The Gazette 1981

GAZETTE

JANUARY/FEBRUARY 1981

A Case of Dependent Relative Revocation by Professor James C. Brady, B.C.L., LL.B., Ph.D. (Q.U.B.) Dean of the Law Faculty, University College, Dublin.

The statutory provisions governing the revocation of wills are to be found in Section 85 of the Succession Act, Subsection (2) of which provides that "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." 1 Whilst an act of physical destruction will not, by itself, revoke a will unless accompanied by an animus revocandi, a further distinction must be drawn between an act of revocation which is intended by the testotor to be absolute and effective forthwith and an act of revocation which is intended to be conditional upon the efficacy of some other disposition of the testator's property. The latter type of revocation has been described as "dependent relative revocation". 2 The principle of dependent relative revoca- tion has been held to apply where a testator purported to revoke a previous will on the assumption that a new will was valid 3 and where a testator purported to revoke a will on the assumption that the intestacy rules would effect the desired provisions. 4 The principle also applies where a testator purports to revoke a later will on the assumption that an earlier will, which has been revoked, will be revived by the revocation of the subsequent will. This is the precise circumstance which arose in the case of In the Goods of Eileen Margaret Hogan Deceased which recently came before Gannon J. in the High Court. 5 In the goods of Eileen Margaret Hogan Deceased The deceased, Mrs. Hogan, had executed a will in accordance with the statutory requirements in the office of her solicitor, a Mr. Russell, on 8 August 1977. A photo copy was made of the will and retained by her solicitor, the original being given to Mrs. Hogan. Two years later, on 30 July 1979, Mrs. Hogan revisited her solicitor's office, again in the company of her daughter Patricia who had been with her on the earlier visit, for the purpose of altering her will. Mr. Russell read over to her the terms of her new will and Mrs. Hogan, having expressed her satis faction with it, executed the will in accordance with the statutory requirements. A photocopy of this new will was retained by her solicitor, the original being taken away by Mrs. Hogan. Mr. Russell had advised Mrs. Hogan that as the 1977 will had been revoked she should destroy it. 6

A chain of events then occurred from which the Court was obliged to draw certain inferences. On 25 September 1979 Mrs. Hogan opened a deposit account in the Athlone branch of the Bank of Ireland. 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 box which she kept in a wardrobe in her bedroom and in which she kept personal documents. She then went through the documents in the box by the fireside, burning some of them. At some stage during this operation Mrs. Hogan showed Michael a brown envelope saying: "These documents are important; they concern you principally; the others are taken care of." She then returned the envelope to the box without saying what it contained. Michael was not aware that his mother had made a will on 8 August 1977 or that she had made another will on 30 July 1979, but his mother had mentioned to him that there was a will in the office of a Mr. Tormey, a solicitor, which did not count any more. 7 When Mrs. Hogan died on 6 October 1979 her son opened the steel box and found therein a brown envelope containing the will dated 8 August 1977 and the deposit account book. Extensive searches by Michael and his sister Patricia, the sole executrix of the 1979 will, failed to find the will executed on 30 July 1979. Patricia drew the inference deposed to in her affidavit, that her mother had intentionally destroyed the original of the 1979 will at the time she burnt papers from the steel box. Patricia applied to the Court, with the consent of her brother Michael and her two sisters, who were benefi- ciaries under both the 1977 and 1979 wills, to have the photocopy of the will dated 30 July 1979 admitted to probate. This latter will gave the deceased's three daugh- ters larger legacies than had the will of 1977 and also created a charge on the property devised and bequeathed to her son Michael in favour of her daughters in a manner not provided for in the 1977 will. 8 Gannon J. took the view that the evidence disclosed the following intentions of the deceased: (1) She did not wish the 1979 will to take effect as a disposition of her property on her death. (2) She did wish the 1977 will to be the effective disposition of her property. (3) She did not wish to die intestate. Gannon J. was satisfied that the revocation of the 1979 will was effected in a manner, by burning, permitted by Section 85 of the Succession Act in relation to which evidence of the circumstances from which her intentions

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