Re Glynn, deceased

• Jurisdiction: Ireland
• Judgment Date: 01 January 1990
• Date: 01 January 1990
• Docket Number: [1983 No. 671P]
• Court: Supreme Court

In re Glynn, deceased

In the goods of William Glynn, Deceased; Sarah Glynn

Plaintiff

and

William Glynn

Defendant

[1983 No. 671P]

High Court

Supreme Court

Succession - Will - Validity - Testamentary capacity - Wether deceased had testamentary capacity at time of execution of will - Onus of proof - Will reflecting instructions previously given by deceased - Whether marking document containing such instructions sufficient to establish deceased's knowledge and approval of it - Succession Act, 1965 (No. 27), s. 77, sub-s. 1 (b).

Section 77, sub-s. 1 (b) of the Succession Act, 1965, provides:—

"To be valid a will shall be made by a person who . . . is of sound disposing mind."

The deceased gave instructions following some discussion to two independent persons, neither of whom was legally qualified, to draw up a will disposing of his property in the following manner: a bequest of £20,000 to his sister, the plaintiff; a charitable bequest of £1,000 and the residue of his estate consisting of his farm and various monies to his second cousin, the defendant. On the 5th October, 1981, subsequent to giving these instructions but prior to executing the will the deceased suffered a massive stroke. There was medical evidence that from that date the deceased was disorientated and unable to communicate either verbally or in writing. On the 20th October, 1981, the two independent persons visited the deceased in hospital and read the will to the deceased, who nodded and made an "X" at the foot of the will. The will was duly attested by the two as witnesses. Without having consulted the deceased's medical attendants, the witnesses were of the opinion that the deceased understood what he was doing when he executed the will.

The plaintiff, who stood to inherit as sole beneficiary on an intestacy, issued proceedings seeking to have the will condemned on the grounds, inter alia, that the deceased was not of sound disposing mind at the date of execution of the will. The defendant counterclaimed seeking to have the will admitted to probate.

Held by Hamilton P., in upholding the will, 1, that generally the onus is on a person challenging a will to rebut the presumption in favour of the will and the deceased's testamentary capacity. However, when the deceased has suffered a stroke which may affect his capacity, a heavy onus shifts to the person propounding the will to show that the deceased had capacity and understood the extent of his property and the nature of claims against that property.

2. That the witnesses had no interest in the deceased's property beyond ensuring that it was distributed according to the deceased's wishes and they did not attempt to influence the deceased in such distribution.

3. That the document which the deceased executed as his will fully represented his wishes in respect of the disposal of his property.

4. That, on the evidence, the court was satisfied that the deceased was of sound disposing mind, that he approved the contents of his will and that he understood what he was doing.

The plaintiff appealed to the Supreme Court.

Held by the Supreme Court (Hederman and McCarthy JJ.; Walsh J. dissenting) in dismissing the plaintiff's appeal and admitting the deceased's will to probate, 1, that the High Court's finding that the deceased understood what he was doing on the 20th October, 1981, was an inference of secondary fact drawn from the primary facts as found by the High Court.

2. That on the 20th October, 1981, the deceased was merely confirming instructions already given for his will and understood that these instructions were reflected in the document which he executed.

3. That the deceased's apparent consent in marking the document was sufficient to establish his knowledge and approval of it even if he did not remember in detail the contents of his instructions.

Parker v. FelgateELR (1883) 8 P.D. 171; Perera v. PereraELR[1901] A.C. 354 and In re WallaceUNK (1952) 2 T.L.R. 925 approved.

4. That if the deceased was satisfied that the document reflected his instructions and he knew and approved the contents of his instructions, it was not necessary to prove his knowledge of the contents of the will.

Perera v. PereraELR [1901] A.C. 354 and In re WallaceUNK [1952] 2 T.L.R. 925 approved.

5. That it was a fundamental policy that a testator's wishes be carried out and the fact that the deceased may have been mistaken as to the effect of his wishes did not invalidate the will.

Per Walsh J., dissenting. That nothing less than firm medical evidence would discharge the onus of proving that the deceased was a capable testator.

In re Corboy, Leahy v. CorboyIR [1969] I.R. 148 approved.

Per Walsh J., dissenting. That due execution of the will had not been proved as there was no evidence that the deceased knew and approved the contents of the will being read over to him or that he was capable of the train of thought necessary to rely on Parker v. FelgateELR(1883) 8 P.D. 171.

Cases mentioned in this report:—

Banks v. GoodfellowELRUNK (1870) L.R. 5 Q.B. 549; 39 L.J. (Q.B.) 237; 22 L.T. 813.

In Re Begley; Begley v. McHughIR [1939] I.R. 479.

In Re Corboy; Leahy v. CorboyIR [1969] I.R. 148.

Parker v. FelgateELRUNK (1883) 8 P.D. 171; 52 L.J. (P.) 95; 47 J.P. 808; 32 L.R. 186.

Perera v. PereraELRUNKUNK [1901] A.C. 354; (1901) 84 L.T. 371; (1901) 17 T.L.R. 389.

Sefton (Earl of) v. Hopwood (1855) 1 Fos. & F. 578.

In Re Wallace; Solicitor for the Duchy of Cornwall v. BattenUNK (1952) 2 T.L.R. 925.

Plenary Summons.

By plenary summons issued on the 1st February, 1983, the plaintiff, who would have been the sole beneficiary on an intestacy, sought to have the purported will of the deceased, dated the 20th October, 1981, condemned on the grounds that the deceased was not of sound disposing mind on the date of execution. The plaintiff also sought a grant of letters of administration. The defendant was sued as the residuary legatee and devisee, there being no executor appointed under the will. A caveat on the estate was entered in the probate office.

On the 15th May, 1984, the defendant filed a defence and counterclaim seeking probate of the will in solemn form of law. On the 13th March, 1986, the Master of the High Court directed certain questions, set out in full in the judgment of Hamilton P., infra, to be tried by a judge sitting without a jury. The provisions of s. 77, sub-s. 1 (b) of the Succession Act, 1965, are set out in the headnote to this report.

The action was heard by the High Court (Hamilton P.) on the 12th and 13th November, 1986.

The plaintiff appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard by the Supreme Court (Walsh, Hederman and McCarthy JJ.) on the 12th June, 1989.

Cur. adv. vult.

Hamilton P.

This is an action brought by the plaintiff, as lawful sister of William Glynn, deceased, who died on the 14th February, 1982, to have a pretended or purported will bearing the date of the 20th October, 1981, condemned and giving her liberty to apply for and obtain a grant of letters of administration of the estate of the said William Glynn, deceased.

The defendant is sued as the residuary devisee and legatee named in the said pretended or purported will, there being no executor appointed by the said will, and he having taken no steps to prove the said pretended or purported will.

In his defence and counter-claim, the defendant claims:—

"That the court shall decree probate of the last will and testament of William Glynn deceased and that it be admitted to probate in solemn form of law."

In the reply and defence to counterclaim delivered on behalf of the plaintiff, the plaintiff alleged that:—

• 1. The said William Glynn did not make his last will or any will on the 20th October, 1981, as alleged or at all.

• 2. If the said William Glynn, deceased, made a form of will on the 20th October, 1981 (which is denied) the said will was not a valid will for the following reasons:—

  • (a) the said William Glynn was not of sound disposing mind,

  • (b) the said purported will was not duly executed in accordance with the provisions of s. 78 of the Succession Act, 1965,

  • (c) the said William Glynn did not know and approve the contents of the said purported will,

  • (d) the said purported will was procured by Seán Glynn, brother of the defendant and on the instructions of the said Seán Glynn to Patrick Joseph O'Donoghue who wrote the said purported will and presented it to the said William Glynn for execution.

By order of the master of the High Court made the 13th March, 1986, the action was set down for trial before a judge without a jury and the questions to be tried were:—

• (1) Did William Glynn, late of Kilchreest, Loughrea in the county of Galway, deceased (who died on or about the 14th February, 1982) make his last will on the 20th October, 1981?

If so, was the deceased then of sound disposing mind?

Was such will executed in accordance with the provisions of the Succession Act, 1965?

Did the deceased know and approve of the contents of such will?

Was such will procured by Seán Glynn (a brother of the defendant and a notice party to these proceedings)?

(2) Is the plaintiff entitled to a grant of letters of administration to the estate of the deceased?

I do not propose during the course of this judgment to refer to the difficulties experienced by the plaintiff in the prosecution of this action, caused by changes of solicitors by the defendant, the difficulty of effecting service of documents and notices on the defendant and the notice party, their failure to file an affidavit of scripts and other matters which arose during the course of the proceedings. At the hearing of the action, the defendant was represented by solicitor and counsel and I allowed them to proceed with their defence and counter-claim though same had in fact been dismissed for failure to comply with the order dated the 14th January...