Kavanagh v Fegan

• Jurisdiction: Ireland
• Judgment Date: 26 June 1932
• Date: 26 June 1932
• Court: High Court (Irish Free State)

Kavanagh v. Fegan and Others

BARTHOLOMEW KAVANAGH

Plaintiff.

and

AGNES FEGAN AND OTHERS

Defendants.

Will - Execution - Attestation clause in regular form - Acknowledgment of signature by testatrix - Evidence of one attesting witness casting doubt on due execution - Other attesting witness unable to give evidence - Presumption in favour of due execution - Wills Act, 1837 (1 Vict. c. 26),sect. 9.

Trial of Action.

The action was brought to have the will, dated 28th June, 1926, of Annie Kavanagh, who died on the 17th February, 1930, condemned, as not having been executed in accordance with the provisions of the Wills Act (1 Vict. c. 26).

The plaintiff was a brother of the testatrix, and the defendants were legatees under the will. After the death of the testatrix the plaintiff found the will in her wardrobe.

It was on a printed form, and the written portions were mainly in the handwriting of Robert Fegan, father of the defendants, Agnes Fegan, Mary Fegan, Emily Fegan and Violet Fegan, and husband of one of the attesting witnesses, Mary Fegan. The said Robert Fegan, who was appointed executor, had predeceased the testatrix.

The will was as follows:—

"This is the last will and testament of me, Annie Kavanagh, of 15 Sorrento Road, Dalkey, made this 28th day of June in the year of Our Lord one thousand nine hundred and twenty-six, I hereby revoke all wills by me at any time heretofore made. I appoint Robert Fegan, of 82 Carysfort Avenue, Blackrock, to be my executor, and I direct that all my just debts and funeral and testamentary expenses shall be paid as soon as possible after my decease. I give and bequeath unto my brother Bartle the cottage and coach-house No. 3 Edward Terrace, Sorrento Road, and to my nephew Jack Kavanagh the house 1 Acton Terrace, Sorrento Road, for his life, and on his death I leave the house 1 Acton Terrace to his son John Kavanagh; and to my four cousins, Agnes Fegan, Mary Fegan, Emily Fegan, and Violet Fegan, the house No. 2 Edward Terrace, Sorrento Road, Dalkey, share and share alike; and to my nephew Bartle Kavanagh my brother Pat's gold watch and ten pounds.

Signed, published and declared by the said testatrix as and for her last will and testament, in presence of us, who, at her request, in her presence, and in presence of each other, have hereunto subscribed our names as witnesses.	Annie Kavanagh.
Hortense Lailhacar.
Mary Fegan."

At the trial, the defendant, Violet Fegan, gave evidence to the effect that her mother, Mary Fegan, one of the attesting witnesses, was too ill even to discuss the circumstances in which the will was made, and she (Violet Fegan) gave evidence to prove her mother's signature and the signature of the testatrix. She further deposed that the written portion of will was mainly in the handwriting of her late father, and that certain blanks in the printed form were filled in by the testatrix. Miss Hortense Lailhacar, the other attesting witness, who lived at No. 2 Eagle Terrace, Dalkey, not far from the residence of the testatrix, deposed that the plaintiff's son came and asked her to go to Miss Kavanagh's house. Her evidence as to her witnessing the will at Miss Kavanagh's house is dealt with fully in the judgment of Hanna J. The plaintiff, Bartholomew Kavanagh, deposed to finding the will after the death of the testatrix in her wardrobe.

A will contained a regular attestation clause with the names of two persons as witnesses, Miss L. and Mrs. F. The due execution of the will was disputed. The witness, Mrs. F., was too ill to give evidence. The other witness, Miss L., a Frenchwoman, with a sufficient knowledge of English to express herself clearly, had only a vague recollection of what took place when the will was alleged to have been attested. She stated in evidence that she was asked to go to the house of the testatrix, who lived near her, that "she just ran in, signed the paper, and ran out again." She stated that the testatrix (who was in bed very ill) was not able to speak, and that she (witness) was asked to get a pen with which to sign. She stated definitely that the testatrix could see her (witness) sign her name on the will, which was placed on a table at the foot of the bed. Asked whether she saw the testatrix put her name to the document she (witness) said she never saw the...