Automated Summary
Deceased Name
Michael Joseph McNally
Key Facts
The case involves the estate of Michael Joseph McNally, who died in 2019. His 1981 will included a bequest of a Dublin property to his brother Eamonn, which was later struck through multiple times with a pen. The applicant, Malachy McNally, sought to probate the will with the bequest removed, claiming partial intestacy. The court ruled the obliteration invalid under section 86 of the Succession Act 1965, as the original bequest to Eamonn remained legible and no valid revocation occurred. The property will devolve to Eamonn's widow, Monica, per his will. The Testator was survived by four siblings and predeceased by six, with no children or spouse.
Issues
- The court addressed the validity of an attempted obliteration of a bequest in a 1981 will, where the Testator struck through a property bequest to his brother Eamonn and replaced it with a £1 bequest. The issue centered on whether the obliteration constituted a partial revocation under s. 86 of the 1965 Act, which requires alterations to be executed with witnesses. The court found the words were still legible and there was no evidence of intent to revoke, rendering the alteration invalid.
- The court examined whether the obliteration and alteration of the bequest occurred before or after the will's execution. It found no evidence the changes were made prior to execution, noting the Testator had ample time to revise the will but failed to comply with s. 86's requirement for witnessed alterations. The court concluded the changes were likely post-execution and thus invalid.
- The court considered if the use of different pens for the Testator's signature, the executor's name, and the witnesses' signatures invalidated the will under s. 78 of the 1965 Act. The judgment concluded that the will was validly executed despite the ink variations, as the presumption of due execution was not dislodged, given the context of execution at a bank branch with multiple pens available.
Date of Death
2019 June 29
Holdings
- The court determined that the attempted obliteration of the bequest to Eamonn McNally in the Will was invalid under s. 86 of the Succession Act 1965. The obliteration did not meet the legal requirements for revocation as the original words ('160 S.C. Road, Dublin') remained legible to the naked eye, and there was no evidence of the Testator's intention to revoke the bequest (animus revocandi).
- The insertion of an alternative bequest of IR£1 to Eamonn was deemed invalid because it was not executed in accordance with s. 86. The alteration lacked the necessary witnessing and execution formalities required by law.
- The Will was admitted to probate with the original bequest to Eamonn remaining intact. The court concluded that the repeated strikethroughs did not constitute 'destruction' of the bequest, as the underlying text was not rendered indecipherable, even without magnification or technology.
Remedies
The court admits the Testator's Will to probate, including the bequest of the South Circular Road property to Eamonn, and excludes the invalid alteration of IR£1. The attempted obliteration of the original bequest was found insufficient to constitute revocation under s. 86 of the Succession Act 1965, as the original text remains legible. The IR£1 alteration is excluded as it was not validly executed with witnesses.
Will Type
Attested Will
Probate Status
Probate granted with original bequest to Eamonn upheld
Legal Principles
The court applied s.86 of the Succession Act, 1965, which requires alterations to a will after execution to be executed in the same manner as the original will (with signatures and witnesses). The applicant failed to meet the burden of proof to demonstrate that the attempted obliteration and alteration were made prior to the will's execution. As the words of the bequest remained legible and no evidence of the Testator's intent to revoke (animus revocandi) was provided, the court concluded the alteration was invalid under s.86.
Succession Regime
Common-Law Testate succession under the Succession Act 1965
Precedent Name
- In the Goods of Adamson
- Re McEnroe
- In re Myles decd.
- In the Goods of Benn
- Stephens v. Taprell
- Cheese v. Lovejoy
- In the Goods of Hindmarch
Cited Statute
- Rules of the Superior Courts
- Succession Act, 1965
- Wills Act, 1837
Executor Appointment
The Testator's nominated executor was named in the Will but predeceased him. The executor's name is not provided in the document, but the Will's nomination is noted as valid under s. 78 of the Succession Act, 1965, though the executor's death necessitates identifying a new legal personal representative under Order 79, rule 5(6).
Judge Name
Ms. Justice Stack
Beneficiary Classes
- Spouse / Civil Partner
- Heir-At-Law
Passage Text
- 28. ... those cases are authority for the proposition that, in the absence of a complete obliteration which would amount to an act of 'destruction', there is no revocation of a will or any part of it.
- 45. ... What is clear, however, is that the changes were not executed by the Testator and witnessed, and they are therefore invalid and have no legal effect.
- 42. ... it cannot be regarded as an act of 'destruction' and it therefore cannot amount to a partial revocation of the Will.