When DIY Estate Planning Goes Awry: The Importance of Having Solicitors Draft Wills

The recent High Court decision of Stack J In the Matter of the Estate of Michael Joseph McNally (Deceased) and In the Matter of the Succession Act 1965 (2025) IEHC 299 demonstrates the importance of having solicitors draft wills.

The Testator, having died on the 29th of June 2019, had made a will in 1981 which included a bequest of a house on the South Circular Road in Dublin to his brother. This bequest was then the subject of an attempted obliteration as it was repeatedly crossed out with a pen although the words underneath such markings were still legible. Additionally there appeared to be an alteration made to the Will in that the above bequest of property to his brother was replaced with an alternative bequest of IR£1.

The question for the court was whether this attempt at obliteration of the bequest and subsequent alteration had been validly and effectively done.

Section 86 of the Succession Act 1965 states that ‘any obliteration, interlineation, or other alteration made in a will after execution shall not be valid or have any effect, unless such alteration is executed as is required for the execution of the will’.

The provision further outlines that to validly make an alteration to a will the testator and each witness must sign in the margin of the will or some other part ‘opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end of some other part of the will’.

The court admitted to probate the Will that included the bequest of the South Circular Road property and the alternative bequest of IR£1 was otherwise excluded from its terms because it held that the changes made to the bequest after the execution of the Testator’s Will to be invalid in that they had not adhered to the requirements of the above provision.

If this Will had not been admitted the property would have devolved on partial intestacy to his siblings who would have each received a fifth share.

Stack J stated that she could not be certain that the attempted amendments had even been the work of the Testator as there was no evidence to support such a conclusion namely there could be found no signatures of the Testator nor the Witnesses in the Will relating to the attempted changes.

This position underlines the court’s strict adherence to section 86 and by extension the court’s regard to its importance. The provision seeks to prevent against possible abuses that may be committed in relation to the alteration of wills. The formalities provided for are necessary to ensure that any changes have been made by the testator rather than by some other party.

The present case highlights the necessity of individuals obtaining legal advice regarding the drafting and alteration of wills. If procedures set out by statute are not adhered to, uninformed individuals run the risk that their testamentary intentions will not be given effect and instead will be deemed invalid and ineffective as they do not comply with section 86. To avoid such an unsatisfactory situation, it is best to seek out the advice of a solicitor regarding the proper drafting or amending of a will.

If you wish to create a Will or would like further information on the matter, please contact Sarah Flynn on sflynn@reddycharlton.ie