Handwritten changes to homemade will dealing with South Circular Road property were invalid, judge rules
Handwritten changes to a former publican's homemade will dealing with the bequest of a valuable Dublin property did not amount to a partial revocation or destruction of the will, the High Court has ruled.
Ms Justice Siobhan Stack said the will of Michael (Mick) Joseph McNally, who died in June 2019, could be admitted to probate after she found the handwritten changes were invalid.
The judge said the circumstances of this case 'demonstrate once again the importance of taking legal advice on all aspects of the drawing up and alteration of a will'.
Her decision means the bequeathed house on South Circular Road, Dublin, has been left to the estate of his brother Eamonn, who died in 2020. If the changes had been found valid, it would mean the property would be divided up between his three remaining siblings and Eamonn's widow Monica.
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The court heard Monica had not objected to admitting the will to probate on the basis that the bequest of the property to Eamonn had been validly removed and should therefore be regarded as blank.
Mr McNally, who was unmarried and had no children, ran the Headline Bar in Clanbrassil Street, Dublin, before returning to live until his death in his native Virginia, Co Cavan, with another brother Malachy. He was one of ten children, six of whom predeceased him.
The will, dated April 29th, 1981, was made out on a preprinted form and completed by Michael in manuscript. The only asset was the Dublin house, other properties and assets having been apparently disposed of during his lifetime, the judge said.
The original bequest of this property to Eamonn was the subject of an attempted obliteration. There was also an alteration in which the bequest of the property was replaced with a bequest to Eamonn in the sum of IR£1.
The executor of the will has since died and in 2023 Malachy sought to have the will admitted to probate, which means the proceeds of the will could be distributed.
The judge said that although Malachy's application did not explicitly refer to it, it was, in reality, an application to admit the will to probate on the basis that the destruction of the bequest meant it should be admitted to probate and that the property now falls to be dealt with by way of a partial intestacy.
She said it was in August 2009 that another since deceased brother, Tom, gave Malachy the will along with other personal effects of Michael. Malachy remembered this because Tom died two days later.
The judge said the original will was witnessed by two bank officials who it had not been possible to trace.
She accepted Malachy's evidence that he (Malachy) did not open the will and it was not altered between 2009 and 2019 when Michael died. However, that still left a period of 28 years from the execution of the will, during which the attempted obliteration and alteration could have been made, she said.
The judge said it seemed to her that as the purported obliteration did not render the words underneath indecipherable, it could not be regarded as an act of 'destruction' and it therefore cannot amount to a partial revocation.
As a result, she said the attempt to change the will so as to replace the bequest of the property to Eamonn with a bequest of IR£1, was invalid as a matter of law, she said.
In coming to this conclusion, the judge stressed there are very sound policy reasons behind the relevant law (Section 86 of 1965 Succession Act).
These aim to prevent any dispute as to their execution by the testator and, in particular, operate to ensure that alterations are not made by another person, whether before or after death, she said.
She also stressed she was not suggesting that any person who had custody or of access to the will would have attempted to alter its terms and in fact it seems likely it was Michael who made the alterations himself.
However, she said she could not be sure of this but it was clear the changes were not executed and witnessed.
The judge will deal later with who is to be appointed to take out the grant of probate.
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