This is a guide to the Irish legislation (and precedent English law) concerning revocation of a will for different reasons including cases where it is a disputed or invalid will.
As Mr Justice Gilligan said in the High Court in O’Donohue v O’Donohue, 2011:
‘The making of a last will and testament is one of the most important tasks most people face and unfortunately it is one often approached in haste and without due consideration for its effect. A primary purpose of a will is to make a definitive statement regarding the disposition of a person’s assets on the event of their death. A properly drawn up will, prepared with the benefit of legal advice provided by a solicitor, should ensure that the testator’s wishes for the disposition of their estate will be fully complied with.’
The rules about making a will are set out in the 1965 Succession Act (Scally v Rhatigan, 2011).
But the 2010 Civil Partnership and Certain Rights and Obligations of Cohabitants Act changed the law, so that now civil partners and cohabitants (so-called ‘common law spouses’) also have rights and duties pertaining to wills.
A will must be made freely, without undue influence, (Vella v Morelli, 1968, and Elliott v Stamp, 2008) but a child of the testator who claims not to have been provided for may apply to the court under s. 117 of the 1965 Act within 12 months from the first taking out of representation of the deceased’s estate. (Cavey v Cavey, Supreme Court, 2014).
The court will decide whether the testator has ‘failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise’.
This decision will be made ‘from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance’. A s.117 order will not affect the legal right of a surviving spouse
According to s.85 of the 1965 Succession Act (as amended by the 2010 Act), existing wills may be revoked at any time.
For example, a will is revoked by the subsequent marriage (or now the civil partnership) of the testator or testatrix (the person swearing the will), except a will made in contemplation of that marriage or partnership.
A will may also be revoked by another will (or duly executed clause or codicil), or by ‘burning, tearing or destruction’ with the intention of revoking the will – in other words, not by accident.
REVOCATION OF A WILL
A properly drawn-up will (and any codicils) may also be revoked by making a new will, but the new will should contain a revocation clause, normally after the name and address of the person swearing the will. Under s.78 of the 1965 Act, the written letter or note should set out the intention to revoke the will, but such a clause may be presumed.
In the Goods of Brennan (1976), a woman instructed her solicitor to prepare a new will but never actually drew up the will. Mr Justice Hanna said that, when the testatrix signed the instructions, she intended to revoke the previous will, even though there was no revocation clause. In the 1968 case of In the Goods of Martin, a widow died leaving two wills, in the second of which she left all her money (which Mr Justice O’Keeffe said meant all her personal estate). The judge said the earlier will was revoked by implication, even though it again contained no revocation clause.
Under s. 85(2) of the 1965 Act, a will may be revoked;
‘by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.’
But as the judge said in the 1877 case of Cheese v Lovejoy:
‘All the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying; there must be the two.’
A will destroyed by mistake may still be valid (in the Goods of Gilliland, 1940). The testator must also intend to revoke the will. To prove an intention, the court may require evidence of testamentary capacity – in other words, that the person destroying the will had the mental capacity to do so. ‘Destroying’ may include cutting (Hobbs v Knight, 1838) or obliteration of the names of the testator’s and witnesses’ signatures (In Re Morton, 1887). A will must also be destroyed in the testator’s presence.
If there is evidence that a will existed but it can’t be found after the testator’s death following a ‘diligent search’ (In the Goods of W Brown, 1858), there is a presumption (which may be rebutted) that the will was destroyed with the intention of revoking it (Supreme Court, In the Goods of Coster, 1978, and In the Goods of Paget, 1913), even if this results in intestacy.
But in the 1964 case of In the Estate of McMullan, Mr Justice Sheil said that a statement by a testator that he had changed his mind about who to leave his property to, and therefore had destroyed his will, was “evidence of intention from which the fact of destruction may be inferred, there being other circumstances leading to the same conclusion”.
MARRIAGE AND CIVIL PARTNERSHIP WILL REVOCATION
Any will made before validly marrying or entering a civil partnership will be revoked, whatever the intention of the testator, except where it was made in contemplation of that marriage or partnership.
In the 1987 case of In the Estate of Fleming, Mr Justice Gannon held that a marriage was invalid under Irish law, so an earlier will was not revoked.
Under Section 85(1) of the 1965 Act, a will made in specific contemplation of a later marriage is not revoked by that marriage, even though not expressly stated.
The evidence must show that, when the will was made, the testator was contemplating (but not necessarily intending) marriage to a particular person. However, in the 1985 case of In the Estate of Baker, Mr Justice Gannon said there was no evidence that a will was made ‘in contemplation of any particular marriage’.
In the 1931 English case of Pilot v Gainfort, where a wife had been missing for more than seven years and was presumed dead, a will leaving all the husband’s goods to his ‘wife’, whom he married three years later, was ruled valid.
DEPENDENT RELATIVE REVOCATION
Under the doctrine of dependent relative revocation, any revocation must be absolute.
A revocation which, for example, depends on the making of a new will may be ineffective if the new will is not made because the testator died, or for some other reason.
Kenny J in In the Goods of Irvine said a revocation would only be absolute ‘provided the fresh will be made’ but it was ‘altogether a question of intention’. (In re Curtin Deceased, 1991)
That intention must be established as a matter of evidence (West v West, 1921 and Powell v Powell,1866). However, if a new will is not drawn up, the revocation may be considered conditional only, even if the earlier will is said to have been revoked. In the Irvine case, the judge decided that the attempted revocation was just the first step towards making a new will, that it was conditional on a will being actually made but that no will was made, so the intention failed.
If a person destroys a later will in the mistaken belief that an earlier will may be revived, the later will may not be revoked (In the Goods of Hogan, 1980).
MUTUAL WILLS
In the case of mutual wills made by two people by agreement, the surviving testator may be prevented from revoking his will because the wills established a ‘constructive trust’ (Healey v Browne, 2002).
Such wills are usually made by spouses or civil partners who have agreed that, on death, they will each leave their property to their children – although any two (or more) people can execute mutual wills.
Although the testators can revoke the wills during their lifetimes, once one of them dies, the surviving testator cannot revoke the agreed will.
REVIVAL OF WILLS
Under s. 87 of the 1965 Act, a will may be revived by re-execution or by codicil* showing the appropriate intention, but not by revocation by destruction of a current will.
In the 1963 English High Court case of In Re Pearson, Mr Justice Ploughman said the effect of the words in a codicil confirming a will incorporated into the codicil all the provisions of the will, except insofar as they were displaced by that codicil.
If the revived will itself contains a revocation clause, the revocation clause is effectively ‘brought up to date by the codicil’ (Brennan v O’Donnell, 2015).
*A codicil is an addition or supplement that explains, modifies, or revokes a will or part of one e.g. “Francis has remembered him in a codicil to this will”
DRAWING UP YOUR OWN WILL?
It’s certainly possible to draw up your own will without legal advice, but the difficulties with that were highlighted by Mr Justice Gilligan (O’Donohue v O’Donohue, 2011):
“The testator has unfortunately provided an illustration of exactly how a person should not make a will. While there can be little doubt but that the testator was a man of considerable learning, the fact that he did not benefit from legal advice or assistance is evident from the will he drew up.
“Not only was it deficient in terms of the lack of certainty as to his intention but moreover he unwittingly made the classic error of having two of the intended beneficiaries act as witnesses to his signature, thereby depriving both as a matter of law from benefiting under the terms of the will.”