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Tuesday 16 January 2018

Famous author's mistakes show 'how not to write a will'

Case Study

O'Donohue v O'Donohue --

[2011] IEHC 511

Poet, author and philosopher John O'Donohue of Connemara, Co Galway, died in January 2008 as a bachelor without children.

He was survived by his mother, Mrs Josephine (Josie) O'Donohue, his brothers, Patrick and Peter O'Donohue and his sister, Mary O'Donohue, as well as two nieces and two nephews.

He left behind a will that read:

"Last will (&) Testament of John O'Donohue made on night of Feb 21st before Australian Tour.

"I leave all my worldly possessions to Josie O'Donohue, my mother, to be divided equally & fairly among my family with special care (&) extra help to be given to Mary O'Donohue, my sister.

"Also gifts of money to be given to Olivia (&) family, & Marian O'Beirn.

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"Smaller gifts to Downey, Ethel, Sheila (&) Pat O'Brien, Laurie Johnson, Ellen Wingard, Deirdre O'Donohue."

Executor of will: Martin Downey (&) Johnny Casey

Signed: John O'Donohue

Witness: Josie O'Donohue

Witness: Pat O'Donohue"

The will, related to the distribution of Mr O'Donohue's €2m of assets, was made without legal advice and subsequently challenged in court.

Among the issues that were brought up in the court case were that the will, found on investigation to have been written in 2001, did not revoke a previous will written in 1998.

There was confusion about what the limits were in relation to the extent of "family", which was mentioned twice in the will.

Mr O'Donohue also contradicted himself by saying he wanted his estate divided "equally and fairly" among his family but he also wanted "special care and extra help" to be given to his sister.

Having heard all the facts, Mr Justice Gilligan held that the terms of the will rendered it void for uncertainty.

As a result, Mr O'Donohue's entire estate fell into intestacy and, according to the Succession Act 1965, everything went to Mr O'Donohue's mother.

Mr Justice Gilligan said Mr O'Donohue, despite his considerable learning, had illustrated "exactly how a person should not make a will" and that it was evident he had not had legal advice or assistance in drawing up his will.

The judge said Mr O'Donohue had made the "classic error" of having two of the intended beneficiaries act as witnesses to his signature, thereby depriving both from benefiting from the will.

Irish Independent