Re Hogan deceased

• Jurisdiction: Ireland
• Court: High Court
• Judge: Gannon, J.,
• Judgment Date: 18 February 1980
• Neutral Citation: 1980 WJSC-HC 1147
• Date: 18 February 1980

In Re HOGAN, E.M

(PLOBATE)

IN THE GOODS OF:

EILEEN MARGARET HOGAN

DECEASED

1980 WJSC-HC 1147

THE HIGH COURT

1 Judgment delivered by Gannon, J., on the 18th February 1980

2 Mrs. Eileen Margaret Hogan, a widow, late of 13 Castle Street, Athlone died on the 6th October 1979 at the age of 79. She was survived by four children namely her son Michael also of 13 Castle Street, Athlone and three daughters, Mary Teresa McGuirk, Shanballa, Corrandulla, Galway, Patricia Agnew, 6 Serpentine Terrace, Ballsbridge Dublin and Hazel Constance Reid, Fernhill, Cornawagh, Athlone.

3 On the 8th August 1977 Hrs. Hogan accompanied by her daughter Patricia, attended the offices of Mr. George A. Russell, solicitor of Messrs. Read and macnat, 11 South Frederick Street, Dublin 2 and gave her instructions for the drawing of her Will. The Will was typed in the solicitor's office and then executed by Mrs. Hogan in accordance with statutory requirement, and in the presence of both the solicitor and his typist. A photocopy was made of the will and retained by Mr. Russell and the original will was given to Mrs.Hogan. Shortly prior to the 30th July 1979 Mrs. Hogan asked her daughter Patricia to make an appointment for her with Mr. Russell whom she wished to see for the purpose of changing her Will. On the 30th July 1979 Mrs. Hogan, accompanied by her daughter Patricia, again attended at the offices of Messrs. Read and macNab when she told Mr. Russell she wanted to make an alteration in her Will and informed him that she had not been well and had difficulty in deciding what to do. She enquired if one executor would suffice and when this was confirmed she stated that she wished her daughter Patricia to be her sole executrix. She stated her intentions in relation to leaving her business to her son with special provision for the possibility of his pre-deceasing his wife. Mr. Russell dictated for her the terms of her new Will and when this was typed he read it to Mrs. Hogan and to her daughter Patricia. Having expressed her satisfaction with this Will Mrs. Hogan then executed it in accordance with statutory requirements in the presence both of her solicitor Mr. Russell and of his typist. A photocopy was made of the Will and retained by Mr. Russell and the original Will was given to and taken away by Mrs. Hogan. Mr. Russell advised Mrs. Hogan that as the previous Will made in 1977 had now been revoked she should destroy it.

4 On the 25th September ???query?????? Mrs. Hogan opened a deposit account in the Athlone branch of the Bank of Ireland in the sum of £1,500. On the same day after her son Michael, who lived with her, had finished his evening meal and was reading the evening paper by the fireside Mrs. Hogan asked him to bring to her a locked steel deed box which she kept in a wardrobe in her bedroom and in which she was accustomed to keep her personal documents. She went through the documents in the box at the fireside and burned some of them. At some stage she showed to her son Michael a brown envelope and said "these documents are important; they concern you principally; the others are taken care of." Then she put the brown envelope in the box without saying what was in it. Her son was not aware that she had made a Will on the 8th August 1977 in Dublin or that she had made another Will on the 30th July 1979 in Dublin. Mrs. Hogan mentioned on the 25th September 1979 to her son that there was a Will in Mr. Tormey's (solicitor) office which she did not count any more.

5 After the death eleven days later of Mrs. Hogan on the 6th October 1979 her son opened the steel deed box and in it he found a brown envelope containing the Will dated the 8th August 1977 and also the deposit account book. Exhaustive searches by Michael and Patricia and enquiries at the Bank have failed to discover the Will executed on the 30th July 1979. The inference deposed to by Patricia in her affidavit is that her mother Mrs. Hogan intentionally destroyed the original Will dated the 30th July 1979 at the time she was burning papers from the deed box.

6 Patricia now applies to the Court with the consent of her brother and two sisters to have the photocopy of the will dated the 30th July 1979 admitted to probate. The photocopy of this Will shows that it commences with the common form of declaration that all previous Wills and testamentary dispositions are thereby revoked. It appoints Patricia Agnew as sole executrix and gives to the deceased's daughters legacies of greater amounts than in the Will dated the 8th August 1977. The testatrix thereby also creates a charge on the property devised and bequeathed to her son in favour of her daughters of a nature not provided for in the 1977 Will.

7 From the evidence given by Patricia Agnew and George Russell in their affidavits in relation to the making of the Will on the 30th July 1979 I am satisfied that that Will was properly executed in accordance with statutory requirements, and wore it available and not revoked by destruction would be admitted to probate. I think it a proper inference on the evidence that the testatrix had a conscientious anxiety about the provisions and terms of that Will made on the 30th July 1979. From the evidence of her son Michael describing her actions and conversations on the 25th September 1979 in the course of which she referred to a third and earlier Will I am satisfied the testatrix did not want to die intestate. But I think the evidence supports the necessary inference that the testatrix had a change of mind about the provisions and effect of the Will made on the 30th July 1979. The phrase used by her "the others are taken care of" conveys that she had it in her mind that her three daughters were provided for in some manner different from or independent of the document to which she was referring at the time. Although she made reference to a Will in Mr. Tormey's office (in terms which implied it was of no significance) she did not reveal that she had made either or any Will in Mr. Russell's office in Dublin, the later just eight weeks previously. I am satisfied that on the occasion described by Michael the testatrix intentionally destroyed the Will made on the 30th July 1979 for the purpose of revoking it. At the same time she had before her the Will made on the 8th August 1977, and it was to this enclosed in a brown envelope she referred when she spoke to Michael about documents concerning him principally. I consider it a correct inference from her conduct and remarks on that occasion that she intended and believed that when she had destroyed the 1979 Will the Will made on the 6th August 1977 would then be her last Will in the event of and upon her death, and would be effective as such. There is no evidence to suggest that she knew that an effective testamentary instrument once revoked in the manner prescribed by the Statute could not be revived or republished save in a manner prescribed by Statute. The evidence concerning the testatrix conveyes that she was a person who was careful and anxious to dispose by Will of her property and that had she known of such statutory requirements she would not have destroyed the 1979 Will without first ensuring that the...