Particularly because we practice in a Border Town, we are always very conscious in drafting Wills for clients who own property in both Ireland and Northern Ireland to ensure that they have not previously made a Will in the other jurisdiction already dealing with the assets in that jurisdiction.
The difficulty which often arises is that most Wills, whether drafted in Ireland or the United Kingdom / Northern Ireland generally start with the following clause:
“This is the last Will and Testament of me Joseph Soap HEREBY REVOKING all previous Wills and Testaments…..”
Where the testator (Joe Soap) revokes his previous Wills, this is commonly known as the “Revocation Clause”. Effectively, the testator is stating that any previous Wills are to be ignored.
Where Joe Soap had already made a Will in Northern Ireland to cover his Northern assets but subsequently instruct a different Solicitor in Ireland to draft a Will with regard to his property in Ireland, does the inclusion by that second Solicitor of such a Revocation Clause in the subsequently drafted Irish Will revoke the previously signed Northern Irish Will?
Re Browne’s Estate
The recent case of Re Browne’s Estate [2024] IEHC 13 involved an application to admit a deceased’s Irish Will executed in 2000, which was expressly limited to his Irish assets, but complications arose from the fact that at the date of the deceased’s death he was domiciled in Australia. He had also executed in 2004 a Will in Australia which was expressly limited to his Australian assets but this was replaced by a 2015 Will which was not so limited and, furthermore, contained a general revocation clause revoking ‘all Wills and other testamentary dispositions made by me’.
Ms Justice Stack was faced with the dilemma as to whether the 2015 Australian Will revoked the 2000 Irish Will and she pointed out that there were conflicting Irish authorities on how this issue should be determined, in particular how far it should be regarded as a matter of interpretation of the Revocation Clause in the later Will. After reviewing the case law both here and elsewhere, such as the UK, she ruled that affidavit evidence could be admitted.
Irish Will not revoked
The extrinsic affidavit evidence adduced in this case led Stack J to conclude that the deceased clearly intended to distinguish between his Irish and Australian assets and had not changed his mind when the 2015 Australian Will was executed. In her view there was no doubt that the general Revocation Clause in it was included by mistake by the deceased’s solicitor as a matter of course and without taking any specific instructions on the matter. The deceased was in poor health at the time and probably did not appreciate the significance of the clause.
The Solution?
The Solution?
Unless the Will is a particularly complicated Will, which requires for instance the inclusion of Trusts, it is possible to draft up one Will to cover the Testator’s assets in both jurisdictions. The requirements under the Succession Act in Ireland and the Administration of Estates Act in Northern Ireland with regard to the execution of Wills are relatively similar.
If however it is necessary for separate Wills to be drawn up by separate Solicitors in each jurisdiction, then each Solicitor should insist on reviewing a copy of the Testator’s previous Will. That way, when drafting the second Will, the Solicitor in Ireland can ensure that the Northern Irish Will is not revoked. For instance, rather than including the general Revocation Clause, the Solicitor in Ireland could include the following Revocation Clause:
“This is the last Will and Testament of me Joseph Soap HEREBY REVOKING all previous Wills and Testaments made in Ireland, but specifically not revoking my Will made in Northern Ireland, where that Will deals with my Northern Ireland estate only.”
As stated by Stack J in the case of Re Browne’s Estate, the Solicitor should take specific instructions on the matter!
For further information on Wills and Administration of Estates you should contact:
Brian Morgan
Morgan McManus Solicitors
Web: www.morganmcmanus.com
Email: bmorgan@morganmcmanus.ie
Ph. No.: 00353 47 51011
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