“Beyond Mere Reference”: The High Court Clarifies the Intention Required to Revive a Revoked Will under s. 87 Succession Act 1965

Introduction

The recent High Court decision in Re The Estate of Honor Duncan McCulloch (deceased) ([2025] IEHC 400) provides the first comprehensive Irish treatment of what is needed to revive a previously revoked will under s. 87(1) of the Succession Act 1965. Ms Justice Stack was asked to determine whether a 2022 codicil—mistakenly referring to the testatrix’s 2015 will—revived that earlier will and thereby nullified a later 2020 will which contained a more generous charitable bequest.

The applicants (executors under both wills) sought probate of the 2020 will together with the codicil, contending that the codicil did not effect revival of the 2015 will. Some residuary beneficiaries were minors, whose parents supported the application. No party opposed the relief, but the Court was required to rule on the legal question in order to settle the form of the grant.

Summary of the Judgment

The Court held that a revoked will can only be revived under s. 87 where the codicil “shows an intention to revive it”.
Mere reference to the earlier will by date, even when coupled with the phrase “In all other respects I confirm my Will”, is insufficient to demonstrate the statutory intention.
Accordingly, the 2015 will was not revived; the 2020 will, along with the codicil (minus the erroneous date-reference), was admitted to probate.
The Court expressly aligned Irish law with the English rule in In the Goods of Steele (1868) and distinguished authorities where fuller textual cross-reference existed.

Detailed Analysis

1. Precedents Cited

The Judgment traverses a line of authorities spanning 150 years:

In the Goods of Steele [1868] LR 1 P & D 575 – held that revival demands more than a simple date reference; endorsed as “settled law”.
Re Baker [1929] 1 Ch 668; Re Pearson [1963] 1 WLR 1358 – English cases where inadvertent revival occurred, mainly cited to show divergence that sometimes arises.
Re Dear [1975] 2 NZLR 254 – New Zealand Court of Appeal adopting Steele.
McLeod v. McNab [1891] AC 471 (PC) – relied on by counsel to suggest “confirm” may equal “revive”; Stack J reads the case more narrowly.
Brennan v. O’Donnell [2015] IEHC 460 – Irish decision approving Steele; distinguished on facts (codicil physically annexed to earlier will).
Additional English probate decisions (In the Goods of Wilson, Gordon, Snowden, Ince, Goldie v. Adam) and textbooks (Theobald; Williams, Mortimer & Sunnucks) confirm the orthodoxy.

Stack J synthesises these materials to settle Irish law: the Steele test applies, and neither the word “confirm” nor the date reference suffices absent contextual indicators pointing “with reasonable certainty” to revival.

2. Court’s Legal Reasoning

Statutory Text. Section 87 Succession Act mirrors s. 22 Wills Act 1837: revival requires (a) re-execution or (b) a codicil “showing an intention to revive”.
No Implied Revival. Parliament intended to abolish common-law implied revival; therefore courts must look for express or clearly implied intention inside the codicil itself.
Applying the “Armchair” Principle. The Court may consider surrounding circumstances known to the testatrix, but only where the wording is ambiguous. Here, circumstances (unchanged charitable Letter of Wishes, instruction merely to “even things out”) reinforced that she did not intend to undo the 2020 will.
Significance of “Confirm”. The Judge held that, divorced from specific content pointing to the 2015 instrument, the boiler-plate phrase “I confirm my Will” is too general to satisfy s. 87.
Practical Outcome. To prevent future confusion the words “dated 29th September 2015 (‘my Will’)” are to be omitted from the probate copy of the codicil pursuant to the Court’s power to sever erroneous parts.

3. Potential Impact

Probate Drafting Standards. Solicitors must ensure that codicils referring to the testator’s “Will” identify the latest unrevoked will, or risk nullifying subsequent wills.
Litigation Reduction. By providing an authoritative Irish decision, the ruling should limit future disputes where codicils contain incorrect will-dates.
Charitable Gifts Protected. The Court’s willingness to admit extrinsic circumstances may safeguard updated pecuniary/charitable provisions even where drafting lapses occur.
Academic Clarification. The judgment fills a gap left since Brennan v. O’Donnell, confirming that Ireland follows Steele and rejecting a broad reading of McLeod v. McNab.

Complex Concepts Simplified

Codicil: A separate document that amends, explains or adds to a will but must itself be executed with the same formalities as a will.
Revoked Will: A will that has been legally cancelled, typically by a later will containing a general revocation clause.
Revival: The legal reinstatement of a revoked will so that it once again disposes of the testator’s estate.
General Revocation Clause: Language in a will declaring that all previous testamentary instruments are revoked.
Armchair Principle: The interpretive rule that courts may place themselves in the position of the testator—considering surrounding facts known to him/her—when construing ambiguous terms.
Severance/Omission in Probate: The Court may omit mistaken words from the probate copy where they do not reflect the testator’s true intention.

Conclusion

Re McCulloch sets a clear, practical benchmark: a codicil must do more than name-check an earlier will to revive it. Unless the codicil’s language or context unmistakably conveys an intention to bring the revoked will back into force, the earlier will remains dead. This clarification will shape probate practice, encourage meticulous drafting, and provide greater certainty for beneficiaries—particularly where multiple wills and codicils coexist. By aligning Irish jurisprudence with the authoritative English decision in In the Goods of Steele, the High Court has closed a potential loophole and fortified the integrity of testamentary planning under Irish law.