Invalidity of Post-Execution Alterations under Section 86 of the Succession Act 1965

Introduction

The Estate of Michael Joseph McNally [Deceased], Re ([2025] IEHC 299) is a High Court probate application concerned with an attempted obliteration and monetary substitution in a 1981 homemade will. The Testator, Michael Joseph McNally, died in 2019, leaving as his sole substantial asset a Dublin house. His brother, Malachy McNally (the applicant), seeks an order under s. 27(4) of the Succession Act 1965 to admit the will to probate and declare that the obliteration of the specific legacy to another brother, Eamonn, either revoked that part of the will or was ineffective, so that the house falls to partial intestacy. The key issue is whether the repeated pen-scoring of “160 S.C. Road, Dublin” and its replacement by a £1 legacy was a valid post-execution alteration under s. 86 of the 1965 Act.

Summary of the Judgment

Ms. Justice Stack held that:

The will was validly executed in accordance with s. 78 of the Succession Act 1965 despite minor irregularities (date in the signature block, different pens used).
The obliteration of the specific gift to Eamonn did not amount to “destruction” or effective revocation because the original words remained legible without technological aid.
Section 86 of the 1965 Act renders any post-execution alteration invalid unless executed and witnessed as required for the original will; the Testator did not comply with s. 86.
There was no admissible evidence that the obliteration occurred prior to execution; on the contrary, all available evidence pointed to a post-execution change by an unknown hand (possibly the Testator himself).
Accordingly, the house bequest “160 S.C. Road, Dublin” remains part of the will; the substituted £1 legacy is struck out as ineffective.
The court will admit the will to probate, including the scored-through words, and further list for appointment of a personal representative.

Analysis

Precedents Cited

Re McEnroe [2021] IECA 28: Endorsed the practice of examining the will document itself to see what is legible; distinguished a case where obliterations are legible and therefore not “destruction.”
Ffinch v Combe [1894] P 191: Held that obliterated words still visible to the naked eye are not destroyed for revocation purposes under the Wills Act 1837.
In the Goods of Benn [1938] I.R. 313: Under s. 21 of the 1837 Act (relevant in pre-1967 law), if obliterated words cannot be made out even with a magnifying glass, the will may be admitted treating the blank as original.
Stephens v Taprell (1840) 2 Curt. 458 and Cheese v Lovejoy (1874) 2 P.D. 251: Early authorities confirming that partial obliteration of legible words does not amount to revocation.
Re Adams decd. [1990] 2 F.L.R. 519: Illustrates need for clear evidence of intention to revoke or valid execution of alterations.
In re Myles decd. [1993] ILRM 34: Burden on applicant to show alterations were pre-execution if relying on that defence.
Goods of Hindmarch (1866) LR 1 P. & D. 307: Inference drawn when interlineations are trifling and evidently by the testator in the same pen and ink as original drafting.

Legal Reasoning

The court’s reasoning unfolds in two stages:

Validity of Execution: Despite variations in ink and a misplaced date, the will complied with s. 78’s formal requirements because the Testator’s signature appeared in the substantive text and was witnessed in his presence.
Effect of the Obliteration under s. 86: Section 86 provides that “any obliteration, interlineation or other alteration made in a will after execution shall not be valid… unless such alteration is executed as is required for the execution of the will.” It aims to prevent post-execution tampering by a third party or uncertain testator actions. Here:

The scored-through property description remained legible; it was not a “destruction” revoking that provision.
There was no compliance with s. 86’s requirement that the Testator and witnesses sign adjacent to any changes.
No credible evidence supported a finding that the obliteration occurred pre-execution; on the contrary, a 28-year gap, a ubiquitous pen type, and the unavailability of witnesses precluded such an inference.

Conclusion: The obliteration is legally ineffective; the original bequest stands, the inserted “£1” is void.

Impact

This decision has significant implications:

It underscores the strictness of s. 86 and discourages DIY amendments to wills without formal re-execution.
It clarifies that legible scoring does not trigger partial intestacy; legibility preserves the original gift.
It places the evidential burden squarely on applicants seeking to treat alterations as pre-execution: mere similarity of pen or absence of witness affidavits will not suffice.
Practitioners should advise clients to draft new wills if changes are required, rather than scoring or interlining handwritten wills.
Courts will apply s. 86 to protect testamentary intentions against uncertain or un-witnessed changes.

Complex Concepts Simplified

Obliteration: Striking through text with a pen.
Interlineation: Inserting words between lines.
Animus revocandi: The testator’s intention to revoke.
Partial intestacy: Estate assets not disposed of by valid will foundations fall to statutory heirs.
Residuary legatee: Person entitled to the “residue” of an estate after specific gifts are made.
Legal personal representative: Executor or administrator managing the deceased’s estate.

Conclusion

The High Court’s judgment in The Estate of Michael Joseph McNally affirms the unyielding nature of the formalities in s. 86 of the Succession Act 1965. It confirms that any post-execution alteration to a will, however minor or even if legible, is void unless re-executed and witnessed according to statutory requirements. The case reinforces best practice: testators wishing to vary their testamentary dispositions must execute a fresh will or codicil rather than rely on pen-and-ink amendments. In doing so, the decision secures certainty in probate administration, protects testators’ true intentions, and upholds the integrity of the formal will-making process.