The High Court has admitted a copy of Mary McDermott’s 1988 will to probate, finding that the evidence rebutted the presumption that she had destroyed the missing original intending to revoke it.
Ms Justice Baker made the order in probate proceedings brought by Dermot McDermott and Eleanor McDermott against Sarah Kennedy, a ward of court acting through her committee, Patricia Hickey. The judgment was delivered on 14 October 2015. The court admitted the copy “in common form of law”; it did not find that the original had been located.
The original will was not found after Ms McDermott’s death in November 2013 or during her wardship. Her solicitor had kept a copy and believed, based on his usual practice, that she took the original after signing it. The judge found it probable that the original was given to Ms McDermott, while noting the absence of certain evidence that it remained in her custody.
The will appointed one of her four stepchildren as executor. It provided for her sisters to have life interests in her believed share of a Dublin house, with the remainder and residue of her estate going to her four stepchildren. The judge noted that the house was jointly owned and had passed to the surviving sister by survivorship. The estate at issue included a bank account valued at about €360,000, which the application assumed had passed to Ms McDermott by survivorship from her husband.
The judge set out the presumption that a will known to have been in a testator’s custody but missing at death is presumed to have been destroyed with an intention to revoke it. She held that it was a rebuttable presumption of fact, and that it could be rebutted on the civil standard of the balance of probabilities, including through circumstantial evidence.
In reaching her conclusion, Ms Justice Baker considered the terms of the will, Ms McDermott’s close relationship with her stepchildren, and her husband’s earlier renunciation of succession rights in her estate. She found that the will reflected a rational intention to provide for both the sisters and the stepchildren, and that there was no evidence Ms McDermott had learned that the house was held jointly or had otherwise decided to die intestate. The court also considered that the passage of time made loss more probable than deliberate destruction, and that Ms McDermott was probably no longer capable of revoking the will from around 2000 or shortly afterwards.
The court therefore ordered that the copy will be admitted to probate. The judgment does not state a final distribution of the estate.