The Estate of Thomas Delahunty, Deceased, Late of Barnacole, Mooncoin, County Kilkenny, Farmer
| Jurisdiction | Ireland |
| Judge | Ms. Justice Butler |
| Judgment Date | 14 October 2021 |
| Neutral Citation | [2021] IEHC 657 |
| Year | 2021 |
| Court | High Court |
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[2021] IEHC 657
THE HIGH COURT
PROBATE
JUDGMENT of Ms. Justice Butler delivered on the 14th day of October, 2021
This application is brought by Philip Kinsella, nephew of the late Thomas Delahunty (“the deceased”) seeking to admit a document to probate purporting to be a carbon copy of the last will and testament of the deceased who died on the 2nd March, 2015, aged 86 years. The document is dated 20th May, 1980 and the evidence suggests that the original, which was retained by the deceased's solicitor, was lost when the solicitor's office was broken into and a safe removed from the premises in June, 1997. Neither the safe nor its contents were ever recovered. Although it is not strictly relevant to the legal issues, at the time of the death of the deceased, his estate was valued at just under €1.5 million which represents a significant benefit to those who might be entitled to it. If the copy will is admitted to probate, the applicant would be the main beneficiary. If, on the other hand the copy will is not admitted to probate, then the deceased will be treated as having died intestate and his sister, a large number of nieces and nephews and, potentially, the estate of his late wife all stand to benefit.
Although some of those potentially entitled on an intestacy have consented to the application, it is opposed by various other members of the deceased's family including his sister, Ms. Bridget O'Flynn and the personal representatives of the estate of his widow, she having died some months after him in October, 2015. A number of grounds are advanced as to why the copy will should not be admitted to probate. These include an absence of evidence as to the execution of the will since the carbon copy is not signed and the attesting witnesses are now deceased; an absence of evidence that the deceased knew and approved of the contents of the will and an assertion that a failure by the deceased to respond to correspondence from his solicitor after the theft in 1997 inviting him to attend to prepare another will amounts in effect to a form of revocation.
The background to the making of the will is a little complex. As of 1970 the deceased was a bachelor farmer contemplating marriage. He was, at the time, 42 years of age and his bride to be was a few years older. In contemplation of that marriage, the parties entered into a marriage settlement on 5th October, 1970. From its terms, it seems that the settlement was intended as a renunciation by the deceased's wife of her legal right share of his property to which she would be entitled on his death under s. 113 of the Succession Act, 1965. The settlement established a trust of which the deceased's brothers John and Philip were named the trustees. The deceased transferred certain lands and chattels into the trust to be held in trust for himself for life and after his death on terms which varied depending on whether he and his wife had children. As it transpired, although married for 45 years, the deceased and his wife did not have children. Consequently, the relevant terms of the settlement are those which were to apply in the event that the deceased predeceased his wife without issue. In those circumstances, the deceased's wife became entitled to payment of a cash settlement which was described as being “ in full discharge of all claims and demands which she might have against the Real and Personal estate” of the deceased. The settlement also provided that the widow would “ thereupon leave the premises and have no further claims thereon”. Subject to this payment which was to be raised out of the trust property, the deceased could appoint beneficiaries of the trust by deed or by will. In default of such appointment, the trust property was to pass to the persons who would be entitled on a distribution on intestacy under the Succession Act, 1965 “as if the settlor had died intestate and without having married”.
The marriage settlement was prepared on the deceased's behalf by his solicitor Thomas Kiersey, of Waterford. A decade later, the deceased returned to Mr. Kiersey and gave instructions in relation to the drawing up of a will. Those instructions are contained in a handwritten note made by Mr. Kiersey dated 20th April, 1980. Whilst the court must be cautious about imputing any particular intention to the deceased, it is notable that, at this point, both the deceased and his wife were in their fifties and it must have been apparent that they were now highly unlikely to have any children. It also seems that the deceased's marriage was a happy one as the effect of the instructions given was twofold. Firstly, the deceased proposed to give a benefit to his wife under his will significantly in excess of that which had been agreed under the marriage settlement. On his death, she was to receive an additional cash payment, an annuity and a right of residence in the dwelling house on his lands for life. Secondly, the residue of his estate including his lands and farm were left to his nephew, the applicant in this application. Those instructions were formalised into a typewritten draft will to which handwritten amendments were made by Mr. Kiersey; two further typewritten drafts were prepared to which further handwritten amendments were made by Mr. Kiersey before, the applicant contends, a final version of the will was signed and witnessed. Thereafter, the original will was retained by the solicitor in his safe and, it is claimed, a copy given to the deceased.
There matters stood until the evening of the 18th/19th June, 1997 when a burglary took place at the offices of T. Kiersey & Co. Solicitors which was, by then, located at Catherine Street, Waterford. By this time, Mr. Kiersey had retired and his daughter, Gillian Kiersey, had taken over as principal of the firm. Amongst the items stolen was the office safe and its contents which included the originals of wills and other documents. The matter was reported to the Gardaí but neither the safe nor its contents were recovered. Ms. Kiersey's firm wrote to the various clients affected by the theft asking them to make contact with the office. The records indicate that a letter was sent to the deceased on the 25th June, 1997. No copy of this letter is available, so the court is not aware of its precise terms. It seems that the deceased did not make contact with T. Kiersey & Co. in response to this letter or in relation to his will either then or at a later stage when he had cause to attend the firm in connection with other matters arising from the death of his brother in 2006.
The deceased died in March, 2015 and his wife died some five months later in October, 2015. A nephew of the deceased, James Delahunty, found the carbon copy will in a box amongst personal papers belonging to the deceased in an attic space above the kitchen at the deceased's house in May, 2015. There is no direct evidence from Mr. Delahunty in relation to the finding of the copy will. There is however the evidence of Ms. Gillian Kiersey to whose office he brought the document and the account he gave to her of finding it is confirmed in a letter from Mr. Delahunty's solicitors. Ms. Kiersey conducted extensive searches in her offices seeking to locate the original will. She wrote to 39 firms of solicitors in the Waterford and Kilkenny area asking if those firms were in possession either of the original 1980 will or any later will made by the deceased. She also arranged for the publication of two advertisements, one in the Law Society Gazette and one in a national newspaper asking anyone in possession of the deceased's will to contact her. Those steps did not result in the original or any later will of the deceased being produced.
Based on these facts, two main issues arise. The first is whether the available evidence is sufficient for the court to be satisfied that an original will in the same terms as the carbon copy which it is sought to admit to probate was duly executed by the deceased. The second is whether an inference should be drawn from the particular circumstances in which the deceased did not attend at his solicitor's office to “ re-do” his will, that the will was revoked by him. An additional issue is raised by the estate of the deceased's widow in written submissions filed after the hearing of the motion querying whether the evidence is sufficient to allow the court to conclude that the deceased was aware of and approved the contents of the will. This was not the subject of argument before the court and the applicant did not have an opportunity to respond to the point. In light of the facts I do not regard this as being a point of particular substance, but I will address it briefly nonetheless.
The requirements of due execution of a will under s. 78 of the Succession Act, 1965 are well known. The will must be signed at its foot or end by the testator and the testator's signature must be witnessed or acknowledged by two persons in each other's presence both of whom must also sign the will. The difficulty in this case arises because the carbon copy document before the court does not contain any signatures. Instead, it has typed into it the name of the deceased and, beneath an attestation clause, the names Thomas Kiersey, solicitor, and Mary Banks, both of whom are stated to be of 40 Barronstrand Street, Waterford (the then-address of Mr Kiersey's office). Both of these witnesses are now dead and, consequently, are unable to provide evidence of due execution of the will. The parties opposing the admission of the carbon copy to probate make the case that there is no...
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