Case Law Update: Michael Joseph McNally Deceased [2024] IEHC 23

Case examines whether a will should be admitted to probate when alterations to the will, including obliterations and attempt to revoke a bequest, were not executed in accordance with statutory requirements, thereby raising issues of partial intestacy.

Deceased had drafted Will in 1981 by way of a preprinted will form. Issue arose in respect of a significant property in Dublin which deceased had initially left to his brother, but which was the subject of an attempted obliteration having been struck through several times with a pen. In place of the original bequest of the property there was a bequest to the same brother in the sum of IR£1.

Stack J. identified the application as being one seeking to admit the will to probate on the basis that the obliteration revoked the bequest of this property by destruction so that the property. It was submitted by the applicants that this obliteration was sufficient to amount to a partial revocation of the will. If that was the case and as there was no residuary legatee named in the will, the property would then devolve on those entitled on intestacy.

The Court said that s86 Succession Act, 1965 was the first place to look which stipulates that:

“Any obliteration, interlineation, or other alteration made in a will after execution shall not be valid or have any effect, unless such alteration is executed as is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the signature of each witness is made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end of some other part of the will.”

Accordingly, s.86 invalidates obliterations, interlineations or alterations to a will if made after execution, unless they are executed in like manner as the will itself. Stack J. also discussed the need for animus revocandi, an intention to revoke the bequest, before an obliteration could be deemed complete. Applying all of that to the facts of the case before it the Court found in this instance that there had not been a partial revocation so as to remove the bequest from the terms of the Will.

However, that did not fully resolve matters. The next issue of concern was whether the attempted obliteration could have been done whenever the deceased was drafting his will in the first place, therefore s.86 would not apply. Rather, the possibility loomed that it was done when the Will was being originally drafted and therefore would have been validly done if executed in line with s78 of the 1965 Act which sets out the requirements for a valid will.

The Court determined that it was probable that the attempted obliteration and alteration were done some time after execution of the Will, rather than before. Accordingly, the validity and effectiveness of the attempted changes were to be governed by s.86 of the 1965 Act which requires that same be executed in like manner as the Will. That, in the eyes of the Court had not been done.