Attesting a Codicil and the Witness–Beneficiary Rule: High Court Clarifies the Scope of Section 82 Succession Act 1965

1. Introduction

This commentary examines the decision of the High Court of Ireland (Stack J.) in In the Matter of the Estate of Daniel Doran (Deceased), [2025] IEHC 646, a probate judgment that addresses a deceptively simple but practically important question:

Does a beneficiary under a will forfeit that benefit merely because he or she later attests a codicil, where the codicil itself gives that beneficiary no benefit?

The case arose in the non-contentious probate list, but Stack J. delivered a written judgment because the point of law has clear significance for probate practitioners and will-drafters, particularly in deathbed or “homemade” codicil situations.

The core holding is that the Irish “witness–beneficiary” rule (now contained in the Succession Act 1965) invalidates only those gifts which are “given or made by the will” that the beneficiary (or their spouse) has attested. It does not extend to benefits conferred by a different testamentary instrument that the beneficiary did not witness, even where that instrument and a later codicil together constitute the deceased’s “last will”.

2. Factual and Procedural Background

2.1 The 2018 will

• On 11 January 2018, the deceased, Daniel Doran, executed a will (“the Will”).
• He appointed his wife Mary as Executrix and sole beneficiary.
• He further provided that if Mary predeceased him:
  • his daughter, Mary Barton (the applicant), would be his sole Executrix; and
  • his entire estate would be divided equally among his five children (including the applicant and her brother Martin).
• Mary Doran executed a mirror will in similar terms on the same day.
• The 2018 Will was properly witnessed in the usual way by the deceased’s solicitor and a legal secretary, both disinterested.

2.2 The 2023 joint codicil

By 1 June 2023, Mary Doran was terminally ill and an inpatient in a hospice. The couple wished to ensure that a specific property in County Leitrim (a cottage and land), which was in Daniel’s sole name, passed to their son Patrick.

To that end, Daniel and Mary signed a joint codicil (“the Codicil”), drafted by their son Martin, in the hospice, in the presence of:

• their daughter Mary Barton (the applicant), and
• their son Martin,

both of whom signed as witnesses.

The relevant text of the Codicil was:

“We Daniel & Mary Doran of 98 Dunsink Drive, Finglas South, Dublin 11 are adjusting our previous will & testament with a revised allocation regarding one of our properties (as detailed below). All other elements of the of our previous will and testament remain in force.

The property in question is located at [an address in County Leitrim] and will be left in its entirety upon our deaths to our son Patrick Doran.”

The Codicil therefore had the effect that, on Daniel’s death, the Leitrim property would not form part of the general residue to be divided equally among the five children; instead, it would pass outright to Patrick. This reduced the shares that Mary (the applicant) and Martin would otherwise have taken under the 2018 Will.

2.3 The legal concern

Both Mary Barton and Martin:

• were beneficiaries under the 2018 Will; and
• attested the 2023 Codicil.

Under Irish law, a gift to an attesting witness (or their spouse) is ordinarily void, even though their evidence remains admissible to prove the will. That rule now appears in the Succession Act 1965 (replacing s. 15 of the Wills Act 1837).

The potential argument against the applicant was:

• “Will” under the Succession Act includes a codicil.
• The deceased’s “last will” consisted of both the 2018 Will and the 2023 Codicil.
• Mary Barton and Martin had attested the execution of (a component of) that last will.
• They also took benefits under that last will (namely, their shares in the residue under the 2018 Will).

This gave rise to the question: does the gifts-to-attesting-witnesses rule invalidate their residual shares?

Although probate had already been granted in the non-contentious list, Stack J. delivered this written judgment to clarify the law.

3. Summary of the Judgment

Stack J. held that the witness–beneficiary rule in the Succession Act 1965 did not apply to invalidate the benefits Mary Barton and Martin took under the 2018 Will. The key points of the decision are:

1. The 2018 Will and the 2023 Codicil are both valid and are admitted to probate. The Codicil is a valid testamentary document; its form as a joint codicil and its reference to “our property” do not cause difficulty, nor does the reference to “our previous will”.
2. The witness–beneficiary rule only voids gifts “given or made by the will” that the witness attests. Here, Mary Barton and Martin:
   • did not witness the 2018 Will (which conferred on them equal shares in the residue); and
   • did witness the 2023 Codicil, but that codicil conferred no benefit on them and, in fact, reduced their shares.
   Consequently, the statutory rule does not strike down their legacies.
3. The concept of “republication” via codicil (discussed in English case law) does not apply on these facts. The Codicil here did not purport to confirm and re‑issue the Will as a new instrument; instead, it simply amended the disposition of one asset and expressly stated that all other elements of the earlier will remained in force.
4. The court aligns the Irish position with the established English rule summarised in Williams on Wills: a gift under a will is not invalid merely because the beneficiary later attests a codicil, unless that beneficiary also receives a benefit under the codicil itself.

4. Legislative Framework and Historical Background

4.1 The witness–beneficiary rule: from Statute of Frauds to Succession Act 1965

The judgment briefly traces the evolution of the rule that addresses the risk of undue influence or fraud where a witness to a will stands to benefit under it.

1. Statute of Frauds 1677 (29 Chas. II, c.3)
   Required wills of land to be attested by “credible” witnesses, originally understood as disinterested persons; a beneficiary could not be a “credible” witness.
2. Attestation of Wills Act 1752 (25 Geo. II, c.11 (Ir.))
   The courts began to relax the strict rule. Beneficiaries could testify as witnesses, but any benefit to such a witness was void. The 1752 Act placed that development on a statutory footing.
3. Wills Act 1837, s. 15 (England & Wales)
   Codified and extended the rule to the spouses of beneficiaries. Section 15 provided that if any person attested a will “to whom or to whose wife or husband” a beneficial gift was “thereby given or made”, that gift was “utterly null and void”. The attesting witness remained competent to prove the will.
4. Succession Act 1965 (Ireland)
   Section 15 of the 1837 Act was repealed in Ireland, and the matter is now governed by the relevant provision of the 1965 Act (referred to in the judgment as s. 85 in para. 7 and as s. 82 elsewhere). The judgment quotes the operative text:

   “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, 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 of that person, or any person claiming under the person, be utterly null and void.”

Section 3 of the Succession Act 1965 provides that “will includes codicil”. This definitional point is what initially seems to complicate the present case: if “will” includes “codicil”, does a beneficiary who witnesses any codicil risk losing a gift conferred under the original will?

4.2 The policy rationale

The policy across all these enactments is to:

• Discourage fraud and undue influence by ensuring that those who attest a will are not incentivised to support a suspect document from which they benefit.
• Preserve the practical utility of having interested persons as witnesses, where necessary, by voiding only their benefits rather than the entire will.

As both the 1837 Act (s. 15) and the 1965 Act make clear, the sanction is carefully targeted: the gift to the attesting witness or their spouse is void, but:

• the testamentary instrument remains valid; and
• the witness remains competent to prove the will.

5. Precedents and Secondary Authorities Discussed

5.1 Joint wills and codicils: Re Stracey and Re Raine

Stack J. first addresses the form of the Codicil as a joint testamentary document executed by both spouses. Relying on the well-known text Williams, Mortimer and Sunnocks (22nd ed., 2023), she cites the passage (para. 10‑13) which, in turn, draws on Re Stracey (1855) Dea. & Sw. 6:

Joint wills, if duly executed by both testators, are “as much the will of each [testator] as if they had made separate wills each dealing with that person's own property”.

The court also refers to Re Raine (1858) 1 Sw. & Tr. 144; 164 E.R. 667, which indicates that where a joint will is intended to take effect only on the death of the survivor, it may not be admitted to probate until both testators have died.

In the present case, none of those technicalities created a live issue because:

• The application was made only in Daniel Doran’s estate (Mary having predeceased him).
• The Leitrim property was in Daniel’s sole name.
• The Codicil was clearly effective, as respects Daniel’s estate, to redirect that property to Patrick.

5.2 Mutual wills doctrine (obiter)

The phrase “our previous will” in the Codicil, despite the fact that Daniel and Mary had separate wills, could be read as suggesting an intention that their wills be mutual wills. Under the doctrine of mutual wills, a testator may, in equity, become bound not to revoke their will after the death of the other testator, giving rise to a form of constructive trust over the estate.

Stack J. notes the potential implication but expressly states that no issue arises, because:

• Daniel Doran never revoked his Will.
• Accordingly, even if the wills were “mutual” in the equitable sense, there is no departure from any binding arrangement.

This observation is obiter but serves as a useful reminder to practitioners of the complexities surrounding joint and mutual wills and the importance of precise drafting where spouses intend to bind one another.

5.3 Williams on Wills and the English position

In paragraph 9 of the judgment, Stack J. cites Williams on Wills (10th ed., 2014) at p. 109, para. 9.5, which summarises the English law position on the issue in the following terms:

“A gift by a will to a beneficiary is not rendered invalid by the fact that the beneficiary attests a codicil to the will, even though the codicil confirms the will unless he also receives a benefit under the codicil.”

Williams relies in particular on:

• Gurney v. Gurney (1855) 3 Drew 208; 61 E.R. 882; and
• Re Marcus (1887) 57 L.T. 399.

These authorities were also relied on by the applicant in the present case.

5.4 Gurney v Gurney (1855) 3 Drew 208; 61 E.R. 882

In Gurney v Gurney:

• The testator, by his will:
  • left a legacy of £100 to F; and
  • gave T a share in the residue.
• Neither F nor T witnessed the will.
• Both F and T later attested codicils to the will.
• By the first codicil, the testator revoked several legacies (not F’s legacy). This increased the amount falling into the residue, which indirectly benefited T but not F.

The Vice-Chancellor had to consider the effect of s. 15 of the Wills Act 1837, which used the wording:

“If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate … shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall … be utterly null and void …” [Emphasis added.]

The Vice-Chancellor held that:

• The word “thereby” was crucial: the section applied only where the gift was given or made by the same instrument that the witness attested.
• The legacies to F and T were given by the original will, not by the codicils that they witnessed.
• Accordingly, the gifts to F (direct legacy) and to T (share of residue) were not void under s. 15.
• As to the indirect benefit T obtained because the codicil increased the residue, the court did not treat that as a gift “thereby” given by the codicil; T still took under the will.

Stack J. regards the interpretive approach in Gurney as persuasive for the analogous wording in the Succession Act 1965, even though the Irish section does not use the exact word “thereby”.

5.5 Anderson v Anderson (1871–72) L.R. 13 Eq. 381

In Anderson v Anderson:

• The wife of a legatee witnessed the original will, under which her husband took a benefit.
• A later codicil (properly witnessed, without involvement of the wife) confirmed the will.

Sir James Bacon V.-C. emphasised the policy behind s. 15 and concluded:

• The earlier will, having been defectively attested (because of the beneficiary’s spouse as witness), did not comply with the Wills Act and therefore was not a “will” for purposes of the Act.
• The properly executed codicil, confirming the prior document, operated as a republication of the will, so the legatee could be treated as taking under the codicil, not the flawed earlier will.
• Given that the codicil was witnessed by disinterested witnesses, the policy behind s. 15 was satisfied, and the gift could stand.

Stack J. notes that this “republication” reasoning is not entirely consistent with Gurney, and she distinguishes it carefully in the context of the Succession Act 1965.

5.6 Re Marcus Deceased (1887) 57 L.T. 399

Although details of Re Marcus are not set out in the judgment, it is cited alongside Gurney in Williams on Wills as supporting the same principle: a beneficiary’s attestation of a codicil does not invalidate an earlier gift under the will, unless the codicil itself confers a benefit on that beneficiary.

6. The Court’s Legal Reasoning

6.1 Step 1: Identify the relevant statutory rule

The relevant provision of the Succession Act 1965 (identified in the judgment, with some inconsistency in numbering, as s. 85 / s. 82) provides, in substance, that:

• where a person attests the execution of a will, and
• a beneficial gift of or affecting property is given or made by the will to that person or their spouse,

then that gift alone is “utterly null and void”, so far as concerns that attesting witness, their spouse, or any person claiming under them.

Section 3 extends the word “will” to include a codicil. The key interpretive question is therefore:

What counts as a gift “given or made by the will” which the witness attests?

6.2 Step 2: The potential broad interpretation and why it was rejected

One might argue (as the judge herself sketches in para. 8) that:

• Since “will” includes “codicil”, the deceased’s “will” in this case is the combination of the 2018 Will and the 2023 Codicil.
• Mary Barton and Martin, by witnessing the Codicil, have attested “the will” in this broad sense.
• Because they also take benefits under that “will” (the residual shares under the 2018 Will), their gifts should be void under the statute.

Stack J. rejects this broad reading. Instead, she emphasises the wording that the relevant gift must be “given or made by the will” that has been attested. This closely echoes the interpretive approach in Gurney to the phrase “thereby given or made” in s. 15 of the 1837 Act.

6.3 Step 3: Applying the “natural and ordinary meaning”

At paragraph 13, the judge crystallises the point:

“The effect of [the section] is to render void ‘any devise, bequest, [etc]… given or made by the will’ to a person attesting the execution of the will. In this case, the share in the residue is ‘given’ to the applicant and her brother, Martin, by the Will and not the Codicil. Neither the applicant nor her brother witnessed the Will. Applying the natural and ordinary meaning of [the section] to the facts of this application, the provision does not apply as the beneficiaries in question did not witness the execution of the testamentary document from which they benefitted.”

The analysis thus proceeds as follows:

1. Identify the specific testamentary instrument by which the relevant benefit is given:
   • Mary and Martin’s shares in the residue were conferred by the 2018 Will.
2. Ask whether the beneficiary attested that same instrument:
   • They did not witness the 2018 Will.
   • They only witnessed the 2023 Codicil, which did not confer a benefit on them.
3. Conclude that the statutory condition (“given or made by the will” that is attested) is not satisfied.

On this natural reading, the rule does not operate merely because a beneficiary witnesses some part of the overall testamentary scheme. It operates only where:

• the instrument they attest is also the instrument that makes the gift to them or their spouse.

6.4 Step 4: Addressing Gurney’s indirect benefit issue (left open)

Stack J. notes a distinction between the present case and Gurney:

• In Gurney, T’s share of the residue was enlarged by virtue of the codicil he attested (which revoked other legacies).
• In the present case, the codicil reduced the shares of Mary and Martin; they gained nothing—indeed, they “lost”—by attesting it.

At paragraph 14, the judge expressly leaves open whether the aspect of Gurney that permits an indirect benefit from a codicil (by enlarging a residue) would be good law under the Succession Act 1965:

“I would leave to a case where the point arises for determination whether that aspect of Gurney v. Gurney is good law having regard to the provisions of [the relevant section] of the 1965 Act.”

Thus, while the decision aligns with Gurney on the core interpretive principle (“by the will” / “thereby”), it does not definitively endorse the permissibility of indirect increases in benefit arising from a codicil witnessed by the beneficiary.

6.5 Step 5: Rejecting the “republication” route from Anderson v Anderson

The judge then distinguishes Anderson v Anderson, in which the idea of republication by codicil was used to save a bequest otherwise affected by the witness–beneficiary rule:

• In Anderson, the earlier will itself was arguably not a valid “will” under the 1837 Act because of defective attestation (the beneficiary’s spouse as witness).
• A later codicil, properly executed, confirmed the will; the gift was treated as arising under that codicil, not the flawed will.

Stack J. finds that rationale unpersuasive in the context of the Succession Act 1965, noting that:

• The rule (both under s. 15 of the 1837 Act and under the 1965 Act) has never invalidated the entire will; it only voids the particular gift to the attesting witness or spouse.
• Both Acts explicitly preserve the admissibility of the witness’s evidence to prove the will.

She therefore doubts the premise—accepted in Anderson—that a will with a gift to an attesting witness is not a “will” under the statute at all. Instead, it is still a valid will; it simply contains a void gift.

Furthermore, the factual circumstances in Doran are materially different:

• The 2018 Will here was properly witnessed, with no defect.
• The Codicil did not purport to confirm or republish the entire will; it merely adjusted the disposition of one property while stating that all other elements “remain in force”.

At paragraph 20, she observes:

“It might be thought that this aspect of the reasoning based on ‘republication’ is applicable here, given the express statement in the Codicil that, other than the amendment effected thereby, the earlier Will remained in force. However, I think the natural and ordinary meaning of those words in the Codicil is that it was not to be taken as impliedly revoking the earlier Will, save insofar as the Leitrim property was concerned. In those circumstances, the reasoning in Anderson v. Anderson, and specifically the finding that the codicil constituted a ‘republication’ of the Will, is not applicable here.”

Accordingly, the decision proceeds squarely on a straightforward textual reading of the 1965 Act, without recourse to any concluding “republication” fiction.

6.6 Step 6: Final order

On the basis of this reasoning, the High Court ordered that:

• both the 2018 Will and the 2023 Codicil are admitted to probate; and
• the benefits to Mary Barton and Martin under the 2018 Will remain valid, unaffected by their role as witnesses to the Codicil.

7. Simplifying Key Legal Concepts

For non-specialists, several technical terms used in the judgment are worth clarifying.

7.1 Will, codicil, and “last will”

• Will: A legal document setting out how a person’s property is to pass on death, and often appointing executors to administer the estate.
• Codicil: A separate, later document which amends, adds to, or partially revokes a will. Under the Succession Act 1965, a codicil is treated as a species of “will”.
• Last will: In probate practice, this usually describes the entire set of testamentary papers that are operative at the testator’s death—often an original will plus one or more codicils.

7.2 Joint, mirror, and mutual wills

• Mirror wills: Two separate wills, usually by spouses, with matching or reciprocal provisions (e.g., each leaves everything to the other and then to the same children). Each testator remains free to revoke or change their own will.
• Joint will: A single document executed by two (or more) people as their will. It can, in principle, be admitted to probate as the will of each testator, but it can raise technical issues, especially about what is effective when one testator survives the other.
• Mutual wills: Separate wills made in pursuance of a binding agreement that neither will be changed after one of the testators dies. In equity, this can create a constructive trust over the property of the survivor, restricting their freedom to dispose of it inconsistently.

7.3 Residue and residual beneficiaries

• Residue: What is left of an estate after all debts, expenses, specific legacies, and specific devises have been paid or transferred.
• Residuary beneficiary: A person entitled to share in that residue. In this case, the five children of Daniel Doran were residuary beneficiaries if Mary Doran predeceased him.

7.4 Attestation and witnesses

• Attestation: The act of witnessing the testator’s signature on a will or codicil and then signing as a witness, confirming that the testator executed the document in their presence (and usually that the signing complied with statutory formalities).
• Attesting witness: A person who signs to confirm that they have witnessed the testator sign or acknowledge their signature.

7.5 Republication by codicil

“Republication” is an older technical doctrine: a later codicil confirming a will may be treated as if the will were re‑executed on the date of the codicil. This can have various consequences (e.g., for which law applies, or who is a “child” at that date). Its relevance to the witness–beneficiary rule is controversial and, as Stack J indicates, limited in modern Irish law:

• a will that contains a gift to an attesting witness is still a valid will; only the gift is void; and
• the need for republication to “rescue” validity is therefore questionable.

7.6 Non-contentious probate

The application arose in the non-contentious probate list, which deals with:

• unopposed applications for grants of probate (where there is a will) or grants of administration (where there is not);
• procedural or technical issues which may nonetheless require judicial clarification.

Although no party here contested the validity of the Codicil or the gifts, Stack J. identified that a point of law of wider importance was involved and delivered a written judgment accordingly.

8. Practical and Doctrinal Impact

8.1 Clarifying the scope of the witness–beneficiary rule

The principal doctrinal contribution of this decision is the clear statement that:

A beneficiary under a will does not lose that benefit merely by attesting a later codicil, provided that the codicil itself does not confer a benefit on them and the benefit arises under a will they did not attest.

This aligns Irish law with the English approach as summarised in Williams on Wills and exemplified by Gurney v Gurney and Re Marcus. It also gives the phrase “given or made by the will” in the Succession Act 1965 a concrete and workable meaning.

8.2 Codicils in practice: reducing anxiety in emergency situations

The circumstances of this case—an end-of-life codicil executed in a hospice, drafted by a family member—are common in practice:

• Families often need to make rapid, specific changes to existing wills (e.g., in relation to a single property).
• The available witnesses may themselves be beneficiaries or close relatives.

Stack J. expressly recognises the importance of permitting “homemade” testamentary documents in such circumstances (paragraph 6), emphasising that:

• the law should facilitate the clear expression of testamentary wishes at the end of life; but
• there are “pitfalls” in drawing up joint documents or ad hoc codicils without legal advice.

This judgment meaningfully reduces the risk that a beneficiary who acts as a witness in an emergency codicil will inadvertently forfeit their earlier entitlements under a properly executed will, provided the codicil itself does not grant them anything.

8.3 Cautionary notes for practitioners

Despite this clarification, the decision also signals several points of caution:

1. Best practice remains to use disinterested witnesses.
   While the law now clearly protects a beneficiary’s earlier gift in the precise circumstances of this case, it is still advisable to avoid:
   • beneficiaries, and
   • beneficiaries’ spouses
   as attesting witnesses wherever possible, whether for wills or codicils.
2. Indirect benefits via codicil remain uncertain.
   The court declined to determine whether a codicil that indirectly enhances a beneficiary’s share of a residue (through revocation or alteration of other gifts) might fall foul of the statutory rule. Practitioners should therefore:
   • assume that using a beneficiary as a witness to any codicil that improves their position is risky; and
   • structure such changes, where necessary, with independent witnesses.
3. Joint and mutual wills can be traps for the unwary.
   The judgment briefly cautions about the “pitfalls” of joint testamentary documents and hints at the complexities of mutual wills. Practitioners should:
   • avoid casual language about “our will” or “our property” if the intention is not to create mutual wills; and
   • ensure that spouses understand the difference between mirror wills (freely revocable) and mutual wills (potentially binding in equity).

8.4 Doctrinal alignment with English law, with an Irish gloss

Doctrinally, the decision:

• affirms the persuasive value of English authorities under the Wills Act 1837 (especially Gurney and Re Marcus) when interpreting analogous provisions of the Succession Act 1965;
• questions, however, the reasoning of Anderson v Anderson which treats a will with a void witness-beneficiary gift as not being a “will” at all under the statute;
• anchors the interpretation of the Irish statute in its text (“given or made by the will”) and in the express statement that only the particular gift is void, not the entire will.

In doing so, Stack J. offers an “Irish gloss” on the English case law: republication doctrines are not needed to preserve the validity of gifts that are in truth made by an earlier, valid instrument.

9. Conclusion

The decision in Re The Estate of Daniel Doran (Deceased) provides a clear and practically important clarification of the Irish law on gifts to attesting witnesses:

• The statutory rule in the Succession Act 1965 invalidates only those benefits which are “given or made by the will” that the beneficiary (or their spouse) has attested.
• A beneficiary does not forfeit an earlier entitlement under a will simply by witnessing a later codicil that:
  • does not itself confer any benefit on them; and
  • may even reduce their share.
• Both the original will and the codicil remain valid and are admitted to probate.

The judgment:

• harmonises Irish practice with long-established English authority;
• confirms that the law does not lightly penalise beneficiaries who act as witnesses to purely redistributive or disadvantageous codicils; and
• signals that while the law accommodates homemade and urgent testamentary instruments, legal advice remains highly desirable to avoid avoidable pitfalls—particularly in complex arrangements such as joint or mutual wills, or where beneficiaries may stand to benefit from the instrument they witness.

For practitioners, the key takeaway is that the focus under the Succession Act 1965 must always be on the specific instrument that both:

1. confers the gift; and
2. is attested by the witness–beneficiary.

Where those two coincide, the gift is void. Where they do not, as in the Doran estate, the gift stands.