Analysis
This was an application to admit an altered will to probate in its current condition. The testatrix (T) died in May 2017. Her last will and testament was a homemade pre-printed will executed in May 2005. The will had a number of alterations and the probate office refused to admit it to probate without further evidence. T’s sister therefore applied ex parte for the will to be admitted to probate, and for letters of administration with the will annexed. The will was witnessed but one of the witnesses had since died and the other was no longer of sound mind so could not give evidence about the alterations. Witness evidence from the applicant’s daughter indicated that the alterations had been made at sometime before January 2014.
There were three alterations. The first was an obliteration of the name of the original executor – this was done by a pen scoring out the name to such an extent that it was no longer legible. The name of the replacement executor was not legible. The applicant said that she believed the original executor to be a person who died in 2006 and that, following his death, T decided to obliterate his appointment and replace him with a different executor, though there was no evidence as to this. The changes were initialled but not witnessed. There was no evidence as to when the alteration was made. The insertion therefore did not comply with s86 Succession Act 1965.
The second alteration was the obliteration of a line in a list of bequests.
The third alteration was an interlineation of the word ‘say’ into a sentence so that it read ‘… This to the say thanks for all the meals cooked and all the house-cleaning which they did for me…’
A handwriting expert was unable to decipher the obliterated entries, or determine if the alterations took place before or after execution of the will.
The trial judge held that the third interlineation could be dealt with by admitting the will to probate without it because there was no proof that it had been inserted before interlineation. As regards the first obliteration (of the name of the executor), he said that the identity of either the original executor or the replacement could not be discerned from the document. As regards the second, he said that it was a reasonable surmise that a gift had been obliterated, but that it was only a surmise.
The judge stated that while the will executed in 2005 was valid, the document now produced was not the document executed because it had been obliterated in two places. He had distinguished earlier cases because they had been decided before the 1965 Act (which unlike s21 Wills Act 1837 had not contained the words ‘except so far as the words or effect of the will before such alteration shall not be apparent’. He therefore dismissed the application with no order as to costs (though did not pronounce against the will) on the basis that the issue should be determined on notice to those entitled in intestacy. The applicant appealed.
Held (allowing the appeal):
The court noted first the presumption against intestacy (Kavanagh v Fegan [1932] and Mulhern v Brennan [1998] referred to); the presumption of due execution where the formal requirements of s78 of the 1965 Act were satisfied and there was no question over T’s mental capacity; that none of the grounds for challenging a will arose in the case (Darragh v Darragh [2018] referred to); and that a bequest being void for uncertainty did not affect the overall validity of the will (Re Harrison (1885) and Makeown v Ardagh (1876) referred to).
The court agreed with the trial judge’s view that the third alteration (interlineation of the word ‘say’) posed no particular problem and could be dealt with by admitting the will to probate without it because there was no proof that it had been inserted before execution (In re the Goods of Adamson (1875) referred to). The court also agreed that the absence of a named executor due to the first alteration could be dealt with under Ord 79 r5(6) Rules of the Superior Courts.
On balance, the line obliterated by the second alteration probably contained a bequest or devise of money or shares, given its location at the end of a list of bequests relating to money and shares and just before the residuary gift. The ‘€’ symbol was also legible within it. While an appellate court was normally reluctant to disturb findings of fact by the trial judge, in this case the court was in as good a position to make a finding as the trial judge. The court was entitled to rely on its own opinion from observation of the fabric of the will (In the Goods of Benn [1938] referred to).
There was no evidence as to why the proviso ‘except so far as the words or effect of the will before such alteration shall not be apparent’ was omitted from s86 of the 1965 Act. The court was not entitled to take into account the Dáil Debates (Crilly v T&J Farrington [2001] referred to). What could be said with some certainty was that the general purpose of s86 was to discourage unexecuted alterations to wills and to set out the method by which wills could be altered validly.
The case law on s20 Wills Act 1837 supported the propositions that:
- there could be full or partial revocation of a will by destruction;
- that to revoke by destruction there must be an act of destruction and an intention to revoke;
- that in the case of full revocation the destruction must be of at least an essential part of the will, together with an intention to revoke the whole will, while for a partial revocation there had to be an act of destruction of part of the will together with an intention to revoke that part;
- that cutting out with scissors or tearing off a part of a will constituted an act of destruction;
- that scoring a will with a pen to the extent that the words were no longer legible was also an act of destruction;
- that the mere crossing-out of words which remain legible was not an act of destruction; and
- that where a portion of a will which was of not essential validity was destroyed, a question of fact arose as to whether the words destroyed were so important as to raise a presumption that the rest cannot have been intended to stand without them, or whether they did not assail the essence of the will but rather were of relative unimportance or operated independently of the other provisions
(Hobbs v Knight [1838], Stephens v Taprell (1840), Cheese v Lovejoy (1877), Re Adams [1990], In the Goods of John Woodward [1871], Re Everest [1975], In the Goods of Morrell (1935), and In the Goods of Benn [1938] considered).
There was nothing in s86 from which it could be inferred that the Oireachtas intended to convey that the entire will should be rendered invalid if it contained an obliteration to the point of illegibility, irrespective of the nature or scale of the obliteration. Such an interpretation was contrary to the presumption against intestacy.
The omission of the proviso from s86 did not prevent the court from interpreting it so:
- that the mere crossing out of words which remained legible was not a valid alteration;
- that if words are scored out with pen to the extent that they are no longer decipherable even with assistance of techniques from a handwriting expert, this was an act of destruction, with the obliterated text treated as though it was blank unless it related to an essential part of the will (in which case the whole will would be invalid); and
- that for the court to conclude there was a partial revocation by destruction, it must be clear that T was the person who engaged in the act of destruction, and that T engaged in the act of destruction with an intention to revoke.
On the facts, the court inferred that the text obliterated by the second alteration was a pecuniary bequest or devise, that T had carried out the pen-scoring, and that she had intended a partial revocation. The text obliterated by the first alteration and the second alteration could therefore be treated as blank, with the rest of the will valid.
It might well be that ss85 and 86 would benefit from the attention of the Oireachtas in the future.
The court was inclined to the view that the will could in any event have been upheld because bequests which were void for uncertainty should be treated as blank. However as the matter was not subject to detailed submissions, the court preferred to rest its conclusion on its earlier reasoning.
Costs were ordered to be paid from the estate pursuant to s168 Legal Services and Regulation Act 2015. The issue raised was novel and the probate office had directed the application to be brought. The applicant had no choice but to bring it to get a grant and administer the estate, and the difficulty arose from the actions of the deceased herself.
JUDGMENT MS JUSTICE NÍ RAIFEARTAIGH: [1] This is a case in which the question is whether a will which was executed by Ms. McEnroe, the testatrix, should be admitted to probate in circumstances where it has on its face a number of unexecuted alterations. These alterations consist of two obliterations and one interlineation. More particularly, …Continue reading "Re McEnroe [2022] WTLR 1377"