High Court rejects presumption of will revocation due to lack of original will possession by deceased. Executors prove original was never sent to deceased.

THE HIGH COURT

Record No. 2021/5113P

[2026] IEHC 63

IN THE MATTER OF THE ESTATE OF MARY EASTWOOD, DECEASED, LATE OF “LYTTLETON”, COOLACK LANE IN THE CITY OF DUBLIN

AND IN THE MATTER OF THE SUCCESSION ACT, 1965

AND IN THE MATTER OF AN APPLICATION BY ROBERT EASTWOOD OF “LYTTLETON”, COOLOCK LANE IN THE CITY OF DUBLIN

Between:-

ROBERT EASTWOOD AND JENNIFER EASTWOOD

(IN THEIR CAPACITY AS EXECUTORS NAMED IN THE LAST WILL

AND TESTAMENT OF THE LATE MARY EASTWOOD)

and

ROBERT EASTWOOD

(IN HIS CAPACITY AS A BENEFICIARY NAMED IN THE

LAST WILL AND TESTAMENT OF THE LATE MARY EASTWOOD)

Plaintiffs

-and-

ANNETTE RICHARDS (NEE EASTWOOD), DOLORES EASTWOOD

AND JIMMY EASTWOOD

Defendants

Ex Tempore Judgment of Mr. Justice Oisín Quinn delivered on 6 February, 2026

I. INTRODUCTION

1. This case concerns the presumption of revocation, a longstanding and still applicable common law legal principle. This principle provides that where a person makes a will and is the last person in possession of the original of this will, then if it cannot be found after their death they are presumed to have destroyed it with the intention of revoking it.

2. Mary Eastwood (the “Deceased”) died on 12 December, 2018 aged 85. She had been married to the late James Eastwood (“Mr. Eastwood Snr.”) who died in 2016. Mr.

Eastwood Snr. died intestate. The Deceased and Mr. Eastwood Snr. are survived by their five children, who are the five parties to these proceedings.

3. The Deceased made a will on 29 November 2016 appointing two of her children, Robert Eastwood (“Robert”) and Jennifer (“Jennifer”) Eastwood, the plaintiffs, as executors.

This will (the “Will”) was prepared by a solicitor, Mr. Fintan Lawlor of Lawlor Partners, a firm of solicitors in Arran Square Dublin. The Will was validly executed by the Deceased and witnessed by Mr. Lawlor and by a trainee solicitor in his office and the original Will, at that time at least, was retained by Lawlor Partners.

4. By letter of 10 January 2018, the Deceased had written to Mr. Lawlor asking for “copies” of any documents which he had relating to her. By this time, the Deceased was living with her son Robert in the family home, a house called “Lytlleton” on Coolock Lane in Santry, Dublin. She was a widow and in relatively poor health. Robert recalled an envelope arriving a few days later addressed to the Deceased which contained a copy of the Will, a copy of an enduring power of attorney and a copy of a compliments slip from Lawlor Partners.

5. After the death of the Deceased in December 2018, the original Will could not be found either in the offices of Lawlor Partners or in the home of the Deceased. However, in the records of Lawlor Partners there was a computer copy of what appears to be the text of a letter dated 18 January 2018 appearing to send the original Will (along with the original Enduring Power of Attorney) by ordinary pre-paid post to the Deceased at her home address. Mr. Lawlor maintained in formal correspondence and in an affidavit

sworn by him that the original will had been sent to the Deceased by ordinary pre-paid post.

6. No one could explicitly say whether this letter was ever sent or whether it ever arrived.

No one ever saw the original Will in the possession of the Deceased after she had executed it in the offices of Lawlor Partners on 29 November 2016. No one could give any explicit evidence as to what happened to the original Will.

7. The parties agree that there are longstanding family tensions as between the siblings.

The Will bequests seven different residential properties. Each sibling is bequeathed a separate property each in the Will and then, the sixth and seventh properties are bequeathed one to Annette Eastwood and Jimmy Eastwood jointly and one to Robert and Jennifer jointly.

8. The application to admit the Will to probate is opposed by the defendants on the grounds, inter alia, of the presumption of revocation which they contend arises in the circumstances here. The presumption of revocation has been succinctly summarised by Allen J. in an earlier judgment in these proceedings [2021] IEHC 387 at para. 38 as follows:-

“It has been settled law for hundreds of years that where a testator makes a will and retains the original or subsequently comes into possession of it and it cannot be found after his death and there is no evidence as to what became of it, there is a presumption in law that the will was destroyed by the testator with the intention of revoking it.”

9. The defendants contend that the copy letter of 18 January 2018 on the file of Lawlor Partners together with what Mr. Lawlor maintained in formal correspondence and in his Affidavit indicates that the Deceased was probably sent and probably received the original Will in the post from Lawlor Partners and, since the Will could not be found after her death, this means that the presumption of revocation then applies. In practical terms this would mean that the Deceased died intestate and that her estate would be divided equally between the five siblings.

II. THE TRIAL

10. This trial commenced on Tuesday 3 February 2026. The Court heard evidence from Ms. Aoife Sheehy (a trainee solicitor in the firm of Lawlor Partners who confirmed her role in the execution of the Will) Mr. Robert Eastwood, Ms. Jennifer Eastwood, Mr.

Fintan Lawlor and then Ms. Irene Grehan, a neighbour. Each of these witnesses was cross examined by Counsel appointed following an Order of the High Court (Cregan J.) which provided that Mr. Robert Eastwood was entitled to separate representation in his capacity as a beneficiary under the Will. In addition, each was cross-examined by Counsel for the Defendants. These witnesses constituted all the evidence on behalf of the plaintiffs.

11. Following the evidence of these witnesses, and in advance of the defendants going into evidence, Counsel for all parties agreed that the following factual matters were not in dispute:-

(i) Following the execution of the Will and the Enduring Power of Attorney, no one ever saw the original Will or the original Enduring Power of Attorney in the Deceased’s possession;

(ii) Following the execution of the Will and the Enduring Power of Attorney, no one ever saw the original Will or the original Enduring Power of Attorney in the home of the Deceased;

(iii) Following the execution of the Will and the Enduring Power of Attorney, no one ever heard the Deceased refer to having possession of the original Will or the original Enduring Power of Attorney;

(iv) Following the execution of the Will and the Enduring Power of Attorney, no one ever heard the Deceased refer to any desire to revoke either the Will or the original Enduring Power of Attorney; and

(v) Following the request from the Deceased to her solicitor, Mr. Lawlor, for copies of documents concerning her by letter of 10 January 2018, a brown envelope was received a few days letter with a copy compliments slip and a copy of the Will and a copy of her Enduring Power of Attorney.

12. Following the evidence in particular of Mr. Lawlor, the Court was invited to rise and following a short recess, an application was made by Mr. Hourican, SC (Counsel for Robert Eastwood in his capacity as a beneficiary) that the Court would decide as a fact based on the evidence heard so far (on the balance of probabilities) whether the original Will ever left Mr. Lawlor’s office. The logic of this submission was threefold. Firstly, all Counsel agreed that the Court was not going to hear any further evidence on that subject. Second, if, as a matter of fact, the original Will never left the office of Mr.

Lawlor then the presumption of revocation would not arise, as by definition, everyone in those circumstances accepted that the original Will would not have come into the possession of the Deceased. Finally, in the context of a probate action such as this, all parties were conscious that it was in everyone’s interest to not incur additional costs that may have to be paid by the estate, if those costs were not necessary to decide the issue before the Court.

13. The Court facilitated time for each Counsel to take instructions for all of the parties, and following this, Counsel for the Executors, Mr. John McDonagh, SC supported this approach and Counsel for the Defendants, Mr. Patrick O’Reilly, SC also supported this approach.

III. THE EVIDENCE RELATING TO THE ISSUE

14. Consequently, the Court proposes to consider the evidence of Mr. Lawlor along with the matters not in dispute listed above with a view to coming to a decision as to whether as a matter of probability the original Will ever left the office of Lawlor Partners.

15. Firstly, in relation to this issue I am satisfied that it is appropriate to approach the matter on the basis that the onus of proof is on the plaintiffs as executors, as they are the parties ultimately seeking to propound the copy will; see Allen J. in his judgment in this matter earlier in In Re the Estate of Mary Eastwood [2021] IEHC 387.

16. The starting point in relation to this matter is the letter from the Deceased to Mr. Lawlor of 10 January 2018 where she states:

“I wish to get a copy of all documents you have in your possession relating to me please. I can arrange for my son Robert, he lives with me at the above address, to collect these for me from your office when they are ready.

You can either send me a letter letting me know that they are ready for collection or alternatively you can call Robert on [mobile telephone number] and he will collect them for me.”

17. This letter did not request either the original Will or the original Enduring Power of Attorney.

18. Next, as an uncontested fact, a few days later, Mr. Lawlor’s office sent the Deceased a copy of her Will and a copy of the Enduring Power of Attorney.

19. Mr. Lawlor in his evidence explicitly accepted that if that occurred (which the parties agree) then it was not likely that his office would also have sent the originals of both documents.

20. Next, according to Mr. Lawlor’s evidence, if the original Will and original Enduring Power of Attorney were removed from the office safe (where both were kept) and sent out of the office (either by collection or post or otherwise) then their removal would have been entered in the Wills Register. No entry was made at the time indicating that either the original will or the original enduring power of attorney had been permanently removed from the office safe.

21. Mr. Lawlor explained that he did not remove or send out the documents and he did not know who, if anyone, had. His regular secretary was away at the time of the letter of the 18 January 2018 which had his and her reference. This letter was marked “By Post”

and was in the following terms:-

“Our ref: FL/LL/EAS0002/1 Re: Letter dated 10th January, 2018 Dear Mrs. Eastwood, Previous correspondence in this matter refers, resting with your letter dated 10th January 2018.

We enclose herewith original Will and Power of Attorney relating to you. These are the only documents we have relating to you.

We note that you collected title deeds to 6 properties in November 2016.

We trust that this is satisfactory.”

22. Mr. Lawlor in his evidence to Mr. McDonagh, SC, and in particular, in response to the careful cross-examination of Mr. Hourican, SC and Mr. Stephen Moran, BL (appearing with Mr. O’Reilly, SC) made a number of candid concessions:-

(i) He accepted that sending out an original Will and an original enduring power of attorney by ordinary post would totally irregular and unacceptable;

(ii) he accepted that the Deceased had not asked for either of these documents but had asked for copies of any documents relating to her, without even specifically mention either the Will or the enduring power of attorney;

(iii) he accepted how unlikely it would be to send out originals of these documents as both an original will and an original enduring power of attorney were essentially likely sources of future work in relation to registering the enduring power of attorney and the related work involved in that and, secondly, in the context of the estate work likely to flow from holding the original will;

(iv) he accepted that the procedure in his office was that originals like this would only be made available for collection, or if that was not possible, would then be sent by registered post;

(v) he accepted that ordinary pre-paid post would not be reliable;

(vi) he accepted that if either original was leaving the office then this would be entered in the wills register which indicated what originals were held in the office safe and this had not been done at the time;

(vii) he had no recollection of to whom in his office he would have “dispersed” the Deceased’s letter of 10 January 2018 , in other words he could not recall to whom the task of sending the Deceased copies of her documentation had been delegated to, although it was not his regular secretary LL as she was away on holidays at the time and equally he did not deal with it;

(viii) he did not know who had drafted the letter of 18 January 2018;

(ix) he accepted that there was no one who could “vouch that it was posted”

and there was no record of the letter of 18 January 2018 ever being posted;

(x) he accepted that if his office had sent out copies that they would not have also sent out originals (in response to a question proposing that, he agreed saying “that’s correct, it would be one or the other”);

(xi) he accepted that, given the nature of an enduring power of attorney, that it would not make sense to send the original back to the “donor”;

(xii) he accepted that it would be “bizarre” to send out originals when the client had only requested copies and had explicitly offered that her son would “collect” those copy documents;

(xiii) he accepted that it would be almost “unheard of” for a solicitor’s office to send out an original will be ordinary pre-paid post and that posting originals of the will and the enduring power of attorney would be “pretty extraordinary”;

(xiv) he agreed that it was so hard to believe that one would need “compelling evidence” to believe that it did happen (i.e. the posting of the originals by ordinary pre-paid post) and he conceded that “I can’t be sure” that they were posted;

(xv) he accepted that there was no one who he could think of in his office who would have done it;

(xvi) he agreed that neither document was found in the Deceased’s house and that the Deceased, whatever about the will, would have had no conceivable reason whatsoever to have destroyed the enduring power of attorney;

(xvii) he could not say when he had made the entry in a red pen much later on in the Wills Register about the Will but he accepted that whenever he made that entry it would have simply been based on the letter on the file of 18 January 2018;

(xix) he was unclear about the office procedure about when letters were scanned into the computer system or when the word scanned would be stamped on the letters;

(xx) he accepted he had not replied properly or promptly to the initial correspondence about this matter even when the solicitors acting for the executors were sending reminders and he did not offer any explanation for this;

(xxi) he accepted now that it would have better to “hold up your hands and accept that the letter [18 January 2018] may not have been sent”;

(xxii) he conceded essentially that the original Will could have been lost while in his “custody”.

23. As against the foregoing, the only real counter weight to this sequence of concessions and admissions is the copy letter on the system and the fact that neither original will or enduring power of attorney could be found in the safe or office or storage of the firm.

IV. DECISION

24. Aside from the irregularities in the procedures that would be involved, it is compelling that the solicitors did actually post out copies of both documents. Whether someone thought they should send out the originals and then thought better of it (or was advised not to by someone in the office) is unclear. The documents may have been taken from the safe and then copies made. Precisely what happened is unclear. However, I think it is extremely unlikely that in circumstances where copies were actually sent out by post that someone would then have gone ahead and actually sent the originals. That would make no sense.

25. Ultimately, the existence of a letter on file is not reliable evidence of posting when weighed against the objective evidence of the solicitor’s office practice, the solicitor’s concessions, and the absence of any supporting records of posting, all of which overwhelmingly contradict the idea that originals were sent. The fact that the Deceased had no reason to destroy the enduring power of attorney further undermines the suggestion they were posted to her.

26. Finally, almost every piece of the undisputed context here leans heavily against the likelihood of someone actually posting these documents. In addition, in the context of the other agreed facts, namely that the originals were never seen in the house or the possession of the Deceased, that she never spoke of them, never sought them and they were never found in the house, I am satisfied that the evidential burden on the executors is satisfied and that as a matter of probability the original Will was never posted to the Deceased.

V. CONCLUSION

27. Accordingly, for the foregoing reasons I conclude that as a matter of fact, on the balance of probabilities, the original Will was not sent to the Deceased and accordingly it did not come into her possession.

28. Therefore the presumption of revocation does not arise.

29. I will now hear from the parties as to the consequences of this ruling and as to what further orders flow.