Kench-Andrews v The Succession Act 1965

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 01 July 2022
• Neutral Citation: [2022] IEHC 417
• Court: High Court

In the Matter of the Estate of Eileen Rose Turnham Jones (Also known as Eileen Turnham-Jones) Late of 60 Cardinal Avenue, Mordon, Surrey, SM4 4Z, England

and

In the Matter of the Succession Act 1965

and

In the Matter of an Application by Tracy Ann Kench-Andrews and Peter Roy

[2022] IEHC 417

THE HIGH COURT

PROBATE

Wills and probate – Revocation – Declaratory relief – Applicants seeking an order granting the executor named in an Irish will liberty to extract a grant of probate in respect of that will – Whether the Irish will was revoked by a subsequent UK will

Facts: The deceased, Ms Turnham Jones, prior to executing a will in the United Kingdom on 25th October 2011, executed a will in Ireland on 1st September 2011 which disposed of her Irish estate. Her assets in Ireland consisted solely of a holiday house at Shillelagh, in County Wicklow which she left to the second applicant, Mr Roy, a neighbour and friend. The second applicant was also appointed the sole executor of her estate. The subsequently executed UK will contained a revocation clause at clause 1 which purported to revoke “all earlier wills and testamentary dispositions”. An application made in the non-contentious Probate list was brought jointly by one of the executors to her UK will, Ms Kench-Andrews, to whom a grant of probate was issued in the UK on 3rd August 2016, and the executor under the Irish will. Two reliefs were sought. The first was a declaration that the Irish will was not revoked by the subsequent UK will and the second was an order granting the executor named in the Irish will liberty to extract a grant of probate in respect of that will. All of the beneficiaries of the deceased’s estate under the UK will consented to the application.

Held by the High Court (Butler J) that, notwithstanding the lack of objection from those who might otherwise stand to benefit if the application were disallowed, she found herself unable to accede to the application. Butler J did not think that the applicants had discharged the very heavy onus of proof that lay on them to show that the revocation clause in the UK will did not revoke the earlier Irish will. Butler J held that it may be that the applicants were correct in their belief that the deceased did not intend it to do so, but the evidence available to the court was not sufficient to enable her to be satisfied of this.

Butler J refused the application.

Application refused.

JUDGMENT of Ms. Justice Butler delivered on the 1 ^st day of July, 2022

Introduction:

1 . This judgment deals with an application made in the non-contentious Probate list to which all of the beneficiaries of the deceased's estate under a will executed by her in the United Kingdom on 25 ^th October 2011 have consented. Notwithstanding the lack of objection from those who might otherwise stand to benefit if the application were disallowed, for the reasons set out below I find myself unable to accede to the application.

2 . In brief, the application arises because prior to executing her UK will the deceased executed a will in Ireland on 1 ^st September 2011 which disposed of her Irish estate. Her assets in Ireland consisted solely of a holiday house at Shillelagh, in County Wicklow which she left to the second applicant, a neighbour and friend. The second applicant was also appointed the sole executor of her estate. The subsequently executed UK will contains a revocation clause at clause 1 which purports to revoke “all earlier wills and testamentary dispositions”. The application is brought jointly by one of the executors to her UK will to whom a grant of probate was issued in the UK on 3 ^rd August 2016 and the executor under the Irish will. Two reliefs are sought. The first is a declaration that the Irish will was not revoked by the subsequent UK will and the second is an order granting the executor named in the Irish will liberty to extract a grant of probate in respect of that will.

3 . In order to understand the legal issues which arise it may be useful at the outset to look at the terms of the two wills and the circumstances in which they were executed by the deceased, insofar as the circumstances are known to the court.

4 . The first in time is the Irish will which was drawn up on behalf of the deceased by a solicitor and executed in that solicitor's office with the solicitor and his legal executive acting as witnesses. The will is a relatively straightforward, single page document. It describes the deceased as being “of” the address of the holiday property in Shillelagh although there seems no doubt that the deceased was both resident and domiciled in the UK for her whole life. It then contains the following recital:-

“…I hereby revoke any testamentary dispositions in respect of property owned by me in the Republic of Ireland heretofore made by me. I declare that this will relates solely to my dwelling house in Ireland.”

This is followed by a bequest of the dwelling house to the second applicant and his appointment as executor. The specific intention of the deceased to benefit the second applicant is clear not just from the gift itself, but from the fact that in the event the second applicant did not survive the deceased for thirty days, the property was left in equal shares to four of his nieces. The will then concludes, before the necessary formalities:-

“In all other respects I confirm my English will.”

There is no issue that the execution of this will complies with the requirements of s. 78 of the Succession Act and that it is a prima facie valid will (subject to one concern which is considered below). The issue is whether it was subsequently revoked by the execution of the UK will.

5 . The UK will is a longer and more complex document. It was also prepared on the deceased's behalf by a firm of solicitors and the witnesses appear to be two members of staff of that firm leading to an inference that it was executed in the solicitor's office. The general structure of the will is that it appoints two individuals, including the first applicant, to be executors and trustees. The deceased then gifted her personal chattels to the trustees as beneficial legatees. The terms “personal chattels” has a specific meaning in the UK under s. 55(1)(x) of the Administration of Estates Act, 1925 which, as it happens, was significantly updated in 2014 subsequent to the execution of this will. It does not include what are generally the more valuable assets likely to be held by a person such as real property, cash, shares, securities, investments etc. The bulk of the deceased's estate was described in the will as her “residuary estate” and the trustees were directed to hold this estate in specific percentage shares on behalf of seventeen named residuary beneficiaries. In reality, the residuary gift is the main gift under the will.

6 . The level of detail contained in the UK will regarding the identity of the beneficiaries is impressive with specific stipulation being made as to which of the beneficiaries' descendants were to benefit in the event of the beneficiary predeceasing the testator. In contrast the actual content of the deceased's residuary estate, whether that comprised real estate or otherwise, is not described at all. Instead, under clause 5 of the will, the deceased's estate is defined so as to mean “all my property of every kind wherever situate”. There are some subclauses to clause 5 but these do not alter the fundamental premise that the will relates to the entire of the deceased's property no matter where that property is located.

7 . Thus, on the face of it the deceased's UK will, executed subsequent to her Irish will, revokes the earlier Irish will and applies to the entire of her estate including her property in Ireland. The question raised on this application is whether the circumstances in which the two wills were executed are such that the court can be satisfied that, notwithstanding the express terms of the UK will, in executing it the deceased did not intend to revoke the will.

Revocation of wills

8 . Two statutory provisions have been cited to the court as being relevant to this question. The first is s. 85 of the Succession Act 1965 which governs the revocation of wills. Apart from the automatic revocation of a will on the subsequent marriage of a testator (unless the will was made in contemplation of the marriage), dealt with in s. 85(1), s. 85(2) sets out the formalities required for a valid revocation of a subsisting will. It provides:-

“(2) Subject to subsection (1), no will, or any part thereof, shall be revoked except by another will or codicil duly executed, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.”

9 . The terms of the revocation clause in the UK will – “I revoke all earlier wills and testamentary dispositions” – and the fact that it is contained in another duly executed will is sufficient in principle to ensure the revocation of the earlier Irish will. However, the applicants point to a number of authorities cited in the judgment of Baker J in Re Courtney Deceased [2016] IEHC 318 to the effect that the presence of a revocation clause in a will is not necessarily determinative if it can be shown that the testator did not have knowledge of or approve the intended revocation. Relying on the judgments in Re Keenan [1946] 80 ILTR 1 and Re Phelan [1972] Fam 33, Baker J stated as follows:-

15. Implicit in this dicta is that a clear revocation clause, while it might raise a presumption that a testator intended to revoke all previous testamentary documents, could not of itself, absent the knowledge and approval of the testator, do so if the necessary animus revocandi was not present....