The Estate of Mary Eastwood
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 04 June 2021 |
| Neutral Citation | [2021] IEHC 387 |
| Docket Number | [Record No. 20/6796] |
| Court | High Court |
| Date | 04 June 2021 |
[2021] IEHC 387
[Record No. 20/6796]
THE HIGH COURT
PROBATE
Wills and probate – Application to prove copy – Evidence – Applicant seeking permission to prove the will in terms of a copy – Whether it was necessary to hear oral evidence
Facts: The deceased, Ms M Eastwood, late of “Lyttleton”, Coolock Lane, Dublin, died on 12th December, 2018. She was survived by her five children, Mr R Eastwood, who was the applicant, Mr J Eastwood, Ms D Eastwood, Ms Richards and Ms J Eastwood. On 29th November, 2016 the deceased made a will by which she appointed Mr R Eastwood and Ms J Eastwood to be her executors but following her death the will was not to be found. Mr R Eastwood applied to the High Court, with the support of Ms J Eastwood, for permission to prove the will in terms of a copy. The application was opposed by Ms Richards, Ms D Eastwood and Mr J Eastwood. The cornerstone of the applicant’s case was that the onus was on the notice parties to show that it was more likely than not that the deceased came into possession of her original will, which, it was said, they had not.
Held by Allen J that while the presumption of revocation arises on the will being traced into the possession of the testator, the onus of proof is always on the party propounding a copy will to show that it was not destroyed by the testator with the intention of revoking it. Allen J found that all the appearances were that the last will of Ms M Eastwood dated 29th November, 2016 had been lost or destroyed but it seemed to him that there was a contest of fact as to how and when it was either lost or destroyed. Allen J noted that, although it was on his behalf that the affidavit of the deceased’s solicitor, Mr Lawlor, was filed, the applicant’s case was that it was not reliable. Allen J concluded that there was an issue to be tried as to whether what Mr Lawlor had suggested happened to the will in fact happened: not, as the applicant contended, because it was or would have been at variance with good practice, but because the evidence was vague. Allen J concluded that there was a contest of fact as to how and by whom the post arriving at “Lyttleton” was dealt with in January, 2018. Allen J found that if that factual issue was resolved in favour of the applicant and against the notice parties, the original will might not be traced into the possession of the deceased so that the presumption of revocation would not arise; however, if that factual issue were to be resolved the other way, the presumption of revocation would arise. Allen J accepted that there was considerable force in the submission that the uncontested fact that the deceased never sought or said that she was seeking her original will must on any view of the case be of very considerable significance, but the first step was to find the facts.
Allen J held that this was not an application which could be decided by reference to those aspects of the evidence that were not seriously in dispute and that it would be necessary to hear oral evidence.
Application must be heard on oral evidence.
JUDGMENT of Mr. Justice Allen delivered on the 4th day of June, 2021
Introduction
Mary Eastwood, late of “Lyttleton”, Coolock Lane, Dublin, died on 12th December, 2018, aged 85 years. She was survived by her five children, Robert Eastwood, who is the applicant, Jimmy Eastwood, Dolores Eastwood, Annette Richards and Jennifer Eastwood. The deceased's husband, Jimmy Eastwood, Pre-deceased her on 8th July, 2016.
On 29th November, 2016 the deceased made a will by which she appointed Robert and Jennifer to be her executors but following her death the will was not to be found. This is an application by Robert, with the support of Jennifer, for permission to prove the will in terms of a copy. The application is opposed by Annette, Dolores and Jimmy.
There is no issue as to the formal validity of the will. It was engrossed by the deceased's solicitor Mr. Fintan Lawlor and executed in his office in his presence and in the presence of a trainee solicitor. Neither is there any issue but that after it was executed the original will was for some time retained by Mr. Lawlor.
On 29th January, 2019, about six weeks or so after his mother's death, Robert had a letter from Mr. Lawlor. Mr. Lawlor extended his condolences and advised Robert that he had been contacted by Annette and Dolores who were looking for information in relation to their mother's estate. He said that from his records the original will had been sent to the deceased at her home in or about January, 2018 and enclosed a copy letter dated 18th January, 2018.
The enclosed copy letter was marked “ By POST” and read:-
“Our ref: FL/LL/EAS0002/1
Re: Letter dated 10th January, 2018
Dear Mrs. Eastwood,
Previous correspondence in this matter refers, resting with your letter dated 10th January 2018.
We enclose herewith original Will and Power of Attorney relating to you. These are the only documents we have relating to you.
We note that you collected title deeds to 6 properties in November 2016.
We trust that this is satisfactory.”
Robert was very surprised to receive the letter of 29th January, 2019. He knew about his mother's letter to her solicitor of 10th January, 2018 because he had typed it and posted it for her after she had signed it. That letter, addressed to Mr. Lawlor, had said:-
“To whom it may concern
I wish to get a copy of all documents you have in your possession relating to me please. I can arrange for my son Robert, he lives with me at the above address, to collect these for me from your office when they are ready.
You can either send me a letter letting me know that they are ready for collection or alternatively you can call Robert on [mobile telephone number] and he will collect them for me.” [Emphasis original.]
Robert has deposed that when, some days later, he collected the post in what he described as the normal way that he did every morning it included an A4 envelope from Mr. Lawlor's office which he opened and which he found contained a copy of his mother's will of 29th November, 2016, a copy of an enduring power of attorney dated 23rd April, 2015, and a compliment slip from the firm. The deceased's and Robert's object in asking for the copy documents had been to regularise the management of a number of what he refers to as his father's rental properties. The copy documents received in reply were of no value for that purpose and Robert filed them away in an accordion folder.
Robert has deposed that following receipt of Mr. Lawlor's letter of 29th January, 2019 he searched the house high and low but could not find the will or any other document concerning it: save the copy will, copy enduring power of attorney, and compliment slip, which were in the accordion folder where he had put them.
Robert was very unhappy that his mother's will had gone missing, not least, as he said, because he was at risk of losing the house at “Lyttleton” which had been devised to him. In correspondence with Mr. Lawlor, Robert made the point that the solicitor had not been asked for the original will, or to post it (or anything else) out to his mother. It is not necessary to dwell on all of the detail of the exchange of correspondence but it finished with a letter from Mr. Lawlor to Robert of 13th May, 2019 by which Mr. Lawlor confirmed that he had conducted a thorough search of his office and off site files and by which he said that:- “… I can confirm that from my records, it would appear that the original Will was sent to your Mother in January 2018 further to her request for her Will.” I pause here to say that there was no suggestion that Mr. Lawlor had ever had an instruction or request from the deceased other than the letter of 10th January, 2018 which in my view could not fairly be said to have been a request by the deceased for her will.
Several questions as to the practices and procedures in the solicitor's office as to the safekeeping, storage and release of original wills went unanswered.
There was some conflict in the evidence as to how post delivered to “Lyttleton” was managed.
The deceased's husband, to whom I will refer as Mr. Eastwood, was seriously injured in an accident on 10th March, 1997. Following the accident Mr. Eastwood lived at home until his death on 8th July, 2016 but needed full-time care. That care was provided by the deceased and the children generally and Robert in particular who remained at home or returned home to help his parents. As I will come to, there was talk in 2005 of the sale of the family home to a developer, which, if it was to happen (which in the event it did not) would have required an application to take Mr. Eastwood into wardship. As the deceased grew older her health declined and Robert's role as carer expanded to caring for his mother.
In his affidavit grounding this application Robert deposed that one of his daily tasks was to look after all of the post to and from the family home. He said that he checked the post box every morning at about 8:00 a.m. and brought the post into the house, opened it, and inspected it all. He said that he would pass on any private post unopened but otherwise would deal with any “non-private/administrative” post on behalf of his parents.
Robert's account of the post routine was contested by Annette and Dolores. Annette deposed that her mother was generally concerned to receive and manage her own post. Both Annette and Dolores deposed that on their regular visits they often saw their mother receiving her post and speaking to the postman. Annette recalled that there was no post box (I...
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Eastwood and Another v Richards and Others
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