About this case:

• Citation:
  [2025] IEHC 299
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Siobhán Stack

Delivering judgment for the High Court, Ms Justice Siobhán Stack emphasised the importance of taking legal advice in respect of wills: “Not only were the attempted alterations to the original will invalidly done, but the testator never at any stage made provision for the residue of his estate. Furthermore, even if the attempted changes had been validly and effectively done, and if it was indeed the testator who attempted to alter the will, the failure to take legal advice on the correct mode of altering the bequest has meant that effect will not now be given to his wishes.”

Background

Mr Michael Joseph McNally died on 29 June 2019, survived by four siblings. He never married and had no children.

The deceased had created a will dated 29 April 1981 which bequeathed a valuable property on South Circular Road in Dublin to one of his brothers, Eamonn. 

The bequest of the property was the subject of an attempted obliteration having been struck through multiple times with a pen, although the words were still legible. A further alteration to the will replaced the bequest of the property with a bequest to Eamonn in the sum of IR£1.

The applicant, the deceased’s brother Malachy, brought an application pursuant to s.27(4) of the Succession Act 1965 seeking liberty to apply for a grant of probate along with an order that the will of the deceased was duly executed.

The High Court

At the outset of her judgment, Ms Justice Stack surmised that in reality, the application was one to admit the will to probate on the basis that the obliteration of the bequest of the property had been revoked by destruction such that the property fell to be dealt with by way of a partial intestacy.

The judge explained that if the attempted obliteration of the bequest was found to be valid and effective, the deceased’s four surviving siblings and the children of a sibling who predeceased the testator would be entitled to shares of the property.

Having satisfied herself that the will was validly executed in accordance with s.78 of the 1965 Act, Ms Justice Stack considered that the net issue for the court concerned the terms of the will insofar as they related to the property.

Noting Re McEnroe [2021] IECA 28, Ms Justice Stack explained that the relevant authorities demonstrate that a court will usually examine a will itself for the purposes of discerning what was written and having done so, the judge confirmed “that the words ‘160 S.C. Road, Dublin’ are still legible to the naked eye, without the need for any additional assistance from infrared technology, expert opinion, or even a magnifying glass”.

Having regard to s.86 of the 1965 Act which invalidates obliterations, interlineations or alterations to a will if made after execution unless they are executed in like manner as the will itself, the court highlighted: “This is so even if the words are not only no longer ‘apparent’ but cannot be deciphered even with the aid of infrared technology. A conundrum can therefore arise if there is an invalid obliteration of part of a will and it is not possible, even with the aid of technology, to decipher what the terms of the will are.”

The judge found that in circumstances where the obliterated words in the deceased’s will were still legible, “it is clear that this will has not been partially revoked so as to remove the bequest in favour of Eamonn” and that there was no evidence whatsoever to support any finding of animus revocandi or intention to revoke that part of the will.

Ms Justice Stack pointed out that if the attempted obliteration and alteration were done prior to the execution of the will however, then s.86 would not apply and effect could be given to the changes as part of the will originally executed in accordance with s.78.

The court heard evidence that the deceased’s brother Tom came into possession of the will on a date prior to August 2009 and that the applicant came into possession of the will on 12 August 2009 and accepted that the will had not been opened or altered between 12 August 2009 and the date of the deceased’s death.

Nonetheless, the court highlighted that “that still leaves a period of 28 years from the execution of the Will, during which the attempted obliteration and alteration could have been made” and that although the changes appeared to have been made with the same or a similar pen “there is nothing distinctive about the pen and it seems to have been a blue ballpoint pen, of a standard type used by many people up and down the country. The fact that it is a similar pen, therefore, does not permit me to infer that it was the testator who made the changes.”

Ms Justice Stack was unable to draw any inference from the absence of any affidavit on part of the attesting witnesses in circumstances where they were bank officials which couldn’t be traced and found it entirely possible, having regard to the positioning of their signatures, that they never saw the first page of the will containing the obliteration.

Finally, the judge considered that she had no evidence as to any external circumstances which would allow her to assess when any such attempt to remove Eamonn’s benefit under the will was likely to have been made, but determined that it seemed unlikely that the deceased would not have dealt with all property when first making his will and that if he had changed his mind after completing the will form, he would probably have nominated another beneficiary for the property.

In those circumstances, Ms Justice Stack believed that it was more likely that the change of heart came after execution of the will, noting that it could not be said whether the attempted obliteration and alterations were done by the testator in any event as there was no acknowledgment of the changes by him or by any witnesses and so s.86 had not been complied with.

Conclusion

Accordingly, the High Court found the changes made to the will in respect of the property to be invalid and admitted the will to probate so as to include the words “160 S.C. Road, Dublin” and determined that the characters “£1-00” would be excluded from the will as their insertion was not validly and effectively done.

In the matter of the Estate of Michael Joseph McNally [2025] IEHC 299