Testate Succession - Key Cases

Question 1

Banks v Goodfellow

Answer 1

3 part test for capacity based on Harrison v Rowan (NJ CC)

Question 2

Re O’Reilly [2022] (HC)

Answer 2

• Roberts J:
• Facts of case
• S77 – Of sound disposing mind
• Feeney J in Flannery v Flannery – Testator should know and approve the contents of the will and, at the time of execution of the will, be of sound mind, memory and understanding.
• S78 requirements met – Solicitor read out will details before Stella signed and satisfied that she understood what she was signing
• Flannery v Flannery – HC approval of Banks v Goodfellow Test
  1. Understood executing will and will dispose of estate in death – Evidence yes as deceased made contact with a solicitor through a friend and clear understood that she was making a will
  2. Know nature of estate – Payments to nursing home and aware required and for doctors’ appointments, apartment, bank statements and larger print versions
  3. Testator must be able to call to mind the persons who might be expected to benefit from her estate and decide whether or not to benefit them – Beneficiaries named in will and changes since sister’s death

Question 3

Case Note – Scally v Rhatigan [2010] (HC)

Answer 3

• Laffoy J:
• Facts of case
• Banks v Goodfellow test endorsed in Flannery
• Presumption of capacity – Hamilton P in Re Glynn deceased
• Medical evidence – Understood will, aware of wife’s legal rights share and duty to provide for partner (mother of his children)

Question 4

Corby v Leahy [1969] (SC)

Answer 4

• Budd J:
• Facts of case
• Fulton v Andrews – Lord Cairns = Barry v Butlin – Two rules 1. Party propounding will must satisfy free and capable testator 2. Party prepares will benefits from will – Suspicion of the court raised; Paskev v Ollatt –
• Endorsed in SC in Re Begley
• Medical evidence that testator wouldn’t have understood effect of codicil

Question 5

Re the Goods of Kieran

Answer 5

• Deceased signed initials as signature
• Hanna J - Permitted as testator’s intention to function as signature given debilitating illness

Question 6

Re the Goods of Catherine Rice [1870] (Court of Chancery)

Answer 6

• Williams v Williams – Unwilling to declare invalidity of a signature for an unusual position; Court’s duty to the genuine act of execution in this case, if it can do so within the limits of reasonable construction – Spirit of the Amendment Act

Question 7

Derinzy v Turner

Answer 7

• The will consisted of three pages. The operative part were contained in the first two pages. At the foot of the second page was a blank section which would have left ample space for the signature of the testator and the attesting witnesses. The testator and the witnesses signed opposite an attestation clause on the third page which contained nothing other than that clause.
• The court held that the purpose of the “foot or end” requirement was to relax the prior law under the Statute of Frauds which required that the signatures be under the operative parts of the will and upheld the will as valid.

Question 8

Shires v Glascock (1687) 2 Salk 688

Answer 8

• The will was witnessed by two witnesses from another room at a distance of around 7 yards from the testator and through a broken window.
• The court held that the will was valid as line of sight

Question 9

Re: Devlin [1939] Ir Jur Rep 85

Answer 9

The testator asked her bank manager and his clerk to witness a document without confirming that it was her will. The court held that the resulting document was properly witnessed.

Question 10

Clarke v Early [1980] (SC)

Answer 10

• O’Higgins CJ:
• Facts of case
• Presume all things done correctly – Two requirements = 1. An intention to do some formal act must be established; 2. An absence of credible evidence that due formality was not observed.
• Harris v Knight distinguished
• Current case – Absence of an attestation clause and that there was insufficient evidence to admit the will in the absence of evidence confirming that the witness signatures were genuine.

Question 11

Re Delahunty [2021] (HC)

Answer 11

Butler J:
* Butler J:
- Facts of case
Issue 1 – Whether the available evidence is sufficient for the court to be satisfied that an original will in the same terms as the carbon copy which it is sought to admit to probate was duly executed by the deceased.
- S78 requirements
- Presumption of regularity – Harris v Knight – Lindley LJ = Maxim where no proof and probability; Davitt J in Re the Goods of McLean = Balance of probability considering the evidence
- O’Higgins CJ in Clarke v Earley - Presumption where intention to do some formal act must be established and absence of credible evidence that due formality was not observed.”
- English case law suggests that the strength of the presumption and the corresponding strength of the evidence necessary to displace it will again depend on the facts of each case (see Channon v. Perkins and Mason v Roberts )
- Clark – No expertise; McClean – Clerk in a solicitor’s firm with extensive experience drafting wills
- Current case – Legal expertise in preparation and registry of wills in solicitos firm evidence of due execution; among deceased’s personal papers

Issue 2 - Whether an inference should be drawn from the particular circumstances in which the deceased did not attend at his solicitor’s office to “ re-do” his will, that the will was revoked by him.
- Spierin - Presumption and rebuttal
- Hanna J. in In the Goods of Cafferty – Lost will but daughter had read will after he died (1915/1933) and possible to reconstruct terms of will
- Important document
- Question of deceased’s prudence
- S85 destruction methods and intentional, not inaction or unintentionally.
- Contrary to the entire scheme of the 1965 Act”

Issue 3 – Whether the evidence is sufficient to allow the court to conclude that the deceased was aware of and approved the contents of the will. –
- Kept copy of will in his personal papers

Question 12

Re Willis

Answer 12

Gifts to attesting witnesses exception

Question 13

Leopold v Malone [2018] (HC)

Answer 13

• Pilkington J:
• Facts of case
• s. 78(2) of the 1965 Act
• Resulting position (Spierin)
• Attesttation clause present in will and codicil
• Davitt J In the Goods of McLean – Presumption of due execution can be rebutted by clear consistent and reliable evidence to the contrary; human testimony fallible – Apply presumption in current case

Question 14

Welch v Philips [1836] (Privy Council)

Answer 14

• Baron Parke:
• Facts of case
• Made two wills – Did not intend to die intestate
• Ecclesiastical Court = If a Will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it.
• Rational = Highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it.
• The onus of proof of such circumstances, is undoubtedly on the party propounding the Will ( Colvin v. Frazer; Lillie v. Lillie)
• Current case – Deceased referenced the will several times after making it; Other side – Deceased careful person; gave it to the care of another in a specific box; declaration that never made another will after 1820

Question 15

Sugden v Lord St Leonards [1876]

Answer 15

● Cockburn CJ:
- Presumption of revocation where will not found at TOD but known to be in the custody of the testator
- Secondary evidence question – Brown v Brown – Lord Campbell = Permitted for wills
- Rationale = Anyone could take a will out of sinister motives and prevent the will from going through probate
* Jessel MR:
- Prove will duly executed and attested and destruction of the will with intention to revoke to get rid of the will itself
- Trace will to possession of testator at TOD and not able to find it – Presumption that destroyed with the intention of revocation
- Current case – Presumption rebutted by evidence of Charlotte Sugden

Question 16

Re Curtin [2015] (HC)

Answer 16

• Baker J:
• Facts of case
  Issue 1. Whether the presumption that the will was destroyed with the intention to revoke it has been rebutted:
• Sugden v Lord St Leonards
• Deceased = Detail-orientated individual; GP – Writing lists of concerns and any advice dispensed; Diary – Update present will
  2. Whether the deceased could have had the capacity to revoke the will after 2007:
• Harris v. Berrall – Burden showing revoked on party claiming revoked; Insane – No intention; Followed in Sprigge v Sprigge – No presumption in the absence of proof that the destruction of a will was done before a testator became insane, or indeed after this had happened.

Question 17

Re McDermott [2015] (HC)

Answer 17

• Parke B quote in Welch v Phillips and approved by SC in Re the Goods of Coster; Kenny J. indicated a number of factors that might rebut the presumption (fire, character of deceased; disappointed beneficiary having removed the original will), not as a matter where evidence shows that this had happened, but where evidence points to it being a possible explanation for the loss of the will.
• Harris v. Berral – “If it is once proved that a will has been duly executed, I hold that it is entitled to probate, unless it is also shewn that it has been revoked by one of the several modes pointed out by that statute….”.
• s. 85 (2) of the Succession Act 1965
• Nature of the presumption – Wren v. Wren [2006] EWHC 2243 (Ch) Rimer J
• Sugden v. Lord St. Leonards, and Welch v. Philips itself. The Court identified a number of factors to be considered.

Question 18

Re McEnroe’s Estate [2021] (CoA)

Answer 18

• Ní Raifeartaigh J:
• Facts of case
• s77 and s78
• S.85(2) revocation rules
• S.86 – Alteration rules
• Kavanagh v Fegan – Hanna J = Court leans in favour of testacy and rebuttable presumption of law that a will, on its face made in conformity with the law, should be admitted to probate
• Hobbs v. Knight – The cutting out of a signature on a will was held to be an act of destruction under s.20 such as to render the entirety of the will invalid because the signature was an essential part of the will. Accepted that an obliteration such that the underlying words were no longer legible could amount to an act of “destruction” and therefore revocation in appropriate circumstances.
• Where words in a will have been struck through with a pen without obliterating the underlying words, this does not amount to destruction: Stephens v Taprel
• Spieren – if a testator were to erase or to cut or tear out a gift he or she had made by will with the intention of revoking it, this would be effective to revoke the gift. Where the act of the testator does not amount to ‘burning, tearing or destruction, though, the provisions of s.86 must prevail”.
• Derived principles and conclusions and their application to the case

Question 19

Case Note – Re Urquhart [1974] (SC)

Answer 19

• Walsh J:
• Facts of case
• Structure presupposes and is based on an assumption implicit in the statute, in addition to what is expressly stated in s. 111, that a legal right arises on the moment of the death of the testator.
• Bequest default where exists

Question 20

Re Cummins [1996] (HC)

Answer 20

• Kelly J:
• Facts of case
• S111 –
• Intention of legislature
• Right – May be exercised but may be lost if not exercised
• Would mean automatic transfer of one half of the estate would occur even in circumstances where a surviving spouse would desire to honour the testamentary wishes of the deceased.
• Re Urquhart – RC v AIB – Walsh J – Interpret as right to claim on death; At best the legal share provided by the Act of 1965 can be described as a statutory offer which is not binding upon the surviving spouse until it is accepted.
• Objects of the statute are achieved whilst at the same time maintaining freedom on the part of the surviving spouse to abide by the wishes of the deceased if she so desires.
• Consistent with s. 113 (spouse may renounce LR in an ante-nuptial contract made in writing between the parties to an intended marriage or may be renounced in writing by the spouse after marriage and during the lifetime of the testator) That is strongly suggestive of the view that the right is a personal one to be enjoyed by the surviving spouse. If that spouse is competent to renounce that right during the lifetime of the testator, why, subsequent thereto, should she be denied an entitlement to bring about the same result in circumstances where she may wish to honour the testamentary wishes of her deceased spouse?
• Consistent with the provisions of s. 115. There, a right of election is given to the spouse either to take under a devise or bequest or the legal right. Again, it is a matter of personal choice insofar as the surviving spouse is concerned.
• Murphy J in Reilly v McEntee = Right of election valuable but significance is belongs to spouse only
• s. 67(1) – If an intestate dies leaving a spouse and no issue, the spouse shall take the whole estate.
• No mandatory language in s111

Question 21

DC v DR [2015] (HC)

Answer 21

• Baker J:
• Facts of case
• S172(1) 2010 Act – 2/5 years
• S194 (3) – Court’s discretion to make provision
• No financial dependence required
• S172(2) factors
• The requirement that the relationship be a committed one remains, and the couple must be residing together.
• Should have known need for a will
• Choice to remain unmarried

Question 22

Re GM: FM v TAM [1970] (HC)

Answer 22

• Kenny J:
• Facts of case
• Obligation fulfilled by will or otherwise and so gifts or settlements made during the lifetime of the testator in favour of a child or the provision of an expensive education for one child when the others have not received this may discharge the moral duty.
• Other circumstances as well as parent child relationship, proper provision based on means, immoveable property
• Factors (a) the amount left to the surviving spouse or the value of the legal right if the survivor selects to take this, (b) the number of the testator’s children, their ages and their positions in life at the date of the testator’s death, (c) the means of the testator, (d) the age of the child whose case is being considered and his or her financial position and prospects in life, (e) whether the testator has already in his lifetime made proper provision for the child.
• Objective considerations.
• Duty exists question
• Current case

Question 23

EB v SS [1998] (HC)

Answer 23

• Keane J:
• Facts of case
• S117
• Kenny J criteria
• Approved in Re LAC deceased C&F v WC and TC – Finlay CJ = High onus of proof, not just other gifts more generous, positive failure in moral duty
• Consider special needs
• Parents may desire equal distribution to avoid friction between children
• Lifetime – Education, house, £275,000
• Parents must be presumed to know their children better than anyone else
• The social policy underlying that provision - and which was, of course, exclusively a matter for the Oireachtas - was, it is reasonable to assume, primarily directed to protecting those children, who were still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents who were unmindful of their duties in that area. However, since the legislature, no doubt for good reasons, declined to impose any age ceilings which would preclude middle aged or even elderly offspring from obtaining relief, the courts must give effect to the provision, irrespective of the age which the child has attained.
• Baron J:
• Facts of case
• In the Goods of JH Deceased – Need could be met by provision but in this case well provided for
• “Proper” connotes in the context in which it is used doing what is right. If so, then the fact that generous provision has already been made must only be one of the matters to be taken into account in determining what is proper.
• Need for grandchildren

Question 24

Re In the Estate of ABC Deceased XC v RT [2003] (HC)

Answer 24

• Kearns J:
• Facts of case
• S117
• At the date of death of the deceased, his wife R was wholly dependent upon him for support
• included Re: Goods of JH deceased [1984] I.R. 599, FM v. TAM [1972] 106 I.L.T.R. 82, L v L [1978] I.R. 288, J de B v. HE de B [1991] 2 I.R. 105, CC v. WC [1990] 2 I.R. 143, EB v. SS [1988] 2 I.L.R.M. 141, J. McD deceased P. McD v. MN [1999] 4 I.R. 301 and MPD & Ors v. MD [1981] I.L.R.M. 179.
• Counsel on both sides were agreed that the following relevant legal principles can, as a result of these authorities, be said to derive under Section 117:-
  (a) The social policy underlying Section 117 is primarily directed to protecting those children who are still of an age and situation in life where they might reasonably expect support from their parents against the failure of parents, who are unmindful of their duties in that area

(b) What has to determined is whether the testator, at the time of his death, owes any moral obligation to the applicants and if so, whether he has failed in that obligation.

(c) There is a high onus of proof placed on an applicant for relief under Section 117 which requires the establishment of a positive failure in moral duty

(d) Before a court can interfere there must be clear circumstances and a positive failure in moral duty must be established.

(e) The duty created by Section 117 is not absolute.

(f) The relationship of parent and child does not itself and without regard to other circumstances create a moral duty to leave anything by will to the child.

(g) Section 117 does not create an obligation to leave something to each child,

(h) The provision of an expensive education for a child may discharge the moral duty as may other gifts or settlements made during the lifetime of the testator.

(i) Financing a good education so as to give a child the best start in life possible, and providing money, which if properly managed, should afford a degree of financial security for the rest of one’s life does amount to making “proper provision”.

(j) The duty under Section 117 is not to make adequate provision but to provide proper provision in accordance with the testator’s means.

(k) A just parent must take into account not just his moral obligations to his children and to his wife, but all his moral obligations e.g. to aged and infirm parents.

(l) In dealing with a Section 117 application, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.

(m) Special circumstances giving rise to a moral duty may arise if a child is induced to believe mat by, for example, working on a farm he will ultimately become the owner of it thereby causing him to shape his upbringing, training and life accordingly.

(n) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong not to foster.

(o) Special needs would also include physical or mental disability.

(p) Although the court has very wide powers both as to when to make provisions for an applicant child and as to the nature of such provision such powers must not be construed as giving the court a power to make a new will for the testator.

(q) The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but rather, whether the decision of the testator to opt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.

(r) The court must not disregard the fact that parents must be presumed to know their children better than anyone else.

Question 25

Re In the Estate of I.A.C. Deceased C. and F. v W.C. and T.C. [1989] (SC)

Answer 25

• Finlay CJ:
• Facts of case
• S117
• Judge circumstances at date of death
• Re GM – Kenny J factors
• Approve and add high onus of proof, not just other gifts more generous; establish positive failure of moral duty
• Caring, kind relationship in case vs if marked hostility

Question 26

Re: Patterson

Answer 26

Intention of testator; literal meaning absurd

Question 27

Thorn v Dickens [1906] WN 54

Answer 27

The will simply stated “All to mother”. Evidence was given that the testator habitually referred to his wife as “mother”

Question 28

S90

Answer 28

Extrinsic evidence (SC in O’Connell v BOI)

Question 29

Heron v Ulster Bank [1974] NI 44 - Heron Principles

Answer 29

1. Read the immediately relevant portion of the will as a piece of English and decide if possible, what it means.
   2.Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest the need for modification in order to make harmonious sense of the whole or, alternatively, whether an ambiguity in the immediately relevant portion can be resolved.
2. If ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
3. One may at this stage have resort to rules of construction, where applicable, and aids such as the presumption of early vesting and the presumption against intestacy and in favour of equality.
4. Then see whether any rule of law prevents a particular interpretation from being adopted.
5. Finally, and I suggest not until the disputed passage has been exhaustively studied, one may get help from the opinions of other courts and judges on similar words, rarely as binding precedents, since it has been well said that ‘no will has a twin brother’ … but more often as example … of how judicial minds nurtured in the same discipline have interpreted words in similar contexts