unmarried and was living at 40, Middle Gardiner Street, Dublin. The executor named in that will now applies to this Court by ex-parte application for the following orders:
“1. For an order that the deceased’s will was not revoked by his subsequent marriage, in accordance with the provisions of s. 85, sub-s. 1, of the Succession Act, 1965.
2. In the alternative, for an order that the said will was revoked by his subsequent marriage and that the said deceased died intestate.
3. Such further or other order as this court deems meet and just.”
In the grounding affidavit the applicant deposes to the death and previous marriage of the testator on the dates referred to above and exhibits the will. He sets out in his affidavit the nature and value of the assets of the deceased and deposes to the fact that there was no issue of the marriage. In paragraph six of the affidavit the applicant deposes as follows:
“6. I am informed and believe that the deceased and the beneficiary had been acquainted since childhood. They were neighbours. I have been informed by Mrs. Margaret Baker, the deceased’s surviving spouse, that she does not recall with clarity the events of over thirty years ago, but she was engaged to be married for about two years before the marriage in August 1954, took place.”
For the purposes of this application I assume that the will was executed in accordance with statutory requirements, and that the deceased did not subsequently execute any codicil thereto. I assume also that no other will or codicil was made by the deceased later than the 17th of August, 1954, nor on any date subsequent to the 1st of January, 1967, when the Succession Act of 1965, came into operation.
The Succession Act of 1965, is an act to reform the law relating to succession to the property of deceased persons and in particular the devolution, administration, testamentary disposition and distribution on intestacy of such property, and to provide for related matters. By s. 8, and the second schedule of that Act, the Wills Act of 1837, and other relative statutes in relation to wills were repealed and consequently ceased to have any operation from the 1st January, 1967. Consequently, the law governing the representation of the estate of John Baker, deceased is that contained in the Succession Act of 1965. Section 9, sub-s. 4, of the 1965 Act provides as follows:
“The provisions of this Act shall not apply to the will of a testator who dies before the commencement of this Act but shall apply to the will of every testator who dies after such commencement, whether the will was executed before or after that time.”
The question, therefore, for consideration in this application is whether the will referred to in that sub-s. 4, of s. 9, of the 1965 Act must be understood to be the latest subsisting expression of intentions for testamentary disposition which is valid in law as to form and execution.
The statutory requirements prescribed in the Succession Act, 1965, for a valid will are contained in ss. 76-80, inclusive. But these statutory provisions must relate only to wills executed after the coming into force of the Succession Act, namely the 1st January, 1967. The provisions of these sections are in substitution for the provisions of the repealed Wills Act, 1837. By s. 19, sub-s. 1, of the Interpretation Act of 1937, it is provided that where an Act of the Oireachtas repeals the whole or a portion of a previous statute and substitutes other provisions for the statute or portion of a statute so repealed, the statute or portion of a statute so repealed shall, unless the contrary is expressly provided in the repealing Act, continue in force until the said substitute provisions come into operation. Section 21 of the Interpretation Act, 1937, provides as follows:
“(1). Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears, such repeal shall not-
(a) revive anything not in force or not existing immediately before such repeal takes effect, or
(b) affect the previous operation of the statute or portion of a statute so repealed or anything duly done or suffered thereunder, or
(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the statute or portion of a statute so repealed.”
The further sub-paragraphs of this section do not require consideration. The effect of these sections of the Interpretation Act, 1937, appears to me to be that the determination of whether or not the will executed by the deceased on the 23rd April, 1951, is or is not a valid will must be determined by the state of the law at the time that that will was executed. By virtue of the same provisions of the Interpretation Act, 1937, it would seem that the question of whether the will executed on the 23rd April, 1951, was in existence as a valid will at the date of the coming into operation of the Succession Act, 1965, must be determined by the state of the law which preceded the repeal effect of the 1965 Act.
The provisions of ss. 85-87 of the Succession Act of 1965, give recognition to the fact that a will of a testator has a valid and real existence capable of recognition in law up to the date of death of the testator, notwithstanding that it cannot take effect until the date of death. Section 89, which provides that every will shall with reference to all estate comprised in the will and every devise or bequest contained in it be construed to speak and take effect as if it had been executed immediately before the death of the testator unless the contrary intention appears from the will, is further recognition of this fact, although this section relates only to matters of construction and not to the validity of the document as a will.
The statutory requirements applicable to the execution of a valid will in April 1951, were those prescribed by the Wills Act of 1837, (1 and 2 Vic. c. 26, ss. IX and XIII). Although a will validly made in accordance with such statutory requirements does not take effect until the death of the testator, its effective continued existence as a testamentary disposition was recognised by the statutory provisions of ss. XIII-XXII, of the Wills Act, 1837. Section XVIII, of the 1837 Act prescribed as follows:
“And be it further enacted, That every Will made by a Man or Woman shall be revoked by his or her Marriage (except a Will made in exercise of a Power of Appointment, when the Real or Personal Estate thereby appointed would not in default of such Appointment pass to his or her Heir, Customary Heir, Executor, or Administrator, or the Person entitled as his or her next of Kin, under the Statute of Distributions).”
Section XIX, of the 1837 Act provides that no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances. Section XX of the 1837 Act, which prescribes circumstances and methods of revoking a will, commences in the following way:
“And be it further enacted, That no Will or Codicil, or any Part thereof, shall be revoked otherwise than as aforesaid, or . . .”
This section is expressed in a negative manner and the expression”otherwise than as aforesaid” refers only to the provision of s. XVIII, which prescribes the revocation of a will by the subsequent marriage of the testator. In s. XXII, of the Act of 1837, it is provided that:
“No Will or Codicil, or any Part thereof, which shall be in any Manner revoked, shall be revived otherwise than by the Re-execution thereof . . .”
Having regard to these provisions of the Wills Act, 1837, which were in force and applicable up to the 1st January, 1967, it is clear that on the 17th August, 1954, the will dated the 23rd April, 1951, made by John Baker, became effectively revoked and could not be revived otherwise than in accordance with s. XXII, of the Wills Act of 1837. Accordingly, as from the 18th August, 1954, the document produced as the will of John Baker, dated the 23rd April, 1951, was not a valid effective will and consequently could not, in my opinion, come within the scope of s. 9, sub-s. 4, of the Succession Act, 1965.
Even if the will dated the 23rd April, 1951, were to be construed in accordance with the provisions of the Succession Act, 1965, as to the

[1985]
1 I.R. Re John Baker Decd.
Gannon J. 106
H.C.
requirements for its validity, it seems to me the facts relating to it as deposed to would not enable the applicant to avoid the effect of sub-s. 1, of s. 85 of the Succession Act. By that sub-section, it is provided that a will shall be revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether so expressed in the will or not. There is nothing in the evidence on this application which would enable a court to draw an inference of probability that the will was made in contemplation of any particular marriage. Had the will been made in contemplation of some marriage, it is probable that the person taking the instructions for the making of the will would have received some intimation of that nature and could give evidence to that effect.
In the absence of any evidence that the applicant has any interest in the estate of John Baker deceased other than that conferred by the document of the 23rd April, 1951, it would seem that the applicant cannot competently call upon this court to make any order within the range or scope of the provisions of the Succession Act of 1965, or the rules of court in probate matters.

In the Matter of the Estate of Patrick Andrew Fleming Deceased

Application of Mary Regan
High Court Probate

16 March 1987

[1987] I.L.R.M. 638
(Gannon J)

16 March 1987

GANNON J

delivered his judgment on 16 March 1987 saying: The above named deceased was a ward of court at the time of his death which occurred on 8 March 1983 at Kilcroney in the county of Wicklow. The applicant is a sister who was the committee appointed by the court on 18 May 1981. Her bond was vacated pursuant to the order of the President of the High Court on 14 February 1984. Her application to this court seeks a number of declaratory orders not appropriate to a motion of this nature. At par. 5 of the notice of motion it does seek an order sufficient to include the inquiries and rulings apposite to the other matters referred to in the other parts of the motion paper. That paragraph is as follows:

5 For an order pursuant to Section 27(4) of the Succession Act 1965 that the Applicant Mary Regan be at liberty to apply for Letters of Administration (Intestate) of the estate of the deceased.

Accordingly having regard to the arguments addressed to me in court I propose to consider the application as if it had been expressed in the following more amplified form (in which I underline the additional words):

For an order pursuant to s. 27(4) of the Succession Act 1965 that the applicant Mary Regan be at liberty to apply for and obtain letters of administration (intestate) of the estate of the deceased the purported only will of the deceased dated 19 May, 1971, executed by him in and when resident in England having been revoked by his subsequent marriage in the State of Nevada U.S.A. on 28 November 1977 .

One of the executors named in that will namely Kevin Kealy was served with notice of this application but was not represented on the hearing. His *641 co-executor is, I am informed, believed to be deceased. The other parties to whom notice of this application was given are Peter A. Gifford (otherwise Fleming) a son of the deceased resident in South Africa, Jarlath Fleming, a brother living in Dublin and Patricia Blake-Wilson a daughter all of whom would be beneficiaries under the alleged will. No person who could claim to be a widow or surviving spouse of the deceased has been put on notice of this application. Of the persons on notice Jarlath Fleming the brother of the deceased was represented in court and opposed the application on the grounds that the will of the deceased made on 19 May, 1971 was not revoked. The surviving executor was not represented in court and there is no application before the court to have that will admitted to probate.

No doubts concerning the validity of the will, as to its form or execution, were raised on this application, the substantial dispute being whether or not the marriage (the validity of which is challenged) of the deceased at Reno Nevada in the United States on 28 November, 1977 was in fact a valid marriage for the purposes of the application of s. 85 of the Succession Act 1965. That section reads as follows:

(1) A will shall be revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether so expressed in the will or not.

That marriage in 1977, which was the deceased’s second to the one bride, was the latest of five he had contracted. The marriage came to an end with an agreement dated 4 August, 1980 pursuant to which an interlocutory judgment of dissolution which became final after six months was granted to the wife in the Superior Court of California, County of San Mateo. The agreement recited in that court order commences with the following paragraph.

RECITAL
This agreement entered into on or about the 4th day of August 1980 by and between Virginia Fleming hereinafter called wife and Patrick Fleming hereinafter called husband is intended and shall be considered as the settlement of the property rights of the parties hereto:

The agreement goes on to state that the parties were married on 28 November 1977, that they separated on or about 1 August 1980, that there were no children of the marriage, no community property of the marriage, neither is employed, the husband is retired and has a pension fund which is received monthly and the wife is self-supporting with private income from separate property. The agreement continues as follows: *642

The parties hereto agree that they have reached a point of irreconcilable differences causing an irremediable breakdown of the marriage and that the wife will proceed to obtain a dissolution of marriage in the Superior Court County of San Mateo State of California.

Wife shall pay to the husband the sum of thirty thousand dollars ($30,000) as and for spousal support. This thirty thousand dollars ($30,000) is in lieu of payments of $500 per month for a period of five years. The prepayment of the spousal support is to allow the husband to invest the said thirty thousand dollars ($30,000) in order to give him additional income per month. Said thirty thousand dollars ($30,000) shall be placed in trust with Leonard G. Hardy Esq and shall be deposited on behalf of husband in whatever bank in Dublin he chooses. In the event the husband does not move to Ireland this agreement shall become null and void.

There follow covenants and provisions by means of which both parties waive any claims against each other and provide releases accordingly and the agreement also provides that each party waives the right to inherit from the other party. That agreement and the last quoted extract from it are significant matters for consideration for the purpose of finding a basis for resolving the difficult questions of domicile which have arisen on this motion.

The deceased was born in Glenamaddy, county Galway on 23 October 1912. The affidavit of Mary Regan, the applicant, does not set out the relatives of the deceased who survived him in the manner customary for showing kinship from which priority of claims to represent his estate could be deduced. However, she gives in chronological order the following information concerning her brother the deceased named herein.

He joined the British Mercantile Marine in the year 1928 as a radio operator. On 12 January 1937 he married Phyllis Margaret Jennings in the Church of Our Lady, Grove Road in the Metropolitan Borough of St. Marylebone at which time he was resident at 71 Portsdown Road, Paddington, London. A son Peter Anthony was born to them on 26 April 1937 at Lochee in the Borough of Dundee, Scotland when they were residing at 11 Osbourne Place, Dundee. On 22 January 1945 a decree absolute for the dissolution of that marriage on the petition of the wife on the grounds of cruelty issued from the High Court in London, the decree nisi having been granted on 13 July, 1944.

On 30 June 1948, when he was residing at 4 St. James’ Place, London he was married to Gwyneth Thomas at the Registry Office in the City of Westminister, London. His second child, a daughter, was born on 1 June, 1951 at the Queen Charlotte Hospital, Hammersmith, London and was given the name Patricia Caroline. Her mother’s name was Dorothy Wilson nee Pitt of 11 Hansard Mews, Kensington. The marriage with Gwyneth Thomas was dissolved on 2 February, 1954 by a decree absolute of the High Court London, no cause having been shown within the time prescribed by a decree nisi made on 21 December 1953 upon the petition of the wife. He married Dorothy Wilson nee Pitt the mother of his daughter Patricia Caroline on 2 November, 1954 in the Registry Office at Kensington, London. He was then living at 11 Hansard Mews, London. In the *643 Certificate of Marriage she is described as Dorothea Elise Wilson a person whose previous marriage had been dissolved. She had been married on 6 March, 1943 to Harold H.B. Wilson and that marriage was dissolved by a decree absolute upon her petition on 7 September, 1954. Upon the petition of Dorothea Elise formerly Wilson nee Pitt her marriage with Patrick Fleming, the deceased herein was dissolved by the High Court in London by decree absolute on 29 December, 1959 on the grounds that the petitioner had been treated with cruelty. At the time of each of these three marriages and presumably at the times of their dissolution Patrick Fleming the deceased herein was residing in London. The affidavit of Mrs. Regan makes no reference to the place of residence of her brother, the deceased, at the time of his marriage to Virginia Doty McWatters on 16 September, 1967. In the Certificate of Marriage exhibited and issued by a Justice of the Peace of the township of Reno County of Washoe and State of Nevada, U.S.A. he is described as of London, England and she of Burlingame County, State of California with no indication that either of them was resident in Nevada. It is stated in the affidavit that Mrs. McWatters had previously, in or about June 1960, obtained a divorce from William B. McWatters at Redwood City in the County of San Mateo, State of California. A decree of annulment granted on 26 January 1968 in the Second District Court of the State of Nevada in and for the County of Washoe terminated his fourth marriage. In the attested copy of the record of that Court exhibited in the affidavit of Mrs. Regan the deceased is described as Defendant in a suit in which Mrs. Virginia McWatters was Plaintiff. It is recited therein that:

The defendant has entered a general appearance in this action, and that the Court has jurisdiction of the subject matter herein and the parties hereto, and evidence having been presented in support of the allegations of the complaint, and all of said evidence having been duly considered by the Court and this cause being thereupon by both parties submitted to this Court for decision, and the Court having been fully advised in the premises, and having duly considered the law and the evidence, rendered its decision in favour of the Plaintiff and against the Defendant, and thereupon duly made, entered and filed its Findings of the Fact and Conclusions of Law in accordance therewith, finding and deciding that all of the allegations of the Plaintiff’s complaint are true and that the Plaintiff is entitled to the relief hereinafter granted; NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:

I That the said marriage between the Plaintiff and the Defendant be, and the same hereby is, declared to be wholly null and void from the date of this judgment, and the said parties are, and each of them is, freed from the obligations thereof.

II That the Plaintiff be, and she hereby is, granted the permission of this court to resume her former name of VIRGINIA DOTY McWATTERS and the same shall henceforth be her true legal name.

DONE IN OPEN COURT this 26th of January 1968

Grant L. Bowen

District Judge

The nature of the complaints, the findings of fact relating to the jurisdiction of the Court, and the conclusions of law whether related to the validity of the marriage of the grounds for annulment are not indicated to this Court.

The Will of the deceased giving rise to the application now before this court was apparently made and executed by the deceased in London on 19 May 1971. Although one of the executors named is described as a solicitor there is no evidence to indicate that the will was drawn by a solicitor nor executed by the deceased in the presence of or under the direction of a solicitor. For the purposes of the application now before this court it has been assumed that this document, of which a photo-copy has been exhibited, is the only testamentary disposition of the deceased and is admissible to probate in common form as his last will. No attempt has been made to propound the will and consequently if it does not qualify to be admitted to probate the questions submitted on the motion are moot. In the alleged will he describes himself as residing in London and declares:

I desire to be buried in my family grave in Dublin although I confirm that I am domiciled in England.

In it he makes no reference to any of his four wives or to any marriages or divorce but he does make provision for both his son and his daughter and also for a brother and three sisters.

The deceased, Patrick Fleming, reached the age of 65 on 23 October 1977. He retired from the employment he had in England, sold the flat in which he was living at the time he made the Will and sold his furniture and effects, and went to live in the United States of America. On 28 November 1977 he married again. The exhibited Certificate of Marriage was issued by the Deputy for Alex Coon, Commissioner of Civil Marriages at Reno in the County of Washoe, State of Nevada. It shows that Patrick A. Fleming of London, England was married to Virginia McWatters of Burlingame, California at the Courthouse Reno on 28 November 1977, and gives a mailing address 2019 Devereux Drive Burlingame, CAL. 94010. That second marriage to Virginia McWatters, assuming it to be a valid and lawful one, came to an end with the agreement from which I have already quoted. On foot of that agreement Judge Lyle R. Edson of the Superior Court of California, County of San Mateo made an interlocutory judgment of dissolution of the marriage. From the copy Order exhibited in the affidavit of Mary Regan it appears that the proceeding came on for default or uncontested hearing, and that the petitioner Virginia McWatters Fleming and her attorney were present in Court. The copy Order states:

The Court acquired jurisdiction of the Respondent on (Date): September 20, 1980
a. Respondent was served with process
b. Respondent appeared.

The curial part of the Order is:

3. THE COURT ORDERS

a. An Interlocutory Judgment to be entered and the parties are entitled to have their marriage dissolved.

b. After six months from the date the Court acquired jurisdiction of the Respondent a final judgment of dissolution may be entered upon proper application of either party or on the Court’s own motion, unless a dismissal signed by both parties is filed. The final judgment shall include such other and further relief as may be necessary to a complete disposition of this proceeding, but entry of the final judgment shall not deprive this Court of its jurisdiction over any matter expressly reserved to it in this or the final judgment until a final disposition is made of each such matter.

c. Jurisdiction is reserved to make such other and further Orders as may be necessary to carry out the provisions of this judgment.

4. THE COURT FURTHER ORDERS

a. Wife’s former name be restored (specify) Virginia McWatters

b. other.

The Court finds and therefore orders that the parties have heretofore entered into a Property Settlement Agreement on August 4 1980 and that the terms are hereby approved and confirmed.

The further consequential orders are not material to the matters for consideration on this application.

The information furnished in the following paragraphs numbers 25 to 29 inclusive from the grounding affidavit of Mrs Mary Regan is significant. Her evidence is as follows:

25. The deceased was due to retire in 1976 but in fact did not do so until 1977. He had a mild stroke shortly before he retired. Following this for a time he became disorientated and was full of fear as to his health. This marked the beginning of the Parkinson’s Disease which first affected him then and which became progressively worse from this time onwards. After a time he recovered his composure and was in good form for many years.

26. In 1977 he sold his interest in the flat he occupied at 69 Moreshead Mansions, London W9 as well as all the furniture and effects. On the 28th November 1977 he went through the ceremony of his second marriage to Virginia Doty McWatters and went to live in California. In 1978 he asked me could a joint account be opened in an Irish bank in his name and mine. This was done at the Howth Road, Raheny branch of Allied Irish Banks plc. At this time he joined the Voluntary Health Insurance Scheme which he did as he then said in case he came to Ireland. At that time he had no apparent illness but I understand and believe that in fact Parkinson’s Disease had begun to affect him since 1977 when he had the mild stroke. In 1979 he and his wife Virginia came to Ireland for the wedding of my daughter. I believe that one of the reasons for his taking up residence in the United States of America was that he felt he might get better medical attention for his ailment of Parkinson’s Disease which was first diagnosed in 1977.

27. In July 1980 I received a telephone call from the deceased when he told me he was coming home. He asked me whether he would be welcome and I assured him that all his relations in Ireland would be delighted. He did not say anything on the’ phone about his marriage breaking up.

28. Early in August 1980 the deceased came to Ireland. He was accompanied by Virginia and they stayed in my home for one week after which she returned to the United States of America. While she was here it was arranged that a sum of approximately £10,000 which he had as his own money should be lodged in an A.I.B. account at Raheny in our joint names.

*646
29. I noticed at this time that he used to get excited rather easily and I understood that this was part of a neurotic condition. At the same time he was quite rational and careful about his money. His wife Virginia was always very exact and methodical about financial and other matters. While they were in the process of breaking up their marriage as I then learned, it must be stressed that Virginia was always most attentive to him and concerned for his welfare.

The evidence contained in those paragraphs conveys to my mind that the deceased made a purposeful decision to reside in the United States of America. Because he felt his failing health would be progressively disabling, it was his intention, I believe, to live permanently and indefinitely where he could have financial security and caring assistance. While the evidence suggests that he had a wish to be buried in Ireland, and perhaps to die in Ireland, it does not indicate an intention to live in Ireland. In fact it does the more strongly for that reason convey the contrary intention. His first marriage with Doty McWatters in September 1967 lasted only four months. The documents exhibited gave no indication of why it did not last longer, but at that time he still had his residence and his employment in London. Before he married Mrs McWatters a second time he gave up his residence in London and disposed of his furniture and effects. The term of the agreement on the dissolution of his second marriage to Mrs McWatters that he should leave the United States of America receiving from her a capital sum of money as a composition of a number of monthly instalments suggests that such provision was necessary to facilitate and to ensure his return to Ireland. Mrs Regan’s affidavit shows that the deceased and Mrs McWatters came to Ireland after entering into the property settlement agreement of 4 August 1980, and that she returned to the United States of America and he remained in Ireland. He was, therefore, in Ireland at the time the divorce proceedings were entered upon in the San Mateo Court List and when the order for dissolution of the marriage was made on 24 February 1981. The significance of this evidence is that it shows when, how and in what circumstances the deceased came to return to live in Ireland. In my view that evidence supports the inference that prior to the breaking up of his second marriage to Doty McWatters he had as a matter of fact intentionally abandoned any domicile other than his then chosen American domicile.

In relation to the period earlier than his entering upon that property agreement and dissolution of marriage the inference to be drawn from the evidence of his residence, occupation and marital experiences prior to his retirement to America in 1977 is that he had intentionally chosen an English domicile. Although not expressly deposed to in the affidavit of Mrs Regan I feel I must infer as fact that the deceased knew what the law in relation to marriage and legitimacy was in England and in Ireland in the period 1945 to 1967. When his only daughter was born in 1951 her mother was married to Harold Wilson and the deceased was married to Gwyneth Thomas. The legitimation of his daughter by the subsequent divorces and his marriage to her mother could not have been effected unless he had *647 adopted English domicile. It could not lawfully have been effected in Ireland then. During the whole period of his working life up to October 1977 he lived in England and had no home anywhere else. I must assume that the deceased while living in England wished to and intended to conform to the laws of that country in relation to marriage and divorce. An English domicile giving jurisdiction to the English Courts to dissolve his first and subsequent marriages there was necessary to give validity to the divorces and marriages which followed. That court orders of dissolution of his marriages in England and subsequent marriages there could be recognised in Ireland probably would not have been known to him in the period prior to his first marriage in America in 1967. I accept the submission that on the balance of probabilities he would have assumed, while he was living in England, that divorce and subsequent marriage would not be lawful nor socially tolerated in Ireland. Whether that assumption by him was correct or not, if, on probability, it was his view, it would support the inference of voluntary and deliberate abandonment of Irish domicile of origin and adoption of an English domicile of choice. Being such it would not be in the nature of a temporary expedient nor under compulsion of circumstances. The compelling inference, in my opinion, is that when he married Dorothy Wilson (nee Pitt) in November 1954 he had abandoned his Irish domicile and intentionally adopted by choice the English domicile which he retained until 1977. I do not doubt that at all times he retained his Irish nationality, and his desire as an Irish man to die in Ireland. But the evidence that he chose intentionally and without compulsion to not live in Ireland and without any definite or determining period in mind is established beyond mere probability. He did not have any home place in Ireland either in Glenamaddy, from which he emigrated, nor in Dublin where he found lodgings and nursing before he died. The history of the course of conduct of the deceased and the course of marital events in his life as well as residence and employment deposed to in the affidavit and verified by the records of the marriages and of the courts which granted orders of dissolution of his marriages affords strong evidence in rebuttal of the presumption of retention of the domicile of origin. It seems to me that when in 1977 after retirement he moved house, home and belongings to live in the United States of America in the belief that he would there get the financial security and the care and attention he needed he acted upon a rational motivation and made a voluntary choice under no compulsion of change of domicile. Likewise his residence in England during his periods of employment was, in my opinion, a matter of rational motivation without compulsion of necessity and was not a mere temporary expedient. His marital circumstances during that period supports the probability of a deliberate voluntary choice. Because of the impression I have that he was a man that acted on rational motivation I believe he voluntarily adopted an English domicile of choice to the exclusion of his Irish domicile of origin which consequently must be considered to have been abandoned by him. Contemporaneous domicile of origin and domicile of choice in different *648 countries would be legally incompatible. But the abandonment of the domicile of origin would not preclude the resumption (after interruption) of that original domicile as a matter of later choice.

I have come to the conclusion that on the evidence submitted the presumption that he retained his domicile of origin is rebutted by his conduct and the general course of events during the whole period of his continued employment up to the age of 65 and up to the date of his second marriage in America.

I have set out what I believe to be all the material facts proved on affidavit and as found by me by way of necessary inference therefrom before dealing with the legal consequences which ensue. In arriving at these conclusions on the facts I have taken into account the directions as to onus of proof and statements of principles in relation to domicile to be found in the judgments reported in the cases cited in argument. Of these I find particularly helpful the judgment of the Supreme Court in T. v T. [1983] IR 29 and the judgment of Black J. in re Joyce, Corbet v Fagan [1946] IR 277 and the judgment of Budd J. in re Sillar deceased, Hurley v Wimbush [1956] IR 344 and the opinions of the House of Lords referred to in those judgments.

The necessity for the determination of the domicile of the deceased in relation to the application before this Court is to ascertain whether or not s. 85 of the Succession Act 1965 applies. A determination on the matter of the domicile of the deceased is necessary to enable a decision to be made as to whether or not the deceased on 19 May 1971 was a man who subsequent to the making of his will was free to marry and did marry on 28 November 1977 in Nevada in the U.S.A. Because he had been married on four occasions prior to that date the question of his being free to marry is as important as the question of the validity of the marriage he entered into on 28 November 1977.

In the course of his judgment in Gaffney v Gaffney [1975] IR 133 Walsh J says:

Judicial dissolution of marriage was not available in any part of Ireland until 1939. In that year the courts of Northern Ireland were given power by statute to dissolve marriages. In this State no such judicial process is available. Notwithstanding the absence of this particular jurisdiction in Irish courts, it was a principle of the system of private international law recognised by the Irish courts that they would recognise decrees of dissolution of marriage granted by the courts of another country where the parties were domiciled at the time. Domicile was recognised and accepted as the foundation of the jurisdiction to dissolve marriage. In re Lyons (72 ILTR 87) the Court of Appeal in Northern Ireland refused to recognise a decree of divorce granted in the United States because, at the time of the commencement of those proceedings which led to the dissolution of marriage, the parties were not domiciled within the jurisdiction of the court which pronounced the decree. In the course of his judgment in Mayo-Perrott v Mayo-Perrott [1958] IR 336) Kingsmill Moore J. stated the Irish law to have been that the recognition of foreign divorces in Irish courts depended upon establishing that the domicile of the parties was within the jurisdiction of the court pronouncing the decree. Recognition and application of this principle of private international law was part of the common law in Ireland and, like Kingsmill Moore J in the Mayo-Perrot case and Mr. *649 Justice Kenny in this case, I am satisfied that it is still part of our law. It follows, therefore, that the Courts here do not recognise decrees of dissolution of marriage pronounced by foreign courts unless the parties were domiciled within the jurisdiction of the foreign court in question. In so far as the Courts of this country are concerned, the marriage remains as valid and as subsisting in this country as it would have been but for the intervention of the purported decree of dissolution. (at p. 150)

In that case the Supreme Court was considering the effect of a decree of divorce granted in England of a marriage entered into in Ireland by a couple who at the time of the decree and at all material times were domiciled in Ireland. In the course of his speech in the House of Lords in Ross Smith v Ross Smith [1963] AC 280 Lord Morris of Borth-y-gest is quoted as follows:

There are different ways in which the word jurisdiction may be used. It can denote the character of the power which a court can exercise and the limitations of that power and it can denote the range of persons over whom, or the territorial range within which, the power can be exercised. In regard to voidable marriages, or, stated otherwise, marriages which were not void ab initio, I consider that it is now well established that the ecclesiastical courts had power to entertain nullity proceedings in respect of such voidable marriages of persons both of whom were resident within the jurisdiction of the court. It is not now necessary to examine how the conception of domicile was evolved or developed, but it is today settled that, if the parties are domiciled within the jurisdiction of the High Court, nullity proceedings may be entertained.

It next becomes necessary to consider what was the jurisdiction of the ecclesiastical courts in regard to ‘void’ marriages. It is to be observed that, inasmuch as a ‘void’ marriage is no marriage at all, there was no necessity for any one who was a party to such a ‘marriage’ to have resort to any court. Nor was there any exclusiveness in the ecclesiastical court in reaching a decision as to whether such a ‘marriage’ could be ignored… In the civil courts, in reference to wills or trusts, questions may arise as to whether some marriage ceremony was effective to give a particular person the status of a spouse. (at p. 317).

It becomes necessary now to look again at the evidence on this application in the light of my finding that this deceased Patrick A. Fleming had intentionally chosen prior to 1945 an English domicile and had by then abandoned his domicile of origin. On the evidence presented in the affidavit of Mrs. Regan the Applicant I infer that the deceased had acquired by choice an English domicile prior to his marriage on 2 November 1954 to Dorothea Elise Wilson (nee Pitt). He and she were both domiciled in England at the time of the hearing of the petition of Dorothy for divorce and of the making of the decree nisi and of the decree absolute made on 29 December 1959. Thereafter he was free in the legal sense both in England and in Ireland to remarry. The evidence that he did remarry in 1967 is provided in the affidavit of Mrs. Regan and verified by the certificate exhibited and issued by a Justice of the Peace of the township of Reno County of Washoe and State of Nevada. That was his first marriage to Virginia Doty McWatters. If that marriage was a nullity, and therefore no marriage, it would not be necessary for either party to obtain a court order declaring it to be such. A court order could only be a declaration as to what the state of affairs had been and was, *650 but could not, of itself, bring about the state of no marriage by virtue only of the court order. I have earlier in this judgment quoted the material parts of the decree of annulment of that marriage which issued from the Second District Court of the State of Nevada in and for the County of Washoe granted on 26 January 1968. In referring to the record of that court order I drew attention to the facts that there is no evidence before this Court of the nature of the complaints upon which the application for the court order was founded, nor for the findings of the fact relating to the jurisdiction of the court, nor of the conclusions of law supporting the declaration of nullity of the marriage. There is no evidence which this court could consider as indicative in any way of change of domicile of Patrick A. Fleming at that time. From the evidence available, taking into account that roughly four months elapsed between the date of the marriage and the date of the annulment, and that the deceased then had a place of residence in London where he had permanent pensionable employment, with no indication of anxiety about his health, there is no evidence to support an inference of change of domicile of choice from England to Nevada. That decree of 26 January 1968 purports to declare the status of two persons, parties to a marriage, to be as if there had been no marriage. Because of the nature of that decree of a Second Judicial District Court of the State of Nevada County of Washoe there should be some evidence in the record of that court manifesting its intended extraterritorial effect if it is not to be limited to persons domiciled within its jurisdiction.

The evidence presented to this court on this application is insufficient to enable the court to infer that the deceased Patrick A. Fleming was domiciled in the State of Nevada U.S.A. in January 1967, or indeed at any other time. The decree of annulment of a marriage of Patrick A. Fleming to Mrs. Virginia Doty McWatters having been challenged upon the application before the Court the only ruling I can make on such evidence as I have had put before me is that that decree of 26 January 1968 cannot be recognised as valid and binding in law in the jurisdiction of this court. Reverting then to the marriage to which it relates there is no evidence before this Court which could enable it to disregard the certification of the validity of that marriage. For the purpose of a valid marriage domicile is not an essential but residence normally is. I have no knowledge one way or the other as to whether Patrick Fleming was resident within the jurisdiction of the Justice of the Peace before whom the marriage ceremony was performed and consequently I must accept the certification of the marriage as being sufficient evidence of its validity.

Applying the law as it is in this country and on the conclusions I have come to on the evidence before me I must declare that the marriage of Patrick Fleming to Virginia McWatters on 16 September 1967 was a valid marriage which was not lawfully dissolved nor annulled on 26 January 1968. A necessary consequence of these findings is that the parties to that marriage were not free to marry again in 1977. It follows that the purported marriage of Patrick Fleming to Virginia McWatters on 28 November 1977 was in law *651 and in effect a nullity. It did not, in my opinion, have the effect provided for in Section 85 of the Succession Act of 1965 of revoking the Will of Patrick Fleming made on 19 May 1971. Accordingly I decline to make a declaration that the Will of 19 May 1971 was revoked and accordingly I must refuse the application for a grant of letters of administration (intestate) of the estate of the deceased Patrick Fleming as applied for under s. 27 (4) of the Succession Act 1965.

In conclusion I feel I must make the comment that I consider a motion to the Probate Court in this form is not appropriate or suitable as a means for having a trial of an issue as to the domicile of a deceased person or as to the validity or invalidity of a marriage of the deceased. In all the authorities cited in this Court upon the arguments on this motion it is notable that the proceedings in the various Courts were instituted in accordance with the regular forms of procedure and issues set forth on pleadings before the Court and evidence adduced in accordance with the burden of proof as indicated by the joinder of issues. The adoption of a motion of the nature presently before this Court for the purpose of trying these issues creates excessive difficulties for the parties and their advisers for the purposes of the preparation and presentation of their case and creates further difficulties for the Court in having material before it on which to formulate a decision.

Brennan v O’Donnell

[2015] IEHC 460

JUDGMENT of Ms. Justice Baker delivered on the 16th day of July, 2015
1. This case relates to the question of whether a codicil to a will has revived that will.
Facts
2. Philip Brennan, deceased, died on the 15th May, 2015 in Co. Kerry. He had lived all or most of his working life in New York, and after he retired in the mid 1980s he and his spouse returned to live in Castleisland, Co. Kerry and they, until her death in 2005, and he alone thereafter, continued to visit New York on an annual basis. The domicile of the deceased is not a factor in the question to be determined by me at this point.

3. The deceased made a will in Ireland on the 24th October, 2006 in which he named the plaintiff, his niece, his sole executor, and by which he inter alia devised his dwelling, his garage and lands at Castleisland, Co. Kerry, to the defendant and his spouse Irene O’Donovan jointly, bequeathed certain monies in an identified account with EBS to the plaintiff, and the residue of his estate “within the Republic of Ireland” to the said Irene O’Donovan. I will call this the “Kerry will”.

4. Some two years later the deceased made a will in New York on the 23rd December, 2008. At that time his only relevant asset in New York was a small savings account, and he also had a deposit account in the joint names of the deceased and the plaintiff in respect of which no issue arose before me. By this will he disposed of the entire of his assets and his will commenced with the words:-

“I hereby revoke all prior wills and codicils made by me.”
By this will the deceased named one John Daly as his sole executor and bequeathed the bulk of his estate to him, leaving the residue to the plaintiff with certain provisions to take effect in the event, which did not transpire, of her pre-deceasing him. I will call this the “New York will”.
5. Some two years after he made the New York will, the deceased executed a codicil to the Kerry will in Ireland. The codicil was hand written at the foot of the Kerry will and continues overleaf. It is useful to quote the entire codicil:-

“I, Philip Brennan, the within testator, hereby make this as and for a codicil to my aforesaid last will and testament. I hereby cancel and revoke the fifth paragraph of my aforesaid last will and testament and substitute in its place the following paragraph:

‘I give, devise and bequeath the monies I die possessed of in my Bank of Ireland account, Castleisland to my aforesaid niece Mary Kay Brennan.’
I hereby affirm all the other terms of my aforesaid last will and testament.”

6. The codicil is duly executed and witnessed by the testator:
“As and for a codicil to his aforesaid last will and testament”.
7. At the time the Kerry will was made the deceased had three savings accounts in the EBS in Castleisland. He closed these accounts in 2007 and opened a deposit account with Bank of Ireland, Castleisland, which he had at the date of the codicil in 2010.
8. The solicitor with whom the testator made the Kerry will in 2006 and the codicil thereto in 2010, Patrick Connell, ceased to practice some years ago and no extrinsic evidence is available from him, or from any other person, as to the circumstances in which either the will or codicil were made and no instructions to or attendances with the deceased are available.
The effect of the New York will
9. Counsel disagree as to the proper law to determine the question whether the New York will revoked the Kerry will. Counsel for the defendant accepts that, were the question to be determined as a matter of Irish law, the New York will would most likely be considered to have revoked the Kerry will, and for the purpose of the running of the proceedings before me, counsel agreed that I would first deal with the question of whether the codicil of 2010 had revived the Kerry will, and it is accepted that my determination of that question may well have the effect that it is not necessary to determine whether the New York will did as a matter of law, whether that be Irish law or the law of New York, revoke the Kerry will.

10. With that mind I turn now to consider the law in relation to revival of testamentary instruments.
Revival
11. It is accepted by counsel for both parties that the question of whether the codicil made in 2010 revives the Kerry will is a matter to be determined under Irish law. Section 87 of the Succession Act 1965 provides as follows:-

“No will or any part thereof, which is in any manner revoked, shall be revived otherwise than by the re-execution thereof or by a codicil duly executed and showing an intention to revive it; and when any will or codicil which is partly revoked, and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as was revoked before the revocation of the whole thereof, unless an intention to the contrary is shown.”
12. At common law, the very execution of a codicil was sufficient of itself to revive a revoked will, because a codicil was seen in itself as an act of affirming a will, and such affirmation was deemed at common law to be a revival. The matter changed however with the passing of s. 22 of the Wills Act 1837 which requires, in language which finds an exact echo in the s. 87 of the Act of 1965, in that the codicil must show “an intention to revive”.
13. Section 87, while it permits revival of an otherwise revoked will by a codicil, does not make the execution of a codicil sufficient, and for the codicil to have the effect of revival it must show an intention to revive. This differs from the common law which operated before the Act of 1837, and while no modern Irish case exists as to how a court is to approach a codicil asserting to have revived an otherwise revoked will, there is ample old authority as to s. 22 of the Wills Act 1837. It is accepted by counsel that s. 22 involved a departure from the common law and both point me to the dicta of Sir J.P. Wilde in Re Steele: In the Goods of Steele, May and Wilson (1868) L.R. 1 P&D 575 where he said that the express words of the legislation could not be:-

“… to leave the matter in the same state in which it would have stood if they had never been introduced.”
14. Sir J.P. Wilde expressed the matter succinctly as follows:-
“I conceive that it was designed by the statute to do away with the revival of wills by mere implication.”

What is required by the statutory provisions?
15. Section 22, and now s. 87 of the Act of 1965, requires that a codicil must show an intention to revive the will, and both counsel quote, and I adopt, the statement of Sir J.P. Wilde that the intention:-
“…should appear on the face of the codicil, either by express words referring to a will as revoked and importing an intention to revive the same, or by a disposition of the testator’s property inconsistent with any other intention, or by some other expressions conveying to the mind of the Court, with reasonable certainty, the existence of the intention in question.”
16. The analysis of the Court in Re Steele was followed in a judgment in Re the Goods of Davis, decd. [1952] P.279 where Willmer J. stressed that the purpose of the court was to ascertain:-
“…whether it can be said that there is some expression conveying to the mind of the court with reasonable certainty the existence of an intention to revive the will.”

Does the codicil refer to the Irish or the New York will?
17. Before turning to the question of whether the codicil shows an intention to revive the Kerry will and how that intention is to be ascertained, I first turn to the question which it is accepted I must first decide, namely whether the codicil refers to or relates to the Kerry will, or whether, it may properly be said the reference in the codicil to “my last will” is in fact a reference to the New York will. I turn to consider that question.
18. Counsel for the plaintiff concedes that the codicil does appear to refer to the Kerry will, although he argues that the failure in the codicil to mention the New York will at all is fatal to the argument of revocation, and in support of that proposition he refers me to the decision of the Northern Irish High Court in Goldie v. Adam & Ors [1938] P. 85. The testator in that case made a will in 1929 and three codicils thereto. He then made a will in 1932 revoking the earlier will and codicils. In 1933 he executed a testamentary document expressed to be a fourth codicil to the revoked will of 1929 and ending with the words “In all other respects I confirm my said will”.

19. Bucknill J. refused to accept that the codicil had the effect of reviving the earlier will of 1929 and the three codicils thereto. Indeed he took the view that there was no evidence that the draughtsman (to whom was imputed the knowledge or intention of the testator) applied his mind at all to the provisions of the will of 1929 or the three codicils thereto. Having found that the words of the fourth codicil did not, on the face of that document, or from surrounding circumstances, show an intention to revive the will of 1929 and codicils, save that the fourth codicil refers to them and purports to confirm them. He goes on to say:-

“But the will of 1929 was not in fact the last will of the testator, and had in fact been revoked.”
20. The court held that the 1929 will and three codicils thereto were not revived, and counsel for the plaintiff argues that a similar approach ought to be adopted by me in this case, and he contends that similar considerations are apparent in that the Kerry will was not in fact the last will of the testator, and that the failure to make reference to the New York will, or the possible ignorance of the solicitor who prepared the codicil in 2010 of the existence of that will, are facts which suggest not only that there was no intention to revive, but that the testator did not in fact apply himself to the Kerry will at all. Thus while the codicil may appear to be a codicil to the Kerry will, it cannot be said to operate as a codicil in the true sense for the purpose of s. 87.
21. I note counsel’s concession that the references in the codicil to “my aforesaid last will” is a reference to the Kerry will and this appears to me to be correct, not merely because the codicil is endorsed on the will, and that this of itself gives meaning to the expression “aforesaid”, and gives a direct reference point, but because the codicil refers to the terms of the Kerry will by replacing the fifth paragraph of that will, which bequeathed the EBS monies with a bequest of the monies, in Bank of Ireland. The fifth clause of the New York will appointed the executor, and cannot be understood as being the clause denoted by the reference to clause 5 in the codicil.

22. Thus I consider that the codicil does refer to the Kerry will and that it is accordingly proper for me to consider whether the codicil shows an intention to revive that will.
How is intention to be ascertained?
23. Willmer J. in Re the Goods of Davis, decd. explained that intention must appear from the codicil does not mean that evidence of “attendant circumstances” is not admissible. In that case the deceased had executed a will in October 1931 whereby he devised and bequeathed all his estate to Ethel Phoebe Horsely and appointed her his sole executrix. The will was not expressed to be made in contemplation of marriage, and in October 1932 he married the said Ethel Phoebe Horsely. In May 1943 he wrote on the envelope on which the will had been kept:-

“The herein named Ethel Phoebe Horsely is now my lawful wedded wife.”
Both the will of 1931 and the writing of 1943 were properly attested in accordance with the provisions of the Wills Act 1837.
24. Willmer J. held that the “attendant circumstances” included any evidence that was necessary to identify the lady in question, Ethel Phoebe Horsely, and the fact that a marriage had actually taken place between her and the testator, and he admitted the will of 1931 to probate.

25. Irish law accepts that extrinsic evidence may be admitted to explain a testamentary document and s. 90 of the Act of 1965 states as follows:-

“Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.”
26. Judicial consideration of that section, and in particular the decision of the Supreme Court in Rowe v. Law [1978] I.R. 55, identifies the purpose of admitting extrinsic evidence is to explain the will, or to assist in the construction of a will, but not for the purpose of replacing the dispositive intention of the testator. Extrinsic evidence is not admissible if a will is clear, and such extrinsic evidence cannot be adduced for the purposes of contradicting or varying the terms of a will. Extrinsic evidence can include evidence to explain the terms of a will, identify a beneficiary or other circumstance that explains a testamentary provision.
27. The so-called “armchair principle” is found for example in Re Steele itself where Sir J.P. Wilde expressed it at p. 576 as follows:-

“….although evidence of the testator’s intention is excluded, the Court ought always to receive such evidence of the surrounding circumstances as, by placing it in the position of the testator, will the better enable it read the true sense of the words he has used.”
28. Furthermore, there is ample judicial authority for the general proposition that, while extrinsic evidence of intention is as a general rule inadmissible, the court will admit such evidence in order to understand a will. This proposition is described in Theobald on Wills (15th Ed.) at p. 91 as follows:-
“Whether a codicil shows an intention to revive is a question of construction on the normal rules as to the admission of extrinsic evidence apply. Accordingly if the testator dies before 1983 direct extrinsic evidence of the testator’s intention to revive is not admissible unless there is equivocation in the codicil, but evidence of the surrounding circumstances is admissible under the armchair principle.”
29. In the light of this statutory provision, and adopting the statement of Willmer J. in Re the Goods of Davis, decd., I consider that intention may be inferred and I consider that certain extrinsic circumstances may be called in aid of that task. While revival by implication was abolished as a result of the Wills Act 1837, revival by intention remains, and the intention may be inferred from the codicil itself.
Intention to revive
30. The circumstances in which an inference of intention to revive can be ascertained were considered in a number of judgments referred to me in the course of argument. Both counsel referred me to the decision in Re the Goods of Davis, decd. where Willmer J. quoting from the headnote in Re the Goods of Steele, identified, three possible ways by which an intention to revive may be shown from a codicil. These are:-

“In order to satisfy those words [i.e., the words of section 22 of the Act] the intention must appear on the face of the codicil, either by express words referring to a will as revoked and importing an intention to revive the same, or by a disposition of the testator’s property inconsistent with any other intention, or by some other expression conveying to the mind of the court with reasonable certainty the existence of the intention.”
31. Counsel for the defendant argues that there are a number of factors which ought to influence me in coming to a conclusion that the codicil does show on its face an intention to revive the Kerry will:-
a) The codicil expressly affirmed the Kerry will
b) The codicil refers to the terms of the Kerry will

c) The codicil is indorsed on the will itself

I will deal with each of these in turn.
Affirmation of Kerry will: What language is required?
32. The plaintiff contends that the language used in the codicil was not an express affirmation or confirmation of the Kerry will such as to operate as evidence of an intention to revive. The defendant argues that the word “affirm” imports an affirmation and the principal authority relied on by him is the case of McLeod v. McNab [1891] AC 471 where the deceased had made a will, then executed a will revoking one of the bequests contained in that will, and thereafter a second codicil in which he confirmed the will. The Privy Council held that simple reference to the date of the earlier document was not in itself sufficient to operate as a revival and then came to look at the surrounding circumstances to ascertain whether intention was found. Lord Hannen delivering the judgment of the Court accepted that the use of the word “confirm” was evidence of intention to revive the earlier will and expressed the reasoning as follows:-

“…their Lordships are also of opinion that the word ‘confirm’ is an apt word, and expresses the meaning, and has the operation of the word ‘revive’, which is used in the statute.”
33. A similar view was taken by Ploughman J. in the English High Court decision of In Re Pearson [1963] 1 W.L.R. 1358 where again the word “confirm” was used in a codicil. Ploughman J. expressed the matter as follows:-
“It seems to me as a matter of construction that the effect of the words in the codicil confirming will A is to incorporate into the codicil all the provisions of will A except in so far as they are displaced by that codicil.”
34. That case is also authority for the proposition that if the revived will itself contains a revocation clause the effect of confirming that will, the revived will, can be said to revoke a second or subsequent will, and the revocation clause was effectively “brought up to date by the codicil” and acted as an express revocation of that second will.
35. Hannen P. in case of Re Van Cutsem [1890] 63 L.T. 252 also accepted the word “confirm” did show sufficient evidence of an intention to revive a will.

36. Counsel for the plaintiff points to the fact that the authorities relied on by the defendant accept that the use of the word “confirm” has been held by courts as strong persuasive authority to show evidence of an intention to revive, but that the language of the codicil of the deceased in this case is less obviously evidence of such intention, and that the testator in the codicil used the word “affirm”.

37. I reject an interpretation of the case law that would result in such a formulaic approach to this question, and I am persuaded by the judgments to which I have referred and consider that the correct approach is to ascertain whether the language used in a codicil is sufficient evidence of intention to revive an earlier testamentary document. I do not consider the case law to point me to the conclusion that a particular formula of words is mandated in order to operate as evidence of intention. Indeed it seems to me that the opposite must be the case, as the purpose of the analysis is to ascertain whether the document alleged to act as a revival contains within it sufficient evidence of an intention to do so. The evidence must be gleaned from the language used, not by means of a formula of words, but by seeking to give effect to the language used and by seeking to ascertain the intention apparent from such language. I consider therefore that the English authorities correctly state the law, and identify the inquiry that must be engaged is to ascertain from a true construction of the language used whether objectively speaking the document contains evidence of an intention to revive. I consider that there is no difference in substance between the words “confirm” and “affirm”, and both positively express an acknowledgment of the validity of the document or instrument to which reference is made. Accordingly I accept the argument of counsel for the defendant that the codicil contains within it, in the language used, reference to and evidence of an intention to revive the Kerry will.

38. I note also that in what must be seen as the leading old authority on the point, Re Steele, that the word “affirm” was found in the judgment of Sir J.P. Wilde, and he adopts the approach of the common law to written documents generally, or as he says at p. 576 of the judgment immediately after the dicta quoted at para. 27 above:-

“This is a doctrine constantly acted upon at common law in relation to written documents, and notably in cases of written guarantee.”
39. I consider that there is force in that approach and it is one consistent with the general approach to the construction of written instruments. At p. 577 of the judgment the learned judge made the following observation:-
“The theory of the law is, and always was, that a codicil forms part of a will, and consequently that to make a codicil to your will is first to affirm the existence of that will; and, secondly, to re-publish it or re-affirm its validity.”
40. The statement of the Court, of course, was obiter in that the argument was made from principle and from the common law before the statutory change made by the Wills Act 1837, but as that Act, which is identical in substance to s. 87 of the Act of 1965, had the effect of adding another element to the test of revival, I consider the dicta to be persuasive as to the purpose of the analysis of the codicil, namely to ascertain whether an inference can be drawn from it that a will was intended to be confirmed or affirmed. Sir J.P. Wilde used the language “affirm” or “reaffirm” and there is nothing in his judgment that suggests to me that he regarded another word, such as “confirm” to be more apposite, and while later in his judgment he does say that what the codicil did was “to confirm that which exists”, there is nothing in the language of that judgment, nor in any of the other judgments opened to me in the course of argument, that would suggest that only a particular form of language may act as evidence of intention to revive. Such an approach would not be consistent with the general approach of the courts in construing documents, namely that the language used is interpreted in the context in which it is found, and that the court should insofar as is possible give effect to each such word.
41. Further, it seems to me that were the law to be that only one form of words could act as evidence of revival, one would expect such form of words to be mandated by statute.
Reference in the codicil to the terms of the Kerry will
42. The codicil expressly replaces one clause in the Kerry will with another, and extrinsic evidence, accepted by counsel as being admissible for the purposes of explaining the amendment, shows that the substitution of one clause for the other arose by virtue of the closing of the account in respect of which the bequest was made in the will. The codicil replaced the reference to that now closed account with a bequest to the same beneficiary of the money standing in the account opened in part with the money from the closed account.

43. Counsel for the defendant argues from another decision of Hannen P., in Re: Steadham (1881) 6 P.D. 205. In that case the Court explained the test as being whether the codicil sufficiently refers to the will argued to have been revised, and “brings that will into existence”. In that case a solicitor was instructed to prepare a codicil but instead of making a codicil as instructed to a will of 1878, made a codicil to a will of the previous year. 1877. The court accepted that the mistake “was not a mere mistake as to the date of a will”, and asked whether the codicil “was actually applied to the provisions of the will of 1877” so as to mould it into an expression of what the testators intentions and wishes were at the time of the making of the codicil.

44. It is clear that the codicil referred to the Kerry will, but it is also clear that the testator by the codicil expressly replaced a then obsolete provision of the Kerry will with an updated provision in broadly similar terms, and by which a bequest was left to the same beneficiary, albeit of funds in a different bank account. The codicil was a replacement of an identified provision in the Kerry will, and that in my view conveys, to an observer seeking to construe the codicil, an intention to affirm or revive the Kerry will.
Is endorsement of the codicil on the Kerry will sufficient?
45. It might seem at first glance that the mere writing of a codicil on a testamentary document of itself is sufficient intention to revive that document, but the case law would suggest otherwise. In Marsh v. Marsh (1860) 1 Sw. & Tr. 528 the deceased had executed 37 wills and codicils, and there were also found among his papers a large number of incomplete testamentary papers. A duly executed codicil was found annexed by tape to a will and codicil and the question for the court was the effect of this form of annexation. Sir Cresswell held that the annexation of the codicil to the will was “an act dehors” the instrument, and that the legislation required that the intention to revive be shown on the codicil itself and not, as there, by the physical act of annexation. At p. 847 of the judgment he said as follows:

“It may be assumed that a codicil to a will shews an intention that some will should be operative ….But can any act dehors the instrument be resorted to for the purpose of establishing the intention? I apprehend not; it would be such act, and not the codicil, then that shewed it. It appears to have been the object of the legislature to put an end equally to implied revocations and implied revivals.”
46. I adopt that statement of principle, and indeed the reasoning behind it, namely if annexation was to have the effect contended, an immediate problem arises as to how the court is to ascertain without extrinsic evidence when and by whom it was annexed, or how a natural connection between the codicil and the document alleged to be revived could be shown. By s. 87, revival must be by the codicil, and not by the act of annexation of the codicil howsoever this is shown to have occurred.
47. Willmer J in Re Davis expressed himself in agreement with counsel for the applicant that the fact of executing a codicil must show an intention in itself to execute some sort of effective document as:-

“He cannot be credited with an intention to execute a wholly, ineffective codicil to a wholly ineffective will.”
48. He went on to point to the fact that to think otherwise would leave him in the position of being unable to ascertain what other intention could possibly be imputed to the testator in executing the codicil. There is some force to that proposition, and of course a codicil must be executed in accordance with the Succession Act, and this is to be treated with a degree of solemnity. I do not accept that this dicta may displace the legislative requirement in that the mere fact that a codicil is executed does not of itself mean that a will is revived, as a codicil to a will does not revive that will of itself, without the court being satisfied that the other element of the test is met.
49. However, there is some argument that writing on the will is sufficient to show intention to revive. In the 15th ed. of Theobald on Wills (1993, Sweet & Maxwell) the learned author states the following general proposition at page 92:

“A testamentary disposition, written at the foot of a will revoked by marriage, and referring to a bequest contained in the will, though not referring to the will in terms or described as a codicil, is sufficient to revive the will.”
The learned author refers to Re: Terrible (1858) 1 Sw. & T. as authority for this proposition. In that case probate was granted of a will of the deceased who had made a will giving a life interest in property to his then wife Sara. After her death he married Martha Brewer whom he left surviving, and on the day before his death he executed a memorandum to the effect that he wished the name of his former wife Sara to be erased in his will and the name of his new wife Martha be substituted. The Court accepted that the memorandum, which was duly executed as a testamentary document, was a codicil:
“and from its being written on the same sheet of paper, and also from its contents, it could be a codicil to no other will than that of June the 11th, 1852l. Its identification as a codicil to that will was sufficient to revive the will.”
50. I consider that the mere fact that the codicil is written on the will is not sufficient in itself to revive the will and that the writing of the codicil is a form of annexation and dehors the will. This is notwithstanding the decision of the Court in Re Davis, where the words comprising the codicil were written on an envelope in which was kept the will, and that is because that case dealt with the question of whether the writing on the envelope was a codicil, and the Court finding that it was, held that it contained sufficient words to convey to the mind of the Court “with reasonable certainty the existence of an intention to revive the will.”
51. Insofar as the statement at p. 92 of Theobald on Wills expresses a different proposition, I do not believe it is correct law, and I note also that neither Re Terrible nor Re Davis, the two judgments relied upon in support of the proposition stated by the learned author, supports so wide a principle.

52. I prefer the statement at pp. 165 -166 of Miller’s Irish Probate Practice (1900, Maxwell) where the author says as follows:-

“Nor is mere physical annexation of a codicil to a revoked will sufficient. In order that republication may be implied something must be found in the second testamentary instrument form which the inference can be drawn that when making and executing it the testator considered the will as his will.”
53. I adopt that statement as expressing the true import of s. 22 of the Wills Act 1837 and s. 87 of the Act of 1965.
Must the testator know the earlier will had been revoked?
54. This difficult question arose towards the end of argument. It was not strongly contended by counsel for the plaintiff that evidence that the testator knew that the Kerry will had, as a matter of law, been revoked by the New York will was required before the Kerry will could be revived. However, his argument is more nuanced and he contends that no revival can occur by the codicil unless it is apparent from the terms of the codicil itself that it intended to revoke the New York will. As he put it colourfully, the New York will remains “the elephant in the room”, and because that will was, at the time of the codicil, the last will of the testator, it must be shown by the codicil itself that it was intended to revive the Kerry will and revoke the New York will. He says that the two stages are necessary, and are not on the facts apparent and cannot be gleaned from the codicil itself. Thus his argument is that the testator, in order to revive the Kerry will by the codicil, must have known that it had been revoked, and must further have intended in reviving it to thereby revoke the New York will.

55. The textbooks are silent on the question and few of the authorities expressly address it, but proceed mostly on an assumption, often unspoken, that such awareness is not relevant.

56. The question arose tangentially in the judgment of Willmer J. in Re Davis where in raising the hypothetical question that as to what precisely the testator was doing in executing the document that he did in the form of a codicil, and noting that the will to which he referred had already been revoked by marriage, “even if he were unaware” that the will had been revoked by marriage, he went on to point that there were easier ways to revoke a will, and never came to address the question of the testator’s knowledge of the fact of revocation in his judgment.

57. Chitty J. in the case of Re Earl of Caithness [1891] 7 T.L.R. 354 did seem however to take the view that knowledge of the fact of revocation was not a necessary element and he said as follows:-

“This revocation was worked by force of the statute alone quite independently of any intention of the testator’s part. But the testator might, under section 22, revive it by executing after his marriage a codicil showing an intention to revive, and it was observable that section 22 did not deal exclusively with a will revoked by marriage, but dealt with a will ‘in any manner’ revoked.”
58. The will in that case was held to revive the will as it had “treated the will as subsisting”. Of note also in that case is that Chitty J. took the view that the testator’s main object was to appoint additional executors, yet he had “referred to the will in such terms as to treat it as subsisting – that was to say, subsisting in its entirety.”
59. That statement seems to accord with reason, and as the function of the court is to ascertain the intention of the person making the codicil objectively speaking, and as there is no subjective element to the test whether the revival itself has been effective, I consider that knowledge that a will has been revoked is not an essential element in the revival of that will by a codicil.

60. Furthermore, the legislation is silent on the point, and makes possible revival by a codicil of any will revoked “in any manner”, suggesting that a revocation which had occurred as a matter of law and without any intention to revoke could come into play in considerations of revival under s. 87 of the Act of 1965.

61. Furthermore, it is unclear how a court would determine that a testator did know that a prior will had been revoked, and the evidence of that knowledge would often be extraneous evidence, and might lead to unnecessary litigation and uncertainty, as well as enabling speculative argument, or indeed evidence, to be adduced in furtherance of an argument as to the subjective state of the knowledge of the testator.

62. Accordingly, I conclude that subjective knowledge by a testator that a previous will had been revoked is not a necessary element in the application of s. 87 of the Act of 1965. That principle should be seen however in the context of the requirement of s. 87 that the codicil affirming or confirming the will should show intention to revive, and often the intention to revive will import some degree of knowledge that the prior will had been revoked. Thus perhaps a more accurate statement would be that it does not need to be shown that the testator had known that a prior will had been revoked, or how it had been revoked, but that proof of intention to revive can sometimes require consideration of this as a factor.

63. Counsel for the plaintiff makes the argument that the fact that the New York will is not referred to anywhere in the codicil is fatal to the contention of revival as the revival of the Kerry will of itself revokes the New York will. He relies on the decision of Goldie v. Adam referred to at para.18 above. The Court followed Re Steele to the effect that the Court would not conclude that a will could be revived in an “indirect kind of way”. There was a complete absence of words of revival.

64. Counsel for the plaintiff argues that that case is authority for the proposition that there must be actual words of revival in a codicil to act as a revival of an already revoked will. I consider this cannot be a correct statement of the law in the light of s. 87 of the Act of 1965, and that the court is entitled to look to evidence that shows an intention to revive, and the legislation does not require an expression of such intention, merely that it be shown. Bucknill J. seemed to take the view that there had to be evidence that the testator knew that the 1929 wills and codicils had been revoked and it seems that the solicitor who drafted the codicil in 1933 did not know of the revocation. The absence of knowledge of revocation was an element in the Court’s decision, and not the sole reason for the decision and as Bucknill J. said “all these factors unite to convince me that Mr Tavlor did not intend to revive the 1929 will”.

65. I do not consider that the judgment in Goldie v. Adam states a proposition other than the ones outlined above, and none of the authorities suggests that there needs to be express words of revival, and having regard to the fact that the provision for revival is made in a statutory scheme which does not require express words of revival, I consider that the correct analysis points me to the conclusion that express words of revival are not necessary.
Conclusion on revival
66. I consider for the reasons stated above that the codicil does contain within it, and by inference, an intention to revive the Kerry will. It clearly refers in terms to a clause in that will, and affirms or confirms it in express language that admits of no ambiguity. Certain extrinsic evidence to explain the alteration to the bequest in the Kerry will is to be admitted in aid of interpretation, and this points unequivocally to the Kerry will.
The effect of the Kerry will on the New York will
67. The Kerry will deals with the Irish estate only, and the codicil does not make any alteration to this fact. Thus, while I consider that the codicil does revive the Kerry will and the Kerry will contains a clause by which it revoked all previous wills, the codicil carries with it and updates the revocation. I consider however that the Kerry will does not revoke the New York will in its entirety, and that the New York will continues to survive insofar as it disposes of assets other than those dealt with in the Kerry will, the bank account in New York. No question of Irish law arises in the administration of that estate, which I am advised has been fully administered.

In re O’Brien

In the matter of the estate of Noel O’ Brien deceased [2011] IEHC 327 (29 July 2011)

JUDGMENT of O’Neill J. delivered on the 29th day of July, 2011

1. The applicant in this application seeks an order removing a Caveat lodged by Scarry O’Connor & Company, solicitors, on behalf of Annette Keeshan, as guardian of Ben Keeshan, and also removing any further Caveats lodged by or on behalf of Ben Keeshan or Annette Keeshan against the estate of the deceased. The respondent to this application is Annette Keehsan as guardian for the said Ben Keeshan who is her son.

2. The deceased in this case was born on 13th November, 1964. He and the applicant were married to each other on 31st July, 2009, and the deceased died on 18th October, 2009.

3. The respondent, Annette Keeshan, is a sister of the deceased and Ben Keeshan is now an infant aged three years of age is a daughter of the respondent and nephew of the deceased.

4. Following upon the death of the deceased, the applicant lodged an application to extract a Grant of Administration Intestate to the estate of the deceased in the District Probate Registry at Limerick. Correspondence occurred between Messrs. Scarry O’Connor & Company, solicitors, on behalf of Annette Keeshan, with the solicitors for the applicant in which it was revealed formally by the solicitors for the applicant that the deceased had made a will on 29th October, 2008, in which he had bequeathed his lands at Kilkee East, Ruan, County Clare, comprising approximately 24 acres to Ben Keeshan, leaving all of the residue of his estate to the applicant.

5. This will is in the following terms:

“I, NOEL PATRICK O’BRIEN, of Bealnalicka, Ruan, in the County of Clare, farmer, hereby revoke all former wills, codicils and testamentary dispositions heretofore made by me and I declare this to be my last will.
I APPOINT WILLIAM HILLARY of Kilkee East, Ruan, County Clare, sole executor of this, my will.

After payment of all my just debts, funeral and testamentary expenses, I GIVE, DEVISE AND BEQUEATH THE FOLLOWING:-

1. My lands at Kilkee East, Ruan, County (Clare) comprising approximately 24 acres to my nephew, BEN KEESHAN, of Oldcastle, Clonakinny, Roscrea, County Tipperary.

2. All the rest residue and remainder of my estate to MARIE BURKE of Ballymote Road, Tubbercurry, County Sligo, for her own absolute use and benefit.

IN WITNESS whereof I have hereunto signed my name this 29th day of October, 2008.

SIGNED by the said Testator as and for his last Will and Testament in the presence of us both present at the same time who, in his presence, at his request and in the presence of each other, have hereunto subscribed our names as witnesses.”

6. The solicitors acting for the applicant in their correspondence made it clear that they considered that the will in question had been revoked by the subsequent marriage of the respondent under the provisions of s. 85 of the Succession Act 1965, and hence, in their view, the deceased had died intestate with the consequence that the applicant was entitled to succeed to his entire estate and therefore entitled to extract a grant of administration. The solicitors acting for the respondent would not accept this and contended that the will made on 29th October, 2008, had been made in contemplation of marriage and was a valid will as of the date of death, so that the estate of the deceased had to be distributed in accordance with the terms of that will.
7. To protect the position of Ben Keeshan, a Caveat was lodged by Messrs. Scarry O’Connor & Company, solicitors, on behalf of Annette Keeshan as lawful guardian of Ben Keeshan. This Caveat, was in due course, warned, with a final warning letter dated 14th September, 2010, being sent by the solicitors for the applicant to Messrs. Scarry O’Connor & Company. In due course, this application was brought by the applicant.

8. Lengthy affidavits have been filed in the proceedings by the applicant and Annette Keeshan. Affidavits were also sworn by William Hillary and Michaela Hillary and by Cora McNulty and Bridget Malone.

9. From all of these, it is clear that several facts are not in dispute. The applicant and the deceased became involved in a relationship with each other going back to approximately 2004. The applicant was then resident in and working in County Sligo. The deceased, throughout their relationship, suffered from ill health and lived with his parents at Bealnalicka, Ruan, County Clare. In 2006, his mother, who was a person of unsound mind not so found, went to live as a fulltime resident in the Little Flower Nursing Home, Lebane, Ardrahan, County Galway, at a stage when the deceased and the deceased’s father were unable to care for her at home. The deceased’s father, Patrick O’Brien, died on 22nd April, 2008, testate. Under the terms of his will, he left his home and lands comprising Folio 15767, County Clare, to the deceased, subject to a right of residence and maintenance and support in favour of the deceased’s mother, Anne O’Brien. By order of the High Court dated 16th November, 2008, made under s. 115(5) of the Succession Act 1965, the court elected on behalf of the deceased’s mother to claim her legal right share of one-third of the estate of Patrick O’Brien in preference to the provision made for her in his will. The deceased’s mother subsequently died on 18th February, 2010.

10. The deceased and the applicant became engaged to be married in 2008, and by a notice dated 30th September, 2008, they gave notice of their intention to marry on 31st July, 2009, at the Civil Registration Office at St. Camilla’s Hospital, Limerick. This notice of intention to marry was served on the Registrar, Mr. Quirke.

11. On 9th October, 2008, the deceased sold the remainder of his lands at Drumeer, known as ‘Turley’s Place’ for a sum in the region of €330,000. He had inherited these lands from his uncle, Terence O’Brien.

12. On 29th October, 2008, the deceased attended at the office of his solicitor, Pamela Wall, inter alia, for the purpose of making a will. The focus of controversy in the case centres around the intentions of the deceased concerning the effect which his will would have, namely, whether it was made in contemplation of his marriage or not.

13. Evidence was given on affidavit by various deponents as to their belief in that regard based upon conversations subsequently had by the deceased with them, or actions of the deceased which were said to be either consistent with or inconsistent with this will being made in contemplation of the marriage in question.

14. Evidence was given on affidavit by Cora McNulty and she was cross-examined on her affidavit. She deposed to being a legal executive working for Pamela Wall, the deceased’s solicitor, and it was she who took instructions for and drafted, and indeed, also witnessed the execution of the will of 29th October, 2008. In her evidence, she averred that the deceased attended at the office on that day on business unrelated to his will, and while so doing, intimated that he had not been feeling well and had been in hospital and that he was keen to make a new will. She deposed to this in her affidavit and was adamant in cross-examination that the reason he wished to make a new will was because he was feeling unwell. In the course of conversation with Ms. McNulty, the deceased mentioned that he was getting married the following year, and in response to this, Ms. McNulty advised the deceased that the marriage would automatically revoke his will and that it would be of no effect following his marriage. She further advised that in those circumstances, in the event of his death after marriage, his entire estate would go on intestacy to his wife. She advised that in order to give effect to his intentions, he would have to make a new will after his marriage.

15. The deceased’s testamentary intentions were, as expressed in the will which he made, namely, to leave the land in Kilkee East to his nephew, Ben Keeshan, and the residue of his estate to his intended bride, the applicant.

16. I am quite satisfied upon the evidence that, having listened to the advice of Ms. McNulty, the deceased went ahead and executed a will adhering to his original testamentary intentions.

17. Whether the sale of lands, apparently recently completed by him, had any bearing on his desire to make a new will or any effect on his testamentary intentions, can only, at this stage, be a matter of speculation. However, it can be observed that it must have been well known to him that the proceeds of that sale were likely to be spent either in whole or in part on the renovation of the family home and other expenditures, including payment of debts, all arising in the time period prior to his intended marriage. It would therefore seem improbable that the realisation of the proceeds of sale of this land would have had any material bearing on the making of the will.

18. In May or June 2009, while renovation work was being conducted on the family home, William Hillary, who, with the aid of the plaintiff, was carrying out that work, deposes that in the course of a conversation with the deceased, the deceased told him that he had “left a chunk of land to that young lad”, referring to Ben Keeshan.

19. In her affidavit, Michaela Hillary avers, at paragraph 8, that she had a conversation with the applicant in July 2009, when the applicant called to the Hillary household, in which she avers that the applicant told her that the deceased had made his will, what the terms of the will were, and that the deceased had left land to Ben Keeshan and that she was very unhappy with this and she wanted it changed. In her replying affidavit, the applicant, in reference to the foregoing averment, says she had no recollection of it. At paragraph 50 of her replying affidavit, the applicant does recall a conversation with Michaela Hillary concerning payment of debts of the deceased and clarifies that her reference to being “burned” related to an earlier experience with the deceased rather than to her previous marriage.

20. At paragraph 27 of her said replying affidavit, the applicant describes the circumstances in which she became aware that the deceased had made the will of 29th October, 2008, namely, that this had occurred on Tuesday 28th July, 2009, when the deceased was admitted to hospital and he expressed a fear that he would die before the wedding, whereupon he told her that he had made a will, where the copy of it was, and he asked her to read it. The applicant read the copy will, and in light of her knowledge of the deceased’s financial difficulties and of the substantial sums she had already advanced to him, she became extremely angry and when visiting him again in the hospital, expressed her surprise and anger because he left the lands in question to his nephew.

21. The day after the death of the deceased, there seems to, undoubtedly, have been a conversation between the applicant and Annette Keeshan in which the applicant disclosed to Annette Keeshan the existence of the will and the fact that the land in question was left to Ben Keeshan. It is quite clear that up to that point, Annette Keeshan was entirely unaware of the existence of this will, and indeed expressed surprise, believing that the deceased was not, as she put it, the type to make a will.

22. I infer from the foregoing evidence that regardless of what Cora McNulty may have advised the deceased, he persisted with his testamentary intentions. There could be no doubt whatsoever but that the deceased had his marriage to the applicant in contemplation at the time he made this will, having only three weeks previously served the requisite notice of his intention to marry the applicant on 30th July, 2009. At the time, he was in the process of setting about renovating the family home, and whilst the applicant, in her affidavit, seeks to distance herself from any suggestion that this renovation project was related to the deceased’s and her own marital intentions, given that she was in the process of seeking employment in the Clare region, and having regard to the formal nature of her and the deceased’s marital plans, her disavowal in this regard seems hollow. In fact, she moved into the deceased’s family home on 24th July, 2009, a week before the wedding.

23. I am satisfied that when the deceased, in May or June 2009, had the foregoing conversation with William Hillary, which I accept occurred (William Hillary was not cross-examined on his affidavit), the deceased’s state of mind as of that time was that in the event of his death, by his will, the lands in question would go to Ben Keeshan. Manifestly, his upcoming marriage to the applicant would have been in his contemplation at the time, and indeed, well known to William Hillary, and it would seem to me to be highly improbable that he would have made this statement concerning leaving land to Ben Keeshan if he thought that the will in question would become ineffective when he got married, and that he only intended the will of 29th October, 2008, to have effect in relation to his death occurring between 29th October, 2008, and the date of his marriage. The words as used by the deceased were in the past tense, “left a chunk of land to that young lad”. All of this suggests to me that as a matter of probability, the deceased considered at that time i.e. May/June 2009, that he had made a will leaving those lands to Ben Keeshan and that that would remain the position for the foreseeable future, as of that time, which necessarily included his contemplated marriage. If his intentions were otherwise at that time, it is extremely unlikely he would have mentioned the subject at all or that he would have expressed himself as he did.

24. It is clear from the affidavit of the applicant that a heated discussion took place between the applicant and the deceased on or about 28th July, 2009, concerning the applicant’s will, and in particular, the leaving of the lands in question to Ben Keeshan. It seems implicit from the averments in the applicant’s affidavit in this regard that she came away from these discussions under the impression that the deceased’s testamentary intentions, as expressed in his will, were subsisting as of that time. If the deceased understood and intended his will not to have any effect after the date of his marriage, which was only three days away, it would have been extraordinary that he would not have told the applicant of this state of affairs and reassured her in that regard. The applicant, in her affidavit, discloses no such reassurance from the deceased, and I infer from that silence that the deceased was content that the applicant would know that his testamentary intentions as of that time were as expressed in his will, notwithstanding his impending marriage to the applicant.

25. The conversation which took place between the applicant and Annette Keeshan on 19th October, 2009, the day after the death of the deceased, in my view tends to confirm that the deceased, in his discussions with the applicant in the days immediately prior to the marriage, conveyed to the applicant, firstly, that he had made a will, secondly, that he was, by that will, leaving the lands in question to Ben Keeshan, and, thirdly, that his testamentary intentions in that regard were subsisting, with his marriage in contemplation. If it had been the case that the deceased had conveyed to the applicant that his will was to be revoked by his marriage, or that the applicant, as a result of any assurance or otherwise, understood that the will was revoked by the marriage, it would seem to me to be highly unlikely that she would have broached the subject of the will in the manner she did in her discussion with Annette Keeshan on 19th October, 2009. It seems clear, that as of that time, the applicant understood the will to be a valid, subsisting will, notwithstanding her marriage to the deceased.

26. The affidavit of Bridget Malone establishes that on 2nd October, 2009, the deceased telephoned the offices of John Callinan & Company, solicitors, and spoke to Bridget Malone who was a receptionist there. The deceased sought an appointment with Mr. Callinan and this was arranged for the following Monday at 3.30pm. In response to Ms. Malone’s enquiry, the deceased said that the appointment he was seeking was in connection with the making of his will. The deceased did not keep the appointment. The fact that the deceased may have considered changing the will he made on 29th October, 2008, is immaterial. The evidence does not go so far as to indicate that he intended to change the will. He may only have sought advice concerning the will. Even if he did intend to change the will, that would not displace what he intended or had in contemplation when he made the will on 29th October, 2008. I do not think that seeking an appointment in this regard can be said to be evidence which sheds any light on the issue of whether or not the will of 29th October, 2008, was made in contemplation of his marriage.

27. A consideration which necessarily arises in the case is what is meant by “in contemplation of that marriage”.

28. Section 85(1) of the Succession Act 1965, provides:

“85.—(1) A will shall be revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether so expressed in the will or not.”
29. The Act does not offer any definition relevant to what is meant by “contemplation of that marriage”. What is clear is that the effect of s. 85(1) is that unless a will is actually made in contemplation of a marriage, it will be revoked by that subsequent marriage, whether so expressed or not in the will.
30. Section 85(1) re-enacted the general rule contained in s. 18 of the Wills Act 1837, to the effect that a marriage subsequent to the making of a will revoked that will. In the United Kingdom, s. 117 of the Law of Property Act 1925, provided that, “a will expressed to be made in contemplation of a marriage . . .” was saved from revocation by a subsequent marriage to the person in respect of whom the marriage was contemplated. A crucial aspect of this provision was that it was essential to the preservation of the will from revocation, that the contemplation in question was expressed in the will itself. The authorities established in due course that the issue was one of construction of the will, in respect of which extrinsic evidence could not be admitted, rather than establishing as a fact the relevant intention or contemplation on the part of the testator.

31. The United Kingdom Administration of Justice Act 1982, following on the recommendations of the Law Reform Committee, replaced s. 18 of the Wills Act 1837, which was the statutory revocation, and also s. 117 of the Law of Property Act 1925, with a provision in s. 18(3) which is as follows:

“Where it appears from a will that at the time it was made, the testator was expecting to be married to a particular person, and that he intended that the will should not be revoked by the marriage, the will shall not be revoked by his marriage to that person . . .”
32. A similar provision was enacted in respect of particular dispositions in a will.
33. Notwithstanding the substantial change in this legislative provision, an essential feature present in s. 177 of the Law of Property Act 1925 remains, namely, that the will itself must express the relevant requirement. This would appear to be an inevitable consequence of the phrase “where it appears from a will . . .”

34. Section 85(1) of the Succession Act 1965, involves a very significant and fundamental departure in our jurisprudence from the approach adopted since 1925 in the United Kingdom. As is apparent from s. 85(1), it is not necessary for the relevant contemplation or intention to be expressed in the will itself, and indeed, it could be said that even where such intention or contemplation is expressed in a will, it may not be decisive.

35. Thus, whereas in the United Kingdom jurisprudence, the issue of whether the required contemplation was present when the will was made, remains primarily one of construction of the will, in this jurisdiction, the ascertainment of whether that contemplation existed or not is a question of fact to be established by evidence. Needless to say, where, in this jurisdiction, a will does contain an expression which purports to be a contemplation of marriage for the purposes of the section, a construction issue would arise in respect of that, but given the manner in which the sub-section deals with such expressions, in my opinion, extrinsic evidence could rarely be excluded in the determination of any such issue.

36. On the question of what is required to establish “contemplation of that marriage”, I would not go so far as was recommended by the UK Law Reform Committee, to the effect that the intention or contemplation must be that the will should continue to have effect after the marriage and notwithstanding the marriage. It is, of course, the case that the consequence of the existence of the relevant contemplation is that the will continues in existence, notwithstanding the marriage in question, but that consequence should not be confused with a precondition for it. For many testators, advice on these consequences may not be available or clearly understood.

37. It is sufficient, in my view, if the evidence establishes that when the will was made, the testator actually had or must have had in contemplation a marriage to a particular person. To require an intention that the will continues to have effect after the marriage in question exceeds what the language of the section expresses and would, in effect, involve an addition to the section. Section 85(1) does not expressly say that “contemplation” in the context of the section means an intention that the will would continue to have effect after the marriage. Neither can it be said that such a construction of the section is warranted as a necessary or obvious implication from the language used in the section. It is noteworthy that the language used in the section does not mention the word “intention” at all, let alone any specific intention. The section adopts the much broader concept of “contemplation” which persuades me that the legislative intent was that a testator would merely bear in mind or have regard to a particular forthcoming marriage. In this context, of course, it must not be forgotten that the Succession Act 1965 introduced a number of important safeguards for spouses, specifically, s. 111, which gives a spouse a legal right to one-half of the estate if there are no children, and one-third if there are children. This statutory right, to a very large extent, replaces and achieves the policy objective underpinning the revocation of a will by a subsequent marriage, as enacted in s. 18 of the Wills Act 1837, namely, to protect the position of dependent spouses, in the event of the death of the other spouse having made a will prior to the marriage which fails to make adequate provision for the dependent spouse.

38. For the reasons already discussed above, I am quite satisfied that the deceased in this case must have had in contemplation his marriage to the applicant when he made his will on 29th October, 2008, and indeed, the evidence goes further, in the sense that his conversation with William Hillary and his conversations with the applicant and her conversation with Annette Keeshan after his death gave rise, in my opinion, to the inference that he intended his will to continue to have effect after his marriage to the applicant.

39. I have therefore come to the conclusion that the will of 29th October, 2008, was not revoked by the applicant’s marriage to the deceased on 31st July, 2009, and therefore the estate of the deceased must be administered in accordance with that will.

37. Accordingly, I refuse the relief claimed in this notice of motion.

Cases Capacity

Scally v Rhatigan

[2010] IEHC 475

Judgment of Miss Justice Laffoy delivered on 21st December, 2010
1. The proceedings
1.1 The aspect of these proceedings with which the Court is concerned in this judgment is an application by the plaintiff to have a testamentary document dated the 19th May, 2005, (which, for the sake of brevity, I will refer to as “the Will”) proved in solemn form of law as the last will and testament of Brian Rhatigan (“the deceased”). The deceased died on the 7th February, 2006. The plaintiff is the sole surviving executrix named in the Will and she brings these proceedings in that capacity. The defendant is the widow of the deceased. On the 20th November, 2008, a caveat was entered on behalf of the defendant and two of the children of the deceased, although an issue arose subsequently as to whether the children had given instructions that the caveat be lodged on their behalf. In any event, the caveat was warned on the 27th February, 2009 and an appearance was entered to the warning on behalf of the defendant alone on the 10th March, 2009. These proceedings were initiated by plenary summons which issued on the 8th April, 2009.

1.2 On the 15th September, 2009, the defendant delivered a defence and counterclaim to the plaintiff’s statement of claim which had been delivered on the 3rd June, 2009. The counterclaim raises issues which go beyond the issues which would usually be raised in a probate action, for instance, whether the deceased was, at the date of his death, constituted a trustee as to half of his estate for the benefit of the defendant by reason of matters pleaded in the counterclaim. The plaintiff delivered a reply and defence to counterclaim on the 3rd March, 2010. That, in turn, raised additional issues, for instance, whether the defendant’s claim that the deceased was a trustee for her benefit of half of his estate is statute barred by operation of s. 9 of the Civil Liability Act 1961. Issues are also raised on the pleadings as to the extent of the estate of the deceased and as to the appropriateness of the plaintiff acting as legal personal representative of the deceased.

1.3 By order of the Master made on the 5th May, 2010 by consent, the issues to be tried were listed. At the hearing it was agreed by the parties that only the first three issues would be determined by the Court at this juncture. They are:

1. whether the Will was executed in accordance with the formalities required by s. 78 of the Succession Act 1965 (“the Act of 1965”);
2. whether the deceased knew and approved of the contents of the Will; and

3. whether, at the time of executing the Will, the deceased was of sound disposing mind and had capacity to make a valid will.

1.4 At the hearing it was acknowledged on behalf of the defendant that the Will was executed in accordance with s. 78 of the Act of 1965. On the basis of sight of the original will and the evidence of the two attesting witnesses, Sheila O’Neill, a solicitor in Amorys, the firm which acted for the deceased when he made the Will, and Elaine Cahill, a trainee solicitor in that firm at that time, I am satisfied that the Will was executed in accordance with the rules for a will to be valid as set out in s. 78 of the Act of 1975.
1.5 Accordingly, what remains to be decided is whether the deceased had testamentary capacity on the 19th May, 2005.
2. The deceased
2.1 The deceased was born in January, 1946 and had just turned 60 years of age at the date of his death. There were three children of the marriage of the deceased and the defendant: Odilla Gilson; David Rhatigan; and Brian Rhatigan Junior, who pre-deceased the deceased having died in April, 2003 at twenty years of age. The deceased was also survived by grandchildren. Details of his grandchildren were not given in evidence, although I note from the agreed book of correspondence given to the Court that there are four grandchildren, the children of Odilla Gilson.

2.2 The deceased and the defendant had matrimonial difficulties during the late 1990s and they were de facto separated from around 1998. Following the separation, each was represented in relation to the family law matters by a solicitor specialising in family law. I make that observation for the purpose of emphasising that the plaintiff did not act for the deceased in relation to family law matters. As I understand it from the evidence, and it is necessary to emphasise that the defendant did not give evidence at the hearing, there was a consensual arrangement between the deceased and the defendant in relation to financial matters during the life of the deceased, although the arrangement was not formalised as a separation agreement in writing.

2.3 After he separated from the defendant the deceased formed a new relationship with Rachel Kiely. They lived together from 1998 until the death of the deceased, first in a flat in Sandymount and subsequently in the dwelling house “Chantilly” at Rathmichael, County Dublin mentioned in the title hereof, which was purchased in the summer of 1999 and which they moved into in December, 1999. There were two children of the partnership (the infants): a daughter who was born in November, 2004; and another daughter who was born in December, 2005.

2.4 The position, accordingly, is that the deceased was survived by his widow (the defendant), his partner (Ms. Kiely), his two children by his marriage to the defendant (Odilla Gilson and David Rhatigan) and the two children from his relationship with Ms. Kiely (the infants) and four grandchildren. He was also survived by four siblings.

2.5 The only evidence the Court has in relation to the deceased’s business and his assets at the date of his death is the evidence given by the plaintiff, who is the principal in the firm of Amorys and who acted for the deceased in relation to property investments, conveyancing matters and litigation from 1986 onwards. On the basis of the evidence, the deceased’s business affairs were a very “tangled web”, and I use that expression fully conscious of its provenance in Scott’s “Marmion” and its implications in that context. It is not possible, and, in any event, it is unnecessary, to disentangle the labyrinthine network of offshore trusts, corporations, property developments and investments in which, prima facie, the deceased would appear to have had an involvement at this juncture. Suffice it to say that, on the evidence, I think it is reasonable to draw the inference that the assets which were represented to the plaintiff when the Will was being drafted as representing the only assets of the deceased were part only of the assets in which the deceased had a sufficient interest to give him a power of disposition thereover. By way of example, I think it is reasonable to draw the inference that the deceased had an interest, in the sense that he was in a position to determine the ultimate destination of its assets, in the trust known as the Golden Promise Trust, which had been set up in Cyprus in 1999, to which I will refer later. It would appear that he also had an interest in the assets of the trust known as the Dolphin Trust, which appears to have been set up in Guernsey in 1984. It has been established since his death that he was the beneficial owner of the assets of the trust known as the Doni Trust, which was set up in the Isle of Man in 2002.

2.6 The plaintiff’s evidence was that before his death the deceased had been questioned by “the Ansbacher Tribunal”, that a transcript of his evidence had been made available to the Revenue Commissioners and, that, as a result, the Revenue Commissioners had commenced an investigation. That investigation continued after the death of the deceased and is still ongoing. Although the Inland Revenue affidavit sworn by the plaintiff on 30th October, 2008 discloses a net Irish estate in the amount of €6,358,168.20, in arriving at that figure the indebtedness of the deceased to the Revenue Commissioners has not been factored in. As a consequence, the net value of the deceased’s estate is unknown.

2.7 The tragedy underlying this case is that the deceased who, on the evidence, was clearly a robust, congenial, generous man, who played rugby until he was forty and continued to participate in sports such as skiing and motor rallying, started displaying symptoms around 2001 which ultimately led to a diagnosis of motor neurone disease.
3. The Will
3.1 The Will, which runs to twenty three pages, has the appearance of a complex document. In this outline of its terms, I propose to extrapolate its essential elements.

3.2 The deceased appointed Dan O’Donoghue and the plaintiff to be executors and trustees of the Will. Mr. O’Donohue survived the deceased, but died in April 2008, leaving the plaintiff as the sole executrix.

3.3 In clause 3, which must be read subject to the provisions of clause 4, the deceased devised and bequeathed all his estate to his executors upon trust for sale and he directed them, after payment and discharge of his funeral and testamentary expenses and debts, to “satisfy or provide for the satisfaction of the statutory right of my wife Odilla under the provisions of the Succession Act 1965” and to satisfy the legacies bequeathed by clauses 5 and 6 of the Will. Accordingly, the provision made for the defendant was her statutory right to one third of the estate as provided for in s. 111 of the Act of 1965.

3.4 In clause 4 the deceased made specific provision for his daughter, Odilla, and his son, David, in that he devised and bequeathed to them in equal shares –

(a) his interest in certain units in Kildare Business Park (the Kildare Units) subject to any mortgage, charge or other encumbrance thereon at the date of his death;
(b) any monies standing to his credit in two current accounts and a deposit account, which were identified by their numbers, with Allied Irish Banks Plc (AIB), and

(c) any surplus remaining of the monies payable on foot of a policy of insurance, identified by the policy number, on his life with Irish Life Assurance Company Limited then held by AIB as security for his personal overdraft with that bank.

He specifically provided that those assets should not be applied in payment or discharge of his funeral and testamentary expenses or debts or in satisfaction of the provision he made for his wife, the defendant, or in payment of legacies which he later bequeathed so long as there were other monies arising from his estate available for those purposes.
3.5 In clause 5 the deceased bequeathed the following legacies, which were expressed to be subject to satisfaction of the statutory entitlement of the defendant and to the provision made for his children, Odilla and David, in clause 4:

(1) €200,000 to Ms. Kiely;
(2) to all grandchildren who should be alive at the death of his death a sum equivalent to the then tax free threshold amount applying to gifts from grandparents to grandchildren, which I assume refers to the relevant inheritance tax threshold, which at the time was €47,815;

(3) €13,000 to each of his brothers and sisters who should be alive at the death of his death;

(4) €65,000 to be applied towards the purchase of a house for one of his sisters.

There was express provision for rateable abatement of those legacies, except the legacy in favour of Ms. Kiely, in the event of there being insufficient assets to meet them.
3.6 In clause 6 it was declared that the executors, who were designated trustees, should stand possessed of the residue of his estate upon and subject to the trusts and discretions thereinafter declared and subject thereto with ultimate provision upon trust for “the Beneficiaries in equal shares per stirpes”. The definition clause (clause 2) identified “the Beneficiaries” as Ms. Kiely, Odilla Gilson, David Rhatigan, and, in the events which happened, the infants.

3.7 The trust provisions were set out in clauses 7 to 16 inclusive running from page 6 to page 23 and were undoubtedly complex. However, in the main, they gave the trustees the type of broad discretion and the type of broad powers one would expect to find in a discretionary trust to distribute the trust estate among “the Beneficiaries” and regulated the exercise of the discretions and powers. In my view, it is improbable that any testator without a legal qualification or expertise in the law of trusts making provision for the type of discretionary trusts and powers contained in those clauses would concern himself with the precise detail of such clauses. There is an unusual feature, however, in the trust provisions in that amongst the powers conferred on the trustees in clause 8 was power to pay €100,000 or a lesser sum as the trustees should in their absolute discretion think fit to the charity GOAL.
4. The law
4.1 Section 77(1) of the Act of 1965 provides that to be valid a will shall be made by a person who “is of sound disposing mind”. The test for determining whether a person was “of sound disposing mind” when making or purporting to make a will which has been consistently applied in this jurisdiction (cf. the decision of Kelly J. in O’Donnell v. O’Donnell, the High Court, unreported, 24th March, 1999 and the decision of Feeney J. in Flannery v. Flannery [2009] IEHC 317) is that set out by Cockburn C.J. in Banks v. Goodfellow [1870] LR 5 QB 549 (at p. 656) where it was stated:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
4.2 Counsel for the defendant raised the issue as to which of the parties bore the burden of proving that the deceased was of sound disposing mind on 19th May, 2005. The Court was referred to a passage from the judgment of Hamilton P., as he then was, in In re Glynn, deceased [1990] 2 IR 326 (at p. 330) in which it was stated:
“Normally the legal presumption is in favour of the will of a deceased and in favour of the capacity of a testator to dispose of his property and to rebut this presumption, the clearest and most satisfactory evidence is necessary.
However, in cases such as this when a person suffers a stroke which may affect his capacity, the onus shifts and lies on the party propounding the will. Having regard to the nature of the stroke suffered by the deceased and the disability resulting therefrom, there is a heavy onus on the defendant in this case to establish that on the 20th October, 1981, the deceased had the mental capacity to make a testamentary disposition of his property, that he had a sound disposing mind, that he was capable of comprehending the extent of his property, the nature of the claims of his sister, the plaintiff herein, and that he was disposing of his property.”

4.3 On the issue of the burden of proof counsel for the defendant also referred the Court to a recent decision of the High Court of England and Wales, In re Key, decd. [2010] 1 WLR 2020 and, in particular, to the following passage in the judgment of Briggs J. (at para. 97):
“The burden of proof in relation to testamentary capacity is subject to the following rules. (i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. (ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. (iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless . . . .”
4.4 In this case, evidence was adduced by the plaintiff with a view to establishing that the deceased did have testamentary capacity on 19th May, 2005. Evidence was adduced by the defendant to cast doubt on whether the deceased was of sound disposing mind on that day. I am satisfied that I must decide, on the basis of the entirety of the evidence, whether, on the balance of probabilities, the deceased had testamentary capacity by reference to the Banks v. Goodfellow test on 19th May, 2005. As is pointed out in Williams, Mortimer and Sunnocks on ‘Executors Administrators and Probate’ (18th Ed.) at para. 13-19, “when the whole evidence is before the court, the decision must be against the validity of the will, unless it is affirmatively established that the deceased was of sound mind when he executed it”.
4.5 By reference to the judgment of Briggs J. In re Key, decd., counsel for the defendant submitted that the Court should have regard to what was referred to as the “Golden Rule” in that case. In his judgment (at para. 7), Briggs J. stated:

“The substance of the Golden Rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings ….”
However, Briggs J. went on to say (at para 8):
“Compliance with the Golden Rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope.”
4.6 Those observations, in my view, reflect the law in this jurisdiction. Irrespective of whether the “Golden Rule” or best practice was followed in a particular case, it is a question of fact, which is to be determined having regard to all of the evidence and by applying the evidential standard of the balance of probabilities, whether a testator was of sound disposing mind when the testamentary document which is being propounded was executed.
5. Overview of the evidence
5.1 In broad terms, the evidence adduced at the hearing falls into four categories; namely:

(a) Evidence of family members of the deceased.

His partner, Ms. Kiely, and his sister, Margaret Graby, who were called by the plaintiff, testified.

(b) Evidence of the circumstances in which the Will was made.

This evidence was primarily the evidence of the plaintiff, although Sheila O’Neill, one of the witnesses to the Will, and Liz Scanlon, the deceased’s secretary, had a peripheral involvement. Ms. Kiely testified that she knew nothing about the deceased’s business affairs.

(c) Medical evidence as to the deceased’s physical and mental condition in 2004 and 2005.
The principal witness called by the plaintiff was Professor Timothy Lynch, who is a Consultant Neurologist at the Dublin Neurology Institute at the Mater Misercordiae University Hospital and at Beaumont Hospital, and who is also Professor of Neurology at University College Dublin. The deceased was referred to Professor Lynch in September 2004. Dr. Yvonne Rafter, the general practitioner whom the deceased regularly attended from April 2004 until his death, was also called on behalf of the plaintiff. Ms. Eileen Carpenter, who was assigned by Home Instead, which provides palliative care for persons in need of it, testified as to her experience as a carer and companion to the deceased in the period from September 2005 until his death, also gave evidence. The only medical witness called by the defendant was Professor Robert Howard, who is Professor of Old Age Psychiatry at the Institute of Psychiatry and Consultant Old Age Psychiatrist at Maudsley Hospital in London. Professor Howard received instructions from the defendant’s solicitors in April 2010, to furnish a report on the deceased’s capacity as of 19th May, 2005. He did so, the report being dated 28th May, 2010, on the basis of the deceased’s medical records, which had been furnished to him.
(d) Evidence of appropriate practice on the part of a solicitor in addressing the issue of capacity of a person to make a will.
That evidence was called by the defendant and was given by Ms. Paula Fallon, a practicing solicitor, who works exclusively in the area of wills, administration of estates and trusts.
5.2 While I have had regard to all of the evidence in reaching the conclusion which I will set out later, the main focus of this judgment will be on the evidence referred to at (b) and the evidence of Professor Lynch and Professor Howard referred to at (c) in para. 5.1

5.3 Before considering that evidence in detail, I consider it appropriate to advert to an issue of concern which I raised during the hearing. The deceased had made an earlier will in the 1980s, apparently on 21st November, 1989, which, as I understand the evidence, had been retained by Amorys. In 2005, in the context of the execution of the Will, the earlier will was destroyed on the basis that it was revoked by the deceased. As one would expect, the testamentary document executed on 19th May, 2005, that is to say, the Will, at its commencement was expressed to revoke all wills and testamentary dispositions previously made by the deceased. There is no copy of the earlier will available. Obviously, if it were the case that the deceased was not of sound disposing mind on 19th May, 2005, the earlier will would not have been revoked. In that event, the apparent absence of any copy of his earlier will or any evidence of its contents would create a problem.
6. The making of the Will
6.1 Apart from the plaintiff, two other persons played a part in obtaining instructions from the deceased and in formulating the terms which ultimately ended up in the Will. The most important of those was Mr. Charles Haccius. The plaintiff referred to Mr. Haccius, a barrister, as having had a long-standing business relationship in an advisory capacity with the deceased and as being a friend of the deceased. The other was Mr. Paddy O’Sullivan, who was a work colleague of the deceased and was also present at some of the meetings at which the terms of the deceased’s will were discussed with the plaintiff. On the evidence, it would appear that the deceased carried on his business to some extent through the medium of a company known as York Securities Limited. Mr. O’Sullivan was an employee of that company, his position being “Financial Controller”. Ms. Scanlon was also an employee of that company. The position of the deceased with that company was described as “Project Manager”.

6.2 The thrust of the evidence was that York Securities Limited provided project management services for various companies and developments in which the deceased had an involvement. York Securities Limited is part of the “tangled web”. The evidence indicates that the business of the deceased, through York Securities Limited or otherwise, was carried on from offices at Lower Baggot Street in Dublin until December 2003. Thereafter, the business moved to the mews premises at the deceased’s home, “Chantilly”, which had been converted into an office. Mr. O’Sullivan and Ms. Scanlon and the deceased worked there from January 2004 because of the deterioration in the health of the deceased.

6.3 The plaintiff’s evidence was that the issue of the deceased making a will in 2005 first arose in February 2005. Ms. Scanlon telephoned the plaintiff to say that the deceased wanted to come to see her to talk about making a will. Subsequently, on 15th February, 2005 both the deceased and Mr. O’Sullivan attended at the plaintiff’s office where there was a discussion about the deceased making a will. At the time, the deceased had lost his power of speech and he was using an appliance called DynaWrite to communicate. The plaintiff’s evidence was that she remembered telling the deceased that, if he wished to make a will, they needed to discuss his assets, at which stage the deceased pointed to his watch. The plaintiff explained that this was a reflection of a long standing joke between the plaintiff and the deceased that, as the plaintiff subsequently put it in a letter of 21st August, 2006 to the defendant, the deceased always told her that he “never owned any asset either legally or beneficially apart from a small number of personal items including a gold Audemars Piquet watch and a set of golf clubs”. In any event, by February 2005 the plaintiff knew that the deceased had acquired the Kildare Units. She was told by Mr. O’Sullivan at the meeting that there were a number of life policies and that Miss Scanlon had a list of them in the office. The plaintiff was told by Mr. O’Sullivan that the estate was not going to be a very large one and the deceased nodded in agreement. The plaintiff was also aware that a certain amount of cash would be coming to the deceased as a result of the administration of the estate of his son, Brian.

6.4 The plaintiff’s evidence was that she told the deceased that she anticipated problems if his will only dealt with a small estate, because he had been involved in large property developments and the expectation of the defendant and, possibly, other members of the family would be that there was going to be a very substantial amount of money. In response, the deceased communicated to the plaintiff that there should be a meeting with Mr. Haccius. The plaintiff’s evidence was that she was aware at that stage of the existence of the Golden Promise Trust and that the deceased “had a connection with it”. She also had become aware that Mr. Haccius had been involved in setting up the trust, but she never had anything to do with its setting up or administration.

6.5 The plaintiff’s recollection was that a lot of other business matters had been discussed at the meeting on the 15th February, 2005 with the deceased and Mr. O’Sullivan, including property transactions which were pending at the time.

6.6 The meeting with Mr. Haccius was arranged for 6th April, 2005 and took place at “Chantilly”. Present were the plaintiff, the deceased, Mr. Haccius and Mr. O’Sullivan. The meeting went on for several hours. The plaintiff’s evidence was that the first issue which was addressed was the size of the estate which would be covered by the deceased’s Will and the potential disappointment on the part of family members if it was small. The plaintiff’s evidence was that she had been previously often told by the deceased that he did not have “any connection” with the Golden Promise Trust “on the face of it”. On this occasion, Mr. Haccius was emphatic that the deceased had nothing to do with the Golden Promise Trust, that he was neither a beneficiary nor a settlor and that the assets of the Golden Promise Trust would be entirely outside the estate of the deceased. Mr. Haccius also stated that any proceedings in relation to the Golden Promise Trust would have to be initiated in Cyprus and that it would be very unlikely that anyone would be able to “overturn” it because of Cypriot law in relation to “these matters”. The plaintiff’s evidence was that the deceased nodded in agreement.

6.7 The plaintiff then went on to describe the process of taking instructions from the deceased. She said it was very difficult as he was very ill, but she was happy that he was “in control of his faculties and knew what he was talking about”. The deceased was communicating by using the DynaWrite which she considered he found difficult. In terms of eliciting information, there was a lot of prompting. The process was very slow and difficult.

6.8 The matters which were discussed at the meeting thereafter were the assets of the estate, which would compromise the Kildare Units, the life policies, a schedule of which was furnished to the plaintiff, and the money coming from the estate of his son, Brian. The plaintiff’s evidence was that at that stage they were working off assets valued at between €3m and €3.5m. In relation to the distribution of the assets, the deceased indicated that the defendant was to get one third. The plaintiff’s evidence was that the deceased would have been aware that the defendant would have an entitlement to a legal right share of one third of his estate under the Act of 1965 even if it was not provided for in his will, but he communicated to her that he wanted it put in the Will. The deceased then communicated that the Kildare Units were to go to his children, Odilla and David. The plaintiff was aware that there was a first charge over that property in favour of AIB. The plaintiff’s evidence was that the other matters eventually dealt with in clause 4 of the Will, the monies in AIB and the life policy held by AIB as security, were then explored and the wishes of the deceased ascertained, to some extent with the assistance of Mr. O’Sullivan, who was familiar with the deceased’s dealings with the bank. The next issue which was addressed was the provision which was to be made for Ms. Kiely and the figure ultimately indicated was €200,000. The legacies in favour of the siblings of the deceased were then addressed and the evidence indicates that the plaintiff was given instructions which reflect what eventually was provided for in the Will. Provision for the grandchildren of the deceased was then addressed and, again, the evidence is that the instructions given by the deceased reflect what was ultimately provided for in the Will.

6.9 The issue of Ms. Kiely’s daughter and the fact that she was expecting a second child then came up and the plaintiff’s evidence was that at that stage the deceased communicated via the DynaWrite that Ms. Kiely was to stay in “Chantilly”. The plaintiff reminded him that “Chantilly” was owned by a company, Unit 33 Nominees Ltd., which the evidence established was a company incorporated in the Isle of Man and was owned by Golden Promise Trust. The plaintiff’s understanding was that the deceased was a tenant of “Chantilly”. The plaintiff’s evidence was that at that stage Mr. Haccius indicated that he would have to look into the matter. The plaintiff queried with the deceased whether she was to draft his will on the basis that “Chantilly” was not to be addressed in it and that she did not have to concern herself about the possibility of the infants not being catered for under his will. The deceased communicated that such was the case.

6.10 Another matter which was considered was a legacy for the charity GOAL. The plaintiff’s evidence was that the defendant was thinking of a figure of something over €100,000 but the plaintiff suggested that it was rather large in the context of the size of the estate. Mr. Haccius suggested that the better way of dealing with that legacy would be to give the trustees power, if “the estate swelled”, to give GOAL a lump sum. The deceased also wanted a provision in the sum of €30,000 to be made for another charity, which was named.

6.11 Finally, the residuary clause in the Will was discussed and the deceased indicated that the residue of his estate was to be divided between Ms. Kiely and his four children, although the quantum of the residue was uncertain.

6.12 As regards who was to act as executor, the deceased indicated, by pointing at her, that the plaintiff was to be an executor of the Will. She advised him that it would be prudent to have a second executor and the deceased indicated that Mr. O’Donoghue should also be appointed executor.

6.13 The plaintiff’s evidence was that other matters were then discussed at the meeting on 6th April, 2005, including companies, property transactions and investments in which the Golden Promise Trust was involved. As the meeting broke up, it was agreed that the plaintiff would prepare a draft will on the lines discussed and would send it to the deceased and to Mr. Haccius.

6.14 After that meeting the plaintiff prepared a draft will on the lines discussed. However, instead of sending a copy of the draft to Mr. Haccius, the plaintiff arranged to have a meeting with the deceased on his own at her office on 13th April, 2005. The plaintiff’s evidence was that at that meeting she went through the draft will with the deceased. He seemed to be happy with it and he asked her to send the draft to Mr. Haccius, which she did.

6.15 There was then a gap of some weeks, probably because the deceased was on holidays in France. Eventually, Ms. Scanlon asked the plaintiff to arrange a meeting with Mr. Haccius to discuss the deceased’s will, because the deceased wanted to get on with executing it. A meeting was arranged for 13th May, 2005. It took place in the plaintiff’s office. Present were the plaintiff, the deceased, Mr. Haccius and Mr. O’Sullivan. It was a long meeting. It lasted about six hours with a break for lunch. As I understand it, Mr. Haccius had drafted clauses intended to be incorporated in and to effect two major changes to the plaintiff’s draft will. One related to giving the trustees of the draft will power to make a claim to an entitlement to a beneficial interest in the deceased’s former family home, which was then vested in the sole name of the defendant. The plaintiff’s evidence was that, communicating via the DynaWrite, the deceased made it clear that those premises belonged to the defendant. It was understood by the parties present that the deceased required Mr. Haccius’s amendment in relation to the defendant’s home to be struck out of the draft. The other major alteration proposed by Mr. Haccius was the inclusion of the clauses setting up the discretionary trusts and powers in relation to the residuary estate. The plaintiff’s evidence was that there was general discussion in relation to why the trusts might arise and the contribution of Mr. Haccius was that he felt it was a good idea to have more lengthy provisions in case there was “a windfall” in the estate.

6.16 The plaintiff testified that at the meeting everything was read out carefully and explained to the deceased, paraphrased and discussed. As they went through the Will they stopped and asked the deceased if he wished to make any changes or wished to comment on any provision and he communicated with them by gestures. At the end of that meeting, a combination of the plaintiff’s draft and the change introduced by Mr. Haccius in relation to the residuary estate, including, apparently, a variation in relation to the bequest to GOAL, was agreed as the final draft by the deceased.

6.17 At the meeting of 13th May, 2005 the plaintiff suggested to the deceased that it would be wise, if at all possible, for him to be seen by Professor Lynch, obviously to confirm that he had testamentary capacity notwithstanding his serious illness. Indeed, she suggested the possibility of Professor Lynch being a witness to the Will. The deceased was agreeable to that and the matter was left on the basis that Mr. O’Sullivan would ask Miss Scanlon to make the necessary arrangements with Professor Lynch. On 18th May, 2005 Ms. Scanlon faxed a typed letter signed by the deceased to Professor Lynch. The letter, which was headed “My Will” stated:

“I am about to sign my will and I shall be pleased if you will let me have a letter confirming that I am mentis compos (sic) so that I can file it with same.”
6.18 On the following morning, 19th May, 2005, the plaintiff received by fax a report from Professor Lynch in relation to the deceased, which was dated 18th May, 2005, which recorded the dates of his assessments of the deceased as 22nd October, 2004, 19th January, 2005 and 20th April, 2005 and was addressed to “To whom it may concern”. Having stated that the deceased was attending the Department of Neurology for management of his progressive neurodegenerative condition, the medical report stated:
“This has resulted in balance difficulty, parkinsonism, progressive speech loss (he is mute at this time), swallowing difficulty, muscle wasting suggestive of motor neurone disease and furthermore some cognitive difficulties. The cognitive difficulties are characterised by frontal lobe executive dysfunction including slowness in thought process, some deficits in mental flexibility and sequential thinking. Mr. Rhatigan’s condition is called progressive supranuclear palsy/corticobasal degeneration and motor neurone disease. This is a very rare disorder and is caused by degeneration of specific regions of brain and less so the spinal cord.
In my opinion [the deceased] is capable of making a Will and Testament. His neurodegenerative condition predominantly affects his motor, speech and swallowing and less so his mental and cognitive abilities.”

After she had received the medical report, the plaintiff received a telephone call from Ms. Scanlon that the deceased would be able to call to her office that afternoon.
6.19 The deceased attended at the plaintiff’s office on 19th May, 2009 on his own for the purpose of signing his will. The plaintiff’s evidence was that she read through the draft first and then she and her assistant, Ms. O’Neill, took it in turns to go through the final draft again with the deceased. The evidence was that at that stage the document was in the form in which it was subsequently executed save that there were a number of typographical errors in it which required to be, and were, corrected and the deceased wanted the legacy in favour of the charity other than GOAL to be taken out, which was done. The plaintiff’s evidence was that the deceased was fully aware of what was going on, although he was a very ill man and there were difficulties in communication. At the end of that meeting, the Will in its final form having been read out loud to the deceased by the plaintiff and Ms. O’Neill, and the plaintiff having left the room, the Will was executed by the deceased in the presence of both Ms. O’Neill and Ms. Cahill who then subscribed their signatures as attesting witnesses.

6.20 Neither the various draft wills which were prepared between February and May 2005, nor copies of them, are available. There are two attendance dockets available in which the plaintiff records what happened at the meeting of 13th May, 2005 and at the meeting of 19th May, 2005. On reviewing the evidence, some inconsistencies are apparent in the plaintiff’s testimony and between the plaintiff’s testimony and the attendance dockets. However, most are of a minor nature. In general, I accept the plaintiff’s evidence as an accurate account of how the Will came into being. However, it is patently clear from the evidence that much more was going on behind the scenes in relation to the deceased’s assets than is reflected in the Will.

6.21 One example will suffice to illustrate why it is reasonable to come to that conclusion. As I have already recorded, at the meeting of 6th April, 2005 it was decided that Mr. Haccius would look into the matter of “Chantilly”. The plaintiff’s evidence was that she had no particular recollection of “Chantilly” being raised at the meeting of 13th May, 2005. Her understanding was that Mr. Haccius was going to look into doing something with “Chantilly”. Shortly after that, she became aware that “a trust called the Chantilly trust” had been set up but she was not involved in setting it up. The plaintiff was, however, involved in the purchase of “Chantilly” and in its sale after the death of the deceased. What the evidence discloses is that it had been purchased in the name of Unit 33 Nominees Ltd. with the aid of a loan from Anglo Irish Bank Plc (Anglo). On 10th March, 2005, Golden Promise Holding Ltd., which is a Cypriot company and which apparently was the trustee of the Golden Promise Trust, applied to Doni Ltd., the trustee of the Doni Trust, for a loan of €2,757,000.30 and requested that €1,757,219.30, a portion thereof, would be lodged to an account of Golden Promise Holding Ltd. at Anglo. The letter of request stated:

“It is a condition that in making this payment on our behalf in the sum of €1,757,219.30 to Anglo … that that Bank will release its mortgage/charge over the house and premises known as “Chantilly”, Ballybride Road, Shankill, County Dublin which is owned by our subsidiary company, Unit 33 Nominees Ltd.”
The request was granted, as evidenced by a minute of a meeting of the board of Doni Ltd. held in the Isle of Man on the 11th March, 2005. By the time “Chantilly” came to be sold after the death of the deceased, it was free of the mortgage in favour of Anglo. After discharge of capital gains tax, the proceeds of the sale of “Chantilly” which were available to be distributed were in the region of €3.3m. The plaintiff’s evidence was that she paid the proceeds over to Unit 33 Nominees Ltd., which was part of the Golden Promise Trust. However, when it was put to her in cross-examination that Ms. Kiely was the ultimate beneficiary, her response was that she could not say that. Although this is not clear on the transcript, the distinct impression I got from Ms. Kiely’s evidence during her cross-examination was that she is the beneficiary of the proceeds of the sale of “Chantilly”.
6.22 The arrangement for the discharge of the mortgage on “Chantilly” was only one of a range of matters which the evidence discloses were being dealt with by the deceased or on his behalf by Mr. Haccius or Mr. O’Sullivan between February and May 2005. In cross-examination, the plaintiff reiterated that the reason the complicated trust provision in relation to the residue was included in the draft, which was considered in the meeting of 13th May, 2005 and which had been drafted by Mr. Haccius, was that Mr. Haccius had stated that there was no harm in putting it in because it could cater for a “windfall situation”, but she had no evidence of what sort of “windfall” Mr. Haccius had in mind. Although it could hardly be properly characterised as a “windfall” to the estate of the deceased, the plaintiff discovered after the death of the deceased that the deceased was the beneficiary of the Doni Trust. The amount due to the Doni Trust by way of repayment of the loan of €2,750,000 by the Golden Promise Trust appears as an asset of the deceased in the Inland Revenue affidavit sworn by the plaintiff. It is that sum which explains the increase in the value of the estate of the deceased from €3m to €3.5m discussed at the meeting of 6th April, 2010 to in excess of €6.3m shown as the net value of the estate in the Inland Revenue affidavit. However, the plaintiff’s evidence was that the loan may be irrecoverable from the Golden Promise Trust.

6.23 In response to a question put to her, the plaintiff stated that there was no letter of wishes in relation to the discretionary trusts created in the Will. However, the plaintiff testified that on the morning of 19th May, 2005 she had received a phone call from Mr. Haccius who said that he was going to fax through a “letter of wishes” which the deceased had indicated he wanted to sign. The draft was faxed through and the letter of wishes was typed up in the plaintiff’s office. After the Will was signed, the plaintiff asked the deceased about the letter of wishes and the deceased indicated that he wanted to sign it. The plaintiff read it over to the deceased. He indicated that he did not want to make any changes and that he was satisfied with it. He signed it and asked the plaintiff to send it to his lawyer in Cyprus. The plaintiff did not retain any copy of the letter. Her recollection was that it was addressed to “the directors” of the Golden Promise Trust. It expressed wishes that certain property owned by the Golden Promise Trust would be sold at the time of the deceased’s death and that certain other property would be retained. As regards distribution of the assets of the trust, the plaintiff’s recollection was that the deceased indicated that they be distributed amongst his children and his partner.

6.24 Whether the plaintiff’s recollection in relation to the content of the letter of wishes is correct and whether Ms. Kiely came within the class of beneficiaries who could benefit under the Golden Promise Trust is immaterial. What is significant is that, as I have stated, a lot more was going on in relation to assets associated with the deceased at the time than the mere drafting and execution of the Will. Although Mr. Haccius and, to some extent, Mr. O’Sullivan, neither of whom, apparently, live within the jurisdiction now and neither of whom gave evidence, were assisting the deceased in relation to those other matters, having regard to the evidence given by the plaintiff, it is difficult to accept that the deceased was not the instigator of what was happening in relation to assets with which he was associated, but which, apparently, were not in his name and were not to be dealt with in his will in accordance with his instructions to the plaintiff.
7. The medical evidence
7.1 In the medical report of 18th May, 2005 which I have quoted earlier, Professor Lynch characterised the deceased’s condition as being “a very rare disorder”. In his testimony, Professor Lynch described the constellation of conditions from which the deceased was suffering as “exceptional circumstances, one in one million”.

7.2 The deceased was referred to Professor Lynch was Dr. Raymond Murphy, Consultant Neurologist, in September 2004. At that stage, as Dr. Murphy graphically put it in the referral letter, the deceased had “done the rounds”. He had been to several doctors in Dublin. He had been to a consultant in London and he had spent three weeks in the Mayo Clinic in the USA, where the diagnosis of motor neurone disease had been confirmed. He had also been to Shanghai to a clinic specialising in alternative medicine. Consistent with that history, Professor Lynch found the deceased to be very proactive about his condition, deeply interested in it, focused on it, busy searching the Internet for information about motor neurone disease and his other disorders, and looking for medications that might potentially slow it up. Professor Lynch gave a number of examples of this. At his first visit in October 2004, Professor Lynch had a long discussion with the deceased about the benefit of antioxidant medication. Professor Lynch testified that he had ongoing discussions with the deceased not only about medications and new treatments but also about gene therapy and stem cell therapy, which was a topic which came up on every visit. It is reasonable to infer from the evidence that the deceased had sufficient cognitive ability to explore all of the available options.

7.3 However, Professor Lynch’s evidence was that during the deceased’s first visit he noted that he had some cognitive problems, which predominantly affected his frontal cortex. He did what is called a Frontal Assessment Battery (FAB), which disclosed some abnormalities, which he characterised as being “mild to moderate in that he had some difficulty with changing task”. When he was reporting back to Dr. Murphy, Professor Lynch referred to the fact that he had suggested to the deceased that he might benefit from formal neuropsychometric testing with Dr. Robert Coen and Professor Brian Lawlor in the Mercer’s Institute for Research on Ageing in St. James Hospital, so as to quantify in a formal fashion his frontal executive dysfunction which had been noted on the FAB.

7.4 The deceased was examined by Dr. Coen on 18th November, 2004 and he issued a report on 25th November, 2004. As I understand the report of Professor Howard and his oral evidence, his conclusion that the deceased “most probably did not have adequate testamentary capacity to execute” the Will on 19th May, 2005, was primarily based on the results of the tests carried out by Dr. Coen and Dr. Coen’s conclusions, although he did consider a variety of other material, including Dr. Murphy’s referral letter, the reports of Ms. Una Cunningham, who carried out speech and language therapy assessments on the deceased in February and March 2005, and Professor Lynch’s reports. Professor Howard recognised that Professor Lynch had a peculiar advantage over him, as he put it, in that he was familiar with the deceased and he recognised the obvious limitations in providing a post-mortem assessment, as he was doing.

7.5 The area of disagreement between Professor Lynch and Professor Howard which is most pertinent to the task the Court has to perform relates to the degree of the deceased’s cognitive impairment which was manifested in Dr. Coen’s report on the neuropsychological test findings. Dr. Coen did not give evidence. However, his report was put before the Court. Professor Howard pointed to the fact that he stated that on a range of formal objective tests to evaluate specific aspects of executive dysfunction there was clear evidence of significant impairment. Dr. Coen then commented on various tests. In his concluding remarks Dr. Coen stated:

“In addition to psychomotor slowing, the test findings provide evidence of clear deficits in mental flexibility, planning, sequential thinking, and the higher order regulation of goal directed behaviour. The latter was particularly evident on tests that require regulation and self monitoring while switching from one task to another and adhering to rules … Memory per se was not a problem …”
In cross-examination, Professor Howard stated that he was basing his assessment of the deceased’s testamentary capacity on what he knew of patients who have frontal lobe dementia by reference to the only specialist neuropsychological assessment which the deceased had undergone – that which was that carried out by Dr. Coen. When Professor Lynch was recalled, because the detail of Professor Howard’s report had not been put to him in cross-examination, he stated that the deceased did not have frontal lobe dementia, but had frontal cognitive impairment and there was a subtle difference there, but an important one. In relation to Professor Howard’s opinion that in all of the tests which Dr. Coen gave to the deceased that looked at the function of frontal lobes the deceased had done extremely badly on them and it would be wrong to say that it was a kind of a borderline or grey area, Professor Lynch disagreed. His opinion was that the deceased’s cognitive impairment, although present, was at the milder end of the spectrum in comparison with hundreds of patients with progressive supranuclear palsy and corticobasal degeneration who were seen and managed by him.
7.6 It was Professor Lynch who referred the deceased to Dr. Coen and his evidence was that he discussed Dr. Coen’s report with Dr. Coen at the time. Professor Lynch continued in the management of the deceased’s condition after Dr. Coen reported and he saw him again on the 19th January, 2005 and on 20th April, 2005. Professor Lynch expressed the opinion that the deceased did have testamentary capacity on 19th May, 2005, notwithstanding that a formal assessment in accordance with the Banks v. Goodfellow model had not been carried out, which he acknowledged, with the benefit of hindsight, would have been preferable. He based that opinion on the assessments of the deceased which had been carried out from late 2004 onwards and his interaction with the deceased. I find that Professor Lynch’s assessment is to be preferred to that of Professor Howard, who was severely handicapped, as he acknowledged, in forming an opinion on the deceased’s cognitive ability on 19th May, 2005.

7.7 Before setting out my conclusions on the issues which the Court has to determine, I think it is useful to record the evidence of some events which occurred after the execution of the Will, which inform the conclusion I have reached.
8. Post 19th May, 2005
8.1 A matter to which I attach significance is that after the Will was executed on 19th May, 2005 the plaintiff asked the deceased if he had any requirements in relation to his burial arrangements. The deceased understandably became upset and told the plaintiff that he would deal with the matter at a later stage. Ms. Scanlon’s evidence was that on the following day the deceased, through a process of gestures which it is not necessary to outline, communicated to Ms. Scanlon that he wished her to fax to the plaintiff documentation which showed that he owned two plots in Shanganagh Cemetery, in one of which his son, Brian, was buried. The plaintiff confirmed that she received the relevant documentation by fax that morning.

8.2 Another factor to which I attach weight is that, although he was initially against it, the deceased made a decision in May 2005 to have a PEG inserted because of his swallowing difficulty. Professor Lynch testified that he discussed the insertion of a PEG with the deceased both at the consultation in January 2005 and again at the consultation in April 2005, at which stage the deceased was losing weight. Professor Lynch testified that he explained to the deceased the benefit of somebody with motor neurone disease who is losing weight having a PEG insertion to maintain calorie intake and weight – that it leads not only to a longer life but a better quality of life, which was something the deceased was particularly interested in. The deceased was admitted to the Mater Private Hospital on 25th May, 2005, just four days after the Will was executed, under the care of Professor Lynch. He was subsequently discharged and re-admitted in late May 2005 for the PEG insertion which was carried out on 1st June, 2005. It was the deceased who gave consent to the surgical procedure being carried out. At the time there was no issue as to his cognitive ability to give a valid consent for surgical intervention.

8.3 In December 2003 the deceased had appointed the plaintiff and Mr. O’Sullivan as his attorneys in respect of his business and commercial affairs under an Enduring Power of Attorney. Following a request from the plaintiff for a medical report dealing with whether the deceased was, or was becoming, mentally incapable of managing his property and affairs so that the plaintiff could determine whether the Enduring Power of Attorney required to be activated, Professor Lynch furnished a report to the plaintiff on 19th December, 2005. At that stage he had assessed the deceased again on 12th October, 2005. His conclusion was that the deceased’s progressive neurodegenerative disease had significantly affected his cognitive ability and his mental health and the deceased was “mentally incapable of managing his property and affairs”. Professor Lynch testified that he considered that it would have been more accurate for him to have stated in that report that the deceased had predominant problems with physical disability, with mild to moderate cognitive disability. In any event, as I understand it, the Enduring Power of Attorney was not activated.
9. Conclusions
9.1 In applying the Banks v. Goodfellow test, the first question which the Court has to consider is whether the deceased understood the nature of the act of making a will and its effect. On the evidence I am satisfied that he did understand that, in executing the Will on 19th May, 2005, he was executing a document that would take effect on his death and would determine the manner in which assets which he owned which were in his name would be distributed on his death. In a summary of his opinion, Professor Howard expressed the view that, on the balance of probabilities, the deceased would have understood the nature of the act of making a simple will. However, in his view the Will in issue was not a simple will. He remarked that he found some parts very difficult to interpret and he gave an example of the definition of “the trust period” in clause 2, which limited it to the earlier of the attainment of the youngest of the beneficiaries of the age of twenty five years or “the death of the last survivor of the descendants living at the death of my death of His Late Majesty King George VI”. In my view, it would be very rare indeed that a testator or a settlor, other than a person with a legal qualification well versed in the law of real property and trusts, would appreciate the significance of delimiting the duration of the trust in a manner which was designed to ensure that the common law rule against perpetuities was not contravened. That type of technicality aside, on the basis of the entirety of the evidence, I am of the view that the deceased would have understood as well as, and perhaps even better than, most testators could the general thrust of the provisions of clauses 6 to 17 of the Will.

9.2 It is impossible to form a view on the evidence as to what the deceased and his advisers and, in particular, Mr. Haccius, anticipated would be the value of assets passing under the residuary clause, which would be subject to the discretionary trusts set out in clauses 7 to 16. One is no wiser when one reads the Inland Revenue affidavit sworn by the plaintiff on 30th October, 2008, which was qualified by a letter of the same date to the Revenue Commissioners. However, the evidence strongly suggests that it was not anticipated that the residue would be substantial, unless there was a “windfall” and the objective was to ensure that a “windfall” would not occur. Having regard to the steps which were obviously being taken to ensure that assets, other than those of which the plaintiff was informed at the meetings prior to the execution of the Will, over which the deceased would appear to have had disposing power did not form part of the estate, I am satisfied that the deceased understood what assets were being disposed of by the Will and how they were being disposed of. He clearly did understand the effect of the specific dispositions. As regards the residuary clause and, in particular, the discretionary trusts provided for in clauses 7 to 16, I am satisfied that he understood that the persons who would benefit were Ms. Kiely and his four children and that wide discretions and powers were given to the trustees, although I think it is unlikely that it was envisaged by him that those discretions and powers would ever fall to be exercised.

9.3 The second question to be considered in accordance with the Banks v. Goodfellow test is whether the deceased understood the extent of the property of which he was disposing. On the evidence I am quite sure that he did and that his objective was to ensure that the property passing under the Will would be limited to the Kildare Units, the life policies, what was coming to him from the estate of his son and whatever monies were in bank accounts, whether current or deposit accounts, in his name.

9.4 The third question under the Banks v. Goodfellow test is whether the deceased comprehended and appreciated the claims to which he ought to give effect. He undoubtedly comprehended that his wife, the defendant, had a legal right to a one third share of his estate under the Act of 1965. It may be that, as was implicit in the cross-examination of the plaintiff by counsel for the defendant, the deceased was deliberately limiting the assets which would pass on his death under the Will so as to exclude the defendant as well as, perhaps, the Revenue Commissioners from recourse to other assets in respect of which he had power of disposition. However, in determining whether he had testamentary capacity, the issue is whether he was aware that the defendant had a legal entitlement to his estate irrespective of whether he provided for her in his will or not and the extent of that entitlement. I am satisfied that he did. The deceased also clearly recognised that he had a duty to make provision for Ms. Kiely, the mother of the infants, and the infants. It would appear that the deceased decided that such a provision would be made primarily out of assets other than the assets which were in his name and would pass under the Will on his death. The deceased also clearly considered that it was proper to make provision for his adult children and he did so in a manner which was designed to ensure that they would get the Kildare Units with financial assistance to eliminate or reduce the security of AIB thereover. When account is taken of the disposition of assets which the deceased was putting in train with the assistance of Mr. Haccius outside the terms of the Will, the only conclusion which can be reached is that the deceased, when he was making the Will, fully appreciated the legal and moral entitlements which the defendant, his partner and each of his children had against him and his estate and his corresponding duty to them. I am satisfied that he endeavoured to fulfil his legal and moral duties and to meet those entitlements by either making provision in the Will or outside the Will out of other assets in a manner which he considered proper.

9.5 The fact that the deceased was enmeshed in the “tangled web” undoubtedly affects how the provisions of the Will may be perceived by the defendant and his adult children and outsiders. However, taking an overview of what the evidence discloses in relation to the provision he made within and outside the terms of the Will for those to whom he owed a legal or moral duty, in my view, there is no evidence, to use the terminology used by Cockburn C.J., of any insane delusion that influenced the Will in disposing of his property and brought about a disposal of it which, if his mind had been sound, would not have been made. Nor is there any evidence of a disorder of the mind that poisoned his affections, perverted his sense of right, or prevented the exercise of his natural faculties. On the contrary, even though the evidence raises questions as to the propriety of what the deceased was doing in relation to offshore assets, the evidence strongly indicates that the deceased had adequate comprehension and appreciation of what he was doing to support the conclusion that he had testamentary capacity on 19th May, 2005.

9.6 Whatever the motivation of the deceased was in pursuing the objective of divesting himself of assets in such a way that he retained the means to control their ultimate destination, even if, ex facie, that depended on the exercise of discretions and powers by trustees in whom the assets were vested, I am satisfied on the evidence that in the first half of 2005 the deceased had a sufficient cognitive ability to seek advice from Mr. Haccius and to direct the putting in place of the structures and the taking of the steps to continue the pursuit of that objective. Various motives were canvassed in the cross-examination and suggested in the replies of the witnesses, in particular, of the plaintiff: that the motivation was to obviate personal liability in the event of a business collapse, or to reduce the quantum of his estate for the purposes of Part IX of the Act of 1965 and the defendant’s entitlement to it, or to avoid or evade liability for tax in this jurisdiction. It may be that the deceased was motivated by improper considerations. However, for present purposes what is significant is that it is possible to find on the evidence, on the balance of probabilities, that the deceased understood the effect of the provision he was making for the disposal of assets under the Will and that he also understood the effect of the dealings with assets through the medium of offshore corporate vehicles and trusts which, apparently was being facilitated by offshore legal and other advisers.

9.7 Accordingly, I am satisfied that, despite his severe physical disability and the cognitive limitations which Dr. Coen’s assessment revealed, the deceased did have testamentary capacity on 19th May, 2005.
10. Order
10.1 There will be an order determining the issues raised in the Master’s Order of 5th May, 2010 as follows:

(1) the Will was executed in accordance with the formalities required by s. 78 of the Act of 1965;
(2) the deceased knew and approved of the contents of the Will; and

(3) at the time of the execution of the Will, the deceased was of sound disposing mind and had the capacity to make a valid will.

10. I will hear further submissions from the parties as to how the other issues outlined in the Master’s Order are to be addressed.

Rippington v Cox [2015] IEHC 516

JUDGMENT of Mr. Justice Noonan delivered the 30th day of July, 2015.
The Testatrix
1. Celine Murphy was born on the 2nd of April, 1960 and died on the 15th of March, 2011 at the age of 50. She was unmarried and had no children. Ms. Murphy resided with her elderly mother, Mrs. Catherine Murphy at “Genazzano”, Old Naas Road, Kingswood, Clondalkin, Dublin 22. She predeceased her mother by ten days, the latter having died on the 25th of March, 2011. Mrs. Catherine Murphy was admitted to a nursing home in 2010 and thereafter Ms. Murphy resided alone. She had three siblings, Majella Rippington, the first named plaintiff (Mrs. Rippington), Edel Banahan, the third named plaintiff (Mrs. Banahan) and Andrew Murphy. The second named plaintiff (Mr. Rippington) is the husband of Mrs. Rippington and the executor of the estate of Mrs. Catherine Murphy. Ms Murphy was a hairdresser and was employed for over 30 years at the David Marshall hair salon in Dublin. She also had private clients she visited in their homes.

2. In the event of Ms. Murphy having died intestate, Mrs. Catherine Murphy would have succeeded to her estate as her daughter’s sole next of kin. Under the terms of Mrs. Catherine Murphy’s will, her estate falls to be divided equally between her four children.

3. In mid 2010, Ms. Murphy was diagnosed with cervical cancer and she initially came under the care of Dr. Osama Salib, consultant radiation oncologist, at St. Luke’s Hospital in Dublin in July, 2010. In early August, 2010, Ms. Murphy was electively admitted to St. Luke’s for a course of radiotherapy treatment lasting for some six to seven weeks. Thereafter she was discharged but kept under regular review by Dr. Salib. Ms. Murphy underwent a PET scan on the 22nd of December, 2010 which unfortunately revealed that her cancer had spread and metastasised to her liver, rendering it untreatable. Dr. Salib advised Ms. Murphy of these findings and that he could do nothing further for her as she was now a candidate for palliative care. Although his evidence was that he did not explicitly use the word “terminal” in discussing Ms. Murphy’s diagnosis with her, he had no doubt that she fully understood its import.

4. Accordingly, on the 12th of January, 2011, Dr. Salib transferred Ms. Murphy’s care to Dr. David Fennelly, consultant medical oncologist at St. Vincent’s Private Hospital in Dublin. Dr. Fennelly had previously been involved in Ms. Murphy’s care when she was a patient at St. Luke’s and underwent a course of chemotherapy at his direction concomitant with the radiotherapy treatment.

5. In February, 2011, Ms. Murphy commenced a course of palliative chemotherapy to which she responded poorly. She became sufficiently symptomatic to require admission on the 8th of February, 2011 and a blood transfusion. This improved her symptoms and she was discharged. However, she again developed fatigue, generalised weakness and very severe diarrhoea leading to her final admission to St. Vincent’s Private on the 9th of March, 2011 where she remained until her death six days later.
The Defendants
6. The second named defendant (Mrs. Butler) lives at Tuckmilltown, Straffin, County Kildare. This is a relatively short distance away from Ms. Murphy’s home in Kingswood and the travel time by car between the two has been established by the engineering evidence to be approximately twelve to thirteen minutes when traffic conditions are favourable and speed limits observed.

7. Mrs. Butler’s evidence, which I accept entirely, was that she first met the late Ms. Murphy in 1989. She was able to recall this date because it was not long after the birth of her daughter Michaela in January, 1989. Her sister, Mrs. Ramsayer, was a private client of Ms. Murphy’s and introduced Mrs. Butler to Ms. Murphy. I am satisfied from the evidence that Mrs. Butler and Ms. Murphy became close personal friends and saw each other on a very regular, sometimes daily, basis. They were frequent visitors to each other’s houses and enjoyed many social outings together.

8. The first defendant, who styles himself a Tridentine Bishop, is also a close personal friend of Mrs. Butler. His evidence was that he was first introduced to Ms. Murphy by Mrs. Butler around the year 2000. He met her on a number of subsequent occasions socially with Mrs. Butler and Ms. Murphy cut his hair on a few occasions. He thought of her as a friend although she was not involved with his church or religious beliefs.
The Events of the 8th of March, 2011
9. The 8th of March, 2011 was Shrove or “Pancake” Tuesday. Tuesday was Ms. Murphy’s day off work at the hair salon and she used her day off to visit private clients. On that morning, Ms. Murphy had an appointment to visit the Smith family in Dunboyne, County Meath. Ms. Barbara Smith who was present in the family home on that date had particular reason to remember it because unfortunately it was the day her father died. On that day, Ms. Smith travelled with her husband Walter to visit her parents at the family home in Dunboyne. It was intended that Ms. Murphy would cut everyone’s hair. Ms. Murphy’s sister, Aileen, had been a client in the David Marshall salon and introduced Ms. Murphy to Ms. Smith. Ms. Smith had known Ms. Murphy for some twelve or thirteen years not only on a professional basis but as a friend. They played golf together on occasion and attended social events. Ms. Murphy often stayed for dinner when she visited. She was a guest at Ms. Smith’s wedding. Ms. Murphy routinely attended at the Smith house in Dunboyne to cut hair every six to eight weeks.

10. Ms. Smith said that Ms. Murphy frequently spoke about Mrs. Butler whom she described as a great friend and a very nice person.

11. Ms. Smith’s evidence was that Ms. Murphy arrived at the Smith house between 9.30 and 10 am. Ms. Smith’s father was in bed and was feeling unwell but came down briefly to the kitchen before returning to bed. Ms. Murphy then proceeded to provide haircuts first to Ms. Smith’s mother, then her husband Walter and finally Ms. Smith herself. Mr. Smith senior was due to have a haircut but was not well enough on the day.

12. Ms. Smith said that Ms. Murphy was in good form and there was great banter and “craic” particularly with her husband Walter. Ms. Smith was aware that Ms. Murphy had cancer and that her illness had affected the circulation in her fingers particularly badly. Her hands were bandaged. While Ms. Murphy was present, Ms. Smith’s mother brought her father to hospital. She said that Ms. Murphy left the house around 2 to 2.15 pm. She arrived and left driving her own car. Ms. Smith was fairly certain about the times involved because her mother returned from the hospital at 2.30 pm and they received news that Mr. Smith senior died at 2.45 pm.

13. Thereafter, it would appear that Ms. Murphy travelled home to Kingswood as the telephone records admitted in evidence show that a call was made from the landline in Kingswood at 17.24 to Mrs. Rippington and the call lasted 53 seconds. Mrs. Rippington claimed that the deceased told her that her car collided with the ditch on the drive home.

14. Evidence was given by Ms. Joanna Butler, Mrs. Butler’s daughter. She said that she knew Ms. Murphy all her life and she was a very frequent visitor to their house. Ms. Joanna Butler was herself diagnosed with cervical cancer in April, 2010 and she said that Ms. Murphy, who had the same diagnosis, was extremely supportive to her through a very difficult time in her life. Ms. Joanna Butler was present in the Butler home in Straffan on the 8th of March, 2011 where she was recovering after her recent discharge from hospital following a bout of illness. Her mother had left with her uncle Michael Goonan to travel to Dublin while Joanna Butler was still in bed. Sometime between 2 and 3 pm, the first defendant arrived at the house for a social visit. He was not expected but it was not at all unusual for him to appear unannounced. Joanna Butler made tea and she sat and chatted with the first defendant at the kitchen table.

15. Her evidence was that sometime later, probably between 5 and 6 pm, Ms. Murphy arrived unannounced at the house. She came into the kitchen and all three sat at the kitchen table. Joanna Butler put the kettle on to make some more tea. Ms. Murphy asked her how she was. She said that Ms. Murphy was somewhat tired from her own illness and treatment but otherwise there was nothing unusual about their conversation and as she described Ms. Murphy “she was the Celine I knew”.

16. Joanna Butler said that after they were sitting at the kitchen table for about 15 minutes, Ms. Murphy took an envelope out of her handbag and took a document out of the envelope, saying as she did “this is my last will.” Ms. Butler was somewhat taken aback by this, being unaware of Ms. Murphy’s prognosis, as Ms. Murphy had always appeared to be positive about her illness. In producing the document, Ms. Murphy explained that she could be run over by a bus at any time and she asked Michael Cox and Joanna Butler to witness her signature on the will.

17. Ms. Murphy produced a pen from her bag and signed the will at the kitchen table in the presence of both Michael Cox and Joanna Butler who were also seated at the table at the same time. Having signed the will, Ms. Butler said that Ms. Murphy handed the will to Michael Cox who read it, looked at it and signed it. He then passed it to Joanna Butler who signed it but did not read it. The document was not read out loud by anyone and Joanna Butler said she was unaware of its contents. Ms. Butler’s evidence was that while she was signing the document as a witness, Michael Cox said to Ms. Murphy that it needed to be dated so Ms. Butler handed the document back to Ms. Murphy together with the pen and Ms. Murphy dated it after everyone had signed it.

18. Ms. Butler further said that Ms. Murphy had plasters on her fingers but appeared to have no particular difficulty in signing the will. After the will had been signed and dated, Ms. Murphy put it back in the envelope and handed it to Michael Cox saying:

“Can you keep it for three weeks if anything ever happens to me.”
Ms. Murphy further said to both Michael Cox and Joanna Butler
“Don’t tell anybody about that.”
She then handed the envelope to Michael Cox who left it on the kitchen table in front of him. Ms. Murphy then proceeded to finish her tea and leave. Joanna Butler said that Ms. Murphy drove away in her car sometime between 6 and 7 pm although she could not be exact about the time. Her impression was that Ms. Murphy was present in the house for more than half an hour. She said that Michael Cox left shortly after Ms. Murphy bringing the envelope with him. Not long after that, Mrs. Butler arrived home, probably around 7.20 to 7.30 pm. Joanna Butler said that she told her mother that Ms. Murphy had called and asked that Mrs. Butler drop up and visit her. She said nothing to her mother about the will because Ms. Murphy had asked her not to.
19. The first defendant gave evidence which confirmed that of Joanna Butler. He thought he arrived at the house a little later, perhaps between 3 and 3.30 pm and thought that Ms. Murphy arrived some time around 5.30 pm. He emphasised that he could not be particularly accurate about the precise times involved. He confirmed that Ms. Murphy produced an envelope and a document from it saying “this is my last will” and asked him and Joanna Butler to witness her signature. He said that she signed the document in his presence and in Joanna Butler’s presence while they were all sitting around the kitchen table. He then looked at it and read it and appended his signature as a witness. Joanna Butler then signed it. Ms. Murphy put the will back in the envelope and handed it to him requesting him not to do anything with it for three weeks if something happened to her. She left shortly after that, the first defendant thought sometime between 6 and 7 pm but he could not be sure. He himself left the house to travel home, approximately 15 minutes after Ms. Murphy left. Although uncertain, he felt that Ms. Murphy was present in the Butler house for something between half and three quarters of an hour.

20. The telephone records put in evidence indicate that Mrs. Rippington made a telephone call from her mobile telephone to the landline at Kingswood at 18.42 and the call lasted 8 minutes and 48 seconds. Thus, it was suggested by the plaintiffs that the maximum period for which Ms. Murphy was absent from her house on the evening of the 8th of March, 2011 was 77 minutes, taking account of the fact that the earlier telephone call at 17.24 was just short of one minute in duration.

21. All of the evidence of journey times and telephone calls was led by the plaintiffs in an effort to demonstrate that Ms. Murphy could not have been present in the Butler house at the time alleged by the defendants. If one were to assume that Ms. Murphy left the house immediately after the earlier telephone call and arrived back immediately before the later one, the evidence of Mr. Brian Cole, chartered engineer, was that taking the quickest route between the two houses and adhering to the speed limit, the round trip took him 22 minutes and 48 seconds. Allowing about a minute or a minute and a half for getting in and out of the car and leaving/entering the house, that suggests an overall journey time of in or around 25 minutes. Subtracting that from the available 77 minutes leaves a period of 52 minutes during which it is at least theoretically possible that the deceased could have been present in the Butler house between approximately 17.38 and 18.30.

22. This is entirely consistent with the evidence given by Joanna Butler and Michael Cox, which I accept without reservation. Therefore, far from disproving the defendants’ evidence with regard to the execution of the will, it merely serves to confirm it.

23. Mrs. Rippington in evidence said that she called to see Ms. Murphy around 7 pm that evening and stayed for one hour. Ms. Murphy said that she nearly did not make it home referring to the collision with the ditch. She parked the car unusually close to the door of the house. She was very fatigued and asked her sister if this was “hitting the floor”. She said she wanted to go to bed and asked Mrs. Rippington to feed her cats as she had difficulty opening the tins of cat food due to the condition of her fingers. Ms. Murphy also asked her sister to visit their mother who was having physiotherapy treatment in Peamount Hospital. Apart from that, Mrs. Rippington did not suggest that Ms. Murphy was in any way irrational or incoherent.

24. After Mrs. Rippington left the house, Mrs. Butler arrived shortly thereafter, around 8pm, and stayed with Ms. Murphy for some time. Mr. Goonan was present also.

25. This is independently confirmed by the evidence of Mrs. Kathleen Byrne, Mrs. Rippington’s cousin, whom the telephone records show was called by Ms. Murphy at 21.58 and the call duration was 7 minutes and 45 seconds. Mrs. Byrne’s evidence was that Ms. Murphy told her that she was at home with Mary Butler and her brother Michael and that they were making pancakes. She invited her to come over but Mrs. Byrne declined.
The Will
26. The will is written on the back of a circular type document from the ICS Building Society, with whom the deceased had an account, which is headed “Important Information Concerning Arrears on Your Account”. The will is written in hand on the reverse side in blue ink in the following terms:

“Gennazzano
Kingswood

Clondalkin

Dublin 22

Una
This is my last will and testament

I am of sound mind I leave all my

Posesion’s my apartment at

8 Browns Court + money + policies +

Belonging to my Best Friend

Mary Butler who I have named

Next o kin I name Bishop Cox my exetor

[signature of testatrix]
+ most. Rev. Michael Cox DD.

Joanna Butler

8/3/11”
A copy of the will is annexed to this judgment.
27. The text of the will is written in blue ink similar in colour to the ink of the signatures made with the pen produced by the deceased from her handbag at the kitchen table in the Butler house. The handwriting of the will superficially appears similar in nature to the signature of the deceased which in turn appears similar to her signature on other documents produced in evidence before the court.

28. The original will was produced in court and identified by Michael Cox and Joanna Butler as the document signed by the deceased in their presence and witnessed by their signatures appended in the presence of the deceased and each other.
The Medical Evidence
29. Both Dr. Salib and Dr. Fennelly were called by the plaintiffs to give evidence. During the period when Dr. Salib was in contact with Ms. Murphy from approximately July, 2010 to January, 2011, he saw her on numerous occasions. He described her thinking as being absolutely perfect and that she was not a person capable of being misled by anybody. Her views were very clear and indeed she told him what to do from time to time. He felt she was perfectly logical and not what he would describe as a vulnerable person. Whilst he said she had concerns and anxiety, these focussed around her illness and also around the fact that she was unable to meet her financial obligations due to being out of work as a result of the illness. These obligations appear to have been to the ICS and also Clondalkin Credit Union. She was quite clear in her instructions to Dr. Salib that she did not want any member of her family told of her medical condition. He felt that the stress of her illness did not affect her ability to make decisions. She was always in control and remained independent, free from influence by any party. He said she was a strong willed person who could not be manipulated and he expected that she would have been well able to cope outside the hospital environment. She had no mental health issues as far as he was concerned. He confirmed that in the hospital admission form, the deceased had identified Mrs. Butler as her friend and the person to be contacted by the hospital if necessary. In other hospital documents and forms, Mrs. Butler is described at the deceased’s “next of kin”, that information having been provided by Ms. Murphy.

30. Although the deceased had contact with the psycho-oncology department of St. Luke’s Hospital, this related to the matters already described i.e. her illness and financial concerns. A number of extracts from Ms. Murphy’s chart in St. Luke’s Hospital was put in evidence by the plaintiffs without objection. A note from a counsellor in the psycho-oncology department made on the 19th of August, 2010 reads as follows:

“Current concerns
Celine noted her major concerns were financial and family related. At our initial meeting Celine appeared stressed and angry and was on the verge of tears. She described a visit she had just had with her elder sister Majella which was very difficult. Celine noted that she perceived that Majella was out to get the house from her, wasn’t interested in how Celine was, couldn’t do for her what she asked (e.g. get juice) and “left” her when her nose began to bleed…

Impressions

Celine appears to be finding family relationships very challenging – particularly strong dynamics with Majella and Mother which seemed filled with anger, resentment, hurt and abandonment?

Celine seems to be used to quite a chaotic pace of life and noted little time with herself.

Little expansion of impact of diagnosis but referred to anger at sister and mother for “selfishness” that led to her cancer developing (she believes?)…”

31. A subsequent nursing note made at 18.30 on the 10th of September, 2010 reads as follows:
“S/B SHO this evening. Celine very clear that no information about her condition is to be given to any family member. Her friend Mary Butler (see front of notes) is her only contact. No family meeting to be arranged. Informed sister (Majella) of these events.”
32. Dr. Fennelly in evidence referred to a previous medical report furnished by him on the 30th of June, 2011 at the request of the defendant’s solicitors. In this report, Dr. Fennelly referred to Ms. Murphy’s terminal admission to St. Vincent’s Private Hospital on the 9th of March, 2011 when she was suffering from extreme fatigue, diarrhoea and general deterioration. She was alert and oriented at that time although was clearly quite fatigued and frail. He concluded his report by saying:
“There is no indication Celine was, at the time of her admission to hospital incompetent of making a will, clearly I was not present at the time she was making her will. However, based on knowledge of her medical illness, there would not have any obvious reasons for mental impairment at the time of making her will.”
33. In a subsequent medical report dated the 2nd of July, 2013, which appears to have been furnished at the behest of the plaintiffs, Dr. Fennelly said:
“Her subsequent admission to St. Vincent’s Private Hospital was shortly after this on 9.3.11 when she had evidence of extreme fatigue, diarrhoea and general dehydration. Her condition had been further complicated by diffuse digital emboli affecting her fingers which was causing severe pain and discomfort making it difficult for her to undertake basic physical tasks.
She required high doses of pain medication and significant sedation to manage the severity of her symptoms. These clearly impacted on her general condition both from a mental and physical perspective.

However they were required due to the extensive nature of her disease.

It is extremely difficult to testify as to her testament re (sic) capacity at the time of her making her will. However it was undoubtedly was (sic) influenced by the extensive nature of her disease and the extent of medication that she was taking at that time.”

34. Dr. Fennelly in his oral evidence said that at the time Ms. Murphy was admitted to hospital on the 9th of March, as a result of peripheral circulation problems her fingers had become gangrenous, blackened and painful which would have impaired her ability to write. However before her admission to hospital, her analgesics consisted of ibuprofen and paracetamol but no opiates. She also had a prescription for sleeping tablets. He confirmed however that these medications would not have impaired the deceased mentally nor would the course of chemotherapy that she had undergone. He also confirmed that when she was admitted to hospital on the 9th of March, 2011, she was not suffering from any delusions although by that stage would have some difficulty writing. I asked Dr. Fennelly about what appeared to be some inconsistency between the views expressed in his report of the 30th June, 2011 and that of the 2nd of July, 2013. In response to that, he said that it was difficult for him to comment in detail about her testamentary capacity as from a legal perspective he was somewhat unfamiliar with what the requirements of the law were. He did however appear to be of the view that whilst the deceased’s post admission medication was very strong and opiate based, the type of medication she was taking before admission ought not have effected her mental capacity.
The Pleadings
35. In their statement of claim, the plaintiffs seek an order condemning the said will of the deceased on three grounds, first that she did not have the capacity to make a will and was not of sound disposing mind, secondly that the will constituted an improvident and unconscionable transaction and thirdly that the will was procured by the undue influence of both defendants. A number of specific allegations are made in the statement of claim settled by junior and senior counsel. These include that the deceased had frequent occasions of memory loss and did not have legal capacity to make a will. It is further alleged that the will was not created by the deceased on the date alleged or at all. Para. 17 of the statement of claim pleads as follows:

“17. The deceased was seriously and gravely ill on the 8/3/13 and was not in the presence of the first named defendant on the date aforesaid. Further the deceased was not in or at the first named defendant’s home in Shinrone County Offaly on the date in question and furthermore was unable, because of her medical condition, to travel to the said premises.”
36. Para. 26 pleads:
“26. The first and second named defendants had placed such pressure on the deceased as to sap her free will and the said influence and pressure applied amounted to duress and undue influence such that the testator could not really dispose of her assets by way of a testamentary disposition.”
37. Para. 27 pleads, inter alia:
“27. The said purported will was inconsistent with the deceased’s previous conduct and of her clear and unambiguous expression of intention and attitude towards her relatives in the disposition of her property on her death.
PARTICULARS

…b. The second named defendant purported to befriend the deceased and offered to give her help counselling and assistance during the course of her illness. She offered in particular to help the deceased with her medication and the application of same if it became necessary to have it applied at home.

c. The second named defendant falsely and unconscionable (sic) represented to the deceased that she had special knowledge, skill, training and experience in dealing with care and medication of persons suffering from cervical cancer and that she would provide the said skills to the deceased during the course of her illness including the administration of chemotherapy treatment to her in her home.

d. Further the second named defendant wrongfully and unlawfully represented herself as the next of kin of the deceased to the authorities at St. Luke’s Hospital and that St. Vincent’s Hospital…”

38. Finally, para. 28 pleads as follows:
“28. The said actions and conduct of the first and second named defendants were carried out and calculated to exercise and did exercise, dominion and a controlling power on the deceased’s exhausted and enfeebled intellect and with the intention of subjugating her to the control and manipulation of both defendants.”
39. The defendants delivered a defence traversing the various allegations in the statement of claim and further counter claim for an order admitting the said will to probate in solemn form of law together with various ancillary reliefs. The defence also includes a plea to the effect that Mrs. Rippington and Mrs. Banahan have no locus standi to prosecute these proceedings. The basis for that plea is that those plaintiffs have no interest in the estate of the deceased having regard to the fact that the late Mrs. Catherine Murphy succeeded to the estate in its entirety.
Other Evidence
40. Mrs. Rippington represented herself at the trial and both she and her husband gave evidence. Mrs. Banahan did not attend the trial. Mrs. Rippington in her evidence sought to undermine her late sister’s testamentary capacity. She suggested that the deceased suffered from anger management issues, had attended a psychologist in St. Luke’s Hospital and a psychiatrist in the past. She said that Mrs. Butler was an untruthful person who was parasitic and always benefited from her relationships with people. She insisted that Mrs. Butler was not a friend of her late sister but merely an acquaintance. She had never seen Mrs. Butler in her sister’s company before 2007. She said that in reality, Mrs. Butler had no time for the deceased whom she (Mrs. Butler) referred to as “a right little bitch”.

41. She said that Mrs. Butler befriended the deceased only after her cancer was diagnosed and she got into Ms. Murphy’s life purely for the purpose of enriching herself. She referred to two other cases where she alleged Mrs. Butler had befriended people for the purpose of enriching herself. One of those people was a lady in New York who was a cousin of Mrs. Butler’s husband and whose will contained a small conditional bequest in favour of Mrs. Butler. It was unclear whether Mrs. Rippington travelled to New York herself to investigate this matter or arranged for local attorneys on her behalf to do so. She also suggested that Mrs. Butler and Michael Cox had coerced the deceased into attending a faith healer in early 2011 against her will. When cross-examined about evidence that would be given by Ms. Una McGurk, a barrister, Mrs. Rippington said that Ms. McGurk, like Mrs. Butler, was not a social friend of the deceased but was merely a client. When asked further in cross-examination about evidence that Ms. Barbara Smith would give, Mrs. Rippington said that Ms. Smith had agreed with her to say anything in evidence that Mrs. Rippington wanted her to say. She further expressed the view that her late sister had not acted of her own free will in the execution of her last will. The foregoing is but a flavour of the many allegations made by Mrs. Rippington in both her evidence and submissions against all and sundry. Ms. Una McGurk said in evidence that she first met Ms. Murphy some 6 to 8 years before her death when she was doing her hair at the David Marshall salon. She had her hair done by Ms. Murphy every week throughout the year and they became friendly and socialised together, particularly in the last year of her life. She said that the deceased often mentioned Mrs. Butler to her whom she described as her best friend and she told Ms. McGurk that she would love her to meet Mrs. Butler. The deceased relied on and trusted Mrs. Butler. Ms. Murphy had gone on a trip to Russia in 2009 where she went sky diving and had a serious accident. Around that time, she discussed various legal matters with Ms. McGurk including making a will. Ms. McGurk recommended a solicitor friend to the deceased and even made an appointment for her with the solicitor. However, in the event, she gave the appointment to Mrs. Rippington who needed to see a solicitor at that time. Ms. McGurk did not subsequently revisit the issue of making a will with the deceased and was unaware that she had in fact made one. She had no doubt that the “Una” referred to in the will was herself.
Relevant Legal Principles
42. In In the matter of the estate of Brian Rhatigan, deceased [2011] 1 IR 639, Laffoy J. considered the principles relevant to proof of a will in solemn form. She followed the long established authority of Banks v. Goodfellow [1870] L.R. 5 Q.B. 549 and held that in deciding whether a deceased possessed sound disposing mind at the date of execution of a will, three questions required consideration:

(a) whether the deceased understood the nature of the act of making a will and its effect;
(b) whether the deceased understood the extent of the property of which he was disposing; and

She cited with approval the judgment of Hamilton P. in In Re Glynn deceased [1990] 2 IR 326 (at p. 330) where he said:
“Normally the legal presumption is in favour of the will of a deceased and in favour of the capacity of a testator to dispose of his property and to rebut this presumption, the clearest and most satisfactory evidence is necessary.”
43. She also referred with approval (at p. 646) to the judgment of Briggs J. in In re Key, deceased [2010] 1 WLR 2020 where he said (at p. 2040):
“The burden of proof in relation to testamentary capacity is subject to the following rules. (i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. (ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. (iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity none the less.”
44. On the topic of undue influence, a very useful summary is provided in Spierin’s Succession Act, 1965 and Related Legislation: a Commentary (4th Ed., Bloomsbury, 2011) where the author says (at para. 537):
“Onus of proof
Costello J. (as he then was) in In re Kavanagh: Healy v. McGillicuddy and Another [1978] I.L.R.M. 175 stated:

‘No presumption of undue influence…arises in the case of wills and the burden of proving undue influence in relation to wills always rests on the person alleging.’

The above case was cited by Murphy J. in Lambert and Another v. Lyons and Others [2010] IEHC 29 as the law as it currently stands in Ireland.

This is also the position in England and Wales. Theobald on Wills states:

“…no presumption of undue influence arises from the existence of a confidential relationship between the donee and the testator.”

Williams on Wills offers a reason for the lack of presumption in relation to wills:

“…in the case of wills, these relationships (most of them) are naturally the source and reason of the testator’s bounty and no such presumption is made.”

On the authorities therefore, there is no room for doubt the onus of proving undue influence rests on the person alleging it. In order to do that one must prove:

(a) that the person alleged to exert the influence had the power or opportunity to do so;
(b) That undue influence was in fact exerted;

Discussion
45. I have alluded above to a number of very specific pleas made by the plaintiffs in their statement of claim delivered on the 7th of December, 2011. The inter partes correspondence put before the court demonstrates that on the 19th of April, 2012, the defendant’s solicitors wrote to the plaintiff’s solicitors enclosing affidavits of Michael Cox and Joanna Butler dealing with the circumstances of the execution Ms. Murphy’s will. In these affidavits, the deponents swore that the will was executed at the Butler home in Straffan in the presence of the two attesting witnesses who were present together at the same time when they appended their signatures to the will. The affidavits further aver that the will was not written in the presence of the witnesses but was produced by the deceased subsequent to her arrival and that she informed the two witnesses that the document was her will. They further aver that following the execution of the will, the deceased placed it in an envelope and asked Michael Cox to keep it safe and not to release it for three weeks after her death. Joanna Butler further avers in her affidavit that she knew the deceased for many years and in her opinion, the deceased was of sound mind memory and understanding at the time of execution of the will.
46. In addition to those two documents, the defendant’s solicitors enclosed medical reports from Dr. Salib and Dr. Fennelly both confirming that in their opinion, when the deceased was under their care she had the mental capacity to make a will.

47. Despite the foregoing, all of the allegations I have referred to above in the statement of claim were persisted in and not withdrawn prior to the commencement of the trial.

48. Furthermore, not a single shred of evidence was produced by the plaintiffs at the trial in support of any of these extremely serious and scandalous allegations. Indeed, more than that, not once in the course of cross-examining the defendants or any of their witnesses did Mrs. Rippington seek to suggest that they had exercised any influence over the deceased, good bad or indifferent, and specifically in relation to the making of her will. Nor did she suggest in cross-examination that the circumstances of the execution of the will were other than as stated by Michael Cox and Joanna Butler despite the clear plea that the deceased could not possibly have made a will in the circumstances alleged thus leading to the inevitable conclusion that either it was a forgery or as a minimum, the attesting witnesses had perjured themselves in their affidavits.

49. Instead, in the course of the trial, Mrs. Rippington in her evidence and submissions engaged in what can only be described as an attempt to assassinate the character of Mrs. Butler. Another example of Mrs. Rippington’s failure to spare a thought for the reputation or character of others was her suggestion that Ms. Barbara Smith had apparently agreed to say anything on oath that Mrs. Rippington wanted her to say. Yet, when Ms. Smith gave evidence, which I am satisfied was absolutely truthful in every respect, Mrs. Rippington did not even trouble to put this allegation to her in cross-examination.

50. Rather than engage with the reality of this case, it seems to me that Mrs. Rippington and her co plaintiffs instead chose to indulge in a type of forensic investigation of those she regarded as undesirable contacts with her late sister that would put Sherlock Holmes in the shade. She engaged a consulting engineer to analyse journey times between Kingswood and Straffan in an effort to demonstrate that her sister could not have been there when the defendants said she was. She further requisitioned and analysed landline and mobile telephone numbers of various persons in pursuit of the same objective. She hired and fired a variety of legal teams, most if not all of whom are the subject of complaint to professional bodies and others. She obtained extensive disclosure of all her late sister’s voluminous medical notes in order to have them trawled through by an expert to see if anything could be turned up to prove that her sister did not have the mental capacity to make a will. She investigated and obtained the probate records of a woman from White Plains, New York State, a member of Mrs. Butler’s husband’s extended family, who left a small conditional bequest to Mrs. Butler. She investigated the probate and estates of at least two other people in this jurisdiction who were said to have been known to Mrs. Butler and favoured her in some way or other never established. The correspondence put before the court indicates a complaint by the defendant’s solicitors in a letter of the 13th of March, 2012 arising from Mrs. Rippington travelling to Michael Cox’s home town in County Offaly and going from door to door seeking to question and interview friends and family of Michael Cox. This allegedly also included Mrs. Rippington showing the interviewees graphic photographs of her late sister’s blackened fingers and toes. She investigated the schedule and movements of a faith healer attended by the deceased in early 2011 to presumably prove some point that was unclear. She obtained correspondence from the ICS Building Society relating to her late sister’s financial affairs but was unable to explain how a financial institution was persuaded to disclose documents relating to a client to a legally disinterested third party.

51. At the date of her death, Ms. Murphy owned a BMW jeep which subsequently disappeared. Despite repeated requests from the defendant’s solicitors, the plaintiffs steadfastly refused to disclose the whereabouts of this vehicle. When cross-examined about this, Mrs. Rippington finally admitted that she took the vehicle, used it herself for a period of time and then proceeded to sell it. When she was asked how she managed to sell a vehicle that did not belong to her, she said that the registration certificate had her name on it as a result of her applying for a duplicate certificate to be issued in her name. She was unable, or unwilling, to explain how this had been achieved and then sought to justify it by saying that she was owed money.

52. In summary, I found Mrs. Rippington to be domineering, manipulative and an utterly unreliable witness who was prepared to say anything that she felt might serve her purpose. Insofar as any of Mrs. Rippington’s evidence conflicted with that of any other witness who gave evidence in the course of the trial, I reject Mrs. Rippington’s evidence.
Conclusions
53. I am satisfied from the evidence that Mrs. Butler was a close and valued friend of the late Ms. Murphy for many years and she was so regarded by Ms. Murphy. This emerges not only from the evidence of independent witnesses but from the words of the deceased herself who describes Mrs. Butler in her will as her best friend. It would be idle to speculate on the nature of the relationship between the deceased and the members of her family but suffice is to say that to my mind, there is nothing irrational about the contents of the will of the deceased. The evidence of Ms. McGurk satisfies me that the deceased understood and knew the significance of a will. This is also clear from the evidence of Michael Cox and Joanna Butler regarding their interaction with the deceased on the 8th of March, 2011. The deceased herself declared the document to be her will, was aware that she was required to sign it in the presence of two witnesses and was further aware that the witnesses needed to subscribe to her signature. Further, the terms of the will itself indicate clearly that the deceased was aware of her property and estate. She also understood the desirability of placing the will in the custody of someone who could publish it after her death, which she undoubtedly anticipated in the light of her terminal diagnosis.

54. Because the will contains no attestation clause, due execution cannot be presumed but I am satisfied from the evidence of the attesting witnesses that the will was in fact duly executed in accordance with the requirements of s. 78 of the Succession Act 1965.

55. Since I have determined that the will was duly executed and appears rational on its face, I must presume that the deceased had the requisite capacity to make it. Even in the absence of that presumption, the evidence of the deceased’s capacity on the 8th of March, 2011 is all one way. There is an almost continuous catalogue of her movements and interaction with others from 9.30 am until after 10 pm that evening. Nothing in that evidence, indeed that of Mrs. Rippington herself, suggests that the deceased was other than completely lucid, rational and coherent at all times during that day. That evidence includes the account of Ms. Smith who had the opportunity to observe the deceased on a one to one basis over a four to five hour period. The same emerges from the evidence of Michael Cox and Joanna Butler who were alone with the deceased in the kitchen of the Butler house for 30 to 45 minutes. The same can be said of the evidence of Mrs. Butler who spent several hours with the deceased that evening and finally the evidence of Mrs. Byrne who spoke to the deceased for almost eight minutes at around 10 pm.

56. The evidence of Dr. Fennelly regarding the deceased’s mental state the next day puts the matter beyond any doubt.

57. For these reasons, I must dismiss the plaintiff’s claim and will admit the will to probate in solemn form of law.

Laaser v Earls [2016] IECA 63

JUDGMENT of Mr. Justice Hogan delivered on the 2nd day of March 2016
1. This is an appeal from an ex tempore decision of the President of the High Court (Kearns P.) dated the 30th June 2015 as refused the plaintiff’s application for an order condemning a testamentary document dated 4th July 2013 and an order establishing a will dated 14th March 2013 as the true and original last will and testament of the deceased, Brian Earls.

2. Mr. Laaser is the surviving civil partner of the late Mr. Earls. They had formed a romantic relationship over a decade ago and they had lived together for about two years at No. 2 Ovoca Road, South Circular Road, Dublin 8 prior to this death. Their civil partnership took place on 16th November 2012. Mr. Laaser is a pharmacist who is now a naturalised Irish citizen, having been originally born in Morocco. His English, while excellent, is nonetheless not perfect and it may be assumed that he would be quite unfamiliar with the intricacies of our civil procedure and the running of civil actions.

3. The late Mr. Brian Earls (“the testator”) died in hospital in the early hours of 5th July 2013. He had been a noted diplomat who had had postings in Moscow, Warsaw and Ankara. During this period he had accumulated a large collection of books, paintings, rugs and carpets and was accomplished in a large variety of languages. It is obvious that the deceased was a highly cultured and educated man.

4. The first defendant, Maurice Earls, is the testator’s brother and the second defendant, William Early, is married to the testator’s sister, Mary. The defendants are the executors of the testator’s will and are sued in that capacity.

5. There are two testamentary documents at issue in these proceedings. There is no issue, as such, regarding the first of these documents, namely, a will executed on 14th March 2013. It is accepted that this was a will which had been duly executed by the testator in which he had made a variety of testamentary dispositions, including leaving the house at No. 2 Ovoca Road to his civil partner, Mr. Laaser, as well as bequests to his family and a specific bequest of some €50,000 to a Mr. Ararat Andressian, an Armenian friend of his. This will was accompanied by a letter explaining the thinking behind his various testamentary dispositions, which letter was discovered immediately after his death.

6. This will was executed after the presence of a lump in the deceased’s mouth was discovered following a dental procedure. The testator was then facing major surgery involving some degree of facial reconstruction. After a short delay this surgery took place about a week later and the initial prognosis for recovery was good.

7. The testator returned to hospital at the end of June 2013 because of a recurrent infection which was impeding the continuation of his chemotherapy treatment. On July 2nd, however, his family received the unpleasant and deeply distressing news that he had developed secondary forms of cancer and that the prognosis was now extremely bleak. The testator was ultimately to die at about 4am on the morning of Friday, July 5th, 2013.

8. Since the precise sequence of the events of these three days is of critical importance, I propose to summarise the evidence given by the relevant witnesses. Before doing so, however, it may be convenient to set forth the terms of the both the March will and the July will.
The March will
9. The March will provided for payment of €35,000 to the testator’s sister, Ms. Catherine Early and €50,000 to Mr. Ararat Andressian. The testator gifted his large collection of books, papers and documents to his brother, Mr. Maurice Earls. Mr. Earls was gifted €40,000 towards the running costs of the Dublin Review of Books and in the event of that publication ceasing to exist, the remainder was to be divided equally between the testator’s three siblings. The testator left his paintings, statuettes, carpets and objects d’art to be divided equally between his three siblings and Mr. Laaser, along with the contents of the property at 2 Ovoca Road. The testator left the property at Ovoca Road and the residue of his will (including savings accounts) to Mr. Laaser.

10. The testator had written a personal letter to his brother, Mr. Earls, along with a letter explaining the rationale for the dispositions to accompany this will. These letters were discovered after his death.
The July will
11. While the July will followed the lay-out and style of the March will, it was different in a number of important particulars. The bequest to Mr. Andressian was now €30,000 (instead of €50,000 in the March 2013 will). The testator continued to leave his paintings, statuettes, carpets and objects d’art to be divided equally between his three siblings and Mr. Laaser, but the specific bequests of €35,000 to Ms. Catherine Earls and €40,000 to Mr. Maurice Earls for the Dublin Review of Books were not repeated.

12. The most significant change was that he now left his house at Ovoca Road and the remainder of his savings to be divided between Mr. Laaser (who was now to receive 50%) and his three siblings who were each to divide the remaining 50% equally between them. It will be seen that, relatively speaking, the new will tended to advantage his siblings and Mr. Laaser did not fare quite as well in that will as compared with the March 2013 will.

13. We may next turn to consider the evidence actually given in the High Court.
Mr. Maurice Earls
14. Mr. Maurice Earls was a brother of the deceased. He is an executor and beneficiary under both the March and July wills and is named as the first named defendant. He was the chief witness in the action.

15. Mr. Earls gave evidence that on Wednesday July 3rd, the testator asked to speak alone with him. He indicated to Mr. Earls that he intended writing a new will and that he was dividing his assets between Mr. Lasser and his siblings. Later that day the testator gave Mr. Earls further instructions to go back to the house at Ovoca Road and to retrieve the March will. He also asked him to attend at Harrington St. Church on the South Circular Road in order to fetch a priest. Mr. Earls then returned on 11 am on Thursday 4th July with the March will. They both discussed the new will and Mr. Earls followed the general style and lay-out of the March will, while making the appropriate changes as his brother had requested. The testator then recalled that the new draft had not made provision for Mr. Ararat, so a further change was made for this purpose.

16. Mr. Earls then returned to Ovoca Road. While the family realised by this stage that the cancer was terminal, it was thought – or, perhaps, assumed – that the testator might linger for another week or two. At lunchtime Mr. Earls then received a message to the effect that the doctors were now saying that death was imminent and that the testator had requested him to come quickly.

17. Mr. Earls then typed up the draft. He realised that his brother had not specified the amount which he was leaving to Mr. Ararat, so that sum was left blank. On his return to the hospital in the early afternoon he asked his brother how much it was intended to leave to Mr. Ararat. Mr. Earls could not understand his brother’s reply, so he wrote out figures from €10,000 to €50,000 on a notebook and he pointed at the figures. The testator stopped him when he pointed to €30,000 and Mr. Earls then wrote in that figure in his hand. At that point Mr. Earls read the will to his brother and the testator responded “fine.”

18. At that point Mr. Earls realised that his brother was so physically weak that he simply would not be able to sign the will. He spoke to other family members about this and a nephew, a legal practitioner, said that in these circumstances an “X” would suffice. The will was then executed at about 6.30pm in the presence of Mr. Earls and his witnesses, namely, his nephews, Mr. Fitzgerald and Mr. Roberts. The nurses had arranged for the testator to sit up in bed and Mr. Earls supported him with his arm around his back.

19. The family – including Mr. Laaser – were aware of the fact that a new will was being executed. Mr. Earls gave evidence that, to some extent, the entire question of the new will was an unwelcome distraction at a time when the family wanted to concentrate on supporting the testator in his hour of need and helping each other at a difficult time as his life ebbed away over the final few days. Mr. Earls went home briefly and returned at about 10pm. He stayed with his brother through the night, reading to him a review from The Times Literary Supplement. Mr. Earls acknowledged that his brother’s articulation at that point was not “great”, but that at times he saw his brother nodding through an oxygen mask in acknowledgment.

20. At about 2am Mr. Earls said that he took a nap, but some hours later he was woken by a nurse to say that his brother was slipping away. The testator died at about 4am in the morning of July 5th, 2013. Mr. Laaser and other family members were contacted, but they arrived shortly after the testator’s demise.

21. Mr. Earls said that he qua executor had been advised as to Mr. Laaser’s inheritance rights and he had no difficulty at all with Mr. Laaser exercising such rights.
Fr. Gerard Deignan
22. Fr. Deignan is a Roman Catholic priest attached to Harrington St. Church. So far as he recalled he had been requested by Mr. Maurice Earls to see his brother in hospital, but he did not personally know the testator and had never met him before. Fr. Deignan could not recall precisely the day on which he arrived, save that it was in the afternoon. (Other witnesses – such as Ms. Mary Early – had a clear recollection that it was on the 4th July.)

23. When Fr. Deignan arrived at the bedside he formed the opinion that:

“The sick man was capable of receiving ministrations in a sort of lucid way. He appeared to be conscious and alert.”
24. Fr. Deignan asked the family to leave the room while he performed the Last Rites. He spent some five minutes alone with the testator. He formed the view that the testator had the capacity to receive spiritual ministration of this kind.
Ms. Mary Early
25. Ms. Mary Early said that she was a sister of the testator. She recalled returning to the hospital bedside on the afternoon of the 4th July. Her brother Maurice asked her to step outside while he went through the new will with the testator. She later re-entered the room and could see that the testator was tired and fell asleep. After a while the testator awoke and was gesturing to her in a sort of agitated fashion in relation to the notebook on the window sill.

26. A typed version of the will had been placed in the notebook and the testator managed to ask her to read the will to him. Ms. Early did so, saying that she found it an extremely distressing experience. She struggled to pronounce Mr. Ararat’s name and they both laughed. Her anxiety was to ensure that the will reflected the testator’s wishes.

27. Ms. Early considered that the testator had consciousness until about 9pm that evening, although he had slept from time to time after having some injections. His mother came to see him about 6pm and they said prayers together.
Mr. David Roberts
28. Mr. Roberts said that he was a nephew of the testator. He arrived at the hospital at about 5.30pm in the afternoon in order to see the testator. His uncle Maurice asked him to witness the will and they waited for his cousin, Thomas Fitzgerald, to arrive. When Mr. Fitzgerald arrived at about 6.30pm there were then four of them in the room. Mr. Maurice Earls spoke to the testator and explained to him that this was the will. The testator nodded and said yes. It was explained to him that a mark was sufficient and Mr. Roberts saw the testator execute the document with an “X”.

29. In cross-examination Mr. Roberts stated that he was unaware of the terms of the will and, indeed, he had not realised until he reached the hospital that the end was so close or that there was any issue in relation to the will. He accepted that he had not discussed the will with the testator or that the will had been read in his presence. Mr. Roberts was satisfied that the testator knew that it was his will and that he knew what he was signing.
Mr. Thomas Fitzgerald
30. Mr. Fitzgerald gave very similar evidence to his cousin, Mr. Roberts, regarding the manner in which the will came to be executed. He accepted that he had not discussed the will with the testator. He also agreed that he had not heard the will being read and he was unaware of its contents at the time.
Mr. Said Laaser
31. Mr. Laaser gave an account of the testator’s final days which in many ways replicated that given by Mr. Earls and Ms. Early. He emphasised, however, that the testator was asleep or otherwise barely conscious for much of July 4th. He had no recollection of the testator talking during that day. While Mr. Laaser wanted to communicate with the testator, there was either no response or a minimal response any time he tried to speak with him.

32. Mr. Laaser stated that he was aware that a new will had been prepared, but he had not been present for its execution. He recalled Mr. Early stating to him that because he (i.e., Mr. Laaser) was the civil partner, “Brian left you the bulk of his estate.” As I have noted already, Mr. Laaser’s first language is not English and he said that he was unaware at the time what the word “bulk” meant. He objected to the will on the ground that he was not satisfied that the July will truly represented the will and wishes of the testator.
The High Court
33. Kearns P. delivered an ex tempore judgment dismissing the plaintiff’s claim in the course of which he stated:

“It is quite clear from the evidence of both nephews that the will was properly executed and, of course, it is well known that in circumstances such as this a person can execute a will by marking a mark thereon, provided it otherwise complies with the requirements of the Succession Act and is explained [to the testator]. And there is a full and eloquent explanation in this case of why the deceased [executed] his will by applying a mark rather than writing his signature. The will was made only a matter of hours before his death and obviously he was in a very weak condition. I am satisfied from the evidence I have heard that he was certainly well enough to know what he was doing. He certainly knew the nature of the character of the document he was signing. He was able to interact with his brother who read to him in his very final hours an extract from a literary review on a historical piece of work and he was able to make clear his wishes. So Mr. Laaser’s apprehensions are, I think, misplaced in this regard. I also have completely independent evidence from the priest who came to him in his final hours who again was quite satisfied that he understood the purpose of his visit. There may be cases were unworthy suspicion may well be based, but this most definitely is not one such case.”

34. Kearns P. went on to acknowledge that “a Court must be vigilant and zealous in scrutinising the circumstances of the drawing up of a will, particularly where no officer of the court is involved and where, if you like,… a home made will is involved as in this instance.” The President then stated that the Court has been “very vigilant and zealous in scrutinising all the circumstances” particularly where no officer of the court is involved and where, if you like, … a home made will is involved as in this instance.”

35. Kearns P. concluded by saying that he could not see any evidence which:

“On the full hearing of this case would support any suspicions or raise any kind of serious query over the state of mind of the deceased at the time he made and executed this will. I am satisfied that it was read over to him and Mr. Maurice Earls took the trouble of writing down on the page, having regard to the fact that an Armenian friend of his was to receive a financial sum. He wrote down in big letters five different figures and he ensured that he had actual fix on the figure that this gentleman was to receive before that figure was written in. I am satisfied that the figure was written in before the will was executed in the manner described by the witnesses. So in all the circumstances I am satisfied to admit this will to proof in solemn form of law and will so direct.”

The issues in this Court
36. The principal issue in this case was whether the testator had sufficient competence in the circumstances to execute the will of July 4th, 2013. Section 77(1)(b) of the Succession Act 1965 (“the 1965 Act”) provides that in order to be valid, a will “shall be made by a person who…is of sound disposing mind.”
37. It was accepted in the High Court – and not disputed on appeal before this Court – that in the circumstances of a case such as the present one, the onus rested on the party propounding the July 4th will, in this case, the first defendant. This was especially so given that there were appreciable changes between the two wills which benefited the next of kin, where no officer of the court was involved in taking the testator’s instructions and where the testator was obviously so enfeebled and immediately close to death that he could only make a mark by way of execution of that will.

38. It is worth emphasising that no medical evidence of any kind was led by either party in the High Court. Nor was any medical assessment carried out in the early evening of July 4th 2013 as to the testator’s capacity.

Whether the testator had appropriate testamentary capacity on the evening of July 4th, 2013

39. The testamentary capacity of a dying or otherwise highly compromised testator is an issue which has confronted the Supreme Court from time to time. So far as this issue is concerned, Mr. Laaser relied particularly on the Supreme Court’s decision in In bonis Corboy [1969] I.R. 148, a case which is generally regarded as the leading authority on testamentary capacity.

40. In Corboy the testator in that case had been ill for some two years prior to his death. He had difficulty in speaking and expressing his wishes generally. Although it was not clear precisely how much he had understood what was said to him, the testator in that case had been an able businessman. A legatee who had been residing with the testator prior to his death drafted a codicil to the will for the purpose of increasing the legacies bequeathed by the testator to her. When the codicil was read to the testator, he was asked whether that was what he wanted and he apparently nodded his head. The testator executed the codicil by making his mark thereon, his hand having been guided for this purpose.

41. In the course of his judgment Budd J. said [1969] I.R. 148, 162:

“Taken as a whole, the evidence indicates that the testator was a chronically sick man. He was subject to recurrent attacks of convulsions which varied in duration and intensity. While their effects lasted, he was clearly incompetent to make a will. In between attacks there were difficulties of communication. He said little and frequently had difficulty in making himself understood. Likewise it was frequently difficult to know how much he understood. His condition was transient and varied. It would be a formidable task to discover whether he had testamentary capacity at any given time.
It is obvious from the evidence I have referred to and from all the surrounding circumstances of this case that the circumstances under which this codicil came to be made, and the position in which it stands in law, call for very careful investigation and consideration. Here is a man who, on any view of the case, was suffering from a high degree of incapacity. His illness was serious and had been continuing for some time. He had for long taken no interest in affairs and had a very limited capacity to communicate with others. If ever a case called for the intervention of a competent solicitor to investigate all the circumstances and seek out with great care and diligence the testator’s wishes, this was one. The circumstances surrounding the purported execution of the codicil give rise to obvious doubts and suspicions and I will refer to these . . . .”

42. Budd J. then went on to say ([1969] I.R. 148, 167) that the testator had suffered a severe illness which had affected his mental powers:
“….it was vitally important that his testamentary capacity on the evening [in question] should be firmly established. It would seem to be that nothing less than firm medical evidence by a doctor in a position to assess the testator’s mental capacity could suffice to discharge the onus of proof of proving him to have been a capable testator. No doctor was brought to see him on that occasion. Such evidence as was adduced does nothing to aid matters.”
43. For my part, I cannot see that the present case is really any different in principle from Corboy. It is true that in Corboy the testator’s mental capacity had been affected by illness, whereas that was not true in the present case. On the other hand, it might be said the codicil which was at issue in Corboy had been executed some two and a half years before the testator had died, where the July 4th will in the present case was executed within hours of the testator’s ultimate demise.
44. The real point of similarity between the two cases is that in both cases the testator had been enfeebled to the point of almost complete dependency and each of them were reduced to making a mark. On any view, the testamentary capacity of both the testator in Corboy and the testator in the present case was open to question. If the Supreme Court considered that affirmative medical evidence was required in Corboy to establish the testamentary capacity of the testator, the present case cannot realistically be regarded any differently.

45. It is, of course, true to say that, as Kearns P. observed in the course of his ruling, Fr. Deignan considered that the testator was then well enough to participate in the Last Rites when he visited him in the afternoon of July 4th., 2013. But Fr. Deignan freely admitted that he only spent some five minutes with the testator and that they had never previously met. It is one thing, however, to be an essentially passive participant in a religious rite as one’s life ebbs away: it is quite another to infer from this that the testator must have had the necessary testamentary capacity to assent to a rather complex will to which there had been a number of subtle but significant changes as compared with the earlier March will.

46. Kearns P. also drew attention to the fact that Mr. Earls read an extract from The Times Literary Supplement to his brother in the evening of July 4th. The testator appeared to have appreciated this kindly gesture and seems to have nodded with approval through an oxygen mask. One cannot, nevertheless, draw any firm conclusions from these exchanges as to the testator’s testamentary capacity to execute the will. Insofar as Kearns P. drew an inference from this bedside reading as the testator lay dying in order to demonstrate the testator’s testamentary capacity, I fear that he was in error.

47. Nor do I consider that this case can be compared with the Supreme Court’s decision in Re Glynn, deceased [1990] 2 IR 326. In that case the testator had given instructions to two independent lay persons to draw up his will. Subsequent to giving these instructions the testator suffered a massive stroke and was thereafter disoriented and incapacitated. Some two weeks later the two independent persons visited the testator in hospital. They verbally read the will to the testator who then approved the will with his mark. No medical evidence was called as to the testator’s testamentary capacity.

48. A majority of the Supreme Court held that this was duly attested will which should be admitted to probate, with McCarthy J. holding that there was ample evidence before the High Court that the testator “fully appreciated what was going on and that the terms of the document upon which he placed his mark fully represented what he wanted done with his property”: see [1990] 2 IR 326, 341.

49. The fact that the Supreme Court in Glynn was divided as to the outcome in its own way illustrates the fact that the decision is probably at the outer limit of what might be acceptable in terms of presumed testamentary capacity. Even then, however, there is the all important difference between Glynn and the present case in that in the former case the instructions for the will had been given at a time when the testator’s testamentary capacity was not in doubt. That cannot be said in the present case.
The failure to cross-examine on the issue of capacity
50. There remains for consideration the fact that the evidence as to capacity which was given on behalf of the defendants was not directly challenged in cross-examination by Mr. Laaser, even though the testator’s testamentary capacity was the critical part of his case. In these circumstances, questions directed towards this issue should have been put to the principal witnesses. Some allowance must, however, be made for the fact that Mr. Laaser was representing himself personally; that English is not his first language and he cannot have been expected to be have been familiar with the details of our court procedure.

51. Indeed, there may possibly have been a misunderstanding between all concerned when Mr. Maurice Earls was being cross-examined by Mr. Laaser. After Mr. Earls had explained the manner in which he had run his finger along various figures ranging from €20,000 to €50,000 when discussing the bequest to Mr. Andressian with the testator, Mr. Laaser indicated that he wanted to question Mr. Maurice Earls about the March will. At that point the President said:

“Well, we are concerned with the will of July so in fact I think you should confine yourself to around that time and the circumstances surrounding the making of the will. Have you no questions you want to ask? You’ve heard all the evidence.
Mr. Laaser: Yes. No questions.”

52. While the trial judge’s concern to focus the evidence concerning the July will was understandable, the effect of this intervention appears to have given Mr. Laaser the (wrong) impression that he could not pursue issues arising from the March will and his cross-examination appears to have somewhat abruptly ended at that point.
53. It should also be noted that Mr. Earls stated in evidence that Dr. Osman, the testator’s treating consultant, had told his sister, Ms. Mary Early, that the testator was “capable”. This evidence was clearly inadmissible hearsay, as Dr. Osman did not give evidence and Ms. Early did not address this point in her testimony. There may possibly have been an assumption that Dr. Osman would be called to give this evidence and that issues as to capacity might have been tested at that point, but this never happened.
Conclusions
54. While the failure to pursue this and other matters in cross-examination was unfortunate, the fact remains that the onus of demonstrating testamentary capacity in the circumstances rested with the defendants. In the light of the circumstances in which the July 2013 will came to be executed, the effect of the Supreme Court’s decision in Corboy is that this could only have been done by means of affirmative medical evidence led by the defendants as to that capacity. Insofar as the President dismissed the action even though such evidence was never led by the defendants, I fear that in the light of Corboy that he was in error.

55. In conclusion, therefore, I am coerced to the conclusion that this Court has no option but to allow the appeal and to direct a re-trial, despite the further delay and burdensome costs which this course of action necessarily entails. In the absence of such medical evidence this Court could not be satisfied that the requirements of s. 77(1)(b) of the 1965 Act as to testamentary capacity of the testator have been satisfied. Given, however, that Mr. Laaser’s failure actively to pursue the question of testamentary capacity in cross-examination may have given the defendants the wrong impression that this issue was no longer at issue or that they were now dispensed with the obligation to call medical evidence, I believe that the fairest course of action in the circumstances would be to order a complete re-trial and I would so direct.

Poynton v Poynton

High Court of Justice.

King’s Bench Division.

21 January 1903

[1903] 37 I.L.T.R 54
Johnson, Madden, Boyd JJ.

Madden, J.

We have the highest authority for the proposition that mere speculative evidence and expressions of opinion cannot reasonably be compared with the evidence of witnesses who had an opportunity of applying the ordinary facts of mental capacity, and with the testimony of a respectable witness deposing to the actual instructions for the will. The distinction between two classes of evidence was clearly explained by Lord Justice Lopes in his judgment in Spencer v. Jones, which was subsequently acted on by the House of Lords. In that case the question was not as to the mental capacity of a testator, but as to the soundness or unsoundness of a horse. There were on the one side witnesses who had a working knowledge of the horse opposed to experts on the other side, who said it was impossible from the state of the horse at the time of their examination that he should not have been suffering from “shivering” at the date of the sale. The jury acted on the evidence of the experts. The Court of Appeal (Lopes, L.J., dissenting) refused to set aside the verdict, but the House of Lords (77 L. T. 536) reversed that decision, holding that the jury had acted unreasonably in not distin- *54 guishing between two classes of evidence that could not be weighed in the same balance—that is, evidence of mere opinion and evidence founded on observation and practical knowledge. In the present case Mr. Ham’s evidence fulfils the latter condition, unless we are to treat him as a witness unworthy of credit. He transacted business with the testator, and inquired into the state of his mind by putting proper questions to him. The same principle was applied in the case of Aitken v. M’Meckan (1895), A. C. 310; there Lord Morris said, in the course of his judgment, “The two classes of evidence run on different planes.” In my opinion the evidence given on behalf of the plaintiff runs on a different plane from the purely speculative evidence, unaccompanied by any attempt to test the mental capacity of the testator, which was relied on by the defendant, and that the jury acted unreasonably in not differentiating between the two classes of evidence.

Johnson, J.

In this case I agree with Mr. Justice Madden. It is possible that in the protracted trial and exhaustive evidence the jury may have failed to carry the material facts in their minds up to their verdict, and to distinguish the weight and quality of evidence of disinterested persons, present at the making of the will, intimately acquainted with the testator for years and down to his death, and who actually tested his capacity and intelligence from such evidence in the nature of expert evidence as that of Mr. Lyons and Dr. Armstrong, who did not really test the mental condition of the man at all. But whatever was the cause, I think no reasonable man, fairly and impartially considering the evidence, could have arrived at the verdict in this case, which, in my opinion, on the evidence before me, is unreasonable and unjust.

Boyd, J., dissented.

Buckley v Cooper

Joseph Buckley, Teresa Doyle, William Buckley and Elizabeth Buckley v Richard Cooper Junior
2017 14 CAT

High Court

3 May 2019

unreported
[2019] IEHC 424
Mr. Justice Meenan

May 03, 2019

JUDGMENT
Introduction
1. This is an appeal from an order of the Circuit Court, dated 27 January 2017, where the court found that Mr. Michael Buckley (“the deceased”) was not of sound disposing mind on the date of execution, 15 March 2011, to make his will and that the purported will was condemned. The Circuit Court further found that the deceased did not have the mental capacity required under s. 77 of the Succession Act 1965 (“the Act of 1965”) to render his will valid. It follows from the order of the Circuit Court that the deceased died intestate.

2. The plaintiffs (the respondents in the appeal) are siblings of the deceased.

3. The defendant (the appellant in the appeal) is a nephew of the deceased and resides at Cloheden, Caim, Enniscorthy, County Wexford.

The Deceased
4. The deceased was born on 5 March 1935 and for much of his life he farmed some 54.8 acres and lived in a dwelling house at Caim, Enniscorthy, County Wexford (both the said lands and dwelling house are hereinafter referred to as “the property”). The deceased inherited the property on the death of his mother. He never married, had no issue and lived on his own for many years prior to his death.

5. Towards the end of 2010 the deceased’s health began to deteriorate with his initial health problems being urological in nature. He was, however, also suffering from weight loss and general poor health. Further medical investigations revealed him to be suffering from cancer of the bowel with secondary occurrences in the liver and lungs. The prognosis was very poor and it became clear that in February / March 2011 that the deceased was terminally ill.

6. The deceased’s cancer caused a bowel obstruction and a transverse loop colostomy was carried out on 10 March 2011 to alleviate this. The Court notes, with surprise, that there is a dispute as to the date on which this operation was carried out. It would appear that this stems from the inadequate state of the medical records. At that stage, the treatment being provided to the defendant was solely palliative in nature.

7. The deceased was unable to eat in the days following the operation and was maintained via intravenous feeding. His pain management was controlled with, inter alia, OxyContin, which is an opioid medication. The nursing notes for the days between 14 – 18 March 2011 indicate a stabilisation, albeit at a low level, in the condition of the deceased. Following a further deterioration on 19 March the deceased died on 20 March 2011.

8. The deceased’s will, the subject matter of the within proceedings, was made on 15 March 2011 in the presence of Mr. Jason Dunne, Solicitor of John A. Sinnott and Co., and Mr. Anthony Nolan, Accounts Manager for the same firm. The circumstances under which the will was made and the mental capacity of the deceased will be examined in some detail in the course of this judgment.

9. Under the terms of said will, the deceased left the property, in effect his only asset, to the defendant.

The claim
10. On 30 January 2012 the plaintiffs issued a Succession Law Civil Bill wherein they claim that at the time when the will was made, namely 15 March 2011, the deceased lacked the requisite mental capacity to properly and legally dispose of the property. Furthermore, the plaintiffs allege that the defendant and his family “monopolised visiting hours during the last few weeks of the deceased’s life in an effort to exert pressure and influence him, in his weakened state, into disposing of his property to the defendant, and the purported will was obtained by undue influence.”

11. The defendant maintains, in his defence, that at the time of execution of the will the deceased had testamentary capacity and denies that the deceased was at the material time under any undue or improper influence. The defendant is consequently seeking an order admitting the will of 15 March 2011 to proof in solemn form of law.

Applicable legal principles
12. Section 77(1) of the Act of 1965 provides:

“To be valid a will shall be made by a person who —
(a) …
(b) is of sound disposing mind.”
13. The test for determining whether a person was “of sound disposing mind” when making a will was set out by Cockburn C.J. in in Banks v. Goodfellow [1870] LR. 5 QB 549 at p. 565 wherein he stated: –

14. As to where the burden lies when trying to prove that a deceased was of sound disposing mind, I refer to the judgment of Laffoy J. in Rhatigan: Scally v Rhatigan [2011] 1 I.R. 639 wherein at p. 646 she stated: –

“[22.] On the issue of the burden of proof counsel for the defendant also referred the Court to a recent decision of the High Court of England and Wales, In re Key, decd. [2010] EWHC 408 (Ch), 2010 1 WLR 2020 and, in particular, to the following passage in the judgment of Briggs J., at p. 2040:

‘[97] The burden of proof in relation to testamentary capacity is subject to the following rules. (i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. (ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. (iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless…’”

15. When considering evidence in relation to testamentary capacity, the Court should have regard to the golden rule . In this regard, I refer again to the judgment of Laffoy J. in Rhatigan at p. 646-647 where she states: –

“[24.] By reference to the judgment of Briggs J. In re Key, decd. [2010] EWHC 408 (Ch), [2010] 1WLR, 2020, counsel for the defendant submitted that the Court should have regard to what was referred to as the golden rule in that case. In his judgment Briggs J. stated, at pp. 2022 and 2023: –

‘[7] The substance of the golden rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings …’

[25.] However Briggs J. went on to say at p. 2023: –

‘Compliance with the golden rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope.’

[26.] Those observations, in my view, reflect the law in this jurisdiction. Irrespective of whether the golden rule or best practice was followed in a particular case, it is a question of fact, which is to be determined having regard to all of the evidence and by applying the evidential standard of the balance of probabilities, whether a testator was of sound disposing mind when the testamentary document which is being propounded was executed.”

16. I refer also to the decision of the Supreme Court In re Glynn deceased [1990] 2 I.R. 326 wherein McCarthy J. stated at p. 340: –

“A duly attested will carries a presumption of due execution and testamentary capacity.”

He continued: –

“It is a fundamental matter of public policy that a testator’s wishes should be carried out, however, at times, bizarre, eccentric or whimsical they may appear to be. One man’s whimsy is another man’s logic.”

17. The other aspect of the plaintiff’s claim is an allegation that the defendant and his family exerted “undue influence” on the deceased prior to his death. The onus of proving undue influence rests on the person(s) alleging it occurred, as per Noonan J. in Rippington v. Cox [2015] IEHC 516. To establish undue influence it is necessary to prove that:

(i) The person alleged to have exerted the undue influence had the power or opportunity to do so;
(ii) That undue influence was actually exerted;
(iii) That the will was the product of such influence.
18. It is now necessary to consider the evidence that was given to the Court and to apply the legal principles set out above.

Undue influence
19. Various family members, called as witnesses both on behalf of the plaintiffs and the defendant, gave evidence as to the character of the deceased. As referred to earlier, the deceased inherited the property from his mother, who favoured him over other siblings, never married and continued to live alone. It was clear to the Court that working the property was the deceased’s life work and evidence was given to the Court as to how members of the family, the defendant in particular, provided assistance to the deceased in this regard. It is of note however that the deceased remained in charge of the farm. After leaving school, the defendant continued his education by studying farming and farming methods. The deceased was more comfortable with traditional farming methods. As such, it was inevitable that there would be some clashes between the two as to what were the best farming methods to be adopted.

20. In late 2010 and early 2011, when the health of the deceased deteriorated and he required hospitalisation, some members of the family took on a carer role by ensuring that the deceased had the necessities for his stay in hospital, attending medical appointments and liaising with the various doctors. The person who appears to have taken on the bulk of this responsibility was Mrs. Sheila Cooper, sister of the deceased and mother of the defendant. Mr. Dick Cooper, husband to Mrs. Sheila Cooper and father to the defendant, also appears to have adopted a position of responsibility. There is no evidence before the Court that the role taken on by Mr. and Mrs. Cooper was to the exclusion of anybody else.

21. It was pleaded that the defendant and his family “monopolised visiting hours” with the deceased. The evidence, however, falls well short of establishing this as a fact. In any event, in the period between 10 – 11 March 2011, the date of the deceased’s transverse loop colostomy, visiting in the hospital was significantly restricted by hospital authorities owing to fears surrounding infection.

22. There was evidence given about a physical altercation said to have occurred between the deceased and the defendant. It appears that this altercation related to financial difficulties which the defendant was experiencing at the time. I think that it is probable that the financial crash which was, at that time, causing difficulties to many families in the country was also affecting the defendant. While the disagreement, whatever precisely it may have been, may have reached the point of a physical confrontation with the deceased I cannot see that such would be a basis for making a claim of undue influence.

23. There was evidence given as to conversations that took place amongst family members when the health of the deceased began to seriously deteriorate as to what was going to happen the property upon his death. In particular, there was evidence before the Court of words spoken at a social event in the home of a family member on 25 – 26 February 2011 which amounted to speculation as to who would inherit the property. I do not think it surprising that such conversations would take place given the importance of the property, both to the deceased and the wider family, and the fact that the deceased had no immediate family of his own.

24. The arrangements for the drafting of the deceased’s will were organised by Mrs. Sheila Cooper with the initial arrangement being for the deceased to be seen by a Mr. John Mernagh, Solicitor. Having been made aware that the deceased had undergone a major operation in the preceding days, Mr. Mernagh attended the deceased in the hospital on 12 March 2011 and found him to be in a condition whereby he was, in Mr. Mernagh’s opinion, unfit to give instructions for the drawing up of a will. After the departure of Mr. Mernagh, Mr. Dick Cooper made arrangements for Mr. Jason Dunne, Solicitor, to attend with the deceased. Without more, I do not see that these arrangements which the parents of the defendant made to enable the deceased to draw up his will could be considered to be acts of undue influence.

25. Finally, the second named plaintiff, another sister of the deceased, advanced no evidence to substantiate a claim for undue influence.

26. By reason of the foregoing, I reach the conclusion that the evidence given by the plaintiffs fell considerably short of establishing any claim that the will made by the deceased on 15 March 2011 was the product of undue influence.

Testamentary capacity
27. As noted above, there is confusion as to whether the operation which the deceased underwent was conducted on 10 or 11 March 2011. In any event, the deceased was visited by Mr. Mernagh on 12 March 2011 for the purposes of drawing up a will. In his evidence, Mr. Mernagh detailed to the Court that at no stage during his attendance did the deceased engage with him and provided no response to any questions that were put to him. He formed the opinion that the deceased was completely incapable of giving instructions to enable a will to be drawn up. I fully accept the evidence of Mr. Mernagh to the effect that on 12 March 2011 the deceased did not have the requisite mental capacity.

28. On 15 March 2011, following on from a telephone call from Mr. Dick Cooper, Messrs. Dunne and Nolan attended the deceased sometime after 16:00. Though the deceased had been a long-standing client of John A. Sinnot & Co., he was unknown to Mr. Dunne.

29. Mr. Dunne was, of course, fully aware of the requirement that the deceased have the testamentary capacity to give instructions to draw up his will and sign same. It should also be noted that Mr. Dunne is an author of various publications concerning inheritance, succession and the making of wills.

30. Mr. Dunne in his evidence gave a detailed account of his attendance with the deceased on 15 March 2011. He said the deceased was lying almost flat and had very limited movement. Mr. Dunne had with him a document titled “ instruction sheet for will John A. Sinnott & Co.” This document is in the form of a questionnaire setting out the various matters that should be raised when a person wishes to make a will. As Mr. Dunne had no prior involvement with the deceased he was relying on the accuracy of the information being given to him. The deceased, correctly, gave his date of birth, bank account details and information on the family and working life of the beneficiary (the defendant) including information as to how he lived on a site which the deceased had sold to him. Mr. Dunne gave evidence that he advised the deceased concerning possible Capital Acquisition Tax implications for the defendant. According to Mr. Dunne the deceased understood the tax implications and reiterated his desire that the property be left to the defendant. He maintains that the deceased further directed that any residue (in the event of the defendant pre-deceasing the deceased) be left to Mrs. Sheila Cooper.

31. The “ instruction sheet for a will ” had a section entitled “ testator’s mental capacity ”. Mr. Dunne recorded “yes” as being the answer to the following questions:

1. Does the testator understand that he is making a will, i.e. disposing of property on death?
2. Does the testator understand the nature and extent of his property/estate?
3. Has the testator considered those persons who might be expected to benefit from his estate and decided whether or not to benefit them?
32. Mr. Nolan, who accompanied Mr. Dunne, gave evidence of a conversation which he had with the deceased whilst the will was being drawn up. This conversation concerned the recent election of a new government and an earthquake in Japan.

33. After he prepared the will, Mr. Dunne read it over to the deceased and asked him whether he approved of the contents. Before the deceased signed the will, Mr. Dunne asked whether any person had put him (the deceased) under pressure either to make a will or to leave the property to the defendant. The deceased answered “no” to both. The deceased signed the will in the presence of two witnesses, Mr. Jason Dunne and Mr. Anthony Nolan, both of whom also signed the document.

34. Mr. Dunne gave evidence what while he was writing up his note of the attendance he had a conversation with the deceased about the hospital food.

35. Mr. Dunne’s note of the attendance was typed up the following day, 16 March 2011.

36. I am satisfied that the evidence given by Mr. Dunne to this Court is both truthful and accurate. Mr. Dunne was fully aware of the legal requirement that the deceased have testamentary capacity and I am satisfied Mr. Dunne acted professionally in reaching his conclusion that the deceased did have such capacity. Further, given that Mr. Dunne had no prior professional involvement with the deceased, he was relying on the deceased for the accuracy of the answers to the various questions.

37. There were however two matters which may indicate a lack of testamentary capacity on the part of the deceased. Firstly, the deceased gave an inaccurate answer to the size of the property in acres. Secondly, the deceased’s signature on the will can only be described as being a scrawl or a scribble. As for the deceased’s mistake as to the acreage of the property, this was clearly an important error given how central the property was to the life of the deceased. However, given the accuracy of the other information provided and recorded by Mr. Dunne, I do not believe that this mistake was of such an order as to establish a lack of testamentary capacity.

38. As for the signature, I am of the opinion that this was, as explained by Mr. Dunne, as a result of the deceased being physically weak and writing whilst lying on his back with the document being held above him. Such does not indicate a lack of testamentary capacity.

39. Mr. Dunne was criticised by the plaintiffs for not observing the golden rule . With regards to this criticism, while it may have been preferable for Mr. Dunne to have obtained an opinion on the deceased’s capacity from a medical practitioner prior to drawing up the will, the fact that he did not do so does not mean that the Court is not in a position to decide, on the basis of the evidence available to it, that the deceased had the requisite mental capacity.

40. Both the plaintiff and the defendant called expert medical evidence on the issue of capacity. This evidence relied to a significant extent on the deceased’s medical records. Particular attention was paid to the type, dosage and effects of the pain medication being given to the deceased in the context of his weak physical condition.

41. On 15 March 2011 the deceased was prescribed OxyContin at 04:15, Oxynorm 5mg at 06:30 (a faster acting pain killer) and Tramadol (100mg) at 17:30. An analysis of the effects of these drugs and the time over which they are effective were given to the Court by Professor Peter Passmore, Professor of Aging and Geriatric Medicine, on behalf of the defendant. Professor Passmore, though accepting that the painkillers being given to the plaintiff can affect cognitive function, concluded that the levels of these drugs in the deceased’s blood would have been very low in or around 16:15 when he was giving instructions as to the contents of will. Professor Passmore was of the opinion that, notwithstanding the nature and type of painkillers involved, the deceased did have testamentary capacity on the evening of 15 March 2011.

42. This view was not shared by Dr. Derek Forde, on behalf of the plaintiffs. Having examined the relevant medical records Dr. Forde noted that the deceased was dehydrated, suffering from potassium imbalance and had elevated urea, which would be indicative of renal failure. Further, having looked at the deceased’s signature on the will, Dr. Forde concluded that the deceased was not in a position to understand or sign any kind of legal documents. However, when asked about the information given by the deceased to Mr. Dunne, as recorded in the will instruction sheet, Dr. Forde expressed surprise that the deceased was able to give this information.

43. As referred to earlier, the deceased had himself inherited the property from his mother ahead of his siblings. I am satisfied, having heard evidence on the character of the deceased, that he attached enormous importance to the property. Further, the defendant submitted that breaking up the property would have made no economic sense. Taking all this together, it seems to me that it was entirely logical and rational for the deceased to bequeath the property in its entirety to one member of the family. As the defendant appears to have had more involvement in agricultural matters than other members of the family it would seem to me that it was rational that he be the one chosen by the deceased to inherit the property.

44. Therefore, I reach the conclusion that on the evening on 15 March 2011 the deceased had testamentary capacity having regard to the following:

(i) Though I accept the evidence of Mr. Murnagh, Solicitor, that the deceased did not have testamentary capacity on 12 March 2011 the situation had clearly changed by 15 March 2011. This is clear from the evidence of Mr. Dunne, Solicitor, of his attendance with the deceased which was recorded in a written memorandum prepared the following day.
(ii) Notwithstanding the deceased’s mistake as to the acreage of the property and the nature of his signature, the conversations had and information given by the deceased to Mr. Dunne were of such content and detail as would lead me to conclude that the deceased had the necessary testamentary capacity.
(iii) Though under the effects of opioid based painkillers and in a severely weakened physical state, I am satisfied, from the evidence of Professor Passmore that the levels of these drugs present in the deceased’s blood system on the evening of 15 March 2011 were low and did not adversely affect his testamentary capacity.
(iv) That the decision by the deceased to bequeath the property in its entirety to the defendant alone was rational.
Conclusion
45. By reason of the foregoing, I will reverse the decision of the Circuit Court and will hear counsel as to the appropriate order to be made.

In the Goods of Michael O’Connor Deceased

Eileen O’Connor v Maurice O’Connor & Margaret Vaughan
1976 No. 4325P

High Court

19 December 1978

[1978] I.L.R.M. 247
(D’Arcy J)

D’ARCY J

delivered his judgment on 19 December 1978 saying: Michael O’Connor late of Rahard, Ballyhooly, County Cork died on 16 May 1975. He was a bachelor. He was survived by two sisters, the plaintiff Eileen O’Connor and the defendant Margaret Vaughan, by his brother Maurice O’Connor and by nephews and nieces, the children of Eileen O’Connor, Maurice O’Connor and Margaret Vaughan. The plaintiff Eileen O’Connor resides at North Park, Doneraile. Her husband is a substantial farmer. The defendant Margaret Vaughan resides at Shanballymore, County Cork. Her husband is a substantial farmer. The defendant Maurice O’Connor resides at Main Street, Ballyhooly, County Cork where his wife carries on a successful business as a publican. He himself is working for a weekly wage for a local employer. The farms owned by the husbands of Mrs Vaughan and Mrs Eileen O’Connor were stated to be each worth between £300,000 and £400,000. Michael O’Connor deceased was survived by relatives but not by dependants.

Michael O’Connor made an alleged last will on 5 May 1975 whereby he bequeathed all his property to the plaintiff and appointed Maurice Barry and John Shinnick executors. He made an earlier will on 10 December 1974 whereby having bequeathed £3,000 each to his nieces Margaret O’Connor, Bernadette Vaughan, and Mary O’Connor, he bequeathed all his property to the plaintiff. By that will he also appointed Maurice Barry and John Shinnick executors. The executors have renounced. The plaintiff claims to have the will dated 5 May 1975 established in solemn form of law. Each of the defendants entered caveats. Their defence raised the usual issues, due execution, testamentary capacity, and knowledge and approval. In addition both defendants pleaded that execution of the wills was secured by the undue influence of the plaintiff.

By order of the master dated 2 November 1977 the action was set down for trial by a judge without a jury. The following questions were left for trial. Whether the will dated 5 May 1975 was executed pursuant to the Succession Act 1965, whether the deceased at the time of the execution of the alleged will was of sound disposing mind, whether the deceased at the time of the execution of the alleged will knew and approved of the contents. Similar questions were left regarding the alleged will of 10 December 1974. The pleas of undue influence were withdrawn.

Michael O’Connor was a quiet reserved country man. He has been described as shy, save when he was in the company of people he knew well. When his brother and two sisters left the licensed premises which was the family home, the sisters on marriage and the brother to go to work as a helper in a lorry at Youghal, Michael O’Connor continued to reside in the licensed premises with his father and mother. He was not, at any time, interested in the working or management of the licensed premises. He spent his time working a farm of about 60 acres, originally belonging to his father and subsequently to himself, in the neighbourhood. After working hours on the land he gave sporadic help in assisting at the bar in the licensed premises. In December 1968 Daniel O’Connor, the father of Michael O’Connor deceased, transferred the licensed premises to Michael O’Connor subject to a right of support and maintenance for their lives for Daniel O’Connor and his wife.

Michael O’Connor’s interest in the licensed business did not increase after the premises were transferred to him. On 10 September 1970 Michael O’Connor transferred the licensed premises to his brother, the defendant Maurice O’Connor, subject to the right of residence of his mother and a right of residence for himself for life, in consideration of the extinguishment of a debt of £1,000.

Daniel O’Connor, the father of Michael O’Connor, died on 3 November 1969. Thereupon Maurice O’Connor, his wife and children came to reside in the licensed premises at Ballyhooly, with Michael O’Connor deceased and his mother. Thereafter Michael O’Connor took no interest whatever in the licensed premises confining himself entirely to farming about 60 acres of land a short distance away, in the same townland.

Michael O’Connor did not drive a motor car, he cycled daily to his lands, where he kept in addition to the usual cattle and sheep, a few half bred horses. His only interest was horses., His amusements were to attend an odd race meeting locally at Tralee or Newmarket, County Cork, or an occasional point-to-point either at Punchestown or at Kildorrery, or an occasional gymkhana. In addition he sometimes went to the summer shows of the Royal Dublin Society. Apart from these occasional activities, he did not indulge in either games or sport nor attend cinemas or any other social occasions.

In the autumn of 1973 Michael O’Connor became ill. He suffered blackouts. He was admitted as an in-patient to St. Finbarr’s Hospital, Cork on 9 October 1973. He was there found to be suffering from viral meningitis and incefilitus. There was inflamation of the membrane of his brain. He had a tumour on the brain and had suffered epileptic seizures. He remained in St. Finbarr’s Hospital, Cork from 29 October 1973 to 7 January 1974. Whilst there he was in a coma for a number of weeks. He improved somewhat. It is common case that he never made a complete recovery. There is conflicting evidence by members of his family as to the degree of the recovery he made. There is the evidence of five solicitors and four doctors also to be considered.

The assets of the deceased are valued at £11,107 and consist of money on deposit in the Bank of Ireland Finance Company, Doneraile, in the Allied Irish Banks, Fermoy, an insurance policy, and farm machinery. His only known debt was an *251 overdraft at the Allied Irish Banks, Fermoy £662.65. Apart from the interests in the assets, there is a more valuable matter at stake. On or about 2 May 1975 Michael O’Connor transferred his lands containing about 60 acres, subject to certain rights and money payments reserved to himself and to a charge of £1,000 each in favour of three nieces, to the plaintiff. The more important consequence of this present litigation will be whether or not the defendants will be in a legal position to challenge that Deed.

Before dealing with the conflicting evidence I think it best to complete the history. On his discharge from St. Finbarr’s Hospital, Cork on 7 January 1974 Michael returned to the licensed premises at Ballyhooly where he resided with his mother, his brother defendant Maurice O’Connor his wife and their family. From the time he went to St Finbarr’s Hospital he was unable to take any part in the running of his lands. They were looked after by the defendant Maurice who in return got £10 per week and also some perquisites, by way of firing etc. Whilst Michael O’Connor had been at St. Finbarr’s Hospital, Cork, about November 1973 it was necessary that some of the cattle on his lands should be sold. The plaintiff and both defendants agreed that this should be done. Michael O’Connor knew nothing, and owing to his then mental health could have known nothing about this sale. It is purely a routine transaction in the ordinary course of business necessitated by the approaching winter. The proceeds of the sale of these cattle were not lodged to Michael O’Connor’s account in the Allied Irish Bank Fermoy, but were lodged in the Bank of Ireland at Buttevant in the joint names of Mrs O’Connor (mother of Michael O’Connor) and Eileen O’Connor.

In March 1974 Michael O’Connor left the licensed premises at Ballyhooly and went to reside with the plaintiff his sister, Eileen O’Connor at Park North, Doneraile. Apart from the period 29 October 1973 to 7 January 1974 when he was in Bons Secours Hospital, Michael O’Connor deceased continued to reside with his sister at Doneraile until he went into Mallow Hospital on 5 May 1975.

There is a conflict of evidence as to why Michael O’Connor moved from Ballyhooly to Doneraile. The plaintiff and her witness suggest he was badly treated by the defendant Maurice O’Connor and his family. On the other hand Mrs Maurice O’Connor has stated in evidence and she is supported by the other witnesses for the defendants, that the reason for Michael moving was because Mrs Maurice O’Connor was overburdened in the licensed premises, looking after her aged mother-in-law who was a semi-invalid, Michael who was a semi-invalid, her children and minding the licensed premises at the same time. Whilst there was undoubtedly noise from the children in the licensed premises and the dwelling-house above it, which annoyed Michael O’Connor, I prefer the defendants’ version for the reason for Michael’s move to that given by the plaintiff.

Within a week or two of Michael O’Connor going to reside with his sister, Eileen O’Connor his lands were let and there was a clearance sale of his stock. This was arranged by the plaintiff but with the consent and acquiescence of Michael O’Connor. It led to a family row and in particular to objections from Mrs O’Connor senior, the mother of all the parties. She did not want the land to be, as she thought *252 erroneously, sold and had to be placated., I think it was clear to everyone that Michael O’Connor could not farm the lands and they had to be let or sold. A matter, however, which irked the defendants, was that the letting of the lands involved the defendant Maurice O’Connor losing the £10 per week and perquisites which he got for caring the lands. Further there was dissention about the sale of a tractor, which Maurice claimed. Michael O’Connor assented to Maurice O’Connor’s claim to the tractor. No objection was taken to this assent. The monies realised on the clearance sale, and also the grazing rents, when they came in, were lodged by the plaintiff, Eileen O’Connor in joint names of herself and Michael O’Connor, in the Bank of Ireland, Doneraile and not in Michael O’Connor’s own account with the Allied Irish Banks in Fermoy. This was resented, if not objected to, by other members of the family.

Whilst Michael O’Connor was residing with the plaintiff Eileen O’Connor and her husband at Doneraile, the plaintiff alleges that he improved mentally. The defendants say that he did not change at all mentally.

In May 1974 Michael O’Connor again became ill and was attended by Doctor Byrne. He was suffering from orchitis (swelling of the testicles). For this complaint he was admitted to and remained a patient in the Bon Secours Hospital, Cork from 29 May 1974 to 10 June 1974. On his discharge he returned to live with the plaintiff, Mrs Eileen O’Connor.

Whilst living with the plaintiff, Mrs Eileen O’Connor, the deceased, Michael O’Connor, apart from going to Mass on Sundays, visiting his mother, as long as she was alive, odd visits to the defendants and making one visit to a first cousin in Cork, did not move out of the plaintiff’s house and lands.

On 24 August 1974 Michael O’Connor’s mother died. Michael O’Connor attended the house on the night of her removal and the funeral on the following day. He was quiet and there is no evidence that he spoke to any one. He did, however, accept condolences by nodding his head.

On 10 December 1974 Michael O’Connor made his first will. He was brought to Mr Binchy’s office, Charleville, by Mr John O’Connor, the husband of the plaintiff, who had other business there. In this will having appointed executors, and be-queathed the sum of £3,000 to three nieces, Margaret O’Connor, Bernadette Vaughan and May O’Connor, he left all his property to the plaintiff. I must deal with this matter in more detail later.

On 11 December 1974 Michael O’Connor returned to Mr Binchy’s office and did other business with him involving taking up some papers from Messrs Carroll & Co. solicitors’ office in Fermoy.

On 12 March 1975 Michael O’Connor returned to Mr Binchy’s office. He gave instructions to transfer his lands to his sister Eileen, the plaintiff. At this stage Mr Binchy was acting for Eileen O’Connor, so he very properly told the deceased that he would have to obtain independent advice. Arrangements were made for Michael O’Connor deceased to attend at the office of Mr Finbarr McCarthy, Charleville on 26 March 1975. This he did and Mr McCarthy very properly advised him that he should not transfer his lands to Eileen the plaintiff subject to the safeguards which *253 were then being reserved for Michael O’Connor, which Mr McCarthy thought and regarded as being insufficient. In view of Michael O’Connor’s age Mr McCarthy advised Michael O’Connor that it was a most improvident transaction. At that stage Michael O’Connor accepted Mr McCarthy’s advice. Having given this independent advice, Mr McCarthy negotiated with Mr Binchy as to the terms upon which he, Mr McCarthy, would be prepared to advise Michael O’Connor to execute the transfer. These were that Michael O’Connor should be paid an annuity of £520 with a cost of living escalation clause, by weekly payments of £10 for life and further that he should be paid £10,000 to be payable by £1,000 per annum for ten years and that the usual rights of residence and support should be reserved. There is no evidence before me that Mr McCarthy had any instructions to engage in these negotiations. However a transfer was drafted and subsequently engrossed containing these provisions and also providing for a charge in the sum of £1,000 each in favour of the three nieces, who were given legacies of £3,000 each in 10 November will. A draft was sent to Eileen O’Connor by Mr Binchy. Michael O’Connor did not approve of the terms in the draft and on 14 April 1975, wrote to Mr Binchy in the following terms:

Having read your letter of April 11th 1975 to my sister Eily about the transferring of my farm to her, I think that Mr McCarthy is placing too heavy a burden on her, as regards my allowance and so forth. I have thought over what I am doing for a long time (and considered it well) I wish to transfer my farms as soon as possible for health reasons, also I feel happier when it is done. As it is a big worry to me. Hoping from this letter that you will understand my feelings what I want to do about my affairs.

Yours faithfully

Michael O’Connor

Eileen O’Connor sought another solicitor to give independent advice and gave Michael O’Connor deceased a choice between three solicitors. He picked Mr Neary, solicitor at Doneraile. Mr Neary was contacted. He phoned Mr Binchy senior and discussed the matter. Mr Binchy then sent him an engrossment of the transfer which Mr Neary read over to Michael O’Connor deceased, who then executed it. Mr Neary, at no time, gave Michael O’Connor deceased independent, or any, advice.

When the engrossed transfer was returned to Mr James Binchy senior, he as a careful solicitor realised that difficulties might arise, as under the will which Michael O’Connor deceased had made the previous December he left his three nieces £3,000 each, whilst under the transfer he gave them £1,000 each. He accordingly wrote to Mr Michael O’Connor asking if he wished to make a new will or change these legacies. Mr Binchy got a message that he did and on 5 May 1975 Mr James Binchy junior and Mr Dunne then a clerk with Mr Binchy and since deceased, saw Michael O’Connor deceased at the house of the plaintiff at Doneraile. I will deal with this later. That night the deceased was brought to hospital in Mallow. He died there, of lung cancer, on 16 May 1975.

I now turn to the non-professional witnesses and the conflict of evidence, which exists between them, as to the degree of recovery which Michael O’Connor made from his meningitis in 1973. It is common case, that whilst he was in St. Finbarr’s *254 Hospital, Cork from 29 October 1973 to 7 January 1974 he was in a coma. From this he made a recovery. There is a conflict between both the lay and the professional witnesses as to the degree of recovery.

Mrs Eileen O’Connor stated in evidence that after Michael returned from St. Finbarr’s Hospital in Cork he resided in Ballyhooly until March 1974, when she agreed to take him to reside in her house. That he continued to reside there, until he went to Mallow Hospital, apart from the period when he was in the Bon Secours Hospital, Cork in June 1975. She states that Michael was alright mentally up to December 1974. She states that he was alright that winter mentally. That he was able to do light work on her husband’s farm. She described Michael’s condition when Mr Neary came out in April 1975 as being physically weak but mentally alright. She said that Michael was not on speaking terms with his brother Maurice as he had a row about a tractor. She said that her husband’s farm was worth between £400,000 and £500,000 and Mr Vaughan her sister’s husband was worth about the same. She stated that Michael improved mentally when he came out of St Finbarr’s Hospital in January 1974 and that after four months he was normal. She stated in cross-examination that Michael knew nothing about the sale of some cattle as it was carried out whilst he was in a coma in St. Finbarr’s Hospital, Cork. That the proceeds of the sale were lodged in the joint names of her mother and herself and not in Michael’s account in Fermoy. She says that Michael when he came to reside with her in March 1974 said she did the right thing in putting the money in their mother’s name and hers. She gave no adequate account as to why the money was not lodged in Michael’s own account in Fermoy other than that Michael on a later occasion in connection with the proceeds of the clearance sale, told her ‘to put the money wherever it was most convenient for her’. As regards the clearance sale she said that Michael gave instructions to Mr Barry auctioneer, Fermoy. That Michael sent her to the auctioneer and that she went to Fermoy and saw the auctioneer’s wife. The auction realised about £7,000. A cheque was sent to Michael for this amount. Michael told her to put it in the bank and suggested he put it in her name and his. This was ‘to take care of it against the opening of the farm again’. She said Michael O’Connor told her to ‘put it in the bank that would cause you the least trouble’. In fact the monies from the clearance sale and also the grazing rents were put as to £7,000 on deposit in Foster Finance and £2,000 on current account both in the joint names of Michael deceased and Eileen O’Connor. She admitted that Michael gave her a gift of £2,000 out of the £7,000.

Mr John O’Connor is the husband of Eileen O’Connor., He describes Michael O’Connor’s mental condition as good, after he came to live with them. He said Michael O’Connor played with the children, he read papers every day, and although physically failing was mentally alert. He referred to Michael’s visit, as a patient, to the Bon Secours Hospital, for testicle trouble and said that he recovered ten days after his return. He did not know that any money had been invested in his mother-in-law’s and his wife’s names. He said that Michael had been badly treated at Ballyhooly and was not happy there as his sister-in-law was hard on him. This I find very hard to accept. He seemed to know very little about general family *255 finances and gave as a reason that he did not want to get involved. He said that Michael never discussed his own affairs with him, but that Michael discussed the witnesses’ own farming affairs with him. That Michael discussed horses with him, he discussed what fences needed mending, and what cattle needed to be dosed. He also discussed the relative virtues of silage and hay. He visited neighbouring farmers. Up to the time that Michael O’Connor’s mother died in August 1974 Michael visited her frequently and thereafter he visited Ballyhooly once a month. Apart from his explanation as to why Michael O’Connor left Ballyhooly and came to reside with the witness, I find this witness’s evidence acceptable.

Apart from having met Michael O’Connor once in the street in Cork and once casually in the street in Doneraile, Miss Mary Neary had not met him prior to meeting him in Mallow Hospital in April and May 1975. She, herself, was a patient in that hospital in April and May 1975. She visited Michael O’Connor on a number of occasions. He then praised his sister Eileen and her husband for all they had done for him. He said he could never repay their kindness. He knew that he was very very ill. She was with him on a few occasions for twenty minutes. He was very rational. Perfect mentally. This lady has no business experience save taking messages on the telephone. She had neither the capacity nor the experience necessary to appraise the condition of Michael O’Connor deceased. I do not accept her evidence.

The defendant Maurice O’Connor described how he had worked for a number of years as a lorry helper in Youghal until 1970 when his brother Michael O’Connor transferred the licensed premises at Ballyhooly to him. After Michael became ill, he Maurice, worked on Michael’s lands and was to get £10 per week plus firewood and some perquisites. He said he was on friendly relations with Michael. Describing his brother Michael O’Connor’s condition after he had left St. Finbarr’s Hospital on 7 January 1974, where he had been treated for meningitis, he said that there was no change in Michael from the time he left St. Finbarr’s until he died.

Mrs Nellie O’Connor is the wife of the last witness. They have four children. She described how Michael had been for five weeks in a coma in St. Finbarr’s Hospital. She said that, on his return he could not remember what happened yesterday. He remained in bed just like a child. When he got up he did not want to meet customers. He could talk intelligently for a few minutes but only for a few minutes. After he had returned from Cork he could not be left out on his own. She stated that he had not improved when he went up to Eileen’s. She said the reason why he went up to Eileen’s was that she Nellie O’Connor had too much to do minding her aged mother-in-law, minding Michael deceased, minding her own family including young children and her husband and minding the public house. She also said that the doctor suggested that a change would do Michael good. She agreed that Michael complained of noise in the house. She and her husband were informed of the sale of the cattle and of the clearance sale. They did not agree. She was not informed of Michael’s admission to Mallow Hospital by the plaintiff. She heard it from a customer in the licensed premises. She visited Michael a few days before he died. He knew that he was dying and was in great pain. That was the only *256 conversation that she had with him. She says that after Michael came back from Cork ‘one could never get through to him’. She stated that Michael attended the clearance auction but he had ‘no clue about what was going on at the auction’.

Mr Batty O’Mahony is a cousin of the deceased. He described that after Michael’s return from St. Finbarr’s Hospital January 1974 Michael was unable to have an intelligent conversation. After Michael went to live with Eileen he only saw him about four times. When the mother was objecting to the sale or letting of the lands he brought Michael down to his mother.

Mr Patrick O’Callaghan was a friend of Michael O’Connor’s for 35 years. After Michael returned from St Finbarr’s Hospital in January 1974, he saw him every six weeks. He said that he had changed. Michael O’Connor took no notice of anything. When he saw him at Ballyhooly he was child-like. He said he improved a bit in the summer and that he sometimes was able to understand him.

The defendant Mrs Margaret Vaughan lives at Shanballymore where her husband has a farm. It is about 12 miles from Ballyhooly and two to three miles from where the plaintiff lives. She has two grown up daughters, one of whom is married. She describes Michael’s condition when he was discharged from St Finbarr’s Hospital January 1974, as being hazy. She says that he improved after leaving hospital but she does not think that his memory improved. She agreed to the sale of the lands and the cattle whilst Michael was in hospital in November 1973, but did not agree to the money going to the Bank in Doneraile. She was told by Eileen, the plaintiff, to keep out of the affairs, ‘as she was only the junior member of the family’. She describes how she and Mrs Eileen O’Connor in about June 1974 brought Michael back for a check up by Doctor O’Callaghan. Then Mr Michael O’Connor was subjected to some general knowledge tests, to test his mental abilty by one of Doctor Callaghan’s associates. He did very well passing all the questions save one, the name of the Pope, which he could not remember. This may be very relevant in appraising Doctor O’Callaghan’s evidence. Mrs Vaughan said that she and Eileen O’Connor tutored Michael O’Connor deceased so he would know the right answers. I thought this was rather an extraordinary performance. If culpability exists it is equally distributed between the plaintiff and the defendant. However, I am informed that the reason for it, was because Michael did not want to be, and had a fear that he might be institutionalised. His sisters were trying to save him from this. I accept this innocent explanation. The witness described how in January to March 1975 Michael’s mental condition was poor. He made some slight progress. He could move arround. But he could not follow up a conversation. She says he did not understand a conversation. She recalled how visiting him at the plaintiff’s residence in January 1975, Michael O’Connor deceased ate non stop. He did not know when he had eaten enough. The plates had to be taken away from him. The people present made conversation but they could not get Michael involved in it. She said from the time Michael returned from St Finbarr’s he never discussed any business. She described how the last time she saw Michael O’Connor at the plaintiff’s residence it was 2 May 1975. He then was gravely ill. She consoled him more than talking to him. He said something about pain. That was the only thing *257 he talked about. On the following day she visited Michael. Michael was up and came down the stairs. He was very weak, he could not hold a tea cup. He could not enter into any conversation. When she next sat him at Mallow he was very withdrawn. She visited him several times at Mallow hospital. On all occasions he was withdrawn and had no interest in anything. Mr Timothy Vaughan is the husband of the second-named defendant. He is a substantial farmer. He keeps horses both thoroughbred and half bred. Prior to his illness, the deceased Michael O’Connor was very interested in horses. This witness stated they often went to races, gymkhanas and shows together. The deceased frequently discussed horses with him. He was aware that some cattle were sold when Michael was in hospital in the autumn of 1973. He had no objection to the sale of the cattle, but objected to the proceeds being lodged in the plaintiff’s bank in Doneraile. He says that both he and the defendant, Maurice O’Connor, thought the money should have been lodged in Michael O’Connor’s account in Fermoy. He expressed the view that ‘Jack (the plaintiff’s husband) twisted out of it’. This I understand to mean that John O’Connor unfairly prevailed on Michael O’Connor in the matter. He, the witness spoke to the plaintiff’s husband about the lodgment of the money, but Mr O’Connor said ‘he wanted to keep out of it’. He never discussed with Michael where the money should be deposited, as Michael had no interest in it. He stated that Michael was at the clearance sale but that he played no part in it. He was not consulted at all. The auction lasted for four hours but Michael took no interest in it. He did not even inquire about the prices being realised. He says that Michael O’Connor was physically fairly good after the clearance sale, but mentally was blank. He attempted to discuss horses with him but could not. Michael wa not ‘with it’.

Michael went to a point-to-point with a Mrs Connolly, at Kilgollery. He says that he should not have gone, as he got lost.

Mrs Bernadette O’Connor is a daughter of the defendant Mrs Vaughan. Prior to his illness she was very friendly with her uncle, Michael. After Michael had been in St Finbarr’s Hospital she visited him frequently, at least once a week or every two weeks. He was never able to have an intelligent conversation. She described visiting Michael O’Connor at the plaintiff’s house in May 1975, the day before he went to Mallow Hospital. She describes him as looking very old, about 70 years. She asked him how he was. He shook his head and cried. She gave him a cup of tea which he was unable to hold. She said that he was incapable of any conversation other than saying that he was in terrible pain. She said after he had been in St. Finbarr’s, January 1974 he could not retain anything or remember anything for more than an hour.

Mrs Callanan is a cousin of the O’Connors. She knew Michael well. She describes him as a shy country-man. She saw him frequently after he had been discharged from St. Finbarr’s Hospital, in January 1974, and again in April 1974 when he came up to Cork for a ‘check-up’. On that occasion he visited her mother’s house in Cork. Although he was dressed well and looked well, he had a peculiar colour. He ate so much that they were afraid he was going to get sick. He did not talk but he answered simple questions. Whilst he was stronger physically in April *258 than in January 1974, he was the same mentally. She further states that after his discharge from St. Finbarr’s Hospital Michael O’Connor had no appreciation of anything save himself. She said that he was vague at his mother’s funeral. There was no change in him mentally from the time he was discharged from St. Finbarr’s Hospital. He was child-like and remote. She saw him the night before he died. He recognised her and called her a nickname. From the time he had been discharged from St. Finbarr’s Hospital, Michael O’Connor was just like a child.

I think that all the foregoing witnesses are truthful, they are telling the truth as they see it. The plaintiff, Mrs Eileen O’Connor, is a headstrong, domineering woman. This does not necessarily make her evidence untruthful or unacceptable. She certainly exercised a very substantial degree of control over all Michael O’Connor’s affairs from the time he went to live with her. All the cheques, which were drawn on his account, from that time on, were with a few exceptions, written by her, and signed by Michael. The few exceptions were two or three cheques which he wrote and signed in his own favour and one cheque for £30 which he wrote in favour of his brother Maurice. This was in repayment of three weeks’ work on the farm. Mrs O’Connor’s assumption of control of Maurice’s affairs, was due to her aggressive nature rather than sinister motives. I think that her aggressive manner antagonised all the other members of the family. Initially I thought that her husband’s evidence displayed a lack of candour. On reflection I think that this was due to a genuine desire not to become involved in her affairs. Mrs Eileen O’Connor’s characteristics justify such a desire.

John O’Connor impressed me as honest, with the exception of his account as to why Michael O’Connor came to live with him, I accept John O’Connor’s evidence, even when viewed with suspicion, as accurate, if slightly exaggerated. The defendants and their witnesses impressed me as being kindly, respectable and truthful. Even viewed by ordinary standards, I prefer the evidence of the defendants and their witnesses, to that of the plaintiff and her witnesses. I will later consider that comparison in the light of the professional evidence. I also must view the plaintiff’s evidence, not by ordinary standards, but in accordance with clearly laid down principles.

Dr. Byrne practises in Doneraile. He had considerable experience in geriatric hospitals in England. He saw Michael O’Connor in May 1974 who was then suffering from Orchitis. The deceased told him his history intelligently and coherently. He informed the doctor that he had been treated for Epilepsy and Meningitis. He went him for treatment to the Bon Secours Hospital in Cork. Dr. Byrne did not think Michael O’Connor had any brain damage. The doctor saw him in July 1974, November 1974, March 1975, and for the last time on 5 May 1975. When he was with him in May 1975 he considered Michael’s mental condition was ‘proper and all right’.

Dr. Joyce is the County Physician in Cork. He saw Michael O’Connor on his admission to the Mallow Hospital on 5 May 1975. He examined him in detail on 9 May 1975. He then described his physical condition as poor. He had swollen glands on the left of his neck and armpit and an enlarged liver. He expressed the view that *259 Michael O’Connor, on 9 May was mentally quite clear. In cross-examination Dr. Joyce admitted that on 3 December 1975 he wrote a letter to Messrs David J. O’Meara & Son, solicitors for the second-named defendant in reply to a request of information from them. In that letter, Dr. Joyce said that ‘he did not think he could give them any great help as he would be relying solely on memory after a period of seven months and on a superficial impression’. He further stated, that ‘no specific comments on the state of alertness of Michael O’Connor were recorded in the case notes by the resident medical officers and that he had been unable to check with them as they had moved to the United States’. Dr. Joyce accepted that letter as an accurate description of his knowledge about the mental condition of Michael O’Connor, deceased. He did not attempt to explain the letter. I do not intend to pay any attention to Dr. Joyce’s evidence.

Dr. Noel O’Callaghan is a neuro-surgeon attached to St. Finbarr’s Hospital, Cork. In October 1973, he firstly treated Michael O’Connor as an out-patient and subsequently as an in-patient in that hospital. Michael O’Connor was then complaining that he had had two epileptic fits, and a loss of consciousness. His memory was poor and he was not well orientated. When admitted to the hospital he had epileptic seizures. He, the witness, considered Michael might have a primary tumour of the brain, x-rays were normal. There was no evidence of a tumour. The surgeon took fluid from Michael’s spine. Further examination showed inflamation of the membranes of the brain. Michael O’Connor deceased, was suffering from meningitis incefelitus. The seizures were brought under control and Michael O’Connor was discharged on 7 January 1974.

Dr. O’Callaghan saw Michael O’Connor again on 31 January 1974. He was then dis-orientated. His remote memory was affected, and the surgeon thought he was unlikely to improve.

Dr. O’Callaghan saw Michael O’Connor for the last time on 8 June 1974 when he came up for re-examination and re-assessment. He then thought he was suffering from mental deterioration. He described this as a moderate to mild deterioration. He thought that Michael O’Connor had made an improvement mentally between January and June 1974. His evidence is not of any real assistance as to whether this improvement would have been maintained as he expressed the view that it might remain static or might have got better or worse.

When shown the letter, already referred to, dated 14 April 1975, which Michael O’Connor wrote to Mr Binchy and asked to express a view on the mental state of its author, Dr. O’Callaghan said that the letter was written by a man of capacity. It was clear that he meant mental capacity.

Dr. D. Hanley practises in Fermoy. He saw Mr Michael O’Connor on 22 October 1973 at his home at Ballyhooley. Michael O’Connor then had already had two blackouts. Dr. Hanley arranged for him to see Dr. O’Callaghan at St. Finbarr’s Hospital. Dr. Hanley again saw Michael O’Connor deceased on 22 October, 8 January, 10 January 1974, 11 January, 20 February. Dr. Hanley expresed the view that Michael O’Connor had permanent brain damage. He stated that he was incapable of managing his affairs or of making a will on any of the six occasions *260 that he saw him. When confronted with the letter which Michael O’Connor wrote to Mr James Binchy on 14 April 1975, Dr. Hanley stated that Michael O’Connor could not have written that letter at any time when he saw him.

Mr James J. Binchy Junior, in December 1974, was a solicitors’ apprentice. He had then passed his final examinations, but not being 21, was waiting his admission as a solicitor. He met Michael O’Connor deceased in the office of his father, Mr James Binchy Sr. He had not known him previously. Michael O’Connor told him he wished to make a will. The deceased gave Mr James Binchy Jr. instructions for the will. He said he was single. He said he had one brother, who had four girls, and two sisters, one of whom Mrs Vaughan had two daughters, and the other Eileen O’Connor, who had two children. He related that he gave a pub to his brother and ‘he has not treated me so well since’. This factual information about his relations was correct. He stated he wished to give three legacies of £3,000 each to Margaret O’Connor, the daughter of his brother, to Bernadette Vaughan a daughter of his sister Margaret, and Mary O’Connor, a daughter of his sister Eileen. He wished no other nephew or niece to benefit. He wished everything else to go to Mrs Eileen O’Connor his sister.

Michael O’Connor did not tell Mr James Binchy Jr., that he had been treated for brain trouble in Cork, nor was Mr James Binchy Jr. otherwise aware of this. Mr Binchy formed the opinion that Michael O’Connor deceased, was perfectly normal. He drew the will, in accordance with the deceased’s instructions on 10 December 1974. It was typed out on the same day, and on the same day was signed by the testator Michael O’Connor in the presence of Mr James J. Binchy Jr. and Mr Owen Binchy, who both then, signed it as witnesses in the presence of Michael O’Connor deceased.

Mr Owen Binchy is a solicitor and in 1971 was working in his father’s office in Charleville. He gave evidence that on 10 December 1974 he met Mr Michael O’Connor in his brother’s (Mr James Binchy Jr.’s) office. Mr Michael O’Connor gave his instructions for his will and gave the information already recited by Mr James J. Binchy Jr. The will was then typed out. Mr Michael O’Connor signed it in the presence of Mr Owen Binchy and of Mr James Binchy Jr. who then both signed it in the presence of Michael O’Connor. Mr Owen Binchy expressed the view that the testator, Michael O’Connor had capacity. He had a good memory. Michael O’Connor was in the presence of Mr Owen Binchy for 20 to 30 minutes.

Mr James Binchy, father of Mr James Binchy Jr. and Mr Owen Binchy, practises at Charleville. He impressed me as being both an experienced and careful solicitor. He has no record of but he thinks he met Michael O’Connor at his office on 10 December 1974 when Mr John O’Connor called about some other business. He thinks, but he is not sure, that there was mention of making a will and that he passed Michael O’Connor on to his sons. He has a clear recollection that on 11 December 1974 he met Michael O’Connor who called to his office. The purpose of the visit was that Mr Michael O’Connor wanted to get up some papers from Mr Anthony Carroll’s office in Fermoy. Michael O’Connor gave Mr James Binchy Sr. authority to get up these papers. Mr James Binchy Sr. recalled meeting Michael O’Connor *261 on a few occasions about this time. He thought there was nothing abnormal about him. He expressed the view that he would have had no hesitation of doing what ‘he wanted me to do or to take instructions from him’.

Mr James Binchy Sr. gave further evidence that Michael O’Connor called to his office on 12 March 1975. He was accompanied by his sister, the plaintiff. The deceased told Mr Binchy that he wanted to give this sister his farm. Mr Binchy read to the deceased the will which he had made on 10 December previously. He discussed the matter with him. At this period Mr Binchy, was acting for Mrs Eileen O’Connor, and he very properly told Mr Michael O’Connor that he would have to get independent advice before transferring his lands. Mr Binchy was with Michael O’Connor deceased, on this occasion for about a half an hour. He gave evidence of his believe that on that occasion ‘I had no reason to believe that he was not able to do business’.

That interview ended on the basis that Mr Binchy was to prepare a draft transfer and arrange for Mr Michael O’Connor to get independent advice.

Mr Binchy then prepared a draft transfer of the deceased’s lands to Eileen O’Connor. A copy of this draft was not put in evidence. The evidence discloses that its terms were not as beneficial in securing rights for Michael O’Connor as were contained in a transfer subsequently prepared the engrossment of which is dated 5 May 1975.

Mr James Binchy Sr. arranged that Michael O’Connor, deceased, would receive independent advice from Mr Finbarr McCarthy, Solicitor, Charleville.

Mr James Binchy Sr. further gave evidence that on 26 March Mr Michael O’Connor, deceased, returned with Mrs Eileen O’Connor to his office at Charleville. He was sent, accompanied by Mr James Binchy Jr., to the office of Mr Finbarr McCarthy, Solicitor, in the same town. Mr James Binchy Jr. brought a draft deed prepared by his father to Mr McCarthy.

Mr Finbarr McCarthy is a solicitor practising in Charleville. He gave evidence that on 26 March 1975 Mr Michael O’Connor, accompanied by Mr James Binchy Jr. called to his office. Mr McCarthy already had the folios relating to Mr Michael O’Connor’s lands. Mr McCarthy stated in evidence that Mr Michael O’Connor told him that he was aged 47. That he was not married. That he had one brother and two sisters. He further informed him that he was in bad health and was not able to ‘keep going’. He told Mr McCarthy that he had a public house but had given it to his brother and that he wanted to give all his property to his sister Eileen O’Connor, who was looking after him. He further stated that he wanted to give £3,000 each to three nieces and that he wished to keep nothing for himself. Mr McCarthy formed the opinion that the transaction was improvident, particularly owing to Michael O’Connor’s age. Mr McCarthy estimated the property to be then worth £90,000, and Michael O’Connor was not reserving adequate security for himself. Mr McCarthy advised Mr Michael O’Connor against the transaction.

Mr McCarthy stated in evidence, ‘I thought he was capable of transacting business’.

Mr James Binchy Sr. gave evidence that having seen Mr McCarthy, Michael *262 O’Connor returned to his office. He then discussed some possible alterations in the draft transfer. He suggested that a bulk payment be made and further that there should be an increase in the annuity reserved to Michael O’Connor.

Subsequent to this negotiations took place between Mr McCarthy and Mr Binchy who was acting for Eileen O’Connor. These negotiations related to terms, which Mr McCarthy would deem acceptable, and on which, he would be prepared to give independent advice to Michael O’Connor to execute the transfer. I can find no evidence that Mr McCarthy had any instructions or authority from Michael O’Connor to conduct these negotiations on his behalf.

When these terms were agreed, Mr James Binchy Sr. prepared a draft transfer. This he sent in the first instance to Mrs Eileen O’Connor. Michael O’Connor objected to the provisions of the proposed transfer. He clearly indicated that they were not in accordance with his instructions or desires. On 14 April 1975 Michael O’Connor wrote to Mr Binchy the letter already quoted in full.

It was not suggested that Michael O’Connor was not the writer and author of that letter.

It was thought desirable that Michael O’Connor should get further independent advice. Mrs Eileen O’Connor gave Michael O’Connor a list of the names of three solicitors. From this he picked the name of Mr Neary, Doneraile.

Mr Michael Neary is a solicitor practising in Doneraile. He received a copy of the draft transfer and the engrossment of the transfer from Mr Binchy. About 26 or 27 April 1975, he met the deceased at Mrs Eileen O’Connor’s house. He did not know him before., He had spoken to Mr James Binchy Sr. about the matter on the telephone before that date. He gave evidence that he read the transfer to Michael O’Connor and that Michael O’Connor said that that is what he wanted done. Michael O’Connor then signed the transfer in his presence. Mr Neary gave evidence that he was with Michael O’Connor for three quarters of an hour. That Michael O’Connor was perfectly clear. He further stated that if he had been asked he would have made a Will for Michael O’Connor that day.

Mr Neary also stated in evidence that he made social visits to Michael O’Connor in the ward in Mallow Hospital subsequently and then found him perfect mentally. That his mental condition was perfect, although he physically was not well.

Mr Neary gave Mr Michael O’Connor no independent advice. I do not think he gave him any advice independent or otherwise.

Mr Neary returned the executed transfer to Mr Binchy. It was subsequently dated 2 May, presumably the date upon which the transferee, Eileen O’Connor, executed it. When Mr Binchy Sr. received back the draft transfer, he compared its provisions with the Will of Michael O’Connor, deceased, dated 10 December 1974. It occurred to him that confusion could arise by reason of the gift in the Will of £3,000 each to the three nieces, and the benefits of £1,000 each to the same three nieces in the deed., Accordingly, Mr Binchy very properly wrote to Mr Michael O’Connor asking him did he wish to clarify this position in a new Will.

As the result of a message Mr James Binchy Jr. accompanied by Mr William Dunne, a law clerk, since deceased, went from Charleville to Mrs Eileen *263 O’Connor’s house in Doneraile on 5 May 1975 to see the deceased.

Mr James Binchy Jr. gave evidence of interview with the deceased. He stated that he brought the previous Will of 10 December 1974 with him and also a copy of the transfer. He met the deceased in Mrs Eileen O’Connor’s dining room. The deceased was dressed and expecting him. The deceased told him he was going into hospital. The deceased was normal. Mr James Binchy Jr. read the transfer and the previous Will to the deceased. He asked him did he wish to clarify it in any way. The deceased said that his nieces were only to get the £1,000 in the deed. Everything else was to go to Eileen. Mr Binchy Jr., said that he there and then wrote out the Will of the deceased dated 5 May 1975. The Will was read to the deceased. The deceased approved. It was then properly executed by the deceased in the presence of Mr Binchy Jr. and of Mr William Dunne. Mr Binchy and Mr Dunne then executed the Will in the presence of Michael O’Connor. Mr Binchy stated that on this occasion he was with the deceased for three quarters of an hour. That Michael O’Connor was perfectly normal although physically weak. That he showed no signs of distress. Mr James Binchy Jr. dictated an attendance docket which has been filed as a script. This was put in evidence. It reads:

Michael O’Connor, Northpark, Doneraile.

5th May 1975 J.J.B.

After a message received by our Mr. Binchy Senior Mr. Dunne and myself set out to draw your Will in Doneraile. We arrived at the house and I explained to you the position with regard to the money to the children. I read over your last Will made in December and said by that you were giving them £3,000. And I read over the deed stating that they were getting £1,000. And you said that was all they were to get and that your sister Eily was to get everything. I thereupon drew up your Will leaving everything to your siser Eileen and you were very satisfied with the same and you signed it in Mr. Dunne’s and my presence and we subscribed our names as witnesses. You also said that there was a life insurance policy that was to go to your sister also. We assured you that this would do so as she was residuary legatee getting everything.

Mr Dunne also dictated a record of his attendance on 5 May 1975, which when typed, he initialled. This was lodged as a script. Mr William Dunne died on 27 January 1977. His death was formally proved.

Mr Fahy SC on behalf of the plaintiff sought to put the attendance docket 5 May 1975 initialled by Mr Dunne in evidence, as a declaration made by a deceased person in the course of duty. He relied on Rawlins v Rickards (1860) 28 Beav. 370 and Cross on Evidence 2nd Edition 1963 p 403.

Mr Liston SC objected on the ground that a declaration in the course of duty, to be admissible, must be as to the deceased declarer’s own acts. He relied on The Henry Coxon (1878) 3 P.D. 156.

Without deciding this legal issue, I ruled that the attendance docket should not be put in evidence. In this case the substantial issue is one of the degree of mental incapacity; how far, if at all, Michael O’Connor had recovered from his admitted brain injury. On such an issue, I thought, it unwise to admit any evidence, without it being subjected to the scrutiny of cross-examination.

The onus of proof lies on the plaintiff propounding a Will. In this case it goes further and is heavier. In his closing submission Mr Liston SC described Michael *264 O’Connor as living ‘under the protection’ of his sister Mrs Eileen O’Connor. I accept and adopt this as an apt description of the relatonship which exists between Michael O’Connor and the plaintiff, Mrs Eileen O’Connor, at relevant times. The facts of this case bear no resemblance to those of Corboy v Leahy [1969] IR 148, but I consider the circumstances are such that the principles enunciated in Fulton v Andrews (1875) LR 7 HL 448 and in Corboy must be applied. One must be suspicious of Mrs Eileen O’Connor’s evidence and be vigilant and zealous in examining it. I must not pronounce in favour of either Will unless my suspicions are removed, and I am satisfied that the paper propounded expresses the true Will of the deceased.

When I regard Mrs Eileen O’Connor’s evidence, in accordance with this injunction, my preference, already expressed in favour of the evidence given by the defendants and their lay witnesses is increased and strengthened.

I must consider the evidence of the professional witnesses. I accept the evidence of Mr James Binchy Sr., Mr James Binchy Jr., Mr Owen Binchy, Mr Finbarr McCarthy and Mr Neary. I accept the evidence of Dr. Byrne, I am unable to accept the evidence of Dr. Joyce. I accept the evidence of Dr. Noel O’Callaghan, as to Michael O’Connor’s mental condition from 29 October 1973 to 7 January 1974 and as on 8 June 1974. I accept Mr Callaghan’s evidence that Michael O’Connor had meningitis which left him with a moderate to mild mental deterioration. I am unable to accept the evidence of Dr. Hanly, as it is in conflict with the evidence of his medical colleagues, which I prefer.