The Estate of Mary Philomena Maureen McEnroe (Otherwise Maureen McEnroe) Late of 20 Cypress Park, Templeogue, Dublin 6W, Retired Company Secretary, Deceased

• Jurisdiction: Ireland
• Judge: Ms Justice Ní Raifeartaigh
• Judgment Date: 12 February 2021
• Neutral Citation: [2021] IECA 28
• Date: 12 February 2021
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2020/195

In the Matter of the Estate of Mary Philomena Maureen McEnroe (Otherwise Maureen McEnroe) Late of 20 Cypress Park, Templeogue, Dublin 6W, Retired Company Secretary, Deceased

And in the Matter of the Successon Act, 1965

And in the Matter of the Aplication by Evelyn O'Neill, A Sister of the Deceased, And One of the Residuary Legatees and Devisees Named in the Last Will and Testament of the Deceased to Prove the Deceased's Last Will and Testament in Common Form of Law in its Current Form and Condition

[2021] IECA 28

Whelan J.

Ní Raifeartaigh J.

Binchy J.

Court of Appeal Record No. 2020/195

High Court Record No.: 19/9819

THE COURT OF APPEAL

PROBATE

Wills and probate – Validity – Costs – Appellant seeking admission of will to probate – Whether the costs of the application should be borne by the estate

Facts: The testatrix, Ms McEnroe, a retired company secretary, died in May 2017 at the age of 87 years. She was a single woman without children and had made and executed her last will and testament in May 2005. The will was a homemade pre-printed will, written on two sides of a single sheet of paper. The will had on its face a number of alterations and the probate office therefore refused to prove the will without further evidence being adduced. A sister of the testatrix, the applicant/appellant, Mrs O’Neill, brought an originating notice of motion before the High Court on an ex parte basis requesting that the will be admitted to probate in its current form and condition, and that liberty be granted to the applicant to apply for and obtain a grant of letters of administration with will annexed. The trial judge did not rule definitively on whether the will should be admitted to probate or not, but rather declined to decide that issue in the absence of “notice”, by which he appeared to have meant notice to those who might be entitled under intestacy. The appellant appealed to the Court of Appeal on the basis that the trial judge was wrong to so rule, and that he should have ruled the will valid and admitted it to probate. She also submitted that he should have made an order directing that the costs of the application be borne by the estate.

Held by Ní Raifeartaigh J that, on the balance of probabilities, line 26 was probably a pecuniary bequest or a devise. Having had regard to the evidence as to the will being recovered from its hidey-hole on the instructions of the testatrix, Ní Raifeartaigh J was satisfied to draw the inference that the testatrix herself carried out the pen-scoring in question. It seemed to Ní Raifeartaigh J also that her intention to carry out a partial revocation only could also be clearly inferred given the relatively limited nature of the obliterations. In the circumstances, Ní Raifeartaigh J held that the first obliteration (of the executor) should be treated as blank with the result that the position was then governed by Order 79 rule 5(6) of the Rules of the Superior Courts (SI 469/2015), while the second obliteration (of the bequest or devise) should be treated simply as a blank, in light of the approach of Hanna J in the case of Benn [1938] I.R. 313. Ní Raifeartaigh J held that the rest of the will could be treated as valid.

Ní Raifeartaigh J held that, in relation to the issue of costs, the issue raised in this case was novel and the probate office directed that the application be brought; the appellant had no choice but to bring the application in order to get a grant and administer the estate, and the difficulty arose out of the actions of the deceased herself, not by reason of any conduct on the part of the appellant. Accordingly, Ní Raifeartaigh J held that she would grant the costs of the appeal, reverse the High Court decision and award the High Court costs to the appellant also, both to come from the estate in due course, on the basis of s. 168(1)(b) of the Legal Services and Regulation Act 2015.

Appeal granted. Costs awarded to appellant.

JUDGMENT of Ms Justice Ní Raifeartaigh delivered on the 12th day of February, 2021

1 This is a case in which the question is whether a will which was executed by Ms. McEnroe, the testatrix, should be admitted to probate in circumstances where it has on its face a number of unexecuted alterations. These alterations consist of two obliterations and one interlineation. More particularly, the case raises an issue concerning the construction of ss.85 and 86 of the Succession Act 1965 in a situation where there has been an obliteration by pen of a relatively small number of words in a will such that those words are illegible, but where the rest of the will remains intact (including the signature and attestation of the witnesses). The matter requires careful construction of the statutory provisions in circumstances where s.86 of the 1965 Act replaced s.21 of the Wills Act 1837 by re-enacting the provision with one crucial difference, being the omission of a proviso in s.21 which would, if it had been carried through to s.86, have provided a clear answer to the problem arising in this case. The meaning of the terms “destruction” and “obliteration” in ss.85 and 86 of the 1965 and the relationship between them are central to the judgment.

The Facts

2 Ms. McEnroe, a retired company secretary, died in May 2017 at the age of 87 years. She was a single woman without children and had made and executed her last will and testament in May 2005. The will was a homemade pre-printed will, written on two sides of a single sheet of paper.

3 The will had on its face a number of alterations and the probate office therefore refused to prove the will without further evidence being adduced. A sister of the testatrix, the applicant/appellant Mrs. O'Neill, brought an originating notice of motion before the High Court on an ex parte basis requesting that the will be admitted to probate in its current form and condition, and that liberty be granted to the applicant to apply for and obtain a grant of letters of administration with will annexed.

4 Mrs. O'Neill swore an affidavit in which she exhibited the death certificate and set out the family circumstances of the testatrix. Ms. McEnroe had 7 siblings, three of whom predeceased her. Mrs. O'Neill refers to the will in issue in these proceedings and says that she is not aware of any other will before or after this one. She confirms that the handwriting and signature at the end of the will are those of the testatrix. She exhibits the latter's driving license which also contains her signature.

5 Mrs. O'Neill explains that the two witnesses to the will, H.L. and M.L. (a married couple), were neighbours and good friends of the testatrix. Mr. L died on 4 June 2015 and his death certificate is exhibited. Mrs. L is alive but is of “unsound mind”, and the certificate of registration of Enduring Power of Attorney in relation to her is exhibited. Accordingly, neither of the two witnesses can assist in determining the circumstances in which the alterations to the will occurred. Their son B.L. made a statement confirming that at the time the will was made, his parents were living at an address which is a few doors away from the home of the testatrix. He also says that he is satisfied that the witness' signatures on the will are those of his parents. His statement is exhibited in the affidavit of Mrs. O'Neill.

6 The applicant exhibits a draft Inland Revenue certificate which indicates that the total gross value of the testatrix' estate at the date of her death was in the region of €1,094,094 with a net value of €1,080,629.

7 Mrs. O'Neill also says that the testatrix was suffering from end stage dementia at the date of her death in 2017. Her GP swore an affidavit of mental capacity confirming that he was satisfied that on the 11 May 2005 the testatrix had been fully capable of making a will, which is also exhibited to Mrs. O'Neill's affidavit.

8 An affidavit was also sworn by Ms. Susan Hunter, daughter of the applicant Mrs. O'Neill. She says she had a close relationship with the testatrix who was her maternal aunt and also her godmother. She avers that sometime in January 2014, when her aunt (the testatrix) was in hospital and it became clear she would not be returning home to live in her own house, her aunt asked her to go to her house and secure the will and other important paperwork. On foot of the request and details given, Ms. Hunter went to the house and found the papers which were hidden upstairs under the floor boards in a “hidey hole”. They were stored in a biscuit tin inside the hidey hole. She confirms that the will contained the alterations thereon at the time she took possession of it. In July 2014 she handed this will over to Joe Clancy Solicitors because at that stage the testatrix' enduring power of attorney was in the process of being registered by that firm.

9 Mr. Joe Clancy, Solicitor, swore an affidavit in which he describes the testatrix executing an enduring power of attorney on the 12 December 2012 which was registered on the 3 July 2014. The completed form includes a part signed by the GP which confirms that the testatrix had capacity to execute this document (which was 7 years after she had executed her will).

The alterations to the will

10 There are three alterations to the will (two obliterations and one interlineation), none of which were properly executed in accordance with the requirements of the Succession Act.

11 The first alteration — The first alteration to the will is an obliteration of the name of the original executor. This is done by a pen having scored out the name to such an extent that it is no longer legible.

12 Mrs. O'Neill avers that she believes that the original executor was a Mr. P.W. who was a valued work colleague of the testatrix and a manager in the same company as that in which the testatrix worked. He died suddenly on the 19 September 2006. She believes that following his death, the testatrix decided...