The High Court refused Marie O’Brien’s application to remove a caveat lodged to protect her nephew Ben Keeshan’s interest in the estate of her late husband, Noel O’Brien. The court held that O’Brien’s 2008 will was made in contemplation of his marriage to Marie and was not revoked when they married in 2009. It concluded that the estate must be administered under the will.
The will left about 24 acres at Kilkee East, Ruan, to Ben, and the residue of the estate to Marie. After O’Brien died, Marie sought a grant of administration on the basis that the marriage had revoked the will under section 85(1) of the Succession Act 1965. Ben’s mother, Annette Keeshan, lodged a caveat as his guardian, maintaining that the will had been made in contemplation of the marriage and remained valid.
The dispute turned on O’Brien’s state of mind when he made the will on 29 October 2008. The judge heard affidavit evidence, including evidence from Cora McNulty, the legal executive who took instructions and witnessed the will. She said she advised O’Brien that marriage would revoke it and that he would need to make another will afterward. The judge accepted that O’Brien proceeded with the will while retaining his stated testamentary intentions.
The court also considered evidence that O’Brien had told William Hillary in May or June 2009 that he had “left a chunk of land to that young lad”, referring to Ben. The judge found the conversation occurred and considered it unlikely O’Brien would have spoken that way if he thought the will would cease to have effect on marriage. The court also drew inferences from conversations between O’Brien and Marie shortly before the wedding, and from Marie’s conversation with Annette after his death.
The judge interpreted section 85(1) as requiring proof that, when making a will, a testator actually had or must have had a marriage to a particular person in contemplation. The court said it was not necessary to prove a separate intention that the will continue after the marriage, though it found the evidence also supported that inference in this case.
The court therefore ruled that the will was not revoked by the marriage and refused the relief sought in the notice of motion. The order was limited to refusing the application to remove the caveat and any further caveats; the judgment did not distribute the estate or determine the amount of any beneficiary’s entitlement beyond the will’s stated gifts.