The factual background of the case was seemingly uncontested. The deceased, a single person without children, attended his solicitor in 2012 to make a will.
Enjoying the testamentary freedom of this jurisdiction, he did not benefit immediate family and, after making a minor bequest, he bequeathed the residue of his estate to four named beneficiaries, who would under this will receive a one-quarter interest each.
In July 2015, the deceased again attended his solicitor and created a new will. The purpose of making this new will was to include a new fifth residuary beneficiary.
As would be expected for a new will, it began by expressly revoking any predecessors, with the deceased noting that he was “hereby revoking all former wills and other testamentary dispositions heretofore made by me”. So far, there is nothing to trouble the High Court.
Seeds of destruction
Approximately four months later, in November 2015, the deceased again attended his solicitor, motivated by a desire to undo the July 2015 changes, remove the new fifth residuary beneficiary, and restore the distribution of the residue of his estate as being between the four beneficiaries instituted in the 2012 will.
It is at this point of the story that things went awry. The deceased’s solicitor advised that revoking the 2015 will by destruction would, on its own, revive the 2012 will. The deceased proceeded to tear up the 2015 will in his solicitor’s presence and departed with two copies of the 2012 will. Following the death of the deceased, a grant of probate issued to his executors (common appointees in both wills).
The unfortunate solicitor had erred in the advice given and had overlooked or conflated the distinct provisions of sections 85 and 87 of the Succession Act 1965.
Revocation
In section 85, we find provisions relating to the revocation of a will. Subsection (1) provides that a will is revoked by a subsequent marriage, unless the will was in contemplation of that marriage, whether or not expressed as so being (together with apposite provisions relating to civil partnerships).
While most practitioners will be familiar with this provision, it is worth refreshing that, though marriage revokes a will, subsequent separation or divorce does not so do. Clients in family-law proceedings should be reminded of this state of affairs.
Then subsection (2) provides for the revocation of wills:
- By another will, or codicil, or
- By declaring in writing the intent to revoke executed in like manner to a will, or
- By the burning, tearing, or destruction of it by the testator with the intention of revoking it, or
- By the burning, tearing, or destruction of it by some other person in the testator’s presence, with the testator having the intention of revoking it.
It would appear that the deceased tore up his will with the intention of revoking it.
The second leg of the exercise of revoking the 2015 will was the matter of the intended revival of the 2012 will. Section 87 of the Succession Act 1965 provides that a previously revoked will may only be revived:
- By the re-execution of that will, or
- By the execution of a codicil demonstrating an intention to revive the previously revoked will.
Consequently, the putative revival of the 2012 will would require an active step on the part of the deceased, above and beyond the tearing-up of the 2015 will.
Rare doctrine
Had the deceased taken home the 2015 will, revoked it by destruction, and failed to revive the 2012 will through non-compliance with section 87 of the Succession Act, then (having lawfully revoked his then last will and having not revived any prior will or replaced the revoked will with a new will) he would have died intestate.
However, the deceased in this case revoked the 2015 will under the advice of his solicitor as the necessary action to revive the 2012 will, which is where doctrine of dependent relative revocation arises (see panel).
This doctrine arises rarely, and serves to save a will from revocation where such revocation occurs where the testator is operating under a mistaken understanding, or where the revocation is contingent on some occurrence that ultimately does not happen.
The application of the doctrine was straightforwardly summarised in the 1873 case of Dancer v Crabb: “If the testator’s act can be interpreted ‘Whatever else I may do, I intend to cancel this as my will from this time forth’, the will is revoked; but if his meaning is ‘As I have made a fresh will, my old will may now be destroyed’, the old will is not revoked if the new one be not, in fact, made.”
There was no dispute that the deceased’s intent was to remove the fifth beneficiary added to his 2015 will. Nonetheless, as set out by the court in Goods of Hogan and as cited in Ms Justice Butler’s judgment, it is not the function of the court to give effect to the intentions of the deceased, even if ascertainable, but instead to determine whether the steps taken by the deceased accord with the manner prescribed by the Succession Act 1965.
Exhumed
Ultimately, while the purpose was to remove the fifth beneficiary, the revocation of the 2015 will was contingent on the revival of the 2012 will. The requisite steps in accordance with section 87 of the Succession Act 1965 were not taken to revive the 2012 will.
Therefore, as the 2012 will was not validly revived, the 2015 will, whose revocation was held to be contingent on such revival, was not in fact revoked. The court ordered that the grant of probate in respect of the 2012 will be revoked, cancelled, and recalled pursuant to section 26(2) of the Succession Act 1965.
The original 2015 will had been torn-up and was not available to admit to proof. Consequently, the court ordered that the 2012 will be admitted to proof in the terms of a photocopy that had been laid before the court.
As a result of the missed revival step to comply with section 87 of the Succession Act 1965, the deceased ultimately gave one-fifth of the residue of his estate to a beneficiary whom he had intended to exclude.
The will he thought he had revoked and destroyed actually survived to be the document upon which his estate was distributed. Without the doctrine of dependent relative revocation, matters would have been no better because, in the continuing absence of an active formal revival of the 2012 will and in compliance with section 87 of the Succession Act 1965, he would then have died intestate, with beneficiaries other than the four beneficiaries common to both wills, which clearly was not his intention.
Condemnation
One might speculate that focus on the concept of a prior will being restored to efficacy through the condemnation in court of a later will could, perhaps, have been the genesis of the difficulties in this case.
If a will is condemned by the court – for example, where it can be demonstrated that the testator lacked testamentary capacity when the will was executed – then this condemnation or striking down of the will also includes the revocation clause in the condemned will.
The revocation clause being non-effective means that the earlier will was not, in fact, revoked, as distinct from it being revived and, ceteris paribus, the earlier will shall be deployed to administer the estate.
The provision relating to revival of prior wills, as set out in section 87 of the Succession Act 1965, was enacted at a time before computer hard drives or cloud storage.
Indeed, that section can trace its contents back to the Wills Act 1837, when literacy levels were much lower, and the task of creating a will in manuscript form was onerous. Hence the reference to “re-execution thereof”. Given the conveniences available to solicitors in this century, it is likely that the prospect of re-executing a previously made and revoked will should never arise.
Execution
It is always a new will that is created, even if its contents mirror that of a previous will, save for the date of execution, and having a prior will available for structure and guidance should assist. Moreover, creating the will afresh allows the solicitor to ensure that:
- Any new instructions are captured and expressed,
- Out-of-date names and/or addresses are updated,
- Newer statutory references or drafting improvements are incorporated, and
- The question of current testamentary capacity is given proper consideration.
When a new will is executed, most firms are equipped to make a scan of that will to be saved to the client’s electronic file, and should so do (this can be undertaken through smartphone apps if, for any reason, office equipment is unavailable).
A certified copy of the will should also be placed on the client’s file. These are safeguards to assist the solicitor, should the need to prove the will in terms of a copy ever arise.
Physical destruction
Having made a new will, my opinion is that, where available, and unless the solicitor has some concern about potential challenge to the new will, the old will should be handed to the client for them to then destroy it in the presence of the solicitor.
There will be practitioners who baulk at this suggestion due to the instinct to have the will available if the subsequent will is ever struck down. Once copies of the previous will are available, as they should be, then such eliminates this concern.
There are a number of advantages to reinforcing the revocation clause in the new will by physical destruction of the prior will:
- It reinforces for the client that a new will has been put in place and, indeed, that a distinct professional service has been availed of by the client,
- It viscerally emphasises for the client that the old will is defunct, and precludes any contact from the client suggesting that the old will be restored without the creation of a new will, and
- It reminds the solicitor that any wish to reinstate the now destroyed former will requires active steps, legal advice, and drafting.
The error made by the solicitor that led to the In Re Coughlan case may appear obvious and avoidable in the sedate remove of reading this article. Though it cannot be condoned, it is far more understandable when set in the context of the relentless pressure of private practice.
Nonetheless, being attuned to the relevant statutory provisions and always putting in place a new will, having taken complete and updated instructions, will militate against the vagaries of chance taking a solicitor into a discussion about the doctrine of dependent relative revocation.
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Richard Hammond SC is a solicitor and partner at Hammond Good LLP in Mallow, Co Cork, and is a Council member of the Law Society of Ireland.