High Court: Photocopy of will not admitted to probate after original will went missing

About this case:

• Citation:
  [2022] IEHC 49
• Court:
  High Court
• Judge:
  Ms Justice Nuala Butler

The applicant claimed that the deceased was a man who never threw away any papers and that he must have never held the original will. However, the court was not satisfied that there was sufficient evidence to reach this conclusion and held that the presumption of revocation applied in the case.

Background

The deceased died in June 2019 as a bachelor and without issue. He owned a house with farmland in County Limerick and another parcel of land in County Tipperary. In June 2003, the deceased executed a homemade will with the assistance of two priests of the Dominican Order. The will was executed at the Dominican Order’s holiday house, which was next door to the deceased’s house in Limerick.

Both of the priests who witnessed the will were based in Dublin. One priest passed away prior to the application and the other witness swore a pro-forma affidavit verifying the execution of the will. This priest was 98 years old and was not in a position to provide further assistance to the court.

After the deceased’s death, an original copy of the will was never found despite a search of his home. Accordingly, the applicant (a grandnephew of the deceased) brought an application to admit a copy of the will to probate. The applicant was the main beneficiary under the photocopied will and it was accepted that he had a close relationship with the deceased. The applicant visited the applicant daily and helped him on the farm.

Although the main portion of the will was a photocopy, there was a map annexed to the will which showed how the deceased’s lands were to be divided exactly. This map did not appear to be a photocopy as it contained colours which would have been grey if copied.

The applicant sought an order admitting the will to probate. It was initially stated that the applicant had been shown the will by the deceased in 2003. However, it transpired that the applicant had only seen a brown envelope which the deceased claimed contained his will.

It was argued by the applicant that the copy and map constituted the original will because the deceased was a man who never threw away his papers. Further, it was stated that the copy and map must be the same documents which were contained in the brown envelope shown to the applicant in 2003.

The applicant stated his belief that the deceased never actually held the original will and that the deceased would not have destroyed the original will if it was in his possession.

No explanation was provided for how the applicant obtained the copy of the will or what happened to the original will. It was confirmed by the Dominican Order’s bursar that they did not keep wills for parishioners.

High Court

Delivering judgment in the case, Ms Justice Nuala Butler held that there were numerous difficulties with the present application. It was noted that the applicant never actually saw the will contained in the brown envelope and therefore there was no way to verify what was contained in that envelope. Further, the complete lack of explanation as to how the applicant obtained the copy will meant that the court could not hold that the copy will was found in the envelope.

In general, the affidavit evidence of the applicant was “of little evidential value” in circumstances where he never saw the will. Similarly, there was no evidential basis for the applicant’s asserted belief that the deceased never held the will.

The court considered where the original will would have been kept immediately after it was executed and copied. It was noted that, ordinarily, a solicitor would assist with the execution of a will and either hold the original in their office or keep a note of where it was taken. However, no information of this type was available in the case. There was also no explanation for why the map, which appeared to be an original, would accompany a photocopy of the will.

The court considered that one of two possible scenarios occurred regarding the original will. It was held that either the will was photocopied at the priests’ holiday home at the time of execution or was brought to a different location and photocopied there. If the will was left at the photocopier, as opined by counsel, then the priests would have probably returned the will at the next opportunity. If the photocopying was done at another location, then it was more likely the deceased would take the original with him.

The court emphasised these points because the application was made on the basis that the deceased never held the original will. However, the absence of evidence as to what happened to the will did not lead to an inference the deceased never held it, the court said.

The court also noted that the letters of consent from next-of-kin were not correct as they recited that the original will was showed to the applicant. This was already demonstrated to be false.

The court then considered whether to apply the presumption of revocation in the circumstances. It was noted that the presumption was evidential rather than legal (Re McDermott, Deceased [2015] IEHC 622; Re Curtin, Deceased [2015] IEHC 623). Under the case law, the applicant was required to adduce evidence which tended to show that loss or destruction of the will was accidental. This evidence was, by nature, almost always going to be circumstantial.

Applying the law to the facts, Ms Justice Butler stated that there was almost no evidence to support the key assertions of the application. Further, the evidence tended to suggest that the deceased was in possession of his original will in 2003. There was no evidence that the will had passed to a third party for safekeeping.

Finally, the court noted that, if the deceased did not normally throw out his papers, it tended to support the idea that the will should have been found in his possession after death.

Conclusion

The court accepted the good relationship between the applicant and the deceased, but could not rule out that the deceased had other good relationships with his family which might have led to a change of heart.

The court held that the applicant did not discharge the onus of proof to admit the copy will to probate. Accordingly, the presumption of revocation applied in the case.