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The Estate of Michael Joseph McNally [Deceased], Re (Approved)
Factual and Procedural Background
This opinion concerns an application under section 27(4) of the Succession Act 1965 for liberty to apply for a grant of probate of the Will of the deceased Testator, who died on 29 June 2019. The Will, dated 29 April 1981, was a preprinted form completed in manuscript by the Testator. The sole asset in the estate is a house located on South Circular Road in The City; other assets mentioned in the Will had been disposed of during the Testator's lifetime. The Will originally bequeathed this property to the Testator's brother, referred to as "Eamonn," but this bequest was subject to an attempted obliteration and an insertion replacing it with a nominal legacy of IR£1.
The applicant, identified as the Testator's brother, seeks to admit the Will to probate on the basis that the obliteration of the bequest was revoked by destruction, which would result in partial intestacy concerning the property. The Testator never married or had children and was survived by four siblings. The Testator had moved to live with the applicant around August 2009, shortly before the Testator's death. The nominated executor predeceased the Testator, necessitating the appointment of a legal personal representative under the relevant court rules.
The main issue arises from the attempted obliteration of the bequest of the South Circular Road property, which was struck through multiple times but remains legible. The question is whether this obliteration constitutes a valid partial revocation of the Will or not. The applicant contends it does, which would cause the property to devolve by intestacy among the surviving siblings and the children of a deceased sibling. If not, the property would pass according to the terms of the Will to Eamonn's widow.
Legal Issues Presented
- Whether the attempted obliteration and alteration of the bequest of the South Circular Road property in the Will constitute a valid partial revocation under section 86 of the Succession Act 1965.
- Whether the obliteration and alteration were made prior to or after the execution of the Will.
- The implications of the validity or invalidity of the attempted changes on the distribution of the property and the administration of the estate.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Re McEnroe [2021] IECA 28 | Endorsed the practice of examining the Will itself to discern obliterated words. | Used to confirm that the obliterated words in the Will were still legible without assistance. |
| In the Goods of Benn [1938] I.R. 313 | Where obliterated words are not apparent, the Will may be admitted to probate treating obliterated words as blank. | Distinguished as inapplicable because section 86 of the 1965 Act applies and the obliterated words remain legible. |
| Stephens v. Taprell (1840) 2 Curt. 458 | Obliterated words still legible do not amount to destruction or revocation. | Applied to hold that the Will was not partially revoked as the obliterated words were legible. |
| Cheese v. Lovejoy (1874) 2 P.D. 251 | Similar principle to Stephens v. Taprell regarding obliteration and revocation. | Applied to support the conclusion that no partial revocation occurred. |
| Re Adams decd. [1990] 2 F.L.R. 519 | Requirement of evidence of intention (animus revocandi) to revoke a Will or part thereof. | Applied to find no evidence of intention to revoke the bequest. |
| In re Myles decd. [1993] ILRM 34 | Burden on applicant to prove obliteration and alteration made prior to execution. | Applied to assess evidentiary burden on the applicant regarding timing of alterations. |
| In the Goods of Hindmarch (1866) L.R. 1 P. & D. 307 | Inference from similarity of pen and ink used for alterations and original Will. | Distinguished as the pen used here was ubiquitous and no inference could be drawn. |
| In the Goods of Adamson (1875) L.R. 3 P. & D. 253 | Requirement that alterations be acknowledged and witnessed as per section 86. | Applied to highlight the lack of evidence that the Testator executed the alterations properly. |
Court's Reasoning and Analysis
The Court first confirmed the validity of the Will's execution despite minor irregularities such as the Testator signing in the date space and the use of different pens, finding compliance with section 78 of the Succession Act 1965.
The key issue was the attempted obliteration of the bequest of the South Circular Road property. The Court examined the physical Will and found the obliterated words still legible to the naked eye, precluding the obliteration from constituting a "destruction" sufficient to revoke the bequest partially. The Court relied on established authorities holding that obliterations that do not render words indecipherable do not revoke a Will or part of it.
Furthermore, the Court found no evidence of the Testator's intention to revoke the bequest (animus revocandi), which is necessary for partial revocation. The Court then considered whether the obliteration and alteration were made before or after execution. The burden was on the applicant to provide evidence that changes were made prior to execution, but no such evidence was available.
The Court noted the absence of affidavits from the attesting witnesses and considered the possibility that the witnesses never saw the obliteration. The evidence suggested the obliteration was likely made after execution, possibly by the Testator, but without the formal execution and witnessing required by section 86, the changes were invalid.
Consequently, the attempted alteration replacing the bequest with a nominal sum was invalid, and the original bequest remained effective. The Court emphasized the policy reasons behind section 86 to prevent unauthorized alterations and disputes.
The Court also highlighted the risks of dealing with estate assets before formal probate or administration and underscored the importance of legal advice in drafting and altering Wills.
Holding and Implications
The Court held that the attempted obliteration and alteration of the bequest of the South Circular Road property were invalid and had no legal effect. Accordingly, the Will was admitted to probate including the original bequest of the property to the brother "Eamonn," with the nominal legacy of IR£1 excluded.
The decision means the property will pass according to the original terms of the Will rather than by partial intestacy. No new precedent was established; rather, the ruling reaffirmed the strict requirements for valid alterations under section 86 of the Succession Act 1965. The Court will proceed to determine the appropriate legal personal representative to administer the estate, likely the widow of the brother "Eamonn," subject to her consent.
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