The High Court refused an application by Evelyn O’Neill to prove her sister’s will without notice to other people whose rights could be affected. Mr Justice Allen said the refusal was procedural and that he was not pronouncing against the will. There was no order as to costs.
The application concerned the estate of Maureen McEnroe, who died in 2017. A handwritten will dated 11 May 2005 was found among her papers. The court heard that O’Neill could identify her sister’s handwriting and signature, and that a son of the two witnesses could identify their signatures.
The document contained two obliterations and an unexecuted interlineation. The interlineation added the word “say” to a sentence thanking O’Neill and her four daughters for meals and house cleaning. As there was no evidence it had been made before execution, the judge said it could be dealt with by admitting the will without that interlineation.
The two obliterations presented a different problem. One obscured the named executor; the other appeared in the body of the will before the residuary gift. O’Neill’s beliefs about what had been removed were, the judge said, surmise rather than evidence. A forensic document examiner could not identify the obscured writing or determine whether the changes were made before or after the will was executed.
O’Neill’s counsel argued that the obliterations could amount to destruction of the affected words, effecting partial revocation, and relied on an English decision. The judge noted that the argument was novel in Ireland and that the English case relied on different legislative wording. He also explained that the earlier statutory provision allowing indecipherable alterations to be treated as blanks had not been carried into section 86 of the Succession Act 1965.
The judge accepted that the will executed in 2005 had been valid, but considered that the document now produced was not in the form in which it had been executed. Because the application had been pressed for decision without notice, he refused it, finding that people potentially affected should receive notice. He did not decide the ultimate validity or effect of the will, and noted that the applicant had not addressed what would happen to the estate if the will were not admitted to probate.