As if I needed to repeat this, I have written about this previously on a number of occasions! People foolishly think that they are saving money by executing “home-made” Wills. As I have opined before: “home-made” Wills are as dangerous as “home-made” explosives!
Another example of this was the recent High Court Decision of Butler J in the Martin Healy v Application by Gerard Healy  IEHC49.
If an original Will cannot be found there is generally a presumption that it was destroyed and revoked by the Testator (the person who made the Will).
In this case, a problem arose because the original Will could not be found. In the normal course, when a Will is drafted by a Solicitor, the original Will would be kept in safe-keeping by the Solicitor in a fire proof safe in the Solicitor’s office, with everyone knowing where the Will is to be located. There is no Public Wills Register in Ireland; so the fact that a Testator has made a Will is often something which is only known to the persons who witnessed the Will. Where the Testator decides to make a “home-made” Will, the persons who witnessed the Will could very well have pre-deceased the Testator! At least, if a Testator makes his Will before his Solicitor, the likelihood is that his family or next-of-kin will know that the Testator generally instructed a particular Solicitor and will make the appropriate enquiries with that Solicitor after the Testator’s death.
When the Will was made?
The Testator, Mr. Healy, sought the assistance of a Dominican Priest in drafting his Will. The Will was executed by him and witnessed by two Dominicans in a holiday home of the Dominican Order, which was located next door to Mr. Healy’s home. There was no information available on the Testator’s death as to the whereabouts of the original Will. The only thing which was known about it was that at some point after the execution of the Will, it was photocopied and that a photocopy was available. Mr. Healy died some fifteen years after making his Will.
A Court Application was necessary
The Executor (the person appointed to carry out the Deceased’s intentions under his Will) and one of the intended beneficiaries, the nephew of the Deceased made an Application to the Court seeking to rely on the photocopy of the original Will, to have it admitted. Fortunately, the Applicant was supported by all of the next-of-kin, who would benefit, and no other persons disputed the Will. That meant that the matter could be dealt with in the Non-Contested Probate List.
Having reviewed all of the evidence, Ms. Justice Butler came to the conclusion that there was no evidence at all before the Court on any key matter which would allow the Court to conclude either that the original Will was still in existence or, alternatively, that it had been inadvertently lost or destroyed. In the circumstances, she found that the Applicant had failed to discharge the evidential burden which lay upon him to rebut the presumption of revocation in order admit the copy Will to Probate.
The Moral of the Story!
Ms. Justice Butler actually commenced her Decision with the following paragraph, but perhaps it is more appropriate to conclude this Article with that paragraph:
“Although the Succession Act does not require that a Will be drawn up by a Solicitor, the circumstances of this case are a good example of why it is prudent to seek the assistance of a Lawyer in respect of a step as important as the preparation of a Will. As it happens, the difficulties in this case do not concern the statutory requirements for a valid Will as the evidence is sufficient to allow the Court to conclude that the Deceased did make a valid Will. Rather, the difficulties arise, because the original of that Will has not been found after the death of the Deceased and there is an absence of any evidence as to whether the original was kept or what might have happened to it”.
While the author does not maintain that the Testator made a home-made Will in order to save the cost of going to a Solicitor, in this instance substantial legal costs were incurred in seeking to have this Will admitted to Probate and ultimately it was not possible to do so.
Maybe however the Deceased did subsequently destroy the Will?
For further information on Wills and Succession you should contact:
Morgan McManus Solicitors