Summary of Judgment — Probate

Factual and Procedural Background

This is an application to admit to probate the last Will of the Deceased, executed 11 January 2018, together with a Codicil dated 1 June 2023. The application was granted in the non-contentious probate list and this written judgment explains a point of law arising from the application.

The Deceased's Will named his Wife as Executrix and sole beneficiary, with a contingency that, if the Wife predeceased him, the Applicant would be Executrix and the estate would be divided equally among the five children. The Wife had executed a mirror will on the same date.

The Will was witnessed by a Solicitor and a Legal Secretary. By 1 June 2023, the Wife was seriously ill and, in circumstances described as urgent, a joint Codicil was prepared and executed at the Hospice by the Deceased and the Wife. The Codicil (expressly amending the earlier testamentary arrangements only in respect of a specified property in The County) provided that that property would be left to the couple's Son.

The Codicil was witnessed by the Applicant and by the Applicant's brother (Sibling A), both of whom were beneficiaries under the earlier Will. The Codicil did not give them any benefit; in fact, it reduced the share to which each would have been entitled under the Will in respect of the specified property.

The application before the court was to admit both the Will and the Codicil to probate in the estate of the Deceased. The judgment is delivered by Judge Stack.

Legal Issues Presented

1. Whether a person who attests the execution of a codicil is disqualified from taking a benefit under the testator's will by operation of the relevant provision of the Succession Act 1965 (as quoted in the opinion), where the benefit is given by the will rather than by the codicil.
2. Whether a joint codicil executed by both testators (and witnessed by beneficiaries to the prior will) can be admitted to probate as part of the deceased's testamentary papers where it was intended to operate as an amendment only in respect of a particular property.
3. Whether the execution of the codicil constitutes a "republication" of the earlier will such that an attesting beneficiary would take under the codicil rather than under the original will (with consequences for disqualification under the statute).

Arguments of the Parties

Applicant's Arguments

• The Applicant relied on authority to the effect that attesting a codicil does not render invalid a gift which is given by the will unless the attesting person receives a benefit under the codicil itself. Authorities cited in support included historic decisions discussed in the opinion (notably the decision referred to as Gurney v. Gurney and Re Marcus Deceased).
• The practical submission, as reflected in the judgment, was that the beneficiaries who attested the codicil did not take the gift by virtue of the codicil and so the statutory disqualification should not apply.

Other Parties' Arguments

The opinion does not contain a detailed account of any opposing party submissions beyond the court's consideration of the authorities and statutory provision.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re Stracey (1855)	Authority for the proposition that a joint will duly executed by both testators can operate as the will of each testator.	Used to explain that a joint testamentary document can be admitted as the will of each testator; noted that a joint codicil intended to take effect on the death of the survivor may only be admitted when both have died, but that was not an issue here.
Re Raine (1858)	Authority on the effect of joint testamentary instruments and timing of their operation (republishing/revival issues).	Referenced to show the principle that a joint instrument may operate only on the death of the survivor; not determinative in this case because the Deceased survived the Wife.
Gurney v. Gurney (1855)	Interpreted the equivalent provision in the Wills Act 1837 to mean the statutory disqualification applies where the benefit is given by the same testamentary instrument which is attested by the beneficiary (i.e. the word "thereby" limits application to the instrument attested).	Cited by the Applicant and adopted as relevant reasoning. The court applied the same basic approach: if the benefit was given by the earlier will (not by the codicil attested by the beneficiaries), the statutory disqualification did not apply to them in respect of that earlier will.
Re Marcus Deceased (1887)	Authority supporting the proposition that attesting a codicil does not necessarily invalidate a gift under the will unless the attesting person benefits under the codicil.	Relied on by the Applicant and treated as supportive of the conclusion that the beneficiaries who witnessed the codicil were not disqualified from taking under the will which had been executed earlier and witnessed by others.
Anderson v. Anderson (1871–72)	Decision emphasising the concept of "republication" where a codicil is treated as republishing the earlier will so that the bequest is regarded as taking effect under the codicil; used to uphold a gift to a witness where the codicil had cured attestation defects.	The court considered this authority and distinguished it: here the codicil did not operate as a republishing of the will for the purposes relied upon in Anderson, and the factual matrix (no attestation defect in the earlier will) made the republishing rationale inapplicable.

Court's Reasoning and Analysis

The court began by treating the joint codicil as a testamentary document which, if valid, forms part of the Deceased's last will (the opinion notes the general principle that joint wills, if duly executed, operate as the will of each testator).

The court then turned to the statutory provision in the Succession Act 1965 (referred to in the opinion as s. 82, with the quoted provision described in the text of the judgment). That provision renders void any devise, bequest or gift given or made by the will to a person attesting its execution. The court observed that the Act defines "will" to include a codicil.

Applying the natural and ordinary meaning of the statutory wording, the court focused on the instrument which gave the benefit. The shares in the residue at issue had been given by the earlier Will and not by the Codicil. Importantly, the witnesses to the Codicil (the Applicant and Sibling A) were not witnesses to the earlier Will. On that basis the statutory disqualification did not operate to void the benefits those witnesses took under the earlier Will.

The court considered and distinguished the authorities relied on by the parties. It accepted the approach in Gurney v. Gurney, which construes the earlier Wills Act provision as applying to the instrument attested, and applied that logic here. The court also discussed Anderson v. Anderson, which had treated a codicil as a republishing of an earlier will in different circumstances; the court found that reasoning inapplicable where the codicil was limited in scope (amending only the Leitrim property) and where there was no attestation defect in the earlier Will. The court further noted that, in the present factual matrix, the Codicil actually reduced the witnesses' potential shares and so they did not derive an advantage from attesting it.

Accordingly, the court concluded that the Codicil did not render void the beneficiaries' inheritances under the original Will by operation of the statutory provision.

Holding and Implications

WILL AND CODICIL ADMITTED TO PROBATE

Direct effect: The court made an order admitting both the Will and the Codicil to probate in the estate of the Deceased. The statutory disqualification provision, as applied to the facts of this case, did not void the benefits taken by the witnesses from the earlier Will because those benefits were given by the earlier Will (witnessed by other persons) and not by the codicil which the witnesses attested.

Broader implications: The judgment explains and applies established principles about the interaction between attestation by beneficiaries, codicils and the statutory disqualification rule. The court noted that the point of law addressed may be of interest to practitioners but did not purport to lay down a novel general rule beyond applying the statute and existing authorities to the facts; it therefore did not create an expansive new precedent.

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Judgment delivered by Judge Stack on 21 November 2025.