Kench-Andrews & Anor v The Succession Act 1965 (Approved)

Factual and Procedural Background

This judgment concerns an application made in the non-contentious Probate list regarding the estate of a deceased individual who executed two wills in 2011: one in Ireland on 1^st September and a subsequent one in the United Kingdom on 25^th October. The deceased's Irish will disposed of a holiday property located in Ireland and appointed an executor who was a neighbour and friend. The UK will contained a revocation clause purporting to revoke all earlier wills and testamentary dispositions and appointed different executors. The application was brought jointly by the executors under the UK and Irish wills, seeking a declaration that the Irish will was not revoked by the UK will and an order permitting the executor named in the Irish will to extract a grant of probate in respect of that will. Although all beneficiaries consented to the application, the court was unable to grant it due to issues discussed below.

Legal Issues Presented

1. Whether the Irish will was validly revoked by the subsequent UK will, despite the express revocation clause in the UK will.
2. Whether the testator had knowledge of, approved, and intended the revocation clause in the UK will to revoke the earlier Irish will.
3. The admissibility and scope of extrinsic evidence to determine the testator's intention regarding revocation of the earlier will.
4. The impact of the testator's testamentary capacity, particularly given medical evidence of severe vascular dementia at death, on the validity and interpretation of the wills.

Arguments of the Parties

Applicants' Arguments

• The revocation clause in the UK will should not be interpreted as revoking the Irish will because the testator did not have knowledge of or approve the revocation of the Irish will.
• Reliance on case law suggesting that a revocation clause does not operate absent the testator's animus revocandi (intention to revoke), citing Re Courtney Deceased, Re Keenan, and Re Phelan.
• Submission that the two wills were intended to operate separately, with the Irish will relating solely to Irish property and the UK will to UK assets.
• Assertion by the first applicant (a niece) that the deceased intended the Irish will and UK will to have separate validity and effect, supported by the close relationship between the deceased and the second applicant (executor under the Irish will).
• Use of extrinsic evidence to argue the testator’s intention was not to revoke the Irish will.

Respondents' Arguments

The opinion does not contain a detailed account of the respondents' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the terms and execution circumstances of the two wills. The Irish will was a straightforward document disposing solely of the holiday property in Ireland, expressly revoking prior testamentary dispositions related to Irish property, and confirming the English will in all other respects. The UK will was more detailed, included a general revocation clause, and applied to all property "wherever situate," encompassing the Irish property.

The court recognized that, prima facie, the UK will's revocation clause would revoke the Irish will under s. 85 of the Succession Act 1965. However, applicants argued that the testator did not have knowledge or approve the revocation clause, relying on authorities requiring animus revocandi for revocation to be effective.

The court noted the heavy burden on applicants to prove the testator did not intend the revocation clause to operate on the Irish will, citing McCormack v. Duff. It also analyzed the admissibility of extrinsic evidence under s. 90 of the Succession Act, emphasizing that such evidence is only admissible to resolve ambiguity or contradictions, not to rewrite clear will terms.

The court observed that the evidence was limited: no medical or solicitor testimony was provided regarding the testator's capacity or instructions. The deceased suffered from severe vascular dementia at death, raising concerns about testamentary capacity at the time of will execution. The UK solicitors did not provide affidavit evidence, and the Irish solicitor had no recollection or notes.

The court considered a letter from the current UK solicitors indicating the UK will was intended to update a previous will and that the deceased had not referred to Irish property during instructions. However, the court found this insufficient to conclude the testator did not intend to revoke the Irish will.

The court contrasted this case with McCormack v. Duff and Re Courtney, where the earlier wills were more comprehensive and the subsequent revoking wills were limited and discrete. Here, the UK will was comprehensive, professionally drafted, and contained a residuary clause covering all property, including the Irish holiday home.

The court found the applicants’ evidence, primarily the niece's belief in separate wills, to be weak and insufficient to overcome the clear language of the UK will. Given the lack of evidence and the heavy onus, the court was not satisfied that the revocation clause in the UK will did not revoke the Irish will.

Holding and Implications

The court refused the application to declare that the Irish will was not revoked by the UK will and to grant probate under the Irish will.

The direct effect is that the revocation clause in the UK will is effective, and the Irish will is revoked. The deceased’s estate, including the Irish property, is to be administered according to the UK will. No broader precedent was established as the decision was fact-specific, emphasizing the importance of clear testamentary intention, sufficient evidence, and professional advice in will drafting and execution.