An “undoubtedly genuine” error by a solicitor when advising an elderly farmer in relation to his will means a one fifth share of his €250,000 estate will go to a woman whom he had decided should no longer be a beneficiary.
That is the outcome of a recent High Court judgment on proceedings concerning two wills made by John Coughlan, an elderly, unmarried and childless farmer, prior to his death in 2021.
Mr Coughlan, Ms Justice Nuala Butler noted, made a will in September 2012, when he was “well into his eighties”, which provided that his estate was to be shared between four people, including two cousins, whom, she said, it was reasonable to assume were all close friends who were good to him in his declining years.
In a second will of July 2015, an extra beneficiary, Ms H, was added but Mr Coughlan subsequently fell out with Ms H and, in November 2015, destroyed the 2015 will.
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In later proceedings under the Succession Act, the executors of the case applied to cancel a grant of probate for the 2012 will and to administer the estate in accordance with the deceased’s actual last will and testament and with law.
The application was supported by Ms H but opposed by Mr M whose inheritance under the 2015 will would be less than under the 2012 will because of the addition of Ms H as a beneficiary.
In fairness to Mr M, a close friend of Mr Coughlan’s, he was also concerned the executors’ application could result in the distribution of the deceased’s estate in a manner directly contrary to the known intention of Mr Coughlan to exclude Ms H as a beneficiary, the judge noted.
The core legal issue concerned the application of the doctrine of dependent relative revocation which allows a court to find the prima facie valid revocation of a will was not, in the particular circumstances, actually effective in revoking the will.
In affidavits, Mr Coughlan’s solicitor said, when he attended her in November 2015, he no longer wished Ms H to be a beneficiary and wanted only the beneficiaries named in the 2012 will to have a share in his estate.
The solicitor said her understanding at the time, and her advice to Mr Coughlan, was the action of destroying the 2015 will – which Mr Coughlan did in her presence - as being his last will and testament had the combined effect of revoking it and of confirming/reviving the 2012 will.
This error was “undoubtedly a genuine one” by the solicitor, who continued to act on this mistaken view of the law in filing an application for grant of probate of the 2012 will, the judge said.
The same formalities that apply to making a will are necessary in order to revive a will, she said.
The solicitor’s advice that revocation of the 2015 will would automatically revive the 2012 will was “fundamentally incorrect”.
In order to revive the 2012 will, it should have been re-executed or the deceased should have executed a codicil clearly stating his intention to revive it, she said.
In the absence of these steps, revoking the 2015 will would prima facie create a situation where the deceased no longer had any valid will in existence at the time of his death and, consequently, would die intestate.
To avoid such unintended intestacy, the doctrine of dependent relative revocation means, where it can be established the revocation of a will was conditional on the happening of an event which did not occur, or upon some belief which turned out to be wrong, there is no revocation.
On the evidence and the law, the judge concluded Mr Coughlan clearly wished to die testate.
Because his intention to revoke the 2015 will was conditional on his belief, based on incorrect legal advice, that doing so would revive the 2012 will, the purported revocation of the 2015 will was not legally valid. Application of the principle of dependent relative revocation meant the destruction of the 2015 will did not effect a valid revocation of that will.
The net effect is the 2015 will remains extant, a copy of it should be admitted to probate and the grant of probate concerning the 2012 will should be cancelled, she ruled.
Costs issues will be decided later but, in preliminary observations on those, the judge noted the executors had to make this application due to errors in legal advice given by the solicitor to the deceased and, initially, to the executors.
