The Gazette 1980

GAZETTE

JULY-AUGUST

19

C.J. and Parke J. dissenting in part): (1) That the Minister was not bound to defend and vindicate the children's right to be provided with free primary education under the terms of Article 40.3.1. of the Constitution. Per Kenny J.: "The obligation imposed on the State by both subsections of Article 40.3 is as far as practicable by its laws (emphasis added) to defend and vindicate the personal rights of the citizen. It is not a general obligation to defend and vindicate the personal rights of the citizen. It is a duty to do so by its laws for it is through laws and by-laws that the State expresses the will of the people who are the ultimate authority." (2) That Article 42.4 laid down that the State was to provide for free primary education. There was a distinction between providing free education and providing for it. Per O'Higgins C.J.: "In my view, the effect of this part of Article 42 in accordance with the words used both in the Irish and in the English text, is to oblige the State to see that machinery exists under which and in accordance with which such education is in fact provided." (3) (With O'Higgins C.J. and Parke J. dissenting): That the whole of the evidence must be looked at to ascertain whether the Minister had failed to carry out the constitutional obligation imposed on the State and that in the present case, the totality of the evidence, oral and written, and the inferences that were to be drawn from it, failed to' establish that there had been such a breach of that constitutional duty. (4) That the action in so far as it related to Ireland, the Minister for Education and the Attorney General would be dismissed, but that against the other defendants (i.e. the I.N.T.O. and its Central Executive Committee) it would be continued, in respect of the claim for damages for conspiracy. Eilish Crowley and Ors. v. Ireland, the Minister for Education, the Attorney General, the Irish National Teachers' Organisation, Bernard Gillespie and Ors. — Supreme

of execution of the alleged will dated 5 May, 1975 knew and approved of the contents. Similar questions were left regarding the alleged will of 10 December, 1974. The deceased was a quiet reserved country man and other than his work his only interest was horses. When his brother and two sisters (i.e. the Plaintiff and the two Defendants) left the licensed premises at Ballyhooly, Co. Cork, which was the family home, the sisters on marriage and the brother to go to work in Youghal, the deceased continued to reside there with his parents. He was not, at any time, interested in the working or management of the licensed premises. He spent his time working a farm of about 60 acres, originally belonging to his father and subsequently to himself, in the neighbourhood. In 1968 his father transferred the licensed premises to the deceased subject to a right of support and maintenance for their lives for the deceased's father and mother. After the deceased's father died in 1969, the deceased's brother, the first-named Defendant, his wife and children, came to reside in the licensed premises with the deceased and his mother. In 1970 the deceased transferred the licensed premises to the first-named Defendant subject to the right of residence of his mother and a right of residence for himself for life. In Autumn 1973 the deceased became ill and sufTered blackouts, and was admitted to hospital in Cork from October 1973 to the beginning of January 1974. He was suffering from viral meningitis and incelfilitus. There was inflamation of the membrane of his brain. He had a tumour on the brain and had suffered epilepic seizures. Whilst in hospital he was in a coma for a number of weeks. On his discharge from hospital he reutrned to live in the licensed premises at Ballyhooly. From the time he went to hospital the deceased was unable to take any part in the running of his land which was then looked after by the first-named Defendant who in return got £10.00 per week and also some perquisites. In March 1974 the deceased left the licensed premises at Ballyholly and went to reside with the Plaintiff at Doncrailc. In May 1974 the deceased again became ill. He was

Court, (per Kenny J. with Henchy and Griffin JJ.; and with O'Higgins C.J. and Parke J. dissenting in part) — 1 October, 1979 — Unreported.

WILL — ANIMUS TESTANDI Mental capacity — whether the deceased, at the time of the execution of an alleged will was of sound disposing mind; knowledge and approval — whether the deceased at the time of the execution of the alleged will knew and approved of the contents; due execution — whether the will was duly executed in accordance with the Succession Act 1965. The deceased died on 16 May 1975. He was an elderly bachelor and was survived by two sisters, the Plaintiff and the second-named Defendant, by his brother, the first- named Defendant, and by nephews and nieces. The deceased made an alleged last will on 5 May 1975 whereby he bequeathed all his property to the plaintiff and appointed M.B. and J.S. executors. He made an earlier will on 10 December 1974 whereby having bequeathed £3,000.00 each to his nieces M. O'C., a daughter of the first-named Defendant, B.V., a daughter of the second-named Defendant, and M. O'C., a daughter of the Plaintiff, he bequeathed all his property to the Plaintiff. By that will he also appointed M.B. and J.S. executors. The executors renounced. The Plaintiff claimed to have the will dated 5 May, 1975 established in solemn form. Each of the Defendants entered caveats. Their defence raised the issues of due execution, testamentary capacity, and knowledge and approval. In addition both Defendants pleaded that execution of the will was secured by the undue influence of the plaintiff (but this undue influence plea was withdrawn prior to the hearing). The questions for determination by the Court were as follows: (1) whether the alleged last will of the deceased dated 5 May 1975 was executed pursuant to the Succession Act 1965, (2) whether the deceased at the time of execution of the alleged will dated 5 May 1975 was of sound disposing mind, and (3) whether the deceased at the time