Thursday, October 14, 2021

A High Court decision to admit a deceased farmer’s copy will to probate means his nephew will be the main beneficiary of his €1.5 million estate.

Philip Kinsella, of Dungarvan, Co Waterford, had applied to admit to probate the carbon copy will of his deceased uncle, Thomas Delahunty, of Barnacoole, Mooncoin, Co Kilkenny.

Mr Delahunty was aged 86 when he died in March 2015. His wife died in October 2015. The couple had no children.

In a judgment on Thursday, Ms Justice Nuala Butler said, if the copy will was not admitted to probate, Mr Delahunty would be treated as having died intestate and his sister Bridget O’Flynn, a large number of nieces and nephews and, potentially, the estate of his late wife, all stood to benefit.

While some of those potentially entitled to an intestacy had consented to Mr Kinsella’s application, it was opposed by Ms O’Flynn and some other family members, including the estate of his widow.

Marriage settlement

Outlining the background, the judge said Mr Delahunty, then aged 42, and his bride to be, who was a few years older, entered into a marriage settlement in October 1970.

That seemed intended as a renunciation by his wife of her legal right, under the Succession Act, to a share of his property on his death and also established a trust with Mr Delahunty’s brothers John and Philip as the trustees.

Mr Delahunty transferred certain lands and chattels to be held in trust for himself for life and after his death on terms which varied depending whether the couple had children.

Because they had none, the settlement meant, on his death, his widow would be entitled to a cash settlement in “full discharge” of all claims she might have against his estate and she was also to leave his home.

Handwritten note

A decade later, in a handwritten note of April 20th 1980, Mr Delahunty gave his solicitor Thomas Kiersey instructions in relation to drawing up a will.

The judge said it must have been apparent, as the couple were then in their 50s, they were highly unlikely to have any children. It also appeared the marriage was a happy one as Mr Delahunty proposed to give his wife significantly more benefit under the will than under the marriage settlement.

On his death, she was to receive an additional cash payment, an annuity and right of residence in the dwelling house on his lands for life. The residue of his estate, including his lands and farm, were left to his nephew, Philip Kinsella.

The will was later finalised and the original will was retained in the safe in the offices of T.Kiersey & Co Solicitors in Waterford and, it was claimed, a copy was given to the deceased, the judge outlined.

Burglary

In 1997, there was a burglary at the firm’s offices.

The office safe was among the items stolen and neither it nor its contents were ever recovered despite extensive efforts by solicitor Gillian Kiersey, who took over the firm as principal after the retirement of her father, now deceased, the judge noted.

The judge said it seemed Mr Delahunty had not responded to a letter from his solicitor about the theft and made no further contact concerning his will before he died in 2015. After his death, a carbon copy will was found by another nephew in a box of personal papers in the attic of his house.

The judge was satisfied from the available evidence that an original will in the same terms as the carbon copy, despite not having any signatures, was duly executed by the deceased.

She did so for reasons including it was professionally prepared by a solicitor on the basis of client’s instructions and indirect evidence from that law firm supporting the contention that the original document, of which a copy was before the court, was in fact duly executed as the will of the deceased and attested by two witnesses, both since deceased.

Based on the evidence, she had no difficulty applying the principle of regularity to the deceased’s will, the judge said.

She found no basis to apply a presumption of revocation just because the will cannot be located by the solicitors after the death of the deceased. To accept arguments the will should be revoked because Mr Delahunty had not replied to the correspondence from his solicitor after the burglary would be contrary to the entire scheme of the Succession Act, she further ruled.

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