Leahy v Corboy

JurisdictionIreland
Judgment Date16 May 1969
Date16 May 1969
Docket Number[1967. No. 82 P.]
CourtSupreme Court
In bonis Corboy; Leahy v. Corboy
In the Goods of John Corboy, Deceased; WILLIAM LEAHY and DENIS CORBOY
Plaintiffs
and
THOMAS ANTHONY CORBOY and MARGARET HEALY
[1967. No. 82 P.]

Supreme Court

Probate - Will - Codicil - Proof in solemn form - Codicil increasing share of legatee named in will - Codicil prepared by legatee - Legatee seeking to establish codicil - Knowledge and approval of testator - Onus of proof not discharged by legatee.

The testator had been a very sick man who suffered from arterio-sclerosis. He had difficulty in speaking and in expressing his wishes generally. It was difficult to know how much he understood of what was said to him, but he had been an able businessman. A legatee who was named in the will of the testator, and who had been living with and looking after the testator prior to his death, drafted a codicil to the will for the purpose of increasing the legacies bequeathed by the testator to that legatee. When the codicil was read to the testator, he was asked whether that was what he wanted and he nodded. The testator executed the codicil by making his mark thereon, his hand being guided for the purpose. In proceedings commenced by the executors of the will in the High Court, an order was made establishing the validity of the will and of the codicil. On appeal it was Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Budd and FitzGerald JJ.), in allowing the appeal, that the heavy burden of proof, which the law imposed on the legatee named in the codicil, had not been discharged; in particular there was no satisfactory evidence to show that the changes to be effected by the codicil emanated from the mind of the testator, and there was no evidence that the effect of those changes had been explained to him carefully.

Fulton v. Andrew (1875) L.R. 7 H.L. 448.

In re Begley, Begley v. McHugh [1939] I.R. 479 and

Wintle v. Nye [1959] 1 W.L.R. 284 applied.

Appeal from the High Court.

The plaintiffs were the executors named in the will of the deceased, which was undated but was believed to have been executed on the 11th July, 1960. On the 10th January, 1967, the plaintiffs issued a plenary summons in which they claimed to have the said will, and an alleged codicil thereto dated the 3rd July, 1963, duly established in solemn form of law. The first defendant, whose share in the estate of the deceased was lessened by the codicil, claimed that the codicil did not alter the terms of the will of the deceased; that the obliterations made in the will had been made after its execution by someone other than the deceased; and that the deceased had not been of sound mind, memory and understanding at the time of the alleged execution of the codicil, and that at that time he did not know or approve of the contents of the alleged codicil. The second defendant, who had drafted the codicil and who stood to benefit by it, claimed that the will and the codicil should be admitted to probate. The plaintiffs' action was tried on oral evidence before the President of the High Court (O'Keeffe P.), without a jury, on the 26th-30th June, 1967.

The order of the President, dated the 18th December, 1967, declared that the will of the deceased had been executed in accordance with the Wills Act, 1837; and that at the time of its execution the deceased had been of sound mind, memory and understanding and that he had known and had approved of the contents thereof. The order also declared that there was no satisfactory evidence to establish by whom the obliterations, interlineations and alterations on the will (and not mentioned in its attestation clause) had been made, but that the same had been made after the execution of the will and before the execution of the alleged codicil. The order also declared that the alleged codicil had been executed in accordance with the Wills Act, 1837; and that at the time of its execution the deceased had been of sound mind, memory and understanding and that he had known and had approved of the contents thereof. The order, having stated that the trial judge was satisfied that the original words in the will could be read by using artificial aids, adjudged that the will was established in its original form without giving effect to the obliterations etc., other than those mentioned in the attestation clause; and the order adjudged that the codicil was established. The order declared the parties to be entitled to their respective costs of the action, when taxed and ascertained, out of the assets of the deceased—the plaintiffs' costs to be taxed as executors' costs.

The first defendant appealed to the Supreme Court from the judgment and order of the High Court. The order made by the Supreme Court on foot of the judgment, post, condemned the alleged codicil and directed that the second defendant should abide her own costs of the proceedings in the High Court, and of the appeal.

Cur. adv. vult.

Ó Dálaigh ó dálaigh C.J.:—

I agree with the judgment that Mr. Justice Budd is about to deliver.

Budd J.:—

These proceedings arise out of the testamentary disposition of John Corboy, late of The Crossways, Limerick, who died on the 12th January, 1966. The testator was one of three brothers. He appointed one of them, Denis Corboy, to be an executor with his solicitor, William Leahy; and those executors are the plaintiffs in these proceedings. The testator's wife had died many years before and, of later years, the testator had been in a very bad state of health. He was looked after and his household affairs were managed by his sister-in-law, Miss Margaret Healy. She had also looked after his wife in her last illness and she is one of the defendants in these proceedings. The other defendant is the testator's nephew, Thomas Anthony Corboy. Both defendants were sued because they had entered caveats.

The testator was interested in the provision business and apparently in his day was a keen businessman. In particular he had interests in certain Limerick firms and companies such as Messrs. Lynch and Spain, Looney & Co. Ltd., and Dan O'Connor & Co. Ltd.

The testator's last will was undated but it is believed to have been executed on the 11th July, 1960. He had in fact made a previous will, but he made the 1960 will because he wished to make good to the beneficiaries certain abated amounts in legacies left to them in an uncle's will. The will of 1960 was drawn by the

testator's solicitor, William Leahy, and it was apparently left with the testator and kept in a safe in his house. We are not concerned in these proceedings with the actual validity of the will but the document itself, and certain alterations therein, loom large in the proceedings. The sole issue in the proceedings relates to the validity of a codicil to the will purporting to have been made by the testator on the 3rd July, 1963.

On the 5th June, 1961, the testator became seriously ill. He got an attack of convulsions of an epileptic nature. He got further attacks and he was later in hospital for some time, returning home on the 19th September, 1961. After that, according to his regular medical attendant, Dr. Holmes, he deteriorated and used to get attacks of convulsions from time to time. He was under sedation most of the time and developed other complaints. According to Dr. Holmes he was confused and disorientated and had poor memory and poor cerebration. Arterio-sclerosis of the cerebral vessels and the convulsions caused this deterioration of the brain. There was also a certain amount of alcoholic degeneration of the brain. The damage caused by the attack in 1961 was irreparable. He was confined to bed most of the time and appears to have taken no interest in newspapers or the radio or anything of that kind. He had nurses with him day and night. The running of his house was financed by cheques from his business interests and during this period, save for the execution of some documents relating to an issue of shares, there is no evidence of his having himself conducted any business operation requiring anything in the nature of concentration and judgment. In his doctor's view he was totally unfit to look after his affairs.

There was a great deal of other evidence given as to the testator's general capacity after 1961. He was undoubtedly quite incompetent when suffering from the convulsive attacks and for some time before and after them. At other times he spoke very little and, while he would apparently know what he wanted, he had very considerable difficulty in expressing himself. Some witnesses said that when he wanted a thing he would say "man, man" or "the priest, the priest" and that they would have to discover by a process of elimination what it was he wanted. There was great difficulty in discovering whether he understood what was said to him. On the other hand he appears to have been able to recognise people, at least on occasions. He would notice things if there was a change in them; for example, he noticed a nurse's change of hair style. In particular the President appears to have been impressed by his recollection of giving apples to a person some thirty years before.

On the other hand, there were witnesses who did not take so poor a view of the testator's condition. Dr. O'Donnell took the view that the testator was not so bad between attacks and that he had lucid intervals. Other witnesses thought that the testator was able to understand what was said to him when he was not having attacks, for short periods at any rate. Counsel for Mr. Thomas A. Corboy point out that the ability to recognise people and to remember things from the past only requires a low mental capacity such as a mere animal would have; even a dog would know what he wants, and they point out that what was required here was proof of intellectual capacity at the time of the making of the codicil to fully appreciate and understand its effect and the results flowing from it.

In June, 1963, Miss Healy (the second defendant) came into...

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7 cases
  • In the goods of Kavanagh; Healy v MacGillicuddy
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    ...to declare against the Will at the conclusion of this evidence. I declined to do so. The Supreme Court (see; In the Goods of Corboy (1969) I.R. 148) had referred to the heavy burden of proof which arises when a legatee has actually drafted a codicil, but this burden only arises when the ev......
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1 books & journal articles
  • Assessing legal capacity: process and the operation of the functional test
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    • Irish Judicial Studies Journal No. 2-7, July 2007
    • 1 July 2007
    ...76[2002] E.W.C.A. Civ. 1889, para. 17. 77See also Dixon v. Were [2004] E.W.H.C. 2273 (Q.B.), para. 47, per Gross J. 78[1969] I.R. 148 (S.C.). 79The matter of the presumption was not considered in the more recent case of In the Estate of Andrew O’Donnell: O’Donnell v. O’Donnell High Court, u......

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