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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
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 The third earlier will would have been revoked by the revocation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to so much thereof as was revoked before the revocation of the whole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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