In a judgment delivered on 29 July 2011, the High Court (O Neill J) considered the meaning of section 85(1) of the Succession Act 1965. Section 85(1) of the 1965 Act provides that ” a will shall be revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether so expressed in the will or not.” O Neill J held that it was sufficient for the purposes of the section if the evidence established that at the time the will was made, the testator actually had, or must have had, in contemplation a marriage to a particular person. It was not necessary to establish that the testator intended that the will would continue to have effect after the marriage. To so require would exceed what the language of the section requires and would, in effect, involve an addition to the section. Judge O Neill noted that the section does not use the word “intention”, but adopts the much broader concept of “contemplation”. This persuaded the judge that the legislative intention was that a testator would merely bear in mind or have regard to a particular forthcoming marriage.
The judgment was delivered in In re the Estate of Noel O’Brien Deceased  IEHC 327. To view the judgment of the High Court, please click here.