Glynn v Glynn
| Jurisdiction | Ireland |
| Judge | McCarthy J.,WALSH J. |
| Judgment Date | 28 July 1989 |
| Neutral Citation | 1989 WJSC-SC 1530 |
| Court | Supreme Court |
| Docket Number | (16/87) |
| Date | 28 July 1989 |
1989 WJSC-SC 1530
THE SUPREME COURT
Walsh J.
Hederman J.
McCarthy J.
and
Citations:
SUCCESSION ACT 1965 S77(1)
LEAHY V CORBOY 1969 IR 148
BEGLEY & ORS V MCHUGH & ORS 1939 IR 479
PARKER & ANOR V FELGATE & TILLY 8 PD 171
WALLACE, DECD SOLICITOR OF THE DUCHY OF CORNWALL V BATTEN & ANOR 1952 2 TLR 925
SUCCESSION ACT 1965 S77
PERERA V PERERA 1901 AC 354
Synopsis:
ADMINISTRATION
Probate
Testator - Ability - Proof - Will - Execution - Instructions for will given by testator before he suffered severe cerebral stroke - Will executed two weeks after stroke - Contents of will in accordance with testator's wishes - Assent to contents indicated by nodding of head when provisions read to testator - Will admitted to probate - Held that, in regard to the mental capacity of the testator at the time when he executed the alleged will, it was sufficient for the defendant to establish (a) that the testator had requested the priest to prepare a will containing certain provisions, (b) that the priest had prepared such will, (c) that the testator had executed a will containing those provisions; and to prove that, at the time of such execution, the testator (i) knew that he had asked the priest to prepare a will in accordance with the testator's wishes, (ii) was satisfied that the priest had complied with the testator's request and (iii) had accepted as his will the document which had been produced to him for execution as his will: ~Perera v. Perera~ [1901] A.C. 354, ~Parker v. Felgate~ (1883) 8 P.D. 171 and ~In re Wallace; Duchy of Cornwall v. Batten~ [1952] 2 T.L.R. 925 considered - Succession Act, 1965, s. 77 - (16/87 - Supreme Court - 28/7/89)
|Glynn v. Glynn|
WILL
Testator
Capability - Illness - Cerebral stroke - Testamentary instructions - Instructions given before illness - Will prepared in accordance with instructions - Will executed after stroke - Will admitted to probate - ~See~ Administration, probate - (16/87 - Supreme Court - 28/7/89)
|Glynn v. Glynn|
JUDGMENT delivered on the 28th day of July 1989by WALSH J. [dissenting]
The late William Glynn was a bachelor and a farmer, who died at his farm in Kilchreest, Loughrea, Co. Galway on February 14th 1982 aged 77. The plaintiff in the present case was his sister. She was older than he was and appears to be the only survivor of the family. She, too, was unmarried, but had lived all her life on the farm with the deceased. The defendant, William Glynn, was a second cousin of the deceased and had little or no contact with deceased during the deceased's life-time. He is the executor named in the will and he has in this actionsought to propound the will.
So far as the evidence is concerned it does not appear that the deceased had ever turned his mind to the making of a will until the question was raised with him about two years prior to his death by a Fr. Donoghue, who apparently claimed to have had some experience in drawing wills. According to the evidence the deceased had expressed some distrust of a solicitor drawing a will for him and after his conversations with Fr. Donoghue decided to entrust the drawing of the will to the latter. He had decided to leave all of his property to the defendant, who was described as being a bank clerk living and working in London. There is evidence that Fr. Donoghue did point out to him the merits of leaving his farm to somebody who would carry on the family name. As it happened the defendant was of the same name as the deceased. The instructions he gave were to leave all of his property to the defendant, but, apparently on the suggestion of Fr. Donoghue, he made a bequest in favour of hissister,Sarah in the sum of £20,000 sterling. There is no evidence that the deceased expressed any view or even indicated any appreciation of the difference between a bequest in pounds sterling and in Irish pounds although the bequest in pounds sterling would be in value approximately 15 to 20 per cent greater than the same sum in Irish pounds. In fact the evidence was that the testator was never told of the reference to sterling which was solely the idea of Fr. Donoghue. This was particularly remarkable in view of the fact that the evidence was that originally it was the testator's intention, which he repeated to other persons, to leave nothing to his sister. What is even more remarkable is that it appears that there was a sum of approximately £100,000 in a joint deposit account in a bank in the names of his sister and of himself and he made no mention of that to Fr. Donoghue or to anybody else. Nevertheless the will was drawn in a form which apart from the bequest to the sister left everything else in the form of residuary bequest to the defendant. As far as this case is concerned the deposit account was not mentioned to anyone and the Court is unaware of thecircumstances of the creation of the deposit account in the bank or if the sister would take by survivorship or whether simply she would have held it on a resulting trust for her brother. Be that as it may Fr. Donoghue, who drew the will in a form where all the property of the deceased passed by way of a residuary bequest save the bequest to the sister, was totally unaware that the residuary estate was anything other than the farm.
Having given his instructions to Fr. Donoghue the latter then proceeded to draw up a will on a sheet of paper which he kept in his own possession. The evidence shows that it was never seen by the deceased until the date of execution. There was evidence that the deceased had spoken to other persons and had indicated that he had made a will and generally indicated the effect of the will.
The deceased suffered a massive cerebral stroke on the 5th October 1981 and was thereafter confined to hospital until the date of his death, the 14th February, 1982. The purported execution of the will took place on October 20th, that is to say fifteen days after thedeceased suffered the massive stroke.
The question which arises for decision in the present appeal is whether the purported will was executed in accordance with s. 77, subs. 1 of the Succession Act, 1965, which lays down the general rule that to make a valid will a person must be of sound disposing mind. It is a matter for the Court to decide whether the document in question is the will of a free and capabletestator.
There is no doubt on the evidence that the instructions for the will (save as to the reference to sterling) were given by the deceased at a time when there would be no question of his lacking a sound disposing mind. There is ample evidence to show that the text of the document was in accordance with the instructions he had given prior to suffering the stroke. The question which arises for decision is whether at the time of the purported execution of the will the testator was of sound disposing mind. The learned President of the High Court was of the opinion that he was and it is from thisdecision the present appeal has been taken.
On the 20th October 1981 it was apparently thought that the time had come for the execution of the will. On that day Fr. Donoghue and a Mr. Noel Carter attended at the hospital where the deceased was confined with the view to having the will executed. Fr. Donoghue had not since the stroke seen the deceased. Mr. Carter was well known to the deceased and in fact had been present when the deceased had given instructions to Fr. Donoghue to draw up the will. Neither Fr. Donoghue nor Mr. Carter consulted the medical attendants of the deceased either before or during their purported interview with the deceased as a result of which he signed the will in the presence of both these gentlemen by affixing an X as his signature. By reason of the stroke he was totally incapable of writing and also totally incapable of speech. According to the evidence of the priest and of Mr. Carter given before the President of the High Court each sentence of the will was read out to thedeceased with a request to nod if he was in agreement with it. Both witnesses said that he nodded as they interpreted it affirmatively in respect of each provision in the will. The learned President of the High Court found them to be witnesses of integrity and of truth and who had no private or personal interest, and that they were quite satisfied that the sick man knew what he was doing. That is a conclusion as to the opinion of both of these gentlemen but that opinion did not establish that the sick man knew what he was doing.
While neither of the two medical practitioners who attended the testator during his illness had known him before his admission to hospital, after he was admitted they had ample opportunity for observing him during their treatment. In respect of the date in question namely, the date of the purported execution of the will, one of these practitioners, Dr. O'Gorman, who saw him regularly considered that the deceased was disorientated and that it would have been practically impossible to communicate with him. He expressed theview that it might well be that the patient did not understand what was being said to him and that his level of consciousness was such that he was not able to communicate any of his own ideas. He said that some method of communication or a code of some kind would have had to be established in the first instance which the patient himself would clearly understand and by which he could then indicate his understanding and agreement with any of the ideas which were being communicated to him and indicating his own assent to these ideas. The other medical practitioner, Dr. Heskin was of the same opinion.
In fact no such code was ever established nor was any effort made to do so. In those circumstances therefore it cannot be said that the testator was of sound disposing mind at the time of execution...
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