THE HIGH COURT
PROBATE
Record No. 2023 PO 4020
[2025] IEHC 299
IN THE MATTER OF THE ESTATE OF MICHAEL JOSEPH McNALLY, (DECEASED)
AND IN THE MATTER OF THE SUCCESSION ACT 1965
AND IN THE MATTER OF AN APPLICATION BY MALACHY McNALLY
Judgment of Ms. Justice Stack delivered the 26th day of May, 2025.
Introduction
1. This is an application for an order pursuant to s. 27(4) of the Succession Act, 1965, granting the applicant liberty to apply for a grant of probate of the Will of Micheal Joseph McNally, Testator, late of Rockfield House, Murmod, Virginia, County Cavan, who died on 29 June, 2019 ("the Testator"), together with an Order that the Will of the Testator was duly executed.
2. The Will is dated 29 April, 1981, and takes the form of a preprinted Will form completed by the Testator in manuscript. I am told that the only asset in the estate of the Testator is a house on the South Circular Road in Dublin, the other properties and assets mentioned in the Will having been apparently disposed of in the Testator's lifetime. The original bequest of this property to the Testator's brother, Eamonn, is the subject of an attempted obliteration. There is also an alteration to the Will, by virtue of which the bequest of the property is replaced with a bequest to Eamonn in the sum of IR£1.
3. Although it does not explicitly form part of the reliefs in the Notice of Motion, the application is, in reality, an application to admit the Will to probate on the basis that the obliteration of the bequest of this property has been revoked by destruction such that the Will should be admitted to probate on the basis that the property the subject of that bequest now falls to be dealt with by way of a partial intestacy.
4. The Testator never married, nor did he have any children. He appears to have lived much of his life in Dublin where he carried on business as a publican, but some time around August, 2009, he moved back to Virginia, County Cavan to live with the applicant, who is his brother, and with whom he appears to have lived for the rest of his life. On 12 August, 2009, Tom, another of the applicant's brothers, gave the applicant the Testator's personal effects and papers, which included the homemade Will. The applicant remembers the precise date because Tom died two days later, on 14 August, 2009. There is no evidence as to when the Will came into Tom's custody.
5. The Testator was predeceased by his nominated executor, another publican who was presumably a trusted friend, so it will in due course be necessary to appoint somebody to administer his estate. However, that in itself does not present a difficulty as there is provision for this in Order 79, rule 5 (6) of the Rules of the Superior Courts, which applies so as to identity the appropriate person to act as legal personal representative where, inter alia, the only nominated Executor has predeceased the Testator.
6. It is the attempted obliteration of the bequest of the valuable property on the South Circular Road which has given rise to the current application, as the original bequest has been struck through numerous times with a pen, though the words underneath are still legible. It is submitted in this application that this is sufficient to amount to a partial revocation of the Will, that is, a revocation of that particular bequest. As a consequence, it is said that the Will should be admitted to probate as if the relevant words, referred to in more detail below, were blank. As no residuary legatee is named in the Will, the South Circular Road property would then devolve on those entitled on intestacy.
7. On that point, it should be noted that the Testator was survived by four siblings, Malachy (the applicant herein), Cyril, Annette, and Eamonn. He was predeceased by six siblings, only one of whom, Tom, had children.
8. As a result, if the attempted obliteration of the bequest of the South Circular Road property is found to be valid and effective, Malachy, Cyril, Annette, and Eamonn's widow, Monica (who is entitled to Eamonn's entire estate under the terms of his will) are each entitled to a one fifth share. The remaining one fifth share will devolve on Tom's four children, to be divided among them in equal shares.
9. However, if the bequest of the property on the South Circular Road in favour of Eamonn is found not to have been validly obliterated from the Will, then that property devolves on Eamonn's widow, Monica, in accordance with the terms of Eamonn's will.
10. Eamonn's widow, Monica, has not objected to the application to admit the Will to probate on the basis that the bequest of the South Circular Road property to Eamonn has been validly removed from the Will and should therefore be regarded as a blank, though she has expressed some disappointment as she says that the Testator always promised to leave the property to Eamonn.
11. Before considering the matter of the bequest of the property on the South Circular Road, I will deal with some preliminary matters relating to the execution and validity of the Will.
Execution and validity of the Will
12. It was drawn to the Court's attention that the Testator signed his name in the space for the date of execution, as opposed to the space for his signature. However, as that signature appears at the end of the substantive text of the Will and before the witnesses' signatures, the Will has nevertheless been executed in compliance with s. 78 of the Succession Act, 1965.
13. Attention was also quite properly drawn to the fact that different pens were used for the completion of the Will, notably in relation to the signature of the second witness. The Testator's signature was witnessed by two officials of Allied Irish Bank. It has not been possible to trace the attesting witnesses but, as they each gave their address as the AIB branch at 37/38 Upper O'Connell Street in Dublin, it seems probable that the Will was executed in the branch on O'Connell Street, where no doubt there would have been numerous pens available and indeed it is quite possible that each witness had a pen on his person at the time and that one or both used his own pen to sign. The use of different pens, therefore, does not dislodge the presumption of due execution.
14. The name of the executor also appears to have been inserted in a slightly darker pen, though it appears to be in the Testator's hand as he has completed the details for the executor in small caps, which is the same style used for the bequests in the Will and indeed for the completion of the backing sheet, which indicates that the Will is to be dated 17 April, 1981. The Testator may have completed the section for the nomination of an executor later than the portions containing the bequests, and it is possible that he took some time to decide who would be an appropriate executor. However, as it is completed in small caps, and to that extent it is completed in the same style as the rest of the Will, I think it is likely that he filled in the details relating to various bequests to individuals and the details of the executor at different times, before taking the Will to the bank where he executed it in the presence of the named witnesses, who were employees of the bank. The date on the backing sheet, which is designed to be the date of execution, on the facts of this case is likely to be the date on which the Testator filled out the sections in the Will so as to set out the various bequests to the various beneficiaries as it is once again filled in in the same style (that is, in small caps) and in what appears to be the same ink as the portions relating to the bequests.
15. In any event, nothing turns on the darker ink used in the section for the nomination of the executor as he predeceased the Testator.
16. I am satisfied that the different date on the backing sheet, and the use of different ink for the second witness's signature and for the nomination of the executor of the Will do not detract from its validity and that it was validly executed in accordance with section 78 of the 1965 Act.
17. As a result, the net issue before this court concerns the terms of the Will insofar as it relates to the South Circular Road property. That requires consideration of the specific terms of the Will and, in particular, the nature of the attempted obliteration of the bequest relating to that property.
Bequests in the Will
18. The preprinted form is divided into a number of sections. Section 2 is designed for the insertion of pecuniary legacies and there is space for three such legacies. It is completed in full, with two bequests made to individuals who appear to be friends of the Testator and one to his brother, Cyril. However, it seems that it was insufficient for the Testator's purposes as he went on in Section 4, which is the space for the nomination of the residuary legatees, to set out three further pecuniary legacies. These were in favour of his brother, Oliver, his sister, Annette, and a family friend who has the same surname and address as the two individuals to whom bequests had already been made in Section 2.
19. Section 3 is designed for the insertion of specific legacies, again leaving space for three such bequests. The layout is similar to Section 2 in that the section is divided into three sub-paragraphs, (a), (b) and (c), and there are two dotted lines supplied in respect of each subparagraph where the details of each bequest can be filled in.
20. The Testator initially completed this so as to leave three separate properties (and the proceeds of a bank account) to three of his brothers. In each case, the name of the brother and his address is given on the first of the two lines, and the second line is then used to identify the property to be bequeathed. The property identified for Tom was a well known public house on Lower Clanbrassil Street, together apparently with the balance in an account with Allied Irish Bank on O'Connell Street, Dublin 1.
21. The property for Malachy was described as a "private house" in Terenure and it appears to have been the Deceased's home at the time of execution of the Will.
22. The bequest which has given rise to this application is as follows:-
"To Eamonn McNally 18 Ashdale Road, Dublin 6.
[160 S.C. Road, Dublin]. £1-00"
The text in square brackets which is represented as having been struck through or scored on a single occasion in the text of this judgment has in fact been struck through numerous times with a pen in the original, so that the writing underneath is completely covered.
23. The relevant authorities demonstrate that a court will usually examine a will itself for the purposes of discerning what was written: this practice has been endorsed by the Court of Appeal in Re McEnroe [2021] IECA 28. Having done that, I can confirm that the words "160 S.C. Road, Dublin" are still legible to the naked eye, without the need for any additional assistance from infrared technology, expert opinion, or even a magnifying glass.
Section 86 of the Succession Act, 1965
24. The legal effectiveness or validity of the attempted obliteration of the bequest of the property at 160 South Circular Road, Dublin, to the Deceased's brother, Eamonn, and of the insertion of an alternative bequest of IR£1, are both governed by s. 86 of the1965 Act, which provides:
"Any obliteration, interlineation, or other alteration made in a will after execution shall not be valid or have any effect, unless such alteration is executed as is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the signature of each witness is made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end of some other part of the will."
25. That provision is, as explained by Allen J. in this Court at first instance in Re McEnroe [2020] IEHC 421, a re-enactment in more modern language of s. 21 of the Wills Act, 1837. However, s. 21 of the 1837 Act, which is still the law in England and Wales, contains a proviso to the effect that where the words obliterated "shall not be apparent" - explained in Ffinch v. Combe [1894] P 191, 199, as meaning not visible to the naked eye or with the benefit of a magnifying glass - the will can be admitted to probate with the obliterated words treated as a blank. This was the outcome in In the Goods of Benn [1938] I.R. 313, which was, of course, decided by reference to the 1837 Act, which was the law in this jurisdiction until its repeal by the 1965 Act with effect from 1 January, 1967.
26. This case, however, is governed by s. 86, which invalidates obliterations, interlineations or alterations to a will if made after execution, unless they are executed in like manner as the will itself. This is so even if the words are not only no longer "apparent" but cannot be deciphered even with the aid of infrared technology. A conundrum can therefore arise if there is an invalid obliteration of part of a will and it is not possible, even with the aid of technology, to decipher what the terms of the will are. In those circumstances, the obliterated portion continues to be a valid bequest to which the legal personal representative must give effect, but its terms are not known because they cannot be deciphered.
27. That was what occurred in Re McEnroe, but, happily, no such conundrum arises in this application as it possible to read the original words of the Will under the scoring by which it was attempted to obliterate them. The extent of the obliteration in this case is similar to that in Stephens v. Taprell (1840) 2 Curt. 458 and Cheese v. Lovejoy (1874) 2 P.D. 251 where it was held that, as the words struck through were still legible, it could not be said that the wills or any part of them had been destroyed. Those cases are authority for the proposition that, in the absence of a complete obliteration which would amount to an act of "destruction", there is no revocation of a will or any part of it. As the words underneath are still legible in this case, it is clear that this Will has not been partially revoked so as to remove the bequest in favour of Eamonn.
28. In any event, there is no evidence whatsoever in this case - as there was in several of the cases, such as Cheese v. Lovejoy and Re Adams decd. [1990] 2 F.L.R. 519 - to support any finding that the Testator had an intention to revoke that part of his Will. Even if, therefore, the attempted obliteration could be regarded as a "destruction" - which, for the reasons set out above, it cannot - there is no evidence of any animus revocandi.
29. As a result, it could not be found in this case that there has been a partial revocation of the Will so as to remove the bequest to Eamonn of the property at 160 South Circular Road from the terms of the Will.
30. It should not be forgotten, however, that, if the attempted obliteration and alteration were done prior to execution of the Will, then s. 86 does not apply, and effect will be given to the changes as part of the Will originally executed in accordance with s. 78. If, therefore, there is evidence that the attempted obliteration and alteration were done prior to execution of the Will, then the South Circular Road property will fall to be determined by way of partial intestacy, as it was not bequeathed to anyone else and there is no residuary clause in the Will.
Whether the attempted obliteration and alteration were done prior to execution
31. It is settled law that it is for the applicant to tender some evidence that the attempted obliteration and alteration were done prior to execution of the will: see In re Myles decd. [1993] ILRM 34 at pp. 3-4 (per Lardner J.) , and In re McEnroe at para. 6 (per Allen J., citing In the Goods of Adamson (1875) L.R. 3 P. & D. 253). The applicant and everyone else entitled on intestacy, other than Monica, stand to benefit from a decision that the attempted obliteration and alteration were validly done.
32. In this case, the Will left the Testator's possession on some unspecified date prior to August 2009, and came into the possession of the Testator's brother, Tom. There is no evidence as to the when it came into Tom's possession or as to the circumstances explaining how that came about. Tom gave the Testator's personal papers, including the original Will, to the applicant on 12 August, 2009. The applicant says that he remembers the date quite specifically as it was only two days before Tom died, and that he thereafter retained the original Will in his own home and did not open it until the time of the Testator's death. It appears, therefore, that the Testator went to live with the applicant and his family for some years prior to his death and this is confirmed by his death certificate which gives the applicant's home address as the deceased's place of residence.
33. I accept the evidence of the applicant that he did not open the Will and that therefore the Will was not altered between 12 August, 2009, and the date of the Testator's death. However, that still leaves a period of 28 years from the execution of the Will, during which the attempted obliteration and alteration could have been made.
34. Looking at the original Will, it seems that the attempted obliteration and alteration were made with the same or a similar pen as that with which the Testator originally completed it. It may well be, therefore, that the Testator came back at a later time with the same or a similar pen and made the changes. However, there is nothing distinctive about the pen and it seems to have been a blue ballpoint ben, of a standard type used by many people up and down the country. The fact that it is a similar pen, therefore, does not permit me to infer that it was the Testator who made the changes. In that respect, I think the case is distinguishable from In the Goods of Hindmarch (1866) L.R. 1 P. & D. 307, where the interlineations were of a trifling nature, the testator was a lawyer, and the alterations had "the appearance of having been written with the same pen and ink as the rest of the will." The type of pen that seems to have been used here is simply too ubiquitous to draw any conclusions.
35. Neither can I draw any inference one way or another from the absence of any affidavit from the attesting witnesses. It is not surprising that they cannot be traced, given that they seem to have been asked by the Testator to witness his signature when he was in the bank, whether on this or other business. The Bank has said that it cannot give contacts details for its former employees, and, in any event, given the passage of time since execution of the Will - over 40 years - it seems unlikely that either of them is still working in the bank. As they did not give their home addresses, they cannot be traced through their families (who might otherwise be written to at a home address) and it may even be that they are no longer still alive (though no online searches to ascertain this seem to have been made).
36. The witnesses described themselves as "bank clerk" and "bank official", respectively. The attempted obliteration and alteration appears on the last line of the first page of the Will. I think the likelihood is that, if the attesting witnesses were permitted by the Testator to read the Will before witnessing his signature - or even to see the first page of it - they would have seen the attempted obliteration and alteration as it is quite prominent. And if that had in fact happened, then the probabilities are that at least one of them would have suggested initialling it in some way as, in their working lives, they would be familiar with the completion of forms and the execution of formal and significant documentation, and I don't think it would be unusual for them to have been involved in the process of authenticating changes to documents. If I had evidence that they had seen the first page, therefore, I think that would justify an inference that the obliteration was not there at the time they witnessed the signature. However, as it is not possible to say that they saw it, I cannot draw that particular inference.
37. It is of course entirely possible that the Testator did not show the entire Will to the witnesses but merely signed or acknowledged his signature in their presence, which is all that s. 78 requires. In fact, the cases suggest something of a propensity for those who draw up homemade wills to cover the contents of the will and to allow the witnesses to see only their own signature. That may well have occurred here, as the Will is printed on two sides of a four page document (which designed to be folded over after execution so as to leave the pre-printed backing sheet readily visible). The obliteration appears on the first page, while the signatures of the testator and the attesting witnesses appear on the reverse of that page. It is entirely possible, therefore, that the witnesses never saw the first page.
38. More importantly, if those witnesses were now available to give evidence, given the passage of time, it would be unsurprising if they said they could not now remember whether they were shown the Will, or that they remembered being shown the Will but could not now remember whether or not the attempted obliteration and alteration were already present on it at the time. But this is all speculation as no evidence from them is available.
39. Finally, I have no evidence as to any external circumstances which would allow me to assess when any such attempt to remove Eamonn's benefit under the Will was likely to have been made. And if one assumes for the moment that the attempted obliteration and alteration were carried out by the Testator himself, I think that most likely occurred after execution. It seems very unlikely that he would not have dealt with all of his property in his Will and, had he changed his mind after completing the preprinted Will form as to who was to get the South Circular Road property, I think he would probably have nominated another beneficiary. For those reasons, it seems more likely that the change of heart came after execution of the Will.
40. However, I cannot say this for certain and I cannot even be sure that the attempted obliteration and alteration were done by the Testator as he has not complied with s. 86, which requires that changes to a will are acknowledged by the testator and that there are witnesses to such acknowledgement. There is nothing in the margin or in any other part of the Will to indicate that it was the Testator carried out the attempted obliteration and alteration here. The whole purpose of s. 86 would seem to be to require that a testator executes any changes to a will in the manner set out in the section, so that it is evident that the will has not been altered by someone else.
41. Taking all of that into account, not only is there no evidence which would support an inference that the alteration was made prior to execution, but such limited evidence as is available points the other way. Given that there was a period of almost thirty years between the drawing up of the Will and the applicant taking possession of it, the Testator had ample time to change his mind. It is entirely possible that, during that lengthy period of time, there was a change of circumstances which would have made it entirely reasonable for the Testator to alter his Will. Furthermore, though I do not suggest that this in fact occurred, there was also ample time for someone other than the Testator to interfere with the Will.
Conclusion
42. In conclusion, it seems that, as the purported obliteration does not render the words underneath indecipherable, it cannot be regarded as an act of "destruction" and it therefore cannot amount to a partial revocation of the Will. In any event, there is no evidence of any intention to revoke the Will or any part of it. In order to demonstrate a partial revocation, this would also have to be shown.
43. Furthermore, on the very limited evidence available to me, it seems probable that the attempted obliteration and alteration were done some time after execution of the Will, rather than before. Accordingly, the validity and effectiveness of the attempted changes are governed by s. 86 of the 1965 Act which requires that they be executed in like manner as the Will. This has not been done.
44. As a result, the attempt to change the Will so as to replace the bequest to Eamonn of the substantial property on South Circular Road with a bequest of £1 is invalid as a matter of law, and I will therefore admit the Will to probate so as to include the words "160 S.C. Road, Dublin." which have been repeatedly struck through with a pen in the original. However, the characters "£1-00" will be excluded from the Will as admitted to probate as their insertion was not validly and effectively done.
45. In coming to this conclusion, I wish to stress the very sound policy reasons behind s. 86 of the 1965 Act, which aim to prevent any dispute as to their execution by the Testator and, in particular, operate to ensure that alterations are not made by another person, whether before or after death. I wish to stress again that, in pointing to this policy, I am not suggesting that any person who had custody or of access to this particular Will would have attempted to alter the terms of the Will. In fact, it seems likely in this case that the attempt to alter the terms of the Will was made by the Testator himself. However, I cannot be sure of this. What is clear, however, is that the changes were not executed by the Testator and witnessed, and they are therefore invalid and have no legal effect.
46. The circumstances of this case demonstrate once again the importance of taking legal advice on all aspects of the drawing up and alteration of a Will. Not only were the attempted alterations to the original Will invalidly done, but the Testator never at any stage made provision for the residue of his estate. Furthermore, even if the attempted changes had been validly and effectively done, and if it was indeed the Testator who attempted to alter the Will, the failure to take legal advice on the correct mode of altering the bequest has meant that effect will not now be given to his wishes.
47. I will list the matter before me as soon as possible to hear the applicant on the identity of the person who should take out a grant. In accordance with Order 79, rule 5(6)(g), it appears that this should probably be Monica, as the personal representative of Eamonn. However, she has not been asked for her consent to act and she may, as the person now entitled to the property, prefer to nominate someone else to administer the estate.
48. I would add that it seems from the papers that there was an attempt some time ago to sell the property on the South Circular Road to a third party, presumably on the instructions of the applicant, given on behalf of those said to be entitled under a partial intestacy. While I have no doubt that this was all done bona fide, the facts of this case demonstrate that properties should not be put on the market until either a Grant of Probate or Letters of Administration have issued, or at least until it is clear that there is no real issue about the identity of the person who is entitled to act as legal personal representative and therefore to give instructions to sell.