The Gazette 1981

GAZETTE

JANUARY/FEBRUARY 1981

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.

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law, the condition upon which the 1979 will was revoked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

"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

Tyrer,

Hyde\ Hyde,

and

Ex Parte the Earl of Ilchester

Cases in which a testator

destroys a will with the intention of setting up a previous

disposition introduce the same principle. In

Powell

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

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

Southerden

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

in which

case Meredith M.R. had adopted with approval the

following proposition contained in Theobald on

Wills:

"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'.

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

Howell

.'"

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."

What Constitutes Effective Revocation

The authorities cited, and particularly

Powell

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