Court of Appeal: Homemade will held to be valid despite destruction of certain sentences with pen

Court of Appeal: Homemade will held to be valid despite destruction of certain sentences with pen

Killian Flood BL

The Court of Appeal has upheld the validity of a homemade will despite the fact that several parts had not been properly executed by the testatrix.

The deceased, Ms Mary McEnroe, had made her own will and had altered it before she died by scribbling out certain words so that they became illegible. The court said that it would treat these “obliterations” as being destructions within the meaning of section 85(2) of the Succession Act 1965.

The case arose out of a refusal by the High Court to admit the will to probate, ruling that the unexecuted alterations of the will rendered it a different document to the valid will that had originally been executed. Last week, the Court of Appeal overturned this decision and held that the will remained valid despite the scribbling out of certain words by the testatrix. The estate was worth in excess of €1 million.


Ms McEnroe died in 2017 at the age of 87. In 2005, she had properly executed a homemade will which was witnessed by her neighbours. However, at the time of her death, there were three alterations made with pen on the will. First, the original executor’s name had been scribbled out and replaced with an illegible name. Second, a bequest of money had been scribbled out so as to be illegible. Finally, there was an interlineation to include the word “say” in the sentence “This to the say thanks for all the meals cooked and all the house-cleaning which they did for me….”

As a result of these alterations, the probate officer refused to prove the will without further evidence being produced. The testatrix’s sister subsequently brought an ex parte application to the High Court to admit the will to probate in the condition it was found. However, after several hearings, the trial judge refused to admit the will, holding that the the will was properly executed.

The legal argument centred around the provisions contained in sections 85 and 86 of the Succession Act 1965. Section 86 provided that no alteration, including a destruction, of words was permissible without being executed by the testator. This meant that a testator and witnesses needed to sign next to the alterations.

The predecessor to section 86 of the 1965 Act was section 21 of the Wills Act 1837, which carried an extra proviso that a destruction would be valid if words were rendered unreadable by the testator. This was not carried forward into the 1965 Act but would have answered the difficulties which arose from the scribbling out of words by Ms McEnroe.

The High Court judgment was appealed to the Court of Appeal, where it was argued that the provisions of the Succession Act 1965 allowed for the validity of a will despite a partial destruction of certain words.

Court of Appeal

The main issue which the court was asked to consider on appeal was the effect of the destruction by Ms McEnroe of certain words in the will. As pointed out by the court, the ordinary meaning of section 86 was that any alteration was only valid if it was executed. If it was not executed properly, then the alteration was not valid. However, the court said that, on its face, section 86 did not deal with the validity of the rest of the will.

The appeal was also made more difficult by the fact that there was no Irish authority since the enactment of the 1965 Act which dealt with a non-executed, destroyed part of a will. The court described the situation as a “conundrum.”

Giving the judgment of the Court of Appeal, Ms Justice Úna Ní Raifeartaigh held that there was no particular issue regarding the first and third alterations in the will. The absence of an executor in the first alteration, by reason of destruction and illegibility, could be dealt with under Order 79 Rule 5(6) of the Superior Court Rules. Under this rule, provisions are made for individuals who die without an appointed executor.

For the third alteration (the inclusion of the word “say”) the court said that this word did not alter the meaning of the will. As such, the court effectively ignored this alteration.

In respect of the second alteration, the court considered a number of cases, including Hobbs v. Knight [1838] 1 Curt 768, Stephens v Taprell 2 Curt 458 and Re Adams [1990] 2 All ER 97 and outlined the general principles relating to destruction of part of a will.

The court held that 1) the mere crossing out of words which remain legible was not a valid alteration of the will without proper execution; 2) if words are scored out with a pen so that they become illegible, this is a “destruction” within the meaning of section 85(2) of the Act and the rest of the will remains valid; and 3) that it must be clear that it was the testator who engaged in the act of destruction and that the testator had the intention to revoke the portion of the will. The court also held that a will must be invalid if the destruction relates to an essential part of the will, such as the signature.

Applying these principles to the case, the court said that the second alteration could be treated as “blank” and that the rest of the will was valid. In coming to this conclusion, the court said it was satisfied on the facts that there was no third party interference, that Ms McEnroe had intended to alter the will and that no essential aspect of the will was affected.


The court allowed the appeal and overturned the decision of the High Court. Ms Justice Ní Raifeartaigh ordered that the costs of the application and appeal would come out of the estate. The court opined that the laws in question would benefit from clarification from the Oireachtas.

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