While it is possible to draft a will yourself, it’s certainly not advisable. Creating a will is a serious task that requires careful attention and thoroughness. Even a straightforward will can have mistakes in how it is written. Since these errors cannot be corrected after someone passes away, a badly written or executed will can come back to haunt the person who made it, as seen in the “Zombie Will” case of Re Coughlan.
Cautionary tales such as Re Coughlan prove that experienced, specialised solicitors are invaluable when preparing even the most straightforward of wills. In this recent case, inaccurate legal advice brought the affected parties all the way to the High Court.
The problem? A so-called ‘zombie will’.
The ‘zombie will’
Somewhat catchier than ‘doctrine of dependent relative revocation’, the term ‘zombie will’ comes from a recent article about the case in the Law Society Gazette. It’s how the author described the unintended revival of a previously discarded will.
In 2022’s Re Coughlan, a client visited his solicitor in 2012 to make a will. In this document, Mr Coughlan left the bulk of his estate to four beneficiaries, who would receive a quarter interest each.
In 2015, he met with his solicitor again and made a new will, adding a fifth beneficiary. As is the norm when drafting a will, the text included a section that confirmed he was “hereby revoking all former wills and other testamentary dispositions heretofore made by me.”
Four months later, he returned to his solicitor to change his will one last time. He wanted to undo the most recent changes, removing the fifth beneficiary and leaving the majority of his estate to the four original beneficiaries mentioned in his 2012 will.
His solicitor at the time advised Him that they could simply destroy the 2015 will to revive the 2012 will. The client duly tore up the 2015 will and left with two copies of his 2012 will.
However, as the title indicates, the 2015 will would eventually rise from the dead and make it all the way to the High Court.
The Succession Act of 1965
What the solicitor overlooked were sections 85 and 87 of the Succession Act 1965, and in particular the doctrine of dependent relative revocation. While the details are complex, the crux of these sections is that the 2012 will wasn’t revived just because a newer will wasn’t destroyed: it needed a further active step on the part of the deceased, i.e., the drafting of a new will (with the exact same text if desired).
While hindsight is 20:20 of course, the solicitor in this case should have drafted a new will, expressly revoking both all previous wills and setting out the client’s intentions.
However, this was not done, and when Mr Coughlan passed away in 2015 it triggered a series of steps that would eventually lead to the judgement in November 2022.
The case of Re Coughlan
Initially, probate was applied for and granted on the basis of the 2012 will, with four main beneficiaries. However, the fifth beneficiary named in the 2015 will was aware of its contents, and asserted, via her own solicitor, that it was still valid as it had not been revoked.
The executors’ solicitors agreed that the doctrine applied, and sought an order from the High Court to revoke the Grant of Probate that referred to the 2012 will and admit a copy of the 2015 will.
One of the beneficiaries of both wills objected to this and engaged our firm to advance his case and ensure that Mr Coughalan’s wishes were adhered to. Together, they argued that there was only a partial revocation of the 2015 will, being the portion of the will that included the fifth beneficiary and that the Court should uphold Mr Coughlan’s wishes.
Ultimately, Ms. Justice Butler found that the doctrine of dependant relative revocation applied and the 2015 was still valid, even though it didn’t reflect the deceased’s wishes at the time of his passing. This meant that the fifth beneficiary was granted a gift from Mr Coughlan’s estate after all.
Justice Butler noted in her judgement that “Although M. was ultimately not successful in the argument made regarding partial revocation, I think this was a reasonable argument for him to have made particularly since the result he sought to achieve would have accorded with the instructions that the deceased gave to his solicitor as regards the distribution of his estate.”
Safeguarding your intentions
Cases like this prove that even wills that are ostensibly simple and straightforward can become complex and costly. And the worst part is that you won’t be around to help.
For most people, the process of drafting a will is an easy, quick and affordable task. So you might wonder, do I need a solicitor to write a will? Based on our experience, we would say the answer is yes. We all work hard throughout our lives and want to make sure we can leave a little something behind to those who matter most to us. You most certainly don’t want anybody challenging a will, with all the associated costs and upset that go with it. The best way to make sure your wishes are carried out correctly is to engage a qualified, experienced probate law solicitor.
He or she will be happy to talk through all your options with you, but it can sometimes help to be prepared with some notes on what you’d like to do. If you’re wondering how to write a will, the following steps are a good guide:
- Make a list of all of your assets and where they are located. This might include property, jewellery and savings. Together, all these assets are known as your estate, which can be distributed in the form of inheritance.
- Make a list of your immediate family members and include their contact details.
- Write down the name and contact details of the person or people who will be executor(s) of your will. You should choose this person carefully, as they will be trusted to carry out the will’s provisions in full.
- Write out how you would like your estate divided. Remember there are certain rules in place in Ireland: if you are married, your spouse has a legal right to half of your estate if there are no children. If you have children, your spouse is entitled to a third of your estate.
- If you have children under 18 years of age, you should decide who to appoint as their guardians. If you’d like to leave assets to them, you can place these in a trust until they reach an age you choose (this does not have to be 18).
With over 50 years of experience, HOMS Assist are the trusted experts in Irish probate law. Our solicitors draft hundreds of wills every year, giving people all over Ireland the peace of mind they deserve and the protection they need. They’re exceptionally well qualified in wills, trusts and estate planning. Whether you want to leave a little or a lot behind, to family, friends or charities, we can help make sure a situation like Re Coughlan doesn’t happen to you.
The first step is easy — call our probate law team on 1800207207 or visit or get in touch via our website.
