Time and time again the courts are left to unravel the tangled web of probate disputes and problems arising from the lack of clarity by a testator. Many of these disputes could have been avoided had a solicitor drafted the will. Solicitors are trained to elucidate the intentions of a testator, and to avoid the traps and pitfalls of loose language and the possible differing legal definitions of words.

The recent case of In the Matter of the Estate of Martin Healy [2022] IEHC 49, the reason for the wisdom of having a solicitor-made will was a little bit different. In this case the problem arose because the original will could not be found. In the usual course of events, the original will is kept safely by the drafting solicitor in a fire-proof cabinet.

The late Mr Healy sought the assistance of a Dominican priest in drafting his will, and which was executed by him and witnessed by two Dominicans in the holiday-home of that Order which was located next-door to Mr Healy’s home. There was no evidence signalling the whereabouts of the original. The only thing that is known is that at some point after execution the will was photocopied. Mr Healy died some 15 years after having executed the will.

The executor and one of the intended beneficiaries; the nephew of the deceased sought to rely on the photocopy. He was supported in this application by all of the next of kin who would benefit were his application to fail. Despite the overwhelming evidence that the late Mr Healy intended (at least at the time of executing the will) his nephew to benefit, the absence of an original will made a High Court action necessary. It was necessary to rebut the presumption that if an original will cannot be found it is presumed that it was destroyed and revoked by the testator.

In the case Ms Justice Butler held that the presumption could not be rebutted given the lack of evidence that the late Mr Healy’s intentions did not change since the drafting of the will. The copy will could not be admitted to probate.

Another point to note is that the expense of taking a High Court action cannot be avoided in circumstances where the original will is not available. The costs of a probate action come out of the estate. So, the estate of the late Mr Healy which now falls to be distributed to the next of kin is diminished by the legal costs involved.

Ms Justice Butler sensibly commented that:

Although the Succession Act does not require that a will be drawn up by a solicitor, the circumstances of this case are a good example of why it is prudent to seek the assistance of a lawyer in respect of a step as important as the preparation of a will.

The above is provided for information purposes and is not intended as legal advice. If you have questions about applying for probate or making a will, we, at Fitzsimons Redmond LLP would be happy to advise you on your next steps. Please contact us on 01-676 3257.

By Lisa Quinn O’Flaherty

Partner at Fitzsimons Redmond LLP