Brennan v O'Donnell

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 16 July 2015
• Neutral Citation: [2015] IEHC 460
• Court: High Court
• Docket Number: [2015 No. 2242P.],[2015 No. 2242 P]
• Date: 16 July 2015

BETWEEN

MARY K. BRENNAN

PLAINTIFF

AND

MICHAEL O'DONNELL

DEFENDANT

[2015] IEHC 460

[2015 No. 2242P.]

THE HIGH COURT

JUDICIAL REVIEW

Wills & Probate – S. 87 of the Succession Act 1965 – S. 22 of the Wills Act 1837 – Whether codicil to a will revive that revoked will – Intention to revive – Intention how ascertained

Facts: Subsequent to the making of a second will revoking the first will, the deceased executed a codicil to the revoked first will that had the effect of bequeathing certain assets to the plaintiff. The parties now sought an answer as to whether the codicil revived the first will.

Ms. Justice Baker held that the codicil revived the first will but it did not revoke the second will in its entirety and the second will would continue to survive to the extent that it disposed of the assets that were not dealt with in the first will. The Court observed that there existed a difference of opinion in relation to a codicil as common law required that mere execution would be sufficient to revive a revoked will while under s. 22 of the Wills Act 1837 and s. 87 of the Succession Act 1965, the codicil must show an intention to revive. The Court opined that the intention of the testator must be gathered from extrinsic circumstances and the language used in the instrument. The Court opined that the fact that the codicil was written on the will or in the form of an annexation to the will would not be sufficient to revive the will; something more had to be found in the second testamentary instrument form telling what the intent of the testator was. The Court held that in the subject case, the fact that the codicil was made at the foot of the will and mentioned exclusively about the disposal of the estate in Ireland supported the intent of the testator that all of it was done to revive that first will.

JUDGMENT of Ms. Justice Baker delivered on the 16th day of July, 2015

1 This case relates to the question of whether a codicil to a will has revived that will.

Facts

2 Philip Brennan, deceased, died on the 15th May, 2015 in Co. Kerry. He had lived all or most of his working life in New York, and after he retired in the mid 1980s he and his spouse returned to live in Castleisland, Co. Kerry and they, until her death in 2005, and he alone thereafter, continued to visit New York on an annual basis. The domicile of the deceased is not a factor in the question to be determined by me at this point.

3 The deceased made a will in Ireland on the 24th October, 2006 in which he named the plaintiff, his niece, his sole executor, and by which he inter alia devised his dwelling, his garage and lands at Castleisland, Co. Kerry, to the defendant and his spouse Irene O'Donovan jointly, bequeathed certain monies in an identified account with EBS to the plaintiff, and the residue of his estate 'within the Republic of Ireland' to the said Irene O'Donovan. I will call this the 'Kerry will'.

4 Some two years later the deceased made a will in New York on the 23rd December, 2008. At that time his only relevant asset in New York was a small savings account, and he also had a deposit account in the joint names of the deceased and the plaintiff in respect of which no issue arose before me. By this will he disposed of the entire of his assets and his will commenced with the words:-

'I hereby revoke all prior wills and codicils made by me.'

By this will the deceased named one John Daly as his sole executor and bequeathed the bulk of his estate to him, leaving the residue to the plaintiff with certain provisions to take effect in the event, which did not transpire, of her pre-deceasing him. I will call this the 'New York will'.

5 Some two years after he made the New York will, the deceased executed a codicil to the Kerry will in Ireland. The codicil was hand written at the foot of the Kerry will and continues overleaf. It is useful to quote the entire codicil:-

'I, Philip Brennan, the within testator, hereby make this as and for a codicil to my aforesaid last will and testament. I hereby cancel and revoke the fifth paragraph of my aforesaid last will and testament and substitute in its place the following paragraph:

"I give, devise and bequeath the monies I die possessed of in my Bank of Ireland account, Castleisland to my aforesaid niece Mary Kay Brennan."

I hereby affirm all the other terms of my aforesaid last will and testament.'

6 The codicil is duly executed and witnessed by the testator:

'As and for a codicil to his aforesaid last will and testament'.

7 At the time the Kerry will was made the deceased had three savings accounts in the EBS in Castleisland. He closed these accounts in 2007 and opened a deposit account with Bank of Ireland, Castleisland, which he had at the date of the codicil in 2010.

8 The solicitor with whom the testator made the Kerry will in 2006 and the codicil thereto in 2010, Patrick Connell, ceased to practice some years ago and no extrinsic evidence is available from him, or from any other person, as to the circumstances in which either the will or codicil were made and no instructions to or attendances with the deceased are available.

The effect of the New York will

9 Counsel disagree as to the proper law to determine the question whether the New York will revoked the Kerry will. Counsel for the defendant accepts that, were the question to be determined as a matter of Irish law, the New York will would most likely be considered to have revoked the Kerry will, and for the purpose of the running of the proceedings before me, counsel agreed that I would first deal with the question of whether the codicil of 2010 had revived the Kerry will, and it is accepted that my determination of that question may well have the effect that it is not necessary to determine whether the New York will did as a matter of law, whether that be Irish law or the law of New York, revoke the Kerry will.

10 With that mind I turn now to consider the law in relation to revival of testamentary instruments.

Revival

11 It is accepted by counsel for both parties that the question of whether the codicil made in 2010 revives the Kerry will is a matter to be determined under Irish law. Section 87 of the Succession Act 1965 provides as follows:-

'No will or any part thereof, which is in any manner revoked, shall be revived otherwise than by the re-execution thereof or by a codicil duly executed and showing an intention to revive it; and when any will or codicil which is partly revoked, and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as was revoked before the revocation of the whole thereof, unless an intention to the contrary is shown.'

12 At common law, the very execution of a codicil was sufficient of itself to revive a revoked will, because a codicil was seen in itself as an act of affirming a will, and such affirmation was deemed at common law to be a revival. The matter changed however with the passing of s. 22 of the Wills Act 1837 which requires, in language which finds an exact echo in the s. 87 of the Act of 1965, in that the codicil must show ' an intention to revive'.

13 Section 87, while it permits revival of an otherwise revoked will by a codicil, does not make the execution of a codicil sufficient, and for the codicil to have the effect of revival it must show an intention to revive. This differs from the common law which operated before the Act of 1837, and while no modern Irish case exists as to how a court is to approach a codicil asserting to have revived an otherwise revoked will, there is ample old authority as to s. 22 of the Wills Act 1837. It is accepted by counsel that s. 22 involved a departure from the common law and both point me to the dicta of Sir J.P. Wilde in Re Steele: In the Goods of Steele, May and Wilson (1868) L.R. 1 P&D 575 where he said that the express words of the legislation could not be:-

'...to leave the matter in the same state in which it would have stood if they had never been introduced.'

14 Sir J.P. Wilde expressed the matter succinctly as follows:-

'I conceive that it was designed by the statute to do away with the revival of wills by mere implication.'

What is required by the statutory provisions?

15 Section 22, and now s. 87 of the Act of 1965, requires that a codicil must show an intention to revive the will, and both counsel quote, and I adopt, the statement of Sir J.P. Wilde that the intention:-

'...should appear on the face of the codicil, either by express words referring to a will as revoked and importing an intention to revive the same, or by a disposition of the testator's property inconsistent with any other intention, or by some other expressions conveying to the mind of the Court, with reasonable certainty, the existence of the intention in question.'

16 The analysis of the Court in Re Steele was followed in a judgment in Re the Goods of Davis, decd. [1952] P.279 where Willmer J. stressed that the purpose of the court was to ascertain:-

'...whether it can be said that there is some expression conveying to the mind of the court with reasonable certainty the existence of an intention to revive the will.'

Does the codicil refer to the Irish or the New York will?

17 Before turning to the question of whether the codicil shows an intention to revive the Kerry will and how that intention is to be ascertained, I first turn to the question which it is accepted I must first decide, namely whether the codicil refers to or relates to the Kerry will, or whether, it may properly be said the reference in the codicil to 'my last will' is in fact a reference to the New York will. I turn to consider that question.

18 Counsel for the plaintiff concedes that the codicil does appear to refer to the Kerry will, although he argues that the failure in the codicil to mention the New York will at all is fatal to the argument of...