The High Court has admitted to probate a carbon copy of a 1980 will made by farmer Thomas Delahunty, finding that the evidence supported the conclusion that the lost original was properly executed and had not been revoked.
Ms Justice Butler made the order on an application by Mr Delahunty’s nephew, Philip Kinsella. The original was held by the deceased’s solicitor and was believed lost after a safe was stolen from the firm’s Waterford office in June 1997. The safe and its contents were never recovered.
The copy, dated 20 May 1980, had no signatures. The two named witnesses, solicitor Thomas Kiersey and Mary Banks, were dead and could not give evidence. Mr Kinsella sought to have it admitted as the will. Various family members opposed the application, including the deceased’s sister and the personal representatives of his widow’s estate. They challenged the evidence of execution and the deceased’s knowledge and approval of the will, and argued that his failure to respond to a solicitor’s letter after the theft supported an inference of revocation.
The judge found that the circumstantial evidence was sufficient to establish due execution. It included the solicitor’s wills register, which recorded the will’s date, witnesses and executors and indicated that the original had been kept in the firm’s safe; handwritten instructions and successive drafts consistent with the copy; and evidence from a former legal secretary about the firm’s usual process for executing wills and preparing carbon copies. The court also accepted that the will reflected the deceased’s instructions and that he knew and approved its contents.
The judge held that no rule required proof that the original still existed after the deceased’s death where it had been kept by his solicitor and there was no evidence he had taken it into his own possession. The circumstances of the safe’s theft explained its loss and did not support an intention by the deceased to revoke the will.
The court rejected the argument that failing to act on the solicitor’s letter amounted to revocation. It said the letter’s precise terms were unknown and the evidence did not establish that the deceased received it. More broadly, the court held that inaction did not meet the statutory requirements for revoking a will.
The order admits the will to probate in the terms of the carbon copy. The judgment does not set out the subsequent administration or distribution of the estate.