Court declares testator had sound disposing mind and executed valid will despite capacity challenges.

THE CIRCUIT COURT SOUTH WESTERN CIRCUIT COUNTY OF CLARE Record 2018/00060 In the matter of the Succession Act 1965 and In the matter of the estate of Eileen Cunningham deceased BETWEEN PJ CUNNINGHAM, JOAN HOUSTON, MARTINA CUNNINGHAM AND MORTIMER CUNNINGHAM PLAINTIFFS AND ANTHONY GERALD (OTHERWISE BOBBY) CUNNINGHAM AND ROISIN CUNNINGHAM DEFENDANTS Judgement of Judge Brian O Callaghan delivered on 20th November 2020. Nature of Case The Plaintiffs in these proceedings seek a declaration from this Court that the late Eileen Cunningham (“the Testator”) was not of sound disposing mind when she executed a document purporting to be her last will and testament on 6 March 2015 and/ or a declaration that the said document was executed as a result of undue influence on the Testator. The Defendants counterclaim for an order from this Court establishing the said document as the true and final will of the testator in solemn form at law and an order proving the said document as the testator’s last will and testament in solemn form at law.

Background The late Testator was born on 7th April 1922. Her husband Mortimer died in the mid 1990s when she was in her 70s. When she reached her 80th birthday, the Testator was still living in the old family home at Knocknagogue, Quin in the County of Clare with her daughter Carmel who was both her minder and her soulmate. Her son Bobby moved to a new home near her at the same time. She was then surrounded by five of her children.

Two years later when 82 years of age the Testator made with solicitors in Ennis her first will on 10 October 2004 whereby she left all her estate to her carer and daughter Carmel with a wish included that Carmel while she retained ownership of the house would make it available to her sisters for holidays.

As the Testator approached her 90th birthday she unfortunately suffered a fractured wrist and two fractured hips in separate incidents resulting inter-alia with her becoming wheelchair-bound. While continuing to be her principal carer Carmel applied for and was granted disability benefit and by arrangement Bobby was registered as his mother’s carer with the relevant authorities as and from 23 February 2012.

In January 2013 the Testator spent six days in Ennis hospital and was discharged home with her prescription for respiratrone cancelled. Throughout 2013 and 2014 she continued to live at home under the care of her daughter Carmel with her son Bobby assisting. Her sons Mr.PJ and Mr. Mortimer insist that they also provided help with both of them and their wives frequent weekly visitors to the nearby house. Furthermore, whenever Miss Martina or Miss Joan came home from England they also helped out. Mr Bobby challenges the evidence of his brothers in this regard and while acknowledging that his sister Joan was very good to her mother when she visited, he disagrees with her evidence that she travelled home one weekend every month for five years from 2012. It is however accepted by all that during these two years the Testator spent several periods of normally one week long respite in hospitals or homes and that the medical records generated by these visits do not display any concerns regarding confusion or lack of capacity or understanding on her part.

On 18 December 2014 the whole Cunningham family was shaken to the core with the unexpected passing of Carmel. She had gone into hospital for a certain procedure which sadly she did not survive. In addition to the actual tragedy of her passing, it also changed the whole dynamic of how the family functioned particularly in relation to their 92year old mother. There is conflicting evidence regarding arguments, failed family meetings, who did and did not stay overnight with their mother and similar issues. Suffice it to say the period following Carmel’s passing was a challenging one for the family. The Court notes that Ms Maloney’s evidence supports that of Mr Bobby to the effect that he moved in to stay in his mother’s home at this time and that it was he who provided Miss Maloney with assistance when moving the Testator to and from her bed. Miss Maloney was not asked whether she came across any of the Plaintiffs overnighting with their mother or evidence of such during this time especially when arriving to the home at 8am in the mornings.

The Court notes that Mr Bobby phoned the Testator’s Doctor Hughes, her GP of some 29 years, on December 19 seeking advice as to whether his mother should be told of her daughter’s passing and if so how it should be handled. The Court considers such a contact to be sensible but not of any significance regarding concerns about the Testator’s capacity, as being submitted by the Plaintiffs. On 6 January 2015 the Testator went to see her Doctor Hughes with her son Bobby who confirms that this was arranged for routine medical reasons. His uncontroverted evidence as to how the question of a new will arose with Dr Hughes must of course be accepted by this Court. The family again gathered for Carmel’s months mind later in January. Thereafter, according to Mr Bobby, whose evidence in this regard again is not challenged and must be accepted by this Court, the Testator began mentioning the making of a new will to him on several occasions, she pointing out to him that she had left everything to Carmel in her previous well and needed to change this. After some pestering on her part Mr Bobby agreed to make the necessary arrangements. It was the Testator who told him to make contact with her solicitors, Sadlier’s in Gort ,who had looked after her husband’s estate. Mr Bobby advised the Court that he was not aware of this at the time. Her previous will the Court notes was made with solicitors in Ennis. An appointment was made for 6 March 2015 and we know that the impugned will was made on that day with Ms Pearce solicitor. A few weeks later Mr Bobby arranged for his mother to move in to stay with him in his home where she remained until her passing on 6 April 2017, one day before her 95th birthday

Throughout her last two years it is clear that Miss Martina and Miss Joan certainly spent considerable time with their mother on their visits from England. Bobby facilitated those visits by going on holiday or visits to allow his siblings have time on their own with their mother in his house. The court notes that there is no mention of a new will being made throughout this time by anyone. The Testator died leaving her surviving :

three daughters Bridget (England), Patricia (Newmarket on Fergus) and Rita (Quin)

who are not involved in these proceedings but are on notice of same,

PJ (Quin), Mortimer (Quin), Martina (England) and Joan (England) the Plaintiffs and Anthony (otherwise Bobby)(Quin) the first named Defendant.

The Court notes that all relevant and available papers and records have quite properly been exchanged between the parties.

As stated at the outset the essence of the Plaintiffs’ claim is that their mother was not of a sound disposing mind on 6 March 2015 and /or that the impugned will was executed as a result of undue influence by Mr Bobby on their mother and that accordingly the said purported will should not be admitted to Probate.

Law Applicable.

1. Testamentary capacity.

The relevant legislation is section 77 (1) of the Succession Act 1965 which provides that“to be valid a will shall be made by a person who.. (b) is of sound disposing mind”.

The case of Banks V Goodfellow (1870) LR 5 QB 549 [approved in this jurisdiction by inter alia Scally V Rhatigan (2010)IEHC] sets out the test to be applied when enquiring as to whether a Testator was of sound disposing mind:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

This test is therefore composed of three questions – Did the Testator understand the nature of the act of making a will and its effect ? Did the Testator understand the extent of the property of which he was disposing ? And did the Testator comprehend and appreciate the claims to which he ought to give effect? ( per Keating para 3-03 Succession Law in Ireland)

In Rhatigan, Laffoy J. went on to support the golden rule principle and cited with approval the following quotation from In re Key decd[2010]EWHC(Ch)…

“The substance of the golden rule is that when a solicitor is instructed to prepare a will for an aged Testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the Testator, and to make a contemporaneous record of his examination and findings”.

However, the Court in Key went on to say that “compliance with the golden rule does not, of course, operate as a touchstone of the validity of a will, nor does noncompliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of the scope”. Having referenced these quotations from Key, Laffoy J. added that “those observations, in my view, reflect the law in this jurisdiction. Irrespective of whether the golden rule or best practice was followed in a particular case, it is a question of fact, which is to be determined having regard to all of the evidence and by applying the evidential standard of the balance of probabilities, whether a Testator was of sound disposing mind when the testamentary document which is being propounded was executed”.

Brady at paragraph 2.71 of his Succession Law in Ireland says “the test of mental capacity is not satisfied merely by proof that the Testator was aware of the act in which he was engaged, i.e. the making of a disposition of his property which is to take effect on his death, but also requires that the Testator made his will with understanding and reason. The Testator must, accordingly, be free of mental disorders which impair his capacity to make such a will.” At paragraph 2.72 the author continues…”If a Testator suffers from a delusion, which has been judicially defined as a belief which no rational person could hold and which is impervious to reasoned argument, he may be unable to execute a valid will. That is for the Courts to decide in each case. Whether the delusion in question robs the Testator of testamentary capacity is underlined by the facts of the aforementioned Banks v Goodfellow where the Testator had been deluded that he was being pursued by a man already dead and by evil spirits, which were visible to him. Despite this bizarre evidence of the Testator’s mental state at the time of execution, the Court held that he had testamentary capacity, since it was satisfied that these delusions were not capable of influencing the provisions in his will.”

Brady reminds us at paragraph 2.74 that “the crucial time in relation to the determination of the Testator’s capacity is the date of execution of the will, and it follows that a Testator who suffers from a mental disorder may make a valid will made during a lucid interval”. Finally, at paragraph 2.84, he adds, “Old age, like infirmity is not, without more, proof of testamentary incapacity but, like infirmity, it may be invoked in support of a plea that the Testator did not know and approve of the contents of his will, or that the will was procured as the result of undue influence”.

McCarthy J. In re Glynn [1990]IESC famously observed that ”a duly attested will carries a presumption of due execution and testamentary capacity………. It is a fundamental matter of public policy that a Testator’s wishes should be carried out, however, at times, bizarre, eccentric or whimsical they may appear to be. One man’s whimsy is another man’s logic”.

2. Undue Influence.

Keating at paragraph 10.32 quotes Wingrove v Wingrove where Sir James Hannen observed that,” for undue influence in the eyes of the law, there must be – to sum it up in a word – coercion. It is only when the will of the person who becomes a Testator is coerced into doing that which he or she does not desire to do that it is undue influence”. At 10.34 the author states “that the basis of an allegation of undue influence in probate law is that the Testator was coerced into making a will which was not “the offspring of his own volition”. For a will to be impugned on the grounds of undue influence, there must be positive proof of coercion overpowering the volition of the Testator. Keating continues at paragraph 10.35 that an exception may be made in the case of a will made as a result of natural influence by a parent, child or guardian, and the existence of such influence may not impugn a will so long as the Testator thoroughly understands what he is doing and is a free agent. The character of the testator may also be taken into account…. Where, however, there is a suspicion only of undue influence without positive proof of coercion, it is inadvisable to pursue a claim based on undue influence.

Noonan J. in Rippington v Cox [2015]IEHC ,after making it clear that the onus of proving undue influence rests on the person alleging it occurred, went on to affirm that in order to establish undue influence it is necessary to prove three things:

(i) the person alleged to have exerted the undue influence had the power or opportunity to do so

(ii) that undue influence was actually exerted and

(iii) that the will was the product of such influence.

Decision The Court must now apply the above principles to the evidence in this case.

A. Undue influence

It is strongly pleaded and suggested by the Plaintiffs throughout their pleadings that Mr Bobby in effect cut off or shut out his mother from the rest of her children and that he exercised complete control over all matters relating to the Testator to the exclusion of all others particularly following Carmel’s passing. The evidence from the Plaintiffs themselves in fact suggests the very opposite. Miss Martina and Miss Joan both make it clear that they were free to come and go as they pleased when they visited their mother so much so that their brother Bobby left his home for holidays or visits away to allow his siblings spend time alone with their mother in his home. The other Plaintiffs, Mr PJ and Mr Mortimer, insist that they and their families were constantly visiting their mother’s home certainly up to April 2015, regularly staying overnight, even though this is actually challenged by their brother Mr Bobby. The Court notes that it was the Testator who insisted not only that she should make a new will but also identified the solicitor she wished to employ who was wholly unknown to her son Bobby. There is no evidence whatsoever to even suggest that Mr Bobby “organised” the appointment with the solicitors for his own benefit, the opposite in fact being the case. Miss Pearce in her evidence is clear and strong when insisting that she was absolutely certain that she had no concerns about the Testator’s understanding of what was occurring and that she was consistent and indeed insistent in what she wanted, that is to leave her home to her carer and son Bobby, she having in her earlier will left it to her previous carer her daughter Carmel. Indeed, in her memo dictated immediately after the meeting, Miss Pearce records…” I said that the property going to him could raise a question of undue influence in the will. I said I was not suggesting that I thought that was going on here and in fact I did not have any concerns on the meeting and it would be usual enough for the person caring for her to bring her to make the will but I said that it had to be considered”. The Plaintiffs complain strongly about the retort of Mr Bobby recorded by Miss Pearce regarding an alleged family meeting but the Court does not go with them on this point which they say is evidence of undue influence by misleading the solicitor along with other comments attributed to Mr Bobby in that memorandum which they say are clearly false.

Where is the evidence of coercion? For Mr Bobby to nominate his daughter as the beneficiary in lieu of himself for the reasons given was certainly not a cause of concern for Miss Pearce nor is it indeed for this Court. His proposal made sense in the circumstances and it is of interest to note that the Testator clearly thought the same as evidenced by her suggestion to the solicitor during their second meeting of bequeathing the property to her son’s wife instead of his daughter. It is quite common for prospective beneficiaries and or the legal advisors to propose a different version of the bequest from that initially intended by the Testator for financial or tax efficiency reasons

I find no such evidence of coercion in this case and I therefore conclude that the evidence given by the Plaintiffs falls short of establishing that the document of 6 March 2015 was a product of undue influence generated by the Defendants on the Testator

B. Testamentary Capacity

I have already set out the legal principles applicable when enquiring as to whether a person on a given date was of sound disposing mind. One remaining issue is upon whom does the burden of proof rest. Again we must refer back to Laffoy J in Rhatigan where she cited with approval a further passage from In re Key decd.

“The burden of proof in relation to testamentary capacity is subject to the following rules. (i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. (ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. (iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.”

Rule/Step (i). It is accepted by all parties that the will is duly executed in compliance with section 78 of the Succession Act 1965. For reasons already set out, the Court is of the view that the will on its face is rational. Capacity is now presumed. Accordingly, we move to step two.

Rule/Step (ii). The evidential burden now moves to the Plaintiffs to raise a real doubt about the Testator’s capacity. Failure to do so will be the end of the matter. The Court, in addition to looking at the evidence from family members, must also consider the following. Dr Hughes in his evidence opined that following his meeting with the Testator on January 6, 2015, he had a concern about making a will and whether there was an impairment in her capacity to make a will. He himself thought or understood that he would be involved if a decision was made by the Testator to make a new will. Dr Hughes referred to several notes in his evidence including those of August 2012 when Carmel first noticed confusion in her mother and the delusion of thinking her late husband was still alive. He also referred to notes in September and November 2012, 19th of December 2014, 6th and 28th January 2015, 11 February 2015 and then August, September and December again of 2015. Add to this the non-compliance with the golden rule, the Court concludes that there must be a real doubt within the meaning of rule two as to the Testator’s capacity and that accordingly further enquiry by this Court is required. We therefore move to step three.

Rule/Step (iii). The evidential burden now returns to the propounder, the Defendants to establish capacity. The Court, when enquiring into the evidence under this rule, looks to the following witnesses. In addition to what is said above under rule {ii} the Court notes other evidence from Dr Hughes. Throughout 2013 and 2014 there is nothing negative noted in the medical records of her respite homes. While family members note comments on the whiteboard of her room regarding babies and the presence of dolls in her bed, nonetheless of the 10 days spent by her in the Galway Clinic in February 2015 the records show her confused during five days but not confused during the other five days.

Dr Hughes also concluded his evidence opining that he would like to have assessed her on the day she made her will, accepting that yes she may be lucid but whether she had the capacity to make an executive decision on a will he didn’t know. As previously stated Miss Pearce’s evidence was particularly cogent. The Court notes that this was an appointment made by a 93-year-old lady with a solicitors office of her choice. She could of course have asked for and would have been given a house visit. She chose to be brought to Gort passing by Ennis on the way and according to Miss Pearce knew exactly what she was doing, why she was doing it – because of Carmel’s death, where she was doing it – in the office that dealt with her late husband’s estate, and what she wanted to do with her estate.

She clearly engaged in not only the first three way meeting but most pointedly in her subsequent oneto-one conversation with Miss Pearce even raising a suggestion of her own as to whether she should leave her home to her daughter-in-law as opposed to her granddaughter. When Miss Pearce put it to the Testator that perhaps she could leave it to both ladies to help with the tax liability, she responded to leave it as first discussed , to Roisin her granddaughter the second named Defendant. It is abundantly clear to this Court that the Testator was focused and understood what she was doing.

Ms Pearce unfortunately did not engage with the Testator’s Doctor Hughes but was insistent that if she had concerns she would have asked for medical guidance. She said she had no such concerns and that the Testator understood the nature of a will, the assets involved and was aware of her family members. The Court notes that at the conclusion of this appointment there was talk of doing a transfer of the property to the second defendant subject to a life interest in favour of the Testator with some money passing. It was agreed that Miss Pierce would prepare the ground for this to be done later.

In fact, Mr Bobby later in October 2015 phoned Miss Pierce to cancel the idea of a transfer as by that time he felt his mother has deteriorated. Dr Hughes’ notes support this view. The Court also refers to the evidence of Dr Tom Reynolds which evidence of course was based on the medical records only as he never met the Testator. In summary he was of the view or formed the impression that there was no evidence in the available notes to raise concern about the Testator’s capacity save for episodic delusions. He pointed to intermittent episodes of delirium been brought on by physical issues such as infections.

She appeared to be a relatively well lady for her age. The Court of course notes the evidence of Mr Bobby as it notes the evidence of his sisters and brother and indeed the evidence of Mrs PJ and Mrs Mortimer. The evidence of Fr. McCormick was that he was a monthly visitor to the Testator from February 2015 until her passing. Whereas his visits were purely for her spiritual comfort he always found her in good form. She always engaged and interacted with him. In this regard the Court was amazed to learn through Mr Bobby’s evidence that within a year of Carmel’s passing the Testator applied for her first passport and fulfilled a lifelong ambition by travelling to Lourdes.

This apparently was her first time outside of Ireland. Finally the Court must say that it was particularly struck by the evidence of Ms Jess Maloney the Testator’s carer from September 2014 to May 2015. She called to the Testator four days a week, two hours from 8 am to 10am each morning and 6pm to 8pm in the evening. Miss Maloney clearly built up a close relationship with the Testator whom she found to be a funny witty lady. She enjoyed being with her. She was often quiet but listening to what was being said around her. She was clearly taken by the strong bond between the Testator and her daughter Carmel.

Every evening she would meet Mr Bobby who was always there usually playing cards with his mother. Bobby helped Miss Maloney put the Testator to bed each evening, a procedure that required imput from two persons. She doesn’t remember meeting any other family members in the house but maybe they called when she was not there. She never found the testator overly confused though does remember two or three times when she was not feeling well the Testator saying that her husband was next door. She always knew Miss Maloney and never mixed her up with anyone else.

She had great memories. For example when Bobby left the table Miss Maloney caught the Testator stealing a look at his cards – a wink and a smile from the Testator followed. She recalled her being nervous about Carmel’s operation and crying at the end of the phone when Carmel told her that she Carmel was going in for her operation. For her age she found her quite alert and Miss Maloney has over 20 years experience as a nurse’s aide specialising in the care of elderly people.

Having considered all this evidence and indeed the evidence in its totality from all witnesses, the Court concludes that the Testator did indeed have testamentary capacity on 6 March 2015 when she executed her last will in the presence of Miss Pearce and her legal assistant, that she was , as per section 77(1) of the Succession Act 1965, of sound disposing mind. Accordingly the Court will proceed to make orders as per the prayer in the Defendants counterclaim and I will hear from counsel as to the actual orders to be made and on the question of costs.