The Court of Appeal ruled that the will of Mary Philomena Maureen McEnroe could be admitted to probate with two illegible obliterations treated as blanks, and an unexecuted added word disregarded. It held the rest of the will valid and ordered the costs of the appeal and High Court proceedings to be paid from the estate.
McEnroe, a retired company secretary, died in May 2017 aged 87. Her will had been made in 2005. The probate office declined to prove it without further evidence because it showed three alterations that had not been executed as required by law. Her sister, Evelyn O’Neill, applied to have the will proved in its existing condition. The application was initially made ex parte, and O’Neill appealed after the High Court declined to decide the issue without notice to people who might benefit if the estate passed under intestacy.
The alterations were an obliterated executor’s name, an obliterated line within a list of gifts, and the insertion of the word “say” in a sentence. A document examiner could not decipher either obliterated passage or establish when the changes were made. The Court of Appeal found, on the balance of probabilities, that the obliterated line had probably contained a gift of money or shares. It also inferred from evidence about how the will was recovered that McEnroe had made the pen scoring herself, with an intention to revoke only those limited parts.
The court interpreted the Succession Act 1965 as allowing pen scoring that makes words completely illegible to count as destruction for the purpose of partial revocation, provided the court is satisfied the testator made it intending to revoke those words. The ruling was limited to the circumstances before it: the altered passages were small parts of the will and did not include the testator’s or witnesses’ signatures. The court said the rest of the will could stand.
It directed that the executor’s obliteration be treated as a blank, with the appointment position governed by Order 79, rule 5(6) of the Rules of the Superior Courts. The obliterated gift was also to be treated as a blank, and the word “say” ignored. The court said there was no need or entitlement for potential intestacy beneficiaries to be represented at a hearing about the will. It reversed the High Court decision and ordered the costs of both proceedings to be paid from the estate in due course.
The judgment also said the statutory provisions could benefit from legislative clarification on illegible alterations and whether extrinsic evidence may establish the original words. That issue did not arise in this case because no such evidence was available.