The last will of a deceased woman, who left an estate with a net value of some €1.08 million, can be treated as valid, the Court of Appeal has ruled.
The case arose from a will of Mary Philomena Maureen McEnroe, otherwise Maureen McEnroe, of Cypress Park, Templeogue, Dublin, a retired company secretary, who died in May 2017, aged 87.
A single woman without children, she executed her last will and testament in May 2005 which was a home-made pre-printed will in her hand-writing on two sides of a single sheet of paper.
The will had three unexecuted alterations, described by Ms Justice Úna Ní Raifeartaigh as “relatively minimal and not involving any essentials”.
The alterations included scoring out by pen of a small number of words such that the words were illegible. None of the alterations were properly executed in line with the requirements of the Succession Act as they were not witnessed or dated.
Ms McEnroe was one of seven siblings, three of whom predeceased her. One of her sisters, Evelyn O’Neill, brought proceedings under the Succession Act aimed at having the will proven in its current form and condition.
The case particularly centred on consideration of the meaning of the terms “destruction” and “obliteration” in sections 85 and 86 of the Succession Act.
Ms O'Neill appealed to the Court of Appeal after the High Court declined to decide whether the will should be admitted to probate in the absence of "notice" to those who might have an entitlement under intestacy.
Giving the Court of Appeal judgment, Ms Ní Raifeartaigh stressed this was a case where there was no suggestion of third party interference with the will; the intention of Ms McEnroe to partially revoke was clear and the scored out portions were relatively minimal and did not involve any essentials, such as Ms McEnroe’s signature or those of the witnesses to the will.
The witnesses were a married couple who were good friends of Ms McEnroe but could not assist in this matter because the husband has died and the wife is described as of “unsound mind”.
Ms McEnroe’s GP had confirmed, when she made the will in 2005, she had capacity to do so. The will was provided in 2014 to solicitors who were executing a power of attorney for Ms McEnroe.
The first alteration was the obliteration of the name of the original executor, done by a pen scoring out the name to the extent it was no longer legible. The original executor had died suddenly in 2006 and Ms O’Neill believed Ms McEnroe had decided to obliterate his appointment and replace him with another executor, whose identity could not be established due to illegibility of what was written but whom Ms O’Neill surmised was meant to be a sibling.
The second alteration obliterated a line immediately after the last of a list of bequests. The last bequest was to a religious order and the line after that was completely obliterated by pen. The following line, after the obliterated line, said: “I leave the balance of my estate to my sister..”, .ie, a residuary bequest. The third alteration was an inter-lineation of the word “say” in that latter sentence so that it reads “..This to the say thanks for all the meals cooked and all the house-cleaning which they did for me..”
Having examined the evidence and the law, the judge was satisfied Ms McEnroe herself had carried out the pen-scoring and that her intention was only to carry out a partial revocation, given the limited nature of the obliterations.
She ruled the first obliteration (of the executor) should be treated as blank, as should the second obliteration (of the bequest or devise). The inter-lineation should be ignored as if the word “say” had not been inserted, she ruled.
The rest of the will can be treated as valid and it followed there was no entitlement for those who might benefit under intestacy to be represented at a hearing of the will, she ruled.
Sections 85 and 86, she added, "might benefit from the attention of the Oireachtas so as to put beyond doubt the proper approach of the courts to wills in which words have been obliterated to the point of illegibility".
