The High Court has ruled that oral evidence is needed before it can decide whether a copy of Mary Eastwood’s 2016 will may be admitted to probate. The court made no decision on whether the will was revoked or whether the copy can be proved.
Robert Eastwood, one of Mrs Eastwood’s five children, applied with the support of his sister Jennifer to prove the will from a copy. The original could not be found after Mrs Eastwood died in December 2018, aged 85. Annette, Dolores and Jimmy Eastwood opposed the application.
The judgment said there was no dispute about the will’s formal validity. The contested question was whether Mrs Eastwood later revoked it. The will had been executed in November 2016, and the original was initially held by her solicitor, Fintan Lawlor.
A letter from Mr Lawlor’s office dated January 2018 said the original will and power of attorney were enclosed. Robert said he had opened the post and found copies of those documents, not the originals. He said his mother’s earlier letter to the solicitor had asked for copies of documents and had said he could collect them. The judge said that letter could not fairly be treated as a request for the original will.
Mr Lawlor later said the original will had been sent by ordinary post. The judge found the evidence about whether it was sent insufficiently explained, including how the letter and the solicitor’s usual procedures fitted with one another. The judge also identified conflicting accounts about who handled post at the family home in January 2018.
The court accepted that the legal presumption of revocation may arise if a will is traced into the testator’s possession and is then missing. It rejected the applicant’s argument that the opposing parties had to prove the deceased received the will. The burden remained on the party seeking to prove the copy to establish that the original was not destroyed with the intention of revoking it.
The judge concluded that the disputed facts could not be resolved on affidavit evidence alone. The court will list the case for mention in two weeks for submissions on directions for its further consideration. The judgment said a potential challenge to Mrs Eastwood’s testamentary capacity had been put aside for this application, though counsel might consider how all issues concerning the estate should be handled efficiently.