The Gazette 1980

JULY-AUGUST

198

GAZETTE

Per D'Arcy J.: "The facts of this case bear no resemblance to those of Corboy deceased, Corboy v. Leahy (19691 I.R. 148, but I consider the circumstances are such that the principles enunciated in Fulton v. Andrews (1875) L.R. 7 H.L. 448, and in Conboy's case must be applied. One must be suspicious of (the Plaintiffs) evidence and be vigilant and zealous in examining it. I must not pronounce in favour of either will unless my suspicions are removed, and I am satisfied that the paper propounded expresses the true will of the deceased". All the witnesses gave evidence as to the degree of mental incapacity on the deceased's part. There was conflicting evidence by members of his family as to the degree of the recovery made by the deceased after his first discharge from hospital. There was a conflict of evidence among the non-professional witnesses also as to why the deceased moved from Ballyhooly to the PlaintifTs house at Doneraile in March 1974. However, the evidence of five solicitors and two of the doctors who attended to the deceased satisfied the Court that the deceased had the mental capacity to make a will on both 10 December, 1974 and 5 May, 1975. In relation to the question of knowledge and approval the Court considered the cases of Julia Begley, Begley and others v. McHugh 119391 LR. 479, and also considered Re Morris (deceased), Lloyds Bank Limited v. Peake 11970/ 1 All E.R. 1057 and in particular the judgment (not reported) of Sachs J. in Re Crerar referred to by Latey J. in Re Morris (supra). Per D'Arcy J.: "1 do not consider that the presumption of knowledge and approval has been rebutted by any of the circumstances in this case. However, I am unwilling to put myself in any such straight-jacket as referred to by Sachs J. in Crerar v. Crerar. Independently of any presumption, 1 am satisfied, on the evidence of Mr. B. (Junior), solicitor, that the deceased knew and approved of his will dated 5 May, 1975." Held (per D'Arcy J.): (1) that on 5 May, 1975 the deceased was of sound disposing mind; (2) that the Will of the deceased dated 5 May, 1975 was duly

suffering from orchitis (swelling of the testicles). He was admitted to and remained a patient in hospital in Cork from 29 May 1974 to 10 June, 1974. On his discharge he returned to live with the Plaintiff. He rarely moved out of the Plaintiff's house and lands. He went to Mass on Sundays, made odd visits to the Defendants and visited his mother as long as she was alive. His mother died on 24 August, 1974. On 10 December, 1974 the deceased made his first will. He was brought to the Solicitor's office of Mr. B. in Charleville by the Plaintiff's husband who had other business to attend to there. On 12 March, 1975 the deceased returned to Mr. B's office and gave instructions to transfer his lands to the Plaintiff. At this stage Mr. B. was acting for the Plaintiff and so he told the deceased that he would have to obtain independent legal advice. Arrangements were made for the deceased to attend the office of Mr. McC., Solicitor, in Charleville on 26 March, 1975 who advised the deceased that he should not transfer his lands to the Plaintiff subject to the safeguards which were then being reserved for the deceased, which Mr. McC. regarded as being insufficient. In view of the deceased's age Mr. McC. advised him that it was a most improvident transaction. The deceased accepted Mr. McC's advice. Then Mr. McC. (and there was no evidence that he had any instructions to do so) negotiated with Mr. B., as to the terms upon which he (Mr. McC.) would be prepared to advise the deceased to execute the transfer. These were that the deceased should be paid an annuity of £520.00 with a cost of living escalation clause, by weekly payments of £10.00 for life and further that he should be paid £10,000.00 to be payable by £1,000.00 per annum for 10 years and that the usual rights of residence and support should be reserved. A transfer was drafted containing these provisions and also providing for a charge in the sum of £ 1,000.00 each in favour of the three nieces, who were given legacies of £3,000.00 cach in the deceascd's will of 10 December, 1974. This draft transfer was sent to the Plaintiff by Mr. B. The deceased did not approve of the terms in the draft and on 14 April

1975 wrote to Mr. B. to let him know his views on the matter. The Plaintiff sought another solicitor to give independent advice and gave the deceased a choice between three solicitors. He picked Mr. N., Solicitor, at Doneraile. Mr. B., after he had been telephoned by Mr. N., sent him an engrossment of the transfer which Mr. N. read over to the deceased who then realised that difficulties might arise, as under the will the deceased had made the previous December he left his three nieces £3,000.00 each whereas under the transfer he gave them £1,000 each. Mr. B. accordingly wrote to the deceased asking if he wished to make a new will. Mr. B. got a message that he did and on 5 May 1975, Mr. B. (Junior) and Mr. W.D., then a clerk with Mr. B (Senior's) office and since deceased, saw the deceased at the Plaintiffs house. Mr. B. (Junior) brought the previous will of 10 December, 1974 with him and also a copy of the transfer. The deceased told Mr. B. (Junior) that he was going to hospital. Mr. B. (Junior) read the transfer and the previous will to the deceased. He asked the deceased whether he wished to clarify it in any way. The deceased said that his nieces were only to get the £ 1,000.00 in the deed. Everything else was to go to the Plaintiff. Mr. B. (Junior) there and then wrote the will of the deceased dated 5 May 1975. The will was read to and approved by the deceased. It was then properly executed by the deceased in the presence of Mr. B. (Junior) and Mr. W. D. Mr. B. (Junior) and Mr. W.D. then executed the will in the presence of the deceased. Mr. B. (Junior) said in evidence that the deceased was perfectly normal although physically weak and that he showed no signs of distress. That night the deceased was brought to hospital in Mallow and died there of lung cancer on 16 May 1975. In this case the substantial issue was one of the degree of mental incapacity; how far, it at all, the deceased had recovered from his admitted brain injury. The Court stated that the onus of proof lay on the plaintiff propounding a will. In this case it went further and was heavier. The deceased was living "under the protection" of his sister, the Plaintiff.