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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that an earlier will, which has been revoked, will be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
5