The Gazette 1979

JULY-AUGUST

1979

GAZETTE

appointed the Plaintiff his executrix and made her universal legatee. The deceased made a later Will on 23 Fe b r u a r y, 1971, in which he appointed the first Defendant, Con MacGillicuddy, as his executor, but the first Defendant subsequently renounced his executorship and was dismissed from the action. In this later Will the deceased bequeathed the 12 acres in Tallaght to the second Defendant subject to a life interest in the Plaintiff. He gave bequests of £2,000 to each of the Plaintiff's two brothers and left the residue of the estate to the Plaintiff. According to the Plaintiff that bequest was of no value as virtually the deceased's only asset was his valuable 12 acre farm. The Plaintiff claimed that the second Defendant exercised undue influence over the deceased in relation to the later 1971 Will. According to her the influence which he exercised over the deceased was far from benign; he led the deceased into habits of excessive drinking; he bullied the deceased and borrowed considerable sums of money from him which he did not repay and he led the deceased into other improvident t r ans ac t i ons. The Plaintiff also claimed that the deceased did not know and approve of the contents of the 1971 Will. The Plaintiff claimed an Order that the 1971 Will be condemned and a further Order that the 1965 Will be admitted to Probate in solemn form. By agreement no evidence was heard relating to the 1965 Will and so this judgment only related to the later one. At the commencement of the hearing it was accepted that there was an onus on the second Defendant to establish that the 1971 Will was made in accordance with the provisions of the Succession Act 1965. At the conclusion of the second Defendant's evidence the Plaintiff claimed that suspicious circumstances in the preparation of the Will had been established in the course of the cross-examination, that they were such as to have cast on the Defendant the burden of establishing that the Will had been properly made and that this burden had not been dis- charged. 4 The Plaintiff at this stage asked for a declaration against the 1971 Will but this was refused. Reference was made to In the Goods of Corboy 119691 I.R. 148. Having heard all the evidence the Cou rt (Costello J.) gave its

conclusions on it as follows: (a) The deceased was in failing health from about the year 1970. On 23 February, 1971, the second Defendant brought the deceased to his solicitor (to whom the deceased had been introduced by him early in 1971) for the specific purpose of making a Will in his favour. The solicitor wrote out a Will for the deceased and it was executed and signed by the deceased and witnessed in accordance with the provisions of the Succession Act. It was not accepted that the solicitor did not have the Will typed up merely because the deceased asked him not to do so. When he made this Will the deceased was physically feeble and his memory was not good. In these circumstances the solicitor had a duty to caution his client and not to permit him to take precipitous action in relation to the important transaction he was entering into. He did not carry out this duty not because of the deceased's wishes but in deference to the wishes of the second Defendant. (b) The second De f endant gradually over the years acquired domination over the Will of the deceased. He acquired this partly by virtue of force of character, partly by his domineering manner towards the deceased and partly by ingratiating himself as a drinking companion and by making the deceased dependant on him for drink and entertainment. This domination was facilitated by the declining health of the deceased. As á result of it the second Defen- dant was able to extract considerable sums of money from the deceased from the year 1968 onwards, money which the deceased gave to the second Defendant against his better judgment. (c) The deceased had genuine affection for the Plaintiff. He was also conscious of the moral duty which he had for her welfare after his death arising from the services she had given him throughout his life. He failed adequately to express his affection and fulfil the duty towards her in his Will and instead he made the second Defendant the principal object of his bounty. The deceased had no strong sentiments of friend- ship for the second Defendant and the 1971 Will was not executed in his favour because of such sentiments. The deceased hardly knew the Plaintiffs two brothers and had no reason to make bequests in their

favour. The second Defendant procured the making of the Will in his favour. In doing so, he exercised more than mere persuasion. The deceased was not a free agent when he executed the Will on 23 February, 1971. His Will was overborne by the second Defendant on that occasion, just as it has been on previous and subsequent occasions in relation to benefits conferred by the deceased on the second Defendant. Held (per Costello J.) that: (1) No presumption of undue influence arises in the case of Wills and the burden of proving undue influence always rests on the person alleging it. It was not sufficient to establish that a person had power unduly to overbear the Will of the testator; it must be shown that the power was exercised in fact and that it was by means of it that the Will which is being impugned was obtained. In the circumstances of this case this burden was discharged and the purported Will of 23 February, 1971, should be condemned on the grounds that it had been obtained by undue influence. (2) When a person has been instru- mental in having a Will prepared and takes a benefit under it an onus may be placed on such a person to establish that the testator knew and approved of its contents. [At the conclusion of the evidence adduced on the second Defendant's behalf in support of the Will of 23 February, 1971, Costello J. was unable to apply the principles laid down by the Supreme Court in Corboy's Case because at that time he was not satisfied on the evidence that the second Defendant had in fact been instrumental in framing the Will. Having heard all the evidence he was so satisfied.] In this case the second Defendant did not discharge the burden of proof on him, which was a heavy one, that the deceased when he signed the Will, knew and approved of its contents. Accordingly, probate of the Will of 23 February, 1971, was refused. In the goods of Patrick Kavanagh Deceased; Annie Healy v. Con MacGillicuddy and Laurence Lyons High Court (Costello J.) - Unreported - 24 October, 1978. Summaries of judgments prepared by John F. Buckley, Hugh M. Fitz- patrick, Deirdre Morris, E. Rory O'Connor and edited by Michael V. O'Mahony.