Court admits will and codicil to probate, ruling codicil did not revoke original will's gifts.

THE HIGH COURT

PROBATE

2025 PO 1099

[2025] IEHC 646

IN THE MATTER OF THE ESTATE OF DANIEL DORAN, LATE OF 98 DUNSINK

DRIVE, FINGLAS, DUBLIN 11, DECEASED

AND

IN THE MATTER OF THE SUCCESSION ACT, 1965

AND

IN THE MATTER OF AN APPLICATION BY MARY BARTON

Judgment of Ms. Justice Siobhán Stack delivered this 21st day of November, 2025.

Introduction

1. This is an application to admit to probate the Will of the Deceased, executed 11 January, 2018, together with a Codicil dated 1 June, 2023. I granted the application some time ago in the non-contentious probate list, and am delivering a brief written judgment now as the application concerned a point of law which may be of interest to legal practitioners.

2. On 11 January, 2018, the Deceased made his last Will and testament, in which he named his wife as Executrix and sole beneficiary, and further provided that, in the event that his wife predeceased him, his daughter, Mary (the Applicant herein) would be his sole Executrix, and his entire estate would be divided between his five children in equal shares. His wife made a mirror will to the same effect on the same date.

3. The Deceased’s Will was witnessed by his solicitor and a legal secretary in the usual way. However, the Codicil was executed in somewhat different circumstances. By 1 June, 2023, the Deceased’s wife was seriously ill and coming to the end of her life. She and the Deceased both wished to ensure that a property in Leitrim, consisting of a cottage and some land, passed to their son, Patrick. This property was in the sole name of the Deceased. In order to ensure that Patrick would succeed to the Leitrim property, the Deceased, the Applicant, her brother, Martin, and her sister, Pauline, all attended at the Hospice where the Deceased's wife was an inpatient, where the Deceased and his wife both executed a joint Codicil drawn up by Martin, and which is in the following terms: “We Daniel & Mary Doran of 98 Dunsink Drive, Finglas South, Dublin 11 are adjusting our previous will & testament with a revised allocation regarding one of our properties (as detailed below). All other elements of the (sic) of our previous will and testament remain in force. The property in question is located at [an address in County Leitrim] and will be left in its entirety upon our deaths to our son Patrick Doran.”

4. Joint wills, if duly executed by both testators, are “as much the will of each [testator] as if they had made separate wills each dealing with that person’s own property”: Williams, Mortimer, and Sunnocks, (22nd ed., Sweet & Maxwell, London, 2023), para. 10-13, citing Re Stracey (1855) Dea. & Sw. 6. The joint will can be admitted to probate as the will of each testator, albeit in this instance, the Codicil seems to have been intended to take effect only on the death of the survivor of the testators, and therefore it probably could not be admitted to probate until both had died: see Re Raine (1858) 1 Sw. & Tr. 144, 164 E.R. 667. Obviously, no issue arises on that point in this case as the application is made in the estate of the Deceased, who survived his wife.

5. The reference to “our previous will” - when in fact the Deceased and his wife had executed two separate wills - may indicate that those wills were intended to be mutual wills. No issue arises out of that as the Deceased never revoked his Will. No difficulty arises, therefore, from the fact that the Codicil took this form or indeed that it referred to the Leitrim property as “our” property.

6. By way of aside, the circumstances in which the Codicil was executed point to the importance of having the facility to make a homemade will in certain circumstances. It is desirable that, at the end of life, the law should facilitate the expression of testamentary wishes, and the actions required to do this sometimes have to be taken as a matter of urgency. Having said that, I think that the issue which has arisen would almost certainly not have arisen if the Codicil had been drafted with the assistance of a solicitor. Furthermore, as may be evident from the brief discussion above, there can be pitfalls in drawing up joint testamentary documents. It is therefore nevertheless desirable that, if at all possible, a solicitor would be instructed to draw up any will or codicil which is required at the end of life.

Section 82 of the Succession Act, 1965

7. To return to the issue which subsequently required determination, the execution of the Codicil was witnessed by the Applicant and her brother, Martin, both of whom are beneficiaries under the Will. However, neither of them takes a benefit under the Codicil, the effect of which is to reduce the share to which each of them is entitled under the Will. Generally speaking, any gift in a will to an attesting witness or their spouse will be void. That has been the law since the enactment of s. 15 of the Wills Act, 1837 – prior to that the possibility of fraud or undue influence where the witnesses proving the will themselves benefitted from it was dealt with by the Statute of Frauds 1677 (29 Chas. II, c.3) and the Attestation of Wills Act, 1752 (25 George II, c.11 (I.)). The former required that wills be witnessed by credible - that is, disinterested - witnesses, which meant that wills were not valid if dependent for their proof on the evidence of a witness who benefitted under the terms of the will. This was later relaxed by the courts so as to permit the beneficiary to prove the will, but any gift to that witness was void. The 1752 Act put that development on a statutory footing and this was extended by s. 15 of the 1837 Act so as to apply the rule to the spouses of beneficiaries.

8. Section 15 of the 1837 Act remained the law until repealed in this jurisdiction by the Succession Act, 1965, and the issue is now addressed by s. 85 of the 1965 Act which provides:- “(1) If a person attests the execution of a will, and any devise, bequest, estate, interest, gift, or appointment, of or affecting any property (other than charges and directions for the payment of any debt or debts) is given or made by the will to that person or his spouse, that device, bequest, estate, interest, gift, or appointment shall, so far only as concerns the person attesting the execution of the will, or the spouse of that person, or any person claiming under the person expires, be utterly null and void.” It should be noted that s. 3 of the 1965 Act provides that “will” includes Codicil. If the Codicil is valid, it forms part of the testamentary papers comprising the last Will of the Deceased. If the two documents are regarded as forming part of the last Will, then, it could be argued that s.

82 prevents the witnesses to the execution of either document from taking any benefit under the Deceased’s last Will.

9. The law in England and Wales on this particular point is summarised in Williams on Wills, (10th ed., LexisNexis, London, 2014), p. 109, para. 9.5, as follows: – “A gift by a will to a beneficiary is not rendered invalid by the fact that the beneficiary attests a codicil to the will, even though the codicil confirms the will unless he also receives a benefit under the codicil.”

10. Williams cites, inter alia, Gurney v. Gurney (1855) 3 Drewry 208, 61 E.R. 882 and Re Marcus Deceased (1887) 57 L.T. 399 as authorities for this proposition, both of which were relied on by the applicant in this case. In Gurney, the testator made a will in which he left £100 to F. and a share of his residue to T. Neither F. nor T. witnessed the will, but they witnessed two codicils. By the first codicil, the testator revoked certain legacies (not including the legacy to F.), which had the effect of increasing the share of the estate which would fall into the residue. The consequence, therefore, was that the codicils did not benefit F., but T. received an indirect benefit from the codicil which he had witnessed.

11. In Gurney, the Vice-Chancellor considered s. 15 of the Wills Act, 1837, which provides: “If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate … shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person … be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in the will.”

[Emphasis added.]

12. It was held that the use of the word “thereby” in s. 15 meant that the section should be construed as applying only where the devise or legacy was given or made “by the same testamentary instrument which is attested” by the beneficiary. As a result, the Vice-Chancellor found that the legacy to F. was not void under the statute. Similarly, T. took his share of the residue under the will rather than the codicils, and therefore the bequest to him of a share in the residue was not affected by his action in attesting the subsequent codicils.

13. While that judgment rests on the specific wording of s. 15 of the Wills Act, 1837, which is somewhat different from s. 82, those differences are not material to the issue for determination here. The effect of s. 82 is to render void “any devise, bequest, [etc]… given or made by the will” to a person attesting the execution of the will. In this case, the share in the residue is “given” to the applicant and her brother, Martin, by the Will and not the Codicil. Neither the applicant nor her brother witnessed the Will. Applying the natural and ordinary meaning of s. 82 to the facts of this application, the provision does not apply as the beneficiaries in question did not witness the execution of the testamentary document from which they benefitted.

14. I should add that there is a point of distinction between this case and Gurney, as it could be argued in that case that T. benefitted from the codicil which he attested. That is not the case here as the effect of the Codicil was to reduce the share which would be enjoyed by the witnesses attesting the Codicil under the earlier will. I would leave to a case where the point arises for determination whether that aspect of Gurney v. Gurney is good law having regard to the provisions of s. 82 of the 1965 Act.

15. It should also be acknowledged that the reasoning in some of the case law on s. 15 of the 1837 Act is not entirely consistent with the reasoning in Gurney v. Gurney. In Anderson v. Anderson (1871-72) L.R. 13 Eq. 381, the wife of one of the legatees was a witness to the will in which the bequest was made but not to the codicil which confirmed it. In that case, Sir James Bacon V.C. emphasised the purposes behind s. 15 and decided the matter on the basis that the codicil was a “republication” of the earlier will. As there was no difficulty with the execution of the codicil, in which the legacy in favour of the witnesses’ husband was included, he upheld the gift.

16. That case can be distinguished here as, if the Codicil had never been executed, there would have been no question about the validity of the Will or of any bequests in it. The issue simply didn’t arise as the attesting witnesses (the solicitor and his legal secretary) did not take any gift under the Will. Doubts have arisen only from the witnessing of the Codicil.

17. In my view, it cannot be said that the gift in the Will could be invalidated by the subsequent execution of the Codicil. The reasoning in Anderson v. Anderson was possibly influenced by the submission (set out at pp. 383 to 384) that, because of the defect in the attestation of the earlier will, the will was not a document which satisfied the requirements of the Wills Act, and therefore was not a will for the purposes of the 1837 Act.

18. However, I do not think that argument - which appears to have influenced the ultimate reasoning of the Vice-Chancellor - is correct. Like s. 82 of the 1965 Act, s. 15 of the 1837 Act did not invalidate the entire will but only the particular legacy or bequest to the attesting witness. Indeed, both s. 15 of the 1837 Act and s. 82 (2) of the 1965 Act specifically provide that the evidence of the attesting witness in question is admissible to prove the will.

19. In Anderson v. Anderson, the codicil purported to confirm the earlier will (although the specific wording is not apparent from the report). It was held that this was a “republication” of the will, so that the beneficiary could be regarded as taking the bequest under the codicil, rather than the will. It is certainly the case, as the Vice-Chancellor pointed out, that the purpose behind s. 15 was satisfied, as a fresh document with witnesses who did not benefit under any testamentary document was executed by the testator.

20. It might be thought that this aspect of the reasoning based on “republication” is applicable here, given the express statement in the Codicil that, other than the amendment effected thereby, the earlier Will remained in force. However, I think the natural and ordinary meaning of those words in the Codicil is that it was not to be taken as impliedly revoking the earlier Will, save insofar as the Leitrim property was concerned. In those circumstances, the reasoning in Anderson v. Anderson, and specifically the finding that the codicil constituted a “republication” of the Will, is not applicable here.

21. I have therefore made an Order admitting both the Will and the Codicil to probate.

[This judgment was corrected on 28 November, 2025, at para. 17, to clarify that only the validity of the gift in the Will and not the validity of the Will itself was in issue.]