An application was brought to the High Court seeking to admit to probate a document purporting to be a carbon copy of the last will and testament of the deceased, made in 1980. The beneficiary under the will is a different person to the intestate beneficiary who would benefit if the will were deemed inadmissible.
The evidence was that the original, which was retained by the deceased’s solicitor, was lost when the solicitor’s office was broken into and a safe removed from the premises in June, 1997. Neither the safe nor its contents were ever recovered.
In normal circumstances an original will must be submitted in the probate application. The problem with admitting a copy will is the absence of evidence as to the execution of the will since the carbon copy was not signed and attesting witnesses are now deceased. The document did not satisfy the execution requirements of Section 78 of the Succession Act 1965. It was also argued that the failure by the deceased to respond to correspondence from his solicitor after the theft in 1997 amounts in effect to a form of revocation.
The first issue for the Ms Justice Butler was whether the available evidence was sufficient for the court to be satisfied that an original will in the same terms as the copy was duly executed by the deceased. The carbon copy in this case contained typed names in place of signatures. That document therefore was not duly executed.
The applicant relied on the presumption of regularity to the effect that a document which appears to be in order should be presumed to have been duly executed. The Court was not swayed by the absence of direct evidence of execution and held that it should apply the balance of probability as to whether the will was in fact executed, and in the absence of contrary testimony or evidence, circumstantial evidence as to execution would prevail to uphold the presumption of proper execution. In this case, the facts of instructions being given, a will being drawn up by a solicitor and the practice of inserting typed names for signatures in a carbon copy, together with the solicitor’s records showing that an original and executed will was placed in the later stolen safe inferred circumstances where the will was duly executed.
The second issue was whether an inference should be drawn from the fact that the deceased did not attend at his solicitor’s office to re-execute his will. It was argued that the will was therefore revoked by him. The solicitor had written to the deceased advising of the theft of the safe. Section 85(2) of the 1965 Act expressly provides that the destruction of a will by a testator will operate to revoke the will, provided that the revocation is intentional. The Court held that Section 85 does not envisage that a will can be revoked through inaction nor that a will can be revoked unintentionally, simply because the testator did not respond to solicitor’s correspondence. The court would not assume an intention on a testator’s part that is not grounded in or cannot be reasonably inferred from the testator’s actions.
This case is notable for its examination of when a will will be deemed to be duly executed. It shows the importance of following regular procedures in the making of a will, and of having a will professionally drafted by a solicitor in order to demonstrate testamentary intention. The case is in stark contrast to the1980 case of Clarke v Early where the technical deficiencies of a homemade will could not be rectified in circumstances where testamentary intention could not be shown.
The above is provided for information purposes and is not intended as legal advice. We, at Fitzsimons Redmond, would be happy to talk to you about making a will, reviewing a will or dealing with the estate of a deceased person. Please contact us on 01-676 3257.
By Lisa Quinn O’Flaherty
Partner at Fitzsimons Redmond