Court rejects revival of revoked will based on surrounding circumstances and testator's clear intent.

THE HIGH COURT

PROBATE

Record. No. 2025 PO 2118

[2025] IEHC 400

IN THE MATTER OF THE ESTATE OF HONOR DUNCAN McCULLOCH

DECEASED, LATE OF SIGNACARE NURSING HOME, BUNCLODY, COUNTY

WEXFORD

AND

IN THE MATTER OF Ss. 87(1) AND 27(1) and (4) OF THE SUCCESSION ACT, 1965 AND IN THE MATTER OF AN APPLICATION BY IAN McCULLOCH OF BARHOLME, COLLIERSTOWN, BELLEWSTOWN IN THE COUNTY OF MEATH AND JOHN JAMES McCULLOCH OF 3 COILL DUBH COURT, BROOMFIELD, MALAHIDE IN THE COUNTY OF DUBLIN JUDGMENT of Ms. Justice Stack delivered the 11th July, 2025.

Introduction

1. The Deceased died on 7 February, 2024, aged 91 years, a single woman without issue or parent. She made a will on 29 September, 2015 (“the 2015 Will”), which contained a general revocation clause. As a result, the prior wills made by the deceased in January, 2012, and March, 2015, are not relevant to the issue arising for determination.

2. On 10 February, 2020, the deceased made a new will (“the 2020 Will”). This also contained a general revocation clause and therefore was effective to revoke the 2015 Will. It is in identical terms to the 2015 Will, save that the bequest to trustees for charitable purposes is increased from STG£100,000 to STG£120,000. On the same date, the deceased signed a detailed Letter of Wishes for the guidance of the Trustees. This letter specifically refers to the bequest of STG£120,000.

3. In 2022, the deceased became concerned that she had excluded the first applicant and his wife from her Will and that they should be treated equally with the other residuary beneficiaries in order to recognise what they had done for her. Prior to that, in both her 2015 and 2020 Wills, the residue had been divided between three other individuals (including the second applicant) and their families, and the deceased instructed her solicitor to “even things out”, and suggested that the required amendment could be done by codicil.

4. On 15 July, 2022, the deceased executed a Codicil (“the Codicil”). This was an entirely separate document, that is, it was not attached in any way to either the 2015 Will or the 2020 Will. Clause 1 of the Codicil described itself as “a first Codicil to my Will dated 29 September, 2015 (‘my Will’)”. It purported to substitute a new residuary clause so as to divide the residue in four shares rather than three, and so as to leave a share to the first applicant and his wife. At Clause 3, the Codicil stated: “In all other respects I CONFIRM my Will.”

5. It is apprehended that, by referring to the 2015 Will, the Codicil has inadvertently revived the 2015 Will and, as a consequence, revoked the 2020 Will. It is submitted that the revival of the 2015 Will with effect from the date of the Codicil also revives its general revocation clause which then operates to revoke the 2020 Will. This seems to be settled law in England and Wales (see Re Baker [1929] 1 Ch. 668, and Re Pearson [1963] 1 W.L.R. 1358) but I note that some doubt has been expressed about that proposition in other jurisdictions: see Richmond J. in the New Zealand Court of Appeal in Re Dear [1975] N.Z.L.R. 254, at 264. It does not appear to have been considered in this jurisdiction, and in Brennan v. O’Donnell [2015] IEHC 460, although Re Pearson was referred to with approval, the issue did not arise as the earlier Irish will related only to the Irish estate and was therefore found not to have revoked the later New York will which dealt with the deceased’s American estate.

6. However, given the conclusions I have reached as to the effect of the Codicil, I do not have to consider that issue for the purposes of this application. I think it is better to leave that issue over to a case where it is necessary to determine it, and I will proceed on the assumption that the possible revival of the 2015 Will would give effect to its general revocation clause from the date of its revival, thereby revoking the 2020 Will. On that basis, it is now necessary to determine the effect of the Codicil so as to identify the Will which is to be admitted to probate along with the it.

7. The applicants are the executors nominated in both Wills and they apply to admit the Codicil to probate together with the 2020 Will, thus giving effect to the more generous charitable bequest and reducing the residue. There is no doubt that the Codicil should be admitted to probate and the only question is whether it is the 2015 Will or the 2020 Will which should be admitted to probate with it.

8. Before considering the issue for determination, I should add that the Codicil contained another error in that it referred to the residuary clause as being at Clause 5. However, in both the 2015 and the 2020 Wills, the residuary clause is in fact contained at Clause 6. In both Wills, Clause 5 contains a series of specific bequests. The residuary beneficiaries are in agreement that the reference to Clause 5 should be regarded as a typographical error and the specific bequests are not to be regarded as having been revoked. There is a further typographical error in the Codicil but the beneficiaries are again agreed that this is an obvious error and that the true meaning is clear.

9. Some of the residuary beneficiaries are minors and their parents have consented on their behalf, both to the application to admit the 2020 Will to probate along with the Codicil and to the manner in which the Codicil is to be construed. However, the construction of the Codicil is not a matter which arises at this point.

Whether the 2015 Will has been revived by the Codicil

10. Section 87 of the Succession Act, 1965 deals with the revival of previously revoked wills and provides: “No will or any part thereof, which is in any manner revoked, shall be revived otherwise than by the re-execution thereof or by a codicil duly executed and showing an intention to revive it; and when any will or codicil which is partly revoked, and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as was revoked before the revocation of the whole thereof, unless an intention to the contrary is shown.” [Emphasis added.]

11. Section 87 is in identical terms to s.22 of the Wills Act, 1837, which it replaced. In In the Goods of Steele [1868] L.R. 1 P. & D. 575, Sir J.P. Wilde was considering a series of cases where earlier wills which had already been revoked had been referred to in codicils and the question of which will should be admitted to probate along with the codicil in question had to be determined.

12. He referred to the common law prior to the enactment of the Wills Act, 1837, under which a will could be revived by implication, including by mere reference to it in a later codicil. Having considered the text of s. 22, he was of the view that Parliament had intended to remove the possibility that a previously revoked will could be revived by implication and that the phrase “showing an intention to revive it” meant that something other than a simple reference to the earlier will was required. In particular, he was of the view that mere reference to the earlier revoked will by date was sufficient. He stated (at p. 578): “I therefore infer that the legislature meant that the intention of which it speaks should appear on the face of the codicil, either by express words referring to a will as revoked and importing an intention to revive the same, or by a disposition of the testator’s property inconsistent with any other intention, or by some other expressions conveying to the mind of the Court, with reasonable certainty, the existence of the intention in question.”

13. Steele is a very significant judgment as it establishes that, in order to revive an earlier will which has been revoked, it is not sufficient merely to refer to it by date. There must be additional evidence demonstrating an intention to revive that earlier will.

14. The current edition of the leading English textbook, Williams, Mortimer and Sunnucks on Executors, Administrators, and Probate (being the 22nd ed. of Williams on Executors and the 10th ed. of Mortimer on Probate) (22nd ed., Sweet and Maxwell, London, 2023) does not deal with the revival of wills, but the previous edition (21st ed., Sweet and Maxwell, London, 2021) states quite categorically (at para. 12-05): “[Re Steele] has been followed in a number of later cases in which mistaken references to revoked wills by their dates have been made in codicils. In such cases mistaken reference to the revoked will should be omitted from the probate. Earlier authorities holding that a reference to a revoked will by date in a codicil is in itself sufficient to revive it must be regarded as wrongly decided. Thus, if a codicil refers to will A only by its date that is not sufficient to operate to revive will A and revoke will B, as no intention to revive will A has been demonstrated.”

15. The authors then go on to contrast that situation with one where a revoked will is mistakenly referred to in a codicil not merely by date but by its provisions, in which case the will is revived. There is an example of this in In the Goods of Wilson (1868) L.R. 1 P & D. 582, where the codicil, though referring to an earlier will by date, referred to the express provisions of a later will. The later will was admitted to probate along with the codicil.

16. Theobald on Wills (19th ed., Sweet & Maxwell, London, 2021) at para. 7-081 et seq. contains a similar statement of the law, citing not only Steele, but also: In the Goods of Anderson (1870) 39 F.J.P. 55; In the Goods of Gordon (1892) P. 228; In the Goods of Snowden

(1896) 75 L.T. 279; In the Goods of Ince (1877) 2 P.D. 111; Jane v. Jane (1917) 33 T.L.R. 3 at 9; Goldie v. Adam [1938] P. 5; and Re Dear [1975] 2 N.Z.L.R. 254. The authors explain these authorities by saying that they “may well be supported on the ground that the description of the will by the codicil was ambiguous, will A not being the last will of the testator, or, in fact, his will at all, as it had been revoked.” Re In the Goods of Whatman (1864) L.J.P.M. & A.17 is cited for this latter proposition. I note that Theobald also draws a distinction with a case where the codicil refers to the earlier will by date but then goes on to refer to bequests in that will. In that situation, the codicil will be held to have revived the earlier will.

17. The reasoning in Re Steele therefore appears to represent the settled law in England and Wales, and to have been adopted in New Zealand (Re Dear, supra).

18. More importantly, Re Steele was approved as good law in this jurisdiction by Baker J. in Brennan v. O’Donnell.

19. Brennan v. O’Donnell concerned a testator who had lived a large portion of his life in New York before retiring to Kerry. It was assumed, for the purposes of that judgment, that a will executed in New York would have repealed an earlier will, executed in this State. It was assumed for the purposes of the judgment that the New York will had revoked the Irish will.

20. However, Brennan v. O’Donnell was more straightforward than this case. First, the codicil was actually written at the end of the original Irish will, continuing on a later page, and was therefore physically incorporated into the original will. Secondly, the terms of the Irish and New York wills were quite different, and it was clear that the codicil referred to a clause in the Irish will and not the later New York will. The purpose of the codicil was in fact to amend a bequest in the Irish will of monies in three EBS accounts in Castleisland, Co. Kerry, which had since been closed by the testator, and to replace it with a bequest in favour of the same beneficiary of the monies standing to the testator’s credit in the Bank of Ireland account which he had opened in its place.

21. Neither of those factors are present here as the Codicil is an entirely stand-alone document and the Codicil does not, other than the reference to the date of the 2015 Will, refer to any of its terms.

22. Returning to this case, it is clear that the reference to the 2015 Will by its date is insufficient as a matter of law to demonstrate the intention required by section 87. The issue then resolves, as counsel has submitted, into a net question as to whether, leaving aside the reference to the date of the 2015 Will, is there something else in the Codicil, read in accordance with the “armchair principle”, that would convey to the mind of the court “with reasonable certainty” an intention on the part of the deceased to revive the 2015 Will?

23. As the terms of the Codicil would operate in the same way whether it was intended to amend the 2020 Will or to revive the 2015 Will, those do not throw any light on the matter. And the only other part of the Codicil which might, arguably, be thought to be relevant, is that it concludes by stating: “In all other respects I CONFIRM my Will.”

24. In my view, that statement is too general to convey any intention to revive the 2015 Will. The result, therefore is that the requirements of s. 87 of the 1965 Act for the revival of a will which had previously been revoked have not been met.

25. It was submitted to me at the hearing by counsel for the applicants that I need to consider McLeod v. McNab [1891] A.C. 471, a decision of the Privy Council hearing an appeal from the Supreme Court of Nova Scotia. In that case, the testator had made his will on 17 July, 1880, and it had named Dalhousie College as the residuary beneficiary. It was assumed for the purposes of the appeal that a codicil executed on 17 June, 1882, had revoked that bequest, the effect of which would be that that portion of the testator’s estate would devolve on his only surviving brother and heir-at-law.

26. On 21 July, 1882, the testator made another codicil expressed to be a codicil to his will of 17 July, 1880. By that codicil he confirmed the will of 17 July, 1880, in every other aspect than as altered by the July codicil. The question left for determination was whether that had the effect of reviving the residuary bequest which had been contained in the original will of 1880.

27. Lord Hannen, having cited the relevant statutory provision which, like s. 87 of the 1965 Act and s. 22 of the Wills Act, 1837, required the codicil to show an intention to revive the earlier will stated (at p. 474): “It has been decided in many cases that the intention must be found in the instrument itself; and it may be taken that the recent decisions have established that a mere reference to the document intended to be dealt with, whether will or codicil, by its date, is not sufficient in itself. The date is an important element in the consideration, but it is not to be taken by itself; it becomes necessary to look to the context, and to anything else in the document which may explain whether the intention of the testator was to confine the action of the testamentary disposition under consideration to the document of that date, or to extend it to something more.”

28. In that case, the first codicil had cancelled the appointment of an executor and replaced him with the respondent in the case. However, in the codicil of 21 July, 1882, the testator referred to the original executor as having been appointed, and again purported to replace him. It was therefore obvious that the testator was looking only at the original will of 17 July, 1880. It was found that that was an “expression conveying to the mind of the Court, with reasonable certainty, existence of the intention in question”.

29. Insofar as that goes, that authority is entirely in line with the statements above. However, at the hearing of this application, this case was opened for the purposes of informing the Court that the Privy Council had also expressed the opinion that the word “confirmed” was an apt word and expressed the meaning “revive” which was used in the statute, and I was asked not to follow it. This was notwithstanding that this aspect of the judgment had been followed by Baker J. in Brennan v. O’Donnell, where the use of the word “affirm” was taken into account in holding that the intention was, insofar as the earlier Irish will had bene revoked, to revive it by execution of the codicil.

30. However I do not think that the use of the word “confirm” in McLeod v. McNab or the use of the word “affirm” in Brennan v. O’Donnell was critical to the reasoning in either case. I do not read either judgment as authority for the proposition that the use of the word “confirm” or “affirm” on its own would be sufficient to show the necessary intention of the testator. In both cases, there was specific reference to the contents of the earlier will which demonstrated an intention on the part of the testator that he intended that earlier will to take effect on his death. (Indeed, since Brennan v. O’Donnell was decided, the caselaw on revocation has been clarified in In re Courtney, deceased [2016] IEHC 318 and Re James Browne, deceased [2024] IEHC 13 so as to make it very doubtful that it would now be necesary to assume that the earlier Irish will had ever in fact been revoked.)

31. I think probably the better view, as with any question of interpretation, is that all relevant factors must be taken into account. The use of the word “confirm” (or, as it was Brennan v. O’Donnell, “affirm”) is probably too general on its own to convey the necessary intention to revive an earlier will. In both Brennan v. O’Donnell and McLeod v. McNab, the general word was accompanied by the express provisions relating to the substantive provisions in an earlier, revoked will which meant that the court could “with reasonable certainty” be satisfied that the testator’s intention was to revive the earlier will.

32. Indeed, in Re Dear, I note that the High Court of New Zealand, referring to McLeod v. McNab, had relied particularly on the words “I confirm” in finding that a codicil revived an earlier, previously revoked will. That decision was overturned by the Court of Appeal, who found that there was a latent ambiguity as the codicil referred to the testator’s “last” will, but also referred on three occasions to the date of the earlier, previously revoked will. This was regarded as a latent ambiguity and extrinsic evidence of the testatrix’s intention was admitted, which showed that the error was that of the draftsman, who had been unaware of the later will. However, it is notable that the three members of the Court of Appeal thought, notwithstanding the use of the phrase “I confirm”, that the codicil was entirely neutral as to whether it was purporting to amend the last will or the earlier, revoked Will.

33. In this case, the Codicil does not refer to the Deceased’s “last” will, so I do not have to consider the line of caselaw on the significance of the use of that word. But the mere reference to the date of the 2015 Will and the use of the phrase “I confirm” are insufficient, in my view, to show an intention to revive the 2015 Will.

34. Furthermore, although there doesn’t appear to be a latent ambiguity in the Codicil which would justify admission of the extrinsic evidence which is available in the form of the deceased’s instructions to “even things out” so far as the residuary clause was concerned, I am, as confirmed by Baker J. in Brennan v. O’Donnell, entitled to look at surrounding circumstances in accordance with the “armchair principle”.

35. There is absolutely nothing in the surrounding circumstances which would suggest that the deceased ever intended to reduce the charitable bequest. Generally speaking, it is sensible to increase the amounts of pecuniary bequests as, with the effects of inflation over time they become less valuable. Having taken care to increase the value of the bequest in 2020, there is nothing to suggest that the deceased had any reason to change her mind about benefitting the charity in question or that she wished to make a less generous gift. In particular, if the deceased had intended to reduce the charitable bequest and to restore the terms of the 2015 Will, the Letter of Wishes, which was drafted at the same time as the 2020 Will and refers quite specifically to the sum of STG£120,000, along with detailed instructions for the uses to which it should be put, would no doubt have been amended also at the time the Codicil was drawn up.

36. To my mind, therefore, the fact that the 2020 Letter of Wishes survives unamended is a surrounding circumstance which supports the conclusion that there was no intention to revive the 2015 Will.

37. I will therefore admit the 2020 Will to probate in its entirety, together with the entire of the Codicil other than the words “dated 29th September 2015 (‘my Will’)” in Clause 1 thereof.