Irish expat did not intend to revoke will leaving Co Mayo farmland to son, judge rules

An Irishman who set up a successful plant hire business in Australia did not intend to revoke an Irish will leaving some 320 acres of farmland in Ballycastle, Co Mayo, to his son, the High Court has ruled.

Ms Justice Siobhán Stack said it was clear James Browne (75), who died in 2015 in Australia, did not intend to revoke a will he made in Ireland in 2000 dealing with his Irish assets only.

She therefore admitted the Irish will to probate which means it is valid and a later Australian will purporting to revoke the previous will did not apply.

The application to admit the Irish will to probate was made by its sole executrix, Mr Browne’s sister Margaret McHale of Kincon, Ballina, Co Mayo,

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Mr Browne, late of Marne Street, Vaucluse, New South Wales, and originally from Ballycastle, emigrated to England at 18 and to Australia at 30. He originally worked as a machine driver, but he subsequently developed a very successful plant and machinery hire business.

Ms Justice Stack said he had a very strong connection to the lands in Ballycastle where he grew up and where the family connection went back many generations.

When travel became easier, he returned to Mayo, usually every year, staying in a cottage he had renovated and extended. He also set about buying what had been family lands from various owners over some years.

His family said he took a somewhat old-fashioned view of the home place and always intended it would go to Tony, as his eldest (and only) son, the judge said. He involved Tony in farmwork from a very young age, including rounding up cattle for testing, making silage and from time to time spending the traditional day in the bog cutting turf with a cousin.

Mr Browne had also built up substantial assets in Australia.

In 1985 he executed his first will, in which he left all of the lands, Irish and Australian, in the first instance to his wife, Diane Amante Browne, and to Tony and to any other child he might have. He subsequently had three other children: Michelle, Laura and Deirdre.

In 2000, he made the Irish will dealing only with his Irish assets and stating it was complementary to any wills made or to be made in the future in Australia.

In 2004, he made a further will in Australia stating he revoked all wills previously made.

It was also stated however that that will was “intended to deal only with my estate in Australia and shall not effect [sic] any will made by me in respect of my Irish assets”.

The judge said that, short of those references, the Australian will was “in entirely generic terms which, on the face of it, could be easily applied to property in either Ireland or Australia.”

She noted his widow, who was the sole beneficiary of the Australian will, supported the view that the Mayo land should go to Tony.

Ms Amante Browne stated that almost from the time of her son’s birth she knew and understood this.

“James was a traditional man and it was his objective to directly hand down his homeland property from father to son, as had been done for generations before him.

“James made a separate Irish will to his Australian will to that effect to ensure that this would be the case,” she said.

The judge said the nub of the issue was whether the evidence showed that Mr Browne’s long-standing intention had altered by the time he executed the Australian will or, put more simply, does it show he changed his mind.

She said she was satisfied, on the balance of probabilities, that he did not give any instructions one way or another to his Australian solicitor at any time in connection with his Irish estate or his Irish will.

It was quite clear, in the judge’s view, that the revocation clause was inserted by mistake, without thinking about the Irish estate.

If Mr Browne’s intentions had changed, one would expect to see some outward expression of this change of heart, either by way of statements to his family, or at the very least in the instructions for his will, she said.

“There is no such evidence and I am satisfied that it would be contrary to the testator’s [Mr Browne’s] intentions to find that the Irish will had been revoked”, she said.

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