The Gazette 1981

GAZETTE

JANUARY/FEBRUARY 1981

intended not being fulfilled, the animus revocandi was not present." Counsel for the applicant also cited the case of In the Estate of J. R. Southerden, Adams v Southerden ls in which the English Court of Appeal applied the principle of dependent relative revocation in circumstances where a testator had revoked his will by burning it, under a mistaken belief that in the event of his dying intestate his widow would be entitled to the whole of his property. All three judges in the Court of Appeal (Pollock M.R., Warr- ington L.J. and Atkin L.J.) endorsed the statement of law by Meredith M.R. in the Irish case In re Faris lb in which case Meredith M.R. had adopted with approval the following proposition contained in Theobald on Wills: 17 "It has been said that a revocation grounded on the assumption of a fact which turns out to be false does not take effect 'being, it is considered, conditional and depen- dent on a contingency which fails'. 18 Probably the proposition is too broadly státed. There is little or no authority directly in point. The true view may be that a revocation grounded on an assumption of fact which is false takes effect unless, as a matter of construction, the truth of the fact is the condition of the revocation, or, in other words, unless the revocation is contingent upon the fact being true: see Thomas v Howell .'" 9 Meredith M.R. added: "I adopt that statement of the law, merely substi- tuting for the words 'may be' the word 'is'. The true view is, in my opinion, the view so clearly stated by Mr. Theobald." 20 What Constitutes Effective Revocation The authorities cited, and particularly Powell v Powell 21 the facts of which corresponded most closely with the facts in the instant case, led Gannon J. to the conclusion that the point before him was not that a revoked will (the 1977 will) was set up again if a subse- quent disposition (the 1979 will) was made ineffectual by the testatrix but that the later disposition was not intended to be revoked unless or until an effectual disposition was made. The Court being satisfied that the 1977 will had been revoked and had not been effectively revived in accordance with the statutory requirements, then had to consider whether the revocation of the 1979 will was an effective revocation. Gannon J. believed that the evidence supported the contention of counsel for the applicant that the purported revocation of the 1979 will was ineffectual being conditional only and contingent on the truth of facts mistakenly believed by the deceased. Accordingly, since there was a photocopy of the 1979 will which was made at the time of execution of the original, Gannon J. admitted the photocopy to probate "in lieu of the original which was ineffectively revoked by destruction by the deceased by burning". Whilst the doctrine of dependent relative revocation is said to be dependent on the intention of the testator its application in cases such as In the Goods of Eileen Margaret Hogan Deceased suggests that it has now acquired an independent self-validating existence of its own which has little to do with the intention of the testator. It is extremely unlikely that Mrs. Hogan gave any thought to the possibility of the 1977 will being invalid and, that being so, the assumption that there was a conditional element in her revocation of the 1979 will was pure fiction. Indeed, in so far as the intention of the testatrix could be ascertained it was clearly to the effect

could be adduced was permitted by the Statute. His Lord- ship pointed out, however, that the provisions in relation to the revival of a revoked will in Section 87 of the Succession Act are significantly more restrictive than those governing revocation in Section 85, since evidence of an intention to revive must be contained in the document effecting the revival which document must be either the re-executed will or a codicil duly executed in accordance with Section 78. 9 In the instant case there was no such document reviving the 1977 will. Thus an impasse was reached. The 1979 will had been effectively revoked, the 1977 will had not been revived and the Court accepted that the deceased had not intended that the intestacy rules should govern the disposition of her property on her death. A way out of the impasse was found in the case law, cited by counsel for the applicant, upon Ss. 20 and 22 of the Wills Act, 1837, with which Ss. 85 and 87 of the Succession Act correspond, and the decisions on the interpretation and application of which Gannon J. held to be "a sure guide on the proper course to take on this application". Counsel for the applicant submitted that the informal, but effective, method of revoking the 1979 will was adopted by the testatrix only in the belief that by so doing the 1977 will would be revived. Since this belief was based on a mistaken assumption on her part of fact and of law, the condition upon which the 1979 will was revoked was not satisfied and it followed that there was no true intention to revoke the 1979 will. Absolute Revocation or Dependent Relative Revocation Counsel cited in support of his argument the following observations of Kenny J. in the case In the Goods of Irvine : 10 "The question, therefore, that has to be determ- ined is whether in the circumstances the revocation contained in the paper executed by the deceased was an absolute revocation, or merely what is known in our procedure as a dependent relative revocation. If the act of revocation, whether by another will duly executed or by the destruction of the existing will, be without reference to any other act or event, the revocation may be an absolute one; but if the act be so connected with some other act or event that its efficacy is meant to be dependent on that other act or event, it will fail as a revocation. If that other act be efficacious, the revocation will operate; otherwise it will not. It is altogether a question of intention, and if, as part of the act of making a fresh will, there be a revoca- tion of a previous will, that revocation will be absolute provided the fresh will be made. On the other hand, if the fresh will be not made, it would defeat the testator's inten- tion to hold the revocation to be absolute. It had no exis- tence, unless subject to a condition which is not fulfilled. The principle will be found stated in Williams on Executors and Theobald on Wills and is established by such other cases as Onions v Tyrer, n Hyde\ Hyde, 11 and Ex Parte the Earl of Ilchester . ,3 Cases in which a testator destroys a will with the intention of setting up a previous disposition introduce the same principle. In Powell v Powell 14 the testator had destroyed a will with the expressed intention of validating an earlier will and substi- tuting it for the destroyed will. The destruction of the second will did not give effect to that intention, and it was held by Sir J. P. Wilde (afterwards Lord Penzance) that such conditional destruction did not work a revocation, in as much as, the sole condition upon which revocation was

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