Buckley v Cooper Junior
| Jurisdiction | Ireland |
| Judge | Mr. Justice Meenan |
| Judgment Date | 03 May 2019 |
| Neutral Citation | [2019] IEHC 424 |
| Court | High Court |
| Docket Number | [2017/14 CAT] |
| Date | 03 May 2019 |
[2019] IEHC 424
THE HIGH COURT
CIRCUIT COURT
EASTERN CIRCUIT COUNTY OF WEXFORD
Meenan J.
[2017/14 CAT]
AND
Wills and probate – Undue influence – Testamentary capacity – Appellant seeking an order admitting a will of 15 March 2011 to proof in solemn form of law – Whether the will was the product of undue influence
Facts: The defendant/appellant, Mr Cooper, a nephew of the deceased, Mr M Buckley, appealed from an order of the Circuit Court, dated 27 January 2017, where the court found that the deceased was not of sound disposing mind on the date of execution, 15 March 2011, to make his will and that the purported will was condemned. The Circuit Court further found that the deceased did not have the mental capacity required under s. 77 of the Succession Act 1965 to render his will valid. The defendant maintained that at the time of execution of the will the deceased had testamentary capacity and denied that the deceased was at the material time under any undue or improper influence. The defendant consequently sought an order admitting the will of 15 March 2011 to proof in solemn form of law.
Held by the High Court (Meenan J) that the evidence given by the plaintiffs/respondents, Mr J Buckley, Ms Doyle, Mr W Buckley and Ms Buckley, siblings of the deceased, fell considerably short of establishing any claim that the will made by the deceased on 15 March 2011 was the product of undue influence. Meenan J concluded that on the evening of 15 March 2011 the deceased had testamentary capacity.
Meenan J held that, by reason of the foregoing, he would reverse the decision of the Circuit Court and would hear counsel as to the appropriate order to be made.
Decision reversed.
This is an appeal from an order of the Circuit Court, dated 27 January 2017, where the court found that Mr. Michael Buckley (‘the deceased’) was not of sound disposing mind on the date of execution, 15 March 2011, to make his will and that the purported will was condemned. The Circuit Court further found that the deceased did not have the mental capacity required under s. 77 of the Succession Act 1965 (‘the Act of 1965’) to render his will valid. It follows from the order of the Circuit Court that the deceased died intestate.
The plaintiffs (the respondents in the appeal) are siblings of the deceased.
The defendant (the appellant in the appeal) is a nephew of the deceased and resides at Cloheden, Caim, Enniscorthy, County Wexford.
The deceased was born on 5 March 1935 and for much of his life he farmed some 54.8 acres and lived in a dwelling house at Caim, Enniscorthy, County Wexford (both the said lands and dwelling house are hereinafter referred to as ‘the property’). The deceased inherited the property on the death of his mother. He never married, had no issue and lived on his own for many years prior to his death.
Towards the end of 2010 the deceased's health began to deteriorate with his initial health problems being urological in nature. He was, however, also suffering from weight loss and general poor health. Further medical investigations revealed him to be suffering from cancer of the bowel with secondary occurrences in the liver and lungs. The prognosis was very poor and it became clear that in February / March 2011 that the deceased was terminally ill.
The deceased's cancer caused a bowel obstruction and a transverse loop colostomy was carried out on 10 March 2011 to alleviate this. The Court notes, with surprise, that there is a dispute as to the date on which this operation was carried out. It would appear that this stems from the inadequate state of the medical records. At that stage, the treatment being provided to the defendant was solely palliative in nature.
The deceased was unable to eat in the days following the operation and was maintained via intravenous feeding. His pain management was controlled with, inter alia, OxyContin, which is an opioid medication. The nursing notes for the days between 14 – 18 March 2011 indicate a stabilisation, albeit at a low level, in the condition of the deceased. Following a further deterioration on 19 March the deceased died on 20 March 2011.
The deceased's will, the subject matter of the within proceedings, was made on 15 March 2011 in the presence of Mr. Jason Dunne, Solicitor of John A. Sinnott and Co., and Mr. Anthony Nolan, Accounts Manager for the same firm. The circumstances under which the will was made and the mental capacity of the deceased will be examined in some detail in the course of this judgment.
Under the terms of said will, the deceased left the property, in effect his only asset, to the defendant.
On 30 January 2012 the plaintiffs issued a Succession Law Civil Bill wherein they claim that at the time when the will was made, namely 15 March 2011, the deceased lacked the requisite mental capacity to properly and legally dispose of the property. Furthermore, the plaintiffs allege that the defendant and his family ‘monopolised visiting hours during the last few weeks of the deceased's life in an effort to exert pressure and influence him, in his weakened state, into disposing of his property to the defendant, and the purported will was obtained by undue influence.’
The defendant maintains, in his defence, that at the time of execution of the will the deceased had testamentary capacity and denies that the deceased was at the material time under any undue or improper influence. The defendant is consequently seeking an order admitting the will of 15 March 2011 to proof in solemn form of law.
Section 77(1) of the Act of 1965 provides:
‘To be valid a will shall be made by a person who —
(a) …
(b) is of sound disposing mind.’
The test for determining whether a person was ‘of sound disposing mind’ when making a will was set out by Cockburn C.J. in in Banks v. Goodfellow [1870] LR. 5 QB 549 at p. 565 wherein he stated: -
‘It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.’
As to where the burden lies when trying to prove that a deceased was of sound disposing mind, I refer to the judgment of Laffoy J. in Rhatigan: Scally v Rhatigan [2011] 1 I.R. 639 wherein at p. 646 she stated: -
‘[22.] On the issue of the burden of proof counsel for the defendant also referred the Court to a recent decision of the High Court of England and Wales, In re Key, decd. [2010] EWHC 408 (Ch), 2010 1 WLR 2020 and, in particular, to the following passage in the judgment of Briggs J., at p. 2040:
“[97] The burden of proof in relation to testamentary capacity is subject to the following rules. (i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. (ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. (iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless…”’
When considering evidence in relation to testamentary capacity, the Court should have regard to the golden rule. In this regard, I refer again to the judgment of Laffoy J. in Rhatigan at p. 646-647 where she states: -
‘[24.] By reference to the judgment of Briggs J. In re Key, decd. [2010] EWHC 408 (Ch), [2010] 1WLR, 2020, counsel for the defendant submitted that the Court should have regard to what was referred to as the golden rule in that case. In his judgment Briggs J. stated, at pp. 2022 and 2023: -
“[7] The substance of the golden rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings …”
[25.] However Briggs J. went on to say at p. 2023: -
“Compliance with the golden rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope.”
[26.] Those observations, in my view, reflect the law in this jurisdiction. Irrespective of whether the golden rule or best practice was followed in a particular case, it is a question of fact, which is to be determined having regard to all of the evidence and by applying the evidential standard of the balance of probabilities, whether a testator was of sound disposing mind when the testamentary document which is being propounded was executed.’
I refer also to the decision of the Supreme Court In re Glynn deceased [1990] 2 I.R. 326 wherein McCarthy J. stated at p. 340: -
‘A duly attested will carries a presumption of due execution and testamentary capacity.’
He continued: -
‘It is a fundamental matter of public policy that a testator's wishes should be carried out, however, at times, bizarre, eccentric or whimsical they may appear to be. One man's...
To continue reading
Request your trial