The High Court has ruled that attempted handwritten changes to a 1981 will did not remove a bequest of a South Circular Road property to the testator’s brother, Eamonn McNally. The court admitted the will to probate with the property named in it, while excluding an attempted replacement bequest of £1.
The judgment by Ms Justice Stack concerns the estate of Michael Joseph McNally, who died in 2019. The application was brought by his brother Malachy under section 27(4) of the Succession Act 1965. The will was dated 29 April 1981 and named an executor who had died before the testator. The judge said a separate hearing would be needed to determine who should take out the grant to administer the estate.
The will left Eamonn the property at 160 South Circular Road, Dublin. Those words had been repeatedly crossed through, and “£1-00” added. The court found the original property description remained legible. Under section 86 of the 1965 Act, changes made after a will’s execution have no effect unless executed in the required manner. The attempted changes had not been signed and witnessed as the law requires.
The judge also rejected the argument that crossing out the words had revoked the bequest. Because they remained legible, the mark-up did not amount to destruction of that part of the will. The evidence did not establish an intention by the testator to revoke it.
The applicant said he received the original will from another brother, Tom, in August 2009 and did not open it until the testator’s death. The judge accepted that evidence, but noted that the will could have been altered during the nearly 28 years between its execution and Tom’s taking custody of it. The available evidence did not support a finding that the changes were made before execution; the judge considered it more probable they were made later. She could not determine who made them.
The ruling leaves the property passing under the will to Eamonn’s estate, rather than under a partial intestacy. The judgment noted that Eamonn’s widow, Monica, had not objected to the application, though she said the testator had promised the property to her husband. It also said she appeared likely to be the appropriate person to take out the grant, but had not been asked whether she consented.
The court made no appointment at this stage. It said the matter would be listed again to hear the applicant on the identity of the person who should take out the grant. The judgment also noted that there had apparently been an earlier attempt to sell the property, and said property should not be put on the market before probate or administration arrangements are clear.