A judge has rejected arguments that would see an estate comprising seven properties being divided equally among a deceased woman’s five adult children.
Judge Oisín Quinn will make orders later this month arising from his recent High Court decision that the will of Mary Eastwood, of Lyttletown, Coolock Lane, Santry, Dublin, had not been revoked.
Eastwood died on December 12th 2018, aged 85. She was predeceased by her husband James, who died intestate in 2016. The couple had five children between whom it was agreed there were “long-standing family tensions”, the judge said.
Eastwood made a will on November 29th 2016 appointing two of her children, Robert and Jennifer, as executors. The will bequeathed seven residential properties. Each of the five siblings got one property, a sixth property was bequeathed to Annette Richards (née Eastwood) and Jimmy Eastwood jointly, and the seventh to Robert and Jennifer jointly.
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The judge said the will, prepared by solicitor Fintan Lawlor of Lawlor Partners, Arran Square Dublin, was validly executed by Eastwood, was witnessed, and retained, “at that time at least”, by the law firm.
In a letter of January 10th, 2018, Eastwood wrote to Lawlor asking for “copies” of any documents which related to her. She was then living with her son Robert in the family home and in relatively poor health.
Robert recalled an envelope arriving some days later which contained a copy of the will, a copy of an enduring power of attorney (EPA) and a compliments slip from the law firm.
After Eastwood’s death, the original will could not be found in her home or in the offices of the law firm. However, the judge noted, the firm’s records had a computer copy of a letter dated January 18th, 2018, appearing to send the original will, and original EPA, by ordinary post to Eastwood at her home address.
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Lawlor had maintained in formal correspondence, and in an affidavit, the original will had been sent to Eastwood by ordinary post, the judge said.
No one could explicitly say whether the letter was ever sent or whether it ever arrived and no one ever saw the original will in the possession of Eastwood after she executed it in the firm’s offices on November 29th, 2016, he said.
Robert and Jennifer, as executors, argued the 2016 will had not been revoked and should be proven as their mother’s last will and testament. Robert, represented by barrister Michael Hourican, made that same argument separately as a beneficiary of the estate.
Their siblings, Annette Richards, Dolores Eastwood and Jimmy Eastwood maintained the original will was revoked, which would have meant the estate distributed equally among the five siblings.
It was argued the copy letter of January 18th, 2018, on the file of Lawlor Partners, together with what Lawlor said in formal correspondence and his affidavit, indicated their mother was probably sent and probably received the original will by post.
Because the will could not be found after her death, they argued the principal of revocation – the legal presumption the will was destroyed by the testator with the intention of revoking it - applied.
When the hearing began on February 3rd, the judge heard evidence from several parties. From that, he noted several matters were not in dispute, including that no one ever heard Eastwood refer to any desire to revoke the will or EPA.
After the evidence, particularly of Lawlor, the judge was asked to decide whether or not the original will ever left the solicitor’s offices.
The judge analysed the solicitor’s evidence and some “candid concessions” by him, including accepting that sending out an original will and EPA by ordinary post would be “totally irregular and unacceptable”.
Lawlor also said he did not know who drafted the January 18th 2018 letter. He accepted there was no record that was posted, and no entry in the office wills register of the original will leaving the office.
The solicitor “conceded essentially” the original will may have been lost while in his custody, the judge said.
He was satisfied, as a matter of probability, the original will was never posted to the deceased, it accordingly did not come into her possession and the presumption of revocation did not arise.
