The Gazette 1981

GAZETTE

JANUARY/FEBRUARY 1981

that she did not wish the 1979 will to be dispositive of her property on death. The other certain intention that could be attributed to her was that she did not wish to die intestate and the Court clearly attached more weight to this latter intention. The present writer would agree with the learned author who has written that the operation of the doctrine of dependent relative revocation "is, in most cases, in accordance with common sense, but it is only achieved by flagrant invention on the part of judges of an element of intention which in most cases was not present". 22

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FOOTNOTES 1. Subsection (1) of Section 85 deals with the revocation of a will by marriage. 2. Sir J. P. Wilde said of the doctrine in Powell v Powell L.R. 1 P. & D. 209, 212: "This doctrine is based on the principle that all acts by which a testator may physically destroy or mutilate a testamentary instrument are in their nature equivocal. They may be the result of accident, or, if intentional, of various intentions. It is, therefore, necessary in each case to study the act done by the light of the circum- stances under which it occurred, and the declarations of the testator with which it may have been accompanied. For unless it is done animus revocandi it is no revocation." 3. See e.g. Onions v Tyrer (1716), 2 Vern. 741; Re McMullen 119641 Ir. Jur. Rep. 33. 4. See e.g. In the Estate of Southerden, Adams v Southerden 119251 p. 177. 5. Unreported High Court judgment of Gannon J. delivered on 18 February 1980. 6. Mrs. Hogan did not follow her solicitor's advice re destruction of the 1977 will. 7. The third earlier will would have been revoked by the revocation clauses in the subsequent wills. 8. Mrs. Hogan had been concerned, in leaving her business to her son, to make special provision in the 1979 will for the possibility of him pre deceasing his wife. 9. Section 87 provides: "No will or any part thereof, which is in any manner revoked, shall be revived otherwise than by the re- execution thereof or by a codicil duly executed and showing an inten- tion to revive it; and when any will or codicil which is partly revoked, and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as was revoked before the revocation of the whole thereof, unless an intention to the contrary is shown." 10. 119191 2 I.R. 485, 489. The deceased Michael J. Irvine had signed a printed form of a will containing blanks, the printed matter including a revocation clause, and his signature was duly witnessed by two witnesses. The blanks were filled in by the deceased subsequent to ..execution. On a motion by the executor to have the revocative part alone admitted to probate, the Court, in applying the doctrine of dependent relative revocation, held that the attempted revocation was merely the first act towards accomplishing the testator's intention of making a new will and was dependent or conditional on a new will being made. 11. I P . Wms. 343. 12. 1 Eq. C. 409. 13. 7 Ves. 380. 14. L.R. 1 P. & D. 209. 15. 119251 p. 177. 16. 119111 1 I.R. 469. 17. 7th edition at p. 750. 18. 1 Jarm. 147. 19. L.R. 18 Eq. 198. 20. 119111 1 I.R. 469, 472. 21. L.R. 1 P. & D. 209. 22. Mellows, The Law of Succession (3rd ed.) at p. 123.

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