Consequences of will Revocation
10 November 2022
There was a recent interesting case in the High Court concerning revocation. The conclusion of the case may be a surprise or a concern.
The case is that of In the Matter of the Estate of John Coughlan Deceased [2022] IEHC 604, a judgment of Ms Butler of the 3rd of November 2022.
Mr Coughlan made a will in 2012 where he favoured four individuals. In 2015 he made a fresh will, where he included a Ms H (so his estate instead of going four ways went five ways). Soon after making the fresh will, he had a change of heart and wanted to exclude Ms H. After seeking advice from his solicitor, he destroyed the 2015 will. He tore up the 2015 will in the presence of his solicitor. It will be a surprise to many solicitors that the court ruled that the tearing up of the 2015 will did not revoke the 2015 will.
The reason for this is through a somewhat convoluted principle known as the “doctrine of dependent relative revocation”. The doctrine has nothing to do with relying on some relation or having a relation depending on you for support. The dependency in the phrase of the doctrine is whether the intention to revoke is dependent on another set of facts. So essentially the doctrine states that if a testator revokes a will, on the understanding of certain facts, but those facts are untrue or mistaken, then there is no true intention to revoke and so the revocation is not valid.
In this case the deceased revoked his 2015 will on the basis of advice from his solicitor that the revocation would have the effect of reviving the 2012 will. However, due to the fact that the 2015 will contained a revocation clause, the 2012 had been revoked and there is no principle of reviving a will under law. Therefore the court held that the 2015 revocation proceeded on a mistaken assumption and therefore lacked the necessary intention to revoke.
The principle is very unsatisfactory because it was clear that the intention of the testator was to revoke the 2015 will and that the 2012 will would jump into its place. The intention was also clear of the deceased that he wanted his estate to go four ways and not five ways as in the 2015 will. The intention was clear that he wanted to remove the new beneficiary (Ms H) from his estate. Unfortunately, all of these “intentions” are disregarded by the court. That is because in will drafting the intentions of the testator are determined from the face of the will and (unless there is a clear contradiction on the will) not from any surrounding memos or circumstances. Therefore the only “intentions” that a court will implement are those found in a will. As there was no 2012 will (it having being validly revoked) and as the 2015 will was destroyed on a mistaken assumption, the 2015 will stood and the intentions reflected in the 2015 will stood.
I attach a link to the case report here.
And remember if you have any will drafting, CAT or probate queries, please reach out to ckelly@hcalaw.ie
