High Court: Non-contentious application for grant of probate refused as Irish will was revoked by subsequent UK will
The High Court has refused a non-contentious application for liberty to extract a grant of probate relating to a deceased’s Irish assets in circumstances where a subsequent UK will appeared to revoke the Irish will. The deceased had executed a will in Ireland which bequeathed a holiday home to her neighbour.
About this case:
- Citation: IEHC 417
- Court:High Court
- Judge:Ms Justice Nuala Butler
Delivering judgment in the case, Ms Justice Nuala Butler held that there was a heavy onus on the applicants to show that the revocation clause in the UK will did not revoke the earlier Irish will. On the scant evidence before the court, the court was not satisfied that the deceased did not intend to revoke her Irish will.
In December 2014, the testator died in her home in the United Kingdom. She had previously executed two wills, one in Ireland and one in the UK. The wills were executed in September and October 2011 respectively. The Irish will dealt solely with the deceased’s Irish assets, which consisted of a holiday house in Shillelagh, County Wicklow. The house was left to the second applicant, who was her neighbour and also the sole executor of her Irish estate.
However, the subsequent UK will contained a revocation clause which purported to revoke “all earlier wills and testamentary dispositions”. Accordingly, it appeared that the earlier Irish will was affected by this revocation clause.
A grant of probate issued in the UK in August 2016. The executors brought an application in Ireland seeking a declaration that the Irish will was not revoked by the subsequent UK will and an order granting the Irish executor liberty to extract a grant of probate.
The Irish will was drawn up by a local solicitor and was a short document. However, it was carefully drafted so as to deal only with the Irish assets. The UK will was more complex because it dealt with her entire UK estate. The UK will was also drawn up by solicitors.
The primary issue in the application was whether the deceased intended to revoke the Irish will. The applicants relied on several judgments in argument that the presence of a revocation clause in a will was not necessarily determinative if it could be shown that the testator did not know of or approve the intended revocation (see Re Courtney Deceased  IEHC 318; Re Keenan  80 ILTR 1; Re Phelan  Fam 33).
The applicants also relied on section 90 of the Succession Act 1965, which provided for the admissibility of extrinsic evidence to assist in the construction of a will.
The applicants provided little evidence of or information about the deceased’s estate in the application. It was apparent that the deceased died aged 69 and that the cause of death with listed in her death certificate as “severe vascular dementia”.
Further, there was very little evidence provided by the Irish and UK solicitors regarding the drafting and execution of the relevant wills. The Irish solicitor was not in a position to assist. The UK solicitors would only confirm via letter that they had examined the file and stated that a draft will was sent to the deceased in July 2011 but she only executed the will in October 2011. The UK solicitor stated that they were satisfied that the deceased did not form an intention to revoke the Irish will.
The only other evidence available was that of the deceased’s niece, who was firm in her view that there was no intention to revoke the will. She claimed to be close to her aunt and assisted in her business affairs.
The court began by considering the case law on revocation clauses. The court accepted that it was open to the applicants to show that the deceased did not intend for the UK will to revoke the Irish will. The applicants would need to show that the testator was unaware of the clause or that it was a drafting error to include the clause in the will. However, the onus of proof on the applicant “is a heavy one”, the court said (McCormack v. Duff  IEHC 285).
Further, the court considered the admission of extrinsic evidence to show the intention of the deceased. It was noted that there was an ambiguity in the case law as to whether extrinsic evidence could be admitted to contradict the clear clauses of a will. While McCormack v. Duff seemed to favour this proposition, it did not appear to be in keeping with the statements in Rowe v. Law  IR 55 and Re Collins Deceased, O’Connell v. Bank of Ireland  2 IR 596.
The court determined that it was not necessary to reach a final decision on the extrinsic evidence point due to her assessment of the evidence in the case. It was held that the evidence was “relatively thin” and that the court did not know much at all about the deceased’s estate. In particular, the court was concerned that the deceased had severe vascular dementia when she died, which suggested that she may have been suffering the effects when she executed her wills three years earlier.
No medical evidence was produced dealing with this point. Further, there was limited evidence from the solicitors in the case which may have helped to determine the intention of the deceased. The UK solicitor’s letter suggested that instructions were given for both will contemporaneously, but it was not known if the testator gave instructions for her Irish will to the UK solicitor.
It was almost inconceivable that the Irish will would have been drawn up and executed without her solicitor explaining the significance of the will. As such, it was difficult to conclude that the deceased would have been unaware of the importance expressing her intentions clearly.
Additionally, the UK will contained a clause which stated that the will applied to all her property “wherever situate”. Since it appeared that she only had assets in the UK and Ireland, the logical explanation was that the clause applied to her property in the UK and Ireland.
The niece’s evidence was “not strong”, the court said. The niece did not explain how she was involved in the deceased’s business affairs or finances and there was the serious issue of whether the deceased was suffering from vascular dementia.
Unlike Re Courtney, this case dealt with a comprehensive will that was executed after the earlier, discrete will. As such, there was no concern that the estate would fall into intestacy.
It was held that, if a will clearly provided for something, it would be taken to be the intention of the deceased in the absence of exceptional circumstances.
The applicants did not discharge the heavy onus of proof that the UK will did not revoke the Irish will. The application for a grant of probate was refused.
Re Turnham-Jones  IEHC 417