Last Will and Testament

Last Will and Testament The usual position is that a Last Will and Testament is revoked by marriage as the intention of the legislature is that the wife and any children would be the beneficiaries in the ordinary way. We examine the recent decision of Mr. Justice Allen delivered in the High Court in the matter of the Estate of John McPartlan, deceased.

However, a last Will and Testament can be made in contemplation of marriage and the burden of proof is on the person asserting this that the last Will and Testament was made in contemplation of same. The legislation provides that the Will does not have to state on the face of the document that it is made in contemplation of marriage but rather this can be inferred from contemporaneous notes and correspondence but there must be contemplation of marriage to a particular person.

In this case the late Mr. McPartlan, who died on 12th August 2019, was survived by his wife Carol and seven siblings and they had married on 8th August 2019, just days before his death.

The background to the matter relates to a Will made on 18th June 2019 where the late John McPartlan named his sister and brother as his Executors. He left his house at Artane, Co. Dublin, to his seven siblings in equal shares and left the residue of his estate to his wife. The value of the residue is a little more than the value of the house.

The Executors made an application to High Court to prove the Will and the issue the High Court was trying to determine was whether the deceased’s Will was revoked by his subsequent marriage in which case his spouse, Ms. Graham, would be entitled to the entire estate on intestacy.

The parties were in a long-term relationship from 1996 but did not live together because they were each caring for their mothers.

The late John McPartlan and Ms. Graham became engaged in Jersey in July 2011 and there appears to be no discussion for a period of time thereafter in relation to setting a date for the wedding. A date was never set but when the late Mr. McPartlan received a terminal diagnosis with a short prognosis, he indicated that he wished to get married and this took place. The late Mr. McPartlan had written to his solicitor indicating that he hoped and intended to be married next April 2021 and setting out that he was receiving treatment for cancer and he wanted to update his Will. But he did say that Carol’s house should stay in her family’s possession and his property to his family. He also purchased a wedding ring on the same date as the letter to his solicitor, i.e. 13th May 2019. On 24th May he met with his solicitor and a Will was sent out to him and he executed it on 18th June 2019. Ms. Graham said that the deceased, Mr. McPartlan, wished to marry her and he told her afterwards “everything is yours now, I told you I would look after you”.

The High Court reviewed decisions from Ireland, England, Victoria and New Zealand and ultimately it was held that the Will was made in contemplation of marriage and therefore it was not revoked by the subsequent marriage even though it was not expressly or on its face made in contemplation of marriage but that is not a requirement of Irish law. The High Court found that it is quite clear based on the evidence surrounding the circumstances of the making of the Will, that the Will was made in contemplation of marriage and then by virtue of Section 85(1) Succession Act, 1965, it was not revoked by the subsequent marriage. Therefore, the Will was admitted to Probate and the house went to his siblings.

If you have any questions on Probate Litigation, contact Anne Marie O’Donnell Solicitor in the Cashel office at 062 61288 or check out our website www.dtryan.ie