Baker, Re deceased

• Jurisdiction: Ireland
• Judgment Date: 25 March 1985
• Date: 25 March 1985
• Court: High Court

High Court

Re John Baker Decd.

In the Goods of John Baker, Deceased, Application of Leslie E. Kearon

Will - Validity - Will executed in 1951 - Whether will revoked by subsequent marriage - Wills Act, 1837 (1 Vict., c. 26), s. XVIII - Whether will made in contemplation of marriage - Whether will valid and effective within scope of Succession Act, 1965 (No. 27), s. 9.

Probate Motion.

John Baker died in 1983, solely survived by his wife, Margaret Gaffney. There was no issue of the marriage. In 1951 he had executed a will naming Margaret Gaffney as sole beneficiary and appointing Leslie E. Kearon (the applicant) as executor thereof. The deceased married Margaret Gaffney in 1954.

On the 12th December, 1984, the applicant applied ex parte in the High Court for an order that the deceased's will was not revoked by his subsequent marriage, in accordance with the provisions of s. 85, sub-s. 1, of the Succession Act, 1965; or alternatively that the will was revoked by the subsequent marriage and that the deceased died intestate.

Section 85, sub-s. 1, of the Succession Act, 1965, provides:—

"A will shall be revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether so expressed in the will or not."

The application was heard by Gannon J. on the 21st January, 1985.

In 1951 the deceased executed a will in which he devised and bequeathed all his real and personal estate to M.G. In 1954 the deceased married M.G. He died in 1983, solely survived by his wife, M.G., and not having executed any other will. The executor named in the will of 1951 applied for an order that the deceased's will was not revoked by his subsequent marriage, in accordance with the provisions of s. 85, sub-s. 1, of the Succession Act, 1965; or, alternatively, that the will was revoked by the subsequent marriage and that the deceased died intestate.

Held by Gannon J. in dismissing the application, 1, that the will executed by the deceased in 1951 was governed by the Wills Act, 1837, and was revoked by his subsequent marriage, whereupon it became invalid and ineffective and accordingly it could not come within the scope of s. 9, sub-s. 4, of the Succession Act, 1965.

2. Accordingly, the applicant could not competently call upon the court to make any order within the scope of the provisions of the Succession Act, 1965, or the rules of the court in probate matters.

Cur. adv. vult.

Gannon J.

John Baker, late of 121, Brookwood Avenue, Artane, in the city of Dublin, died on the 2nd of December, 1983. He is survived by his wife Margaret, whom he married on the 17th of August, 1954. There are no children of this marriage. On the 23rd of April, 1951, the deceased executed a will in which he declared:—

"I give, devise and bequeath all my real and personal estate of every nature and kind whatsoever and wheresoever to Miss Margaret Gaffney of 109 Summerhill in the City of Dublin and I appoint Leslie E. Kearon, solicitor, of 31, College Green in the City of...