Two Wills, Two Countries: When a Foreign Will Accidentally Revokes the Irish One

The deceased did everything right, or thought so. Living in Surrey with a house in Galway, she took Irish advice and made an Irish will for the Irish property, naming her son as executor and leaving the house to him. Years later she updated her English will with her English solicitor, who, as every solicitor does, opened it with the words “I revoke all former wills and testamentary dispositions made by me”. Nobody thought about Galway. On her death the son produces the Irish will to the Irish Probate Office and is told, correctly, that it was revoked by the later English will. This article explains why, what the family is left with, and how two wills in two countries are drafted so that they coexist.

Why One Sentence Does So Much

Irish law allows a will to be revoked by a later will or codicil, or by a written declaration of intention to revoke executed with the formalities of a will. A general revocation clause is exactly such a declaration, and Irish law gives it effect according to its terms. A clause revoking “all former wills” is not confined to wills made in the country where the new will is signed; it revokes the Irish will as surely as it revokes an earlier English draft. The foreign solicitor did nothing wrong by their own lights. The clause is standard, it is there to prevent old wills resurfacing, and in a purely domestic estate it is harmless. In a cross-border estate it is the single most common drafting accident we see.

What the Executor Is Left With

Once the Irish will is revoked, the Irish assets pass under whatever remains. If the later foreign will disposes of the whole estate wherever situated, the Irish house passes under it, and the executor applies in Ireland on the foreign will, with the usual mechanics for a foreign grant described in probate in Ireland from England. The outcome may or may not match what the deceased intended for Galway; if the English will leaves everything equally among three children, the son who was to have the house now shares it. If the later will was drafted only for the home-country estate and is silent about Ireland, or expressly limited to assets there, the Irish assets may pass on intestacy under Irish rules, which for Irish land apply regardless of domicile. The intestacy picture is set out in died abroad, no will, assets in Ireland.

Either way, the Probate Office cannot be asked to ignore the later will. The application that was going to be a straightforward grant of probate on the Irish will becomes something else, and it has to be identified before lodgement rather than discovered when the office asks whether there is a later will.

Can the Irish Will Be Rescued?

Sometimes, and never easily. Where there is clear evidence that the deceased did not intend to revoke the Irish will, and the revocation clause was included by the foreign solicitor as a matter of form without instructions on the point, an argument can be advanced that the clause should not be given its full literal effect. The evidence will be the foreign solicitor’s file, the attendance notes, any letter the deceased wrote about the Irish house, and the structure of the later will itself. It is an argument that depends on facts, costs money to run, and may need to be resolved by the court rather than the Probate Office. No executor should plan on winning it. The honest advice is that it exists, that it is worth investigating where the evidence is strong, and that it is a poor substitute for a sentence at the drafting stage.

How Two Wills Are Drafted to Coexist

The solution is well understood and consists of three disciplines. First, each will states expressly which assets it deals with: the Irish will covers assets in Ireland and nothing else; the foreign will covers everything else, or everything in its own jurisdiction. Second, each revocation clause is limited to match: the Irish will revokes earlier wills only so far as they relate to Irish assets, and the foreign will revokes earlier wills only so far as they relate to the assets it covers. Third, the two solicitors see each other’s drafts before either will is signed, and the order of signing is recorded, because a will signed second with an unlimited clause undoes the first regardless of what the first says. Where the home country is one whose succession law differs sharply from Ireland’s, there are further points, including Irish law’s protections for spouses and children over Irish land described in Irish statutory rights in foreign estates, but the revocation point comes first because it is the one that destroys everything else.

Whether a separate Irish will is worth making at all, and when a single will is the better course, is the subject of should you make a separate Irish will?

If You Are the Executor and This Has Already Happened

Send both wills, with the dates, and the name of the foreign solicitor who drafted the later one. We identify which will governs which assets, whether the revocation argument is worth investigating on the evidence, and which Irish application is the right one. Where the result leaves a child or a spouse worse off than the deceased plainly intended, Irish law’s own remedies may be available over the Irish assets: a child of any age can apply under section 117 within six months of the grant where proper provision was not made, and that clock runs regardless of how the shortfall came about.