High Court admits will to probate finding deceased had testamentary capacity despite mild cognitive impairment.

THE HIGH COURT

PROBATE

[2025] IEHC 365

2023 No. 7420

IN THE MATTER OF THE ESTATE OF MARGARET BRADLEY, DECEASED,

LATE OF 92 BALLINTEER DRIVE, DUNDRUM DUBLIN 16.

JUDGMENT of Ms. Justice Eileen Roberts delivered on 27 June 2025

Introduction

1. Margaret (otherwise Peggy) Bradley died on 29 November 2017. I will refer to Margaret throughout this judgment as the “Deceased”. She made her last will and testament on 22 June 2011 (the “2011 Will”).

2. This judgment deals with the application made by the then surviving executor of the Deceased’s estate for an order admitting the 2011 Will to proof in common form of law.

3. By the 2011 Will, the Deceased appointed her sisters Maureen Lynch and Sheila Bradley to be her Executrices. If both of her said sisters predeceased her, the Deceased appointed her niece Carmel Lynch to be her Executrix. Carmel Lynch was also named as the residuary devisee and legatee in the 2011 Will.

4. Both her sisters survived the Deceased but are now themselves deceased. Sheila Bradley died on 8 December 2021. Since this application issued by Maureen Lynch on 27 July 2023 Maureen Lynch herself died on 19 October 2024.

5. In her capacity as residuary legatee and devisee of the 2011 Will, Carmel Lynch is now the person statutorily entitled to apply for probate of the 2011 Will. She seeks an order pronouncing for the force and validity of the 2011 Will, its admission to probate in common form of law and an order granting her liberty to extract a grant of probate of the 2011 Will.

6. An order is sought in the alternative pronouncing for the force and validity of the Deceased’s previous will dated 25 March 2010 (the “2010 Will”).

7. The necessity for this application arises in circumstances where the Deceased’s death certificate records a finding of “dementia”. This raises a query regarding the testamentary capacity of the Deceased at the time she made the 2011 Will.

8. Dr. Terence Maguire, the General Practitioner who treated the Deceased at that time, is also now deceased and his records are no longer available. It has not proved possible for another medical practitioner to provide contemporaneous medical evidence of the Deceased’s testamentary capacity as at 22 June 2011. Accordingly, the testamentary capacity of the Deceased must be determined in this application based on an assessment by this court of the other available evidence.

9. Concerns have been expressed by certain relatives of the Deceased regarding the Deceased’s testamentary capacity. Those relatives engaged counsel but there is no challenge to the 2011 Will other than their concerns regarding the Deceased’s testamentary capacity.

The parties and the relevant background

10. The Deceased was 79 years old when she died on 29 November 2017. The 2011 Will is dated 22 June 2011 and so was made more than six years before the Deceased died. This time gap must be borne in mind in assessing the relevant evidence.

11. The Deceased died a single person, never having married, and with no issue. She was survived by her two sisters (Maureen Lynch and Sheila Bradley) and by her brother Cornelius Bradley. Carmel Lynch is a daughter of Maureen Lynch. Cornelius Bradley is married with four children and he is now the only living sibling of the Deceased.

12. The Deceased owned a property at Ballinteer Drive, Dundrum, Dublin 16 and it appears that she lived at that property until sometime in 2010/2011 when her medical records suggest she had moved to live with her sister Margaret Lynch in Blanchardstown. As at September 2015 the Deceased was residing in the Silver Birch residential unit attached to Connolly Hospital in Blanchardstown, having moved there at a date unknown to the court.

13. For reasons that are not evident from the papers or submissions to the court, it appears that the Deceased moved from the Silver Birch Residential Unit in Connolly Hospital in September 2015 to a private nursing home in Cork (Araglen Nursing Home) near her original homeplace in Ruhill. She remained there for a short period but left at Christmas 2015 to live with her sister Sheila in the original homeplace and did not return to the nursing home.

14. The Deceased then lived with her sister Sheila until the Deceased was admitted to Mercy Hospital Cork at a date unknown. She remained there it appears for several months until she was discharged to a HSE nursing home, Kanturk Hospital (Cork Community Hospital) in August 2017 where she remained until her death following emergency admission to Cork University Hospital on 27 November 2017.

15. The evidence is that the Deceased made the 2010 Will with the same firm of solicitors as the 2011 Will, although with a different solicitor in that practice. There is little difference between the 2010 Will and the 2011 Will. Those differences are confirmed by Mr Brendan Dillon solicitor in the following terms in his supplemental affidavit dated 20 February 2025 -“I say that the only differences between the 2011 Will and the 2010 Will is that a legacy of €2000.00 was given to the deceased’s brother Daniel Joseph Bradley and a memento in the 2010 Will [which] is omitted from the 2011 Will and in the 2011 Will Maureen Lynch was to receive a one fifth share in the property in Ruhill which was not included in the 2010 Will.” Another difference is that Daniel was removed as a beneficiary in the 2011 Will from a share in the Deceased’s residuary estate if Carmel predeceased the Deceased.

16. An attendance note taken by the solicitor who prepared the 2010 Will indicates that the Deceased was driven to the solicitor’s office by her sister Sheila but that the Deceased was met alone by the solicitor. The note records that the Deceased “wanted to change her will as she now wanted her niece to get the house and most things as her niece had been living with her for over a year and indeed, over the years had lived with her on a 4-5 day basis as she went to school from there from the time she was in sixth class”. It notes that the Deceased was aware at that time that she had an enlarged heart and that her health was not good.

17. This attendance note mentions the Deceased’s “three siblings” to whom the Deceased said she wished to each bequeath €2000 plus a memento of their choosing. In fact, the Deceased then had four living siblings and not three. Her brother Daniel was alive at that time (he died on 13 December 2010). The 2010 Will provides these bequests to the Deceased’s two sisters Maureen and Sheila and to her brother Daniel but makes no reference to her brother Cornelius. The attendance note records the Deceased’s instructions as to the amount of cash she held in her AIB bank account.

18. The attendance note confirms that an appointment was made for 25 March 2010 for the Deceased “to come in and execute the amended will”. Although this attendance note refers to the Deceased “changing” her will and to an “amended will”, there is no evidence that any previous will exists, and the solicitors confirm that they do not hold any other will for the Deceased.

19. The court was also provided with an attendance note prepared by the solicitor who drafted the 2011 Will, Mr Brendan Dillon. This note is dated 10 June 2011, being 2 days after he met with the Deceased and 12 days before the 2011 Will was executed by the Deceased in Mr Dillon’s office. The attendance note indicates that the Deceased attended Mr Dillon’s office on 8 June 2011 with her niece Carmel. The Deceased said that given her family history of stroke she was concerned that if she had a stroke she would not be able to make decisions for herself and that she wanted to transfer her property into her niece’s name. At that point Mr Dillon asked Carmel to leave the room to allow him to discuss matters with the Deceased alone. Mr Dillon records the advice he gave to the Deceased cautioning her against transferring property during her own lifetime and pointing out that if she did so the Deceased would not be able to make any decisions in relation to her property. Mr Dillon suggested that the Deceased might instead enter into an enduring power of attorney which would achieve the goal of dealing with a situation where the Deceased was no longer able to manage her own affairs. The Deceased said she wanted to give general power to her niece Carmel who the Deceased said “was extremely good to her and looks after her affairs”.

20. The attendance note records the instructions Mr Dillon received from the Deceased in relation to a power of attorney confirming that she wished Carmel Lynch to be given a general power and that the Deceased’s sisters would be notice parties. She also confirmed her date of birth and details of her GP who she said was Dr Clodagh Maguire. Mr Dillon records that he asked the Deceased to explain to him the advice she had received from him and that the Deceased confirmed that “she understood that if she was not well and could not make decisions for herself that she was giving Carmel the power to make these decisions. She confirmed that she was aware that this involved selling property and deciding where she would live”.

21. As will be later explained, the Deceased signed the 2011 Will and an Enduring Power of Attorney on 22 June 2011. However, Dr Clodagh Maguire wrote to Dillon solicitors on 9 September 2011 saying that the medical form attached to the Enduring Power of Attorney could not be signed as the Deceased was then on medication for cognitive impairment. It thus appears that the Enduring Power of Attorney never became effective although the evidence is that Carmel continued to look after the Deceased’s affairs up until her death in 2017.

22. In an affidavit sworn by Mr Dillon on 17 April 2024 he averred that there was “little relationship” between the Deceased and her brother Cornelius Bradley in advance of the Deceased’s death. It is not clear to the court on what basis Mr Dillon was able to make that averment but, when challenged on it by Cornelius Bradley and his daughters, Mr Dillon withdrew that statement and said that he had not intended that statement to create any upset.

23. Cornelius Bradley was not initially identified to the court as a sibling of the Deceased and this position was not made clear until Mr Dillon’s supplemental affidavit dated 17 April 2024 (and later in a further supplemental affidavit sworn on 20 February 2025).

At the direction of the court Cornelius Bradley was served with the present application (as a beneficiary in the event of an intestacy) and he was permitted to deliver an affidavit in response to it. Cornelius swore an affidavit on 24 September 2024 in which he averred that he and his family had been involved in the Deceased’s care in her later years from the time she moved back to Cork in September 2015. He said that he had remained close friends with the Deceased throughout her life. He was concerned why the probate office had not been provided with medical evidence to support the Deceased’s testamentary capacity at the time she made her 2011 Will.

24. Affidavits were also filed by two of Cornelius Bradley’s children namely Mairead Bradley and Marie Bradley. Mairead confirmed that she was instrumental in sourcing homecare packages for the Deceased and Sheila when they lived together in Cork and that neither was at that time capable of independent living.

25. Mairead Bradley averred in her affidavit that the Deceased had remained in Mercy Hospital Cork “for much longer than was necessary for her medical needs”. She said this extended stay arose because of difficulties in making the Deceased’s assets available for her care. She said that she met with the discharge co-ordinator to discuss these concerns, although no further details of that engagement were provided in her affidavit. At that time the Deceased’s finances were managed by her niece Carmel. Mairead said that she and her family visited the deceased “frequently” while she was in hospital and looked after the Deceased’s laundry and left money for items she would need.

26. In her affidavit, Mairead states that she continued to have concerns about the release of the Deceased’s assets to fund her care while the Deceased was in Kanturk Hospital. She notes that an incident is mentioned in the hospital notes “whereby a family member was insisting that Margaret sign documents and she was refusing in a loud voice” – following which Sage Advocacy was appointed to protect the Deceased’s interests.

27. The court has no further information on this incident or the identity of the “family member” referred to. It may be that the documents in question were in relation to the Fair Deal Scheme but there is no information on this available to the court. Neither is there any information available as to the circumstances in which the advocacy representative came to be appointed for the Deceased despite Dillon solicitors having endeavoured to obtain this information at the court’s insistence. This court cannot speculate on this matter in the absence of evidence.

28. Correspondence from Carmel’s solicitors issued to Marie Bradley in October 2017 in which they indicated that they were instructed by Carmel in relation to a care representative application for the Fair Deal Scheme, which would require details of the Deceased’s assets to be provided to the HSE. The solicitors noted that at that time the Deceased did not then have the capacity to make the decision on her own behalf or complete the necessary forms for the Fair Deal application. Carmel Lynch was not agreeable to a second care representative being appointed, as suggested by Marie Bradley.

29. Mairead avers she had deep concerns regarding Mr Dillon’s meeting with the Deceased on 8 June 2011, noting that :“-Carmel Lynch attended this meeting and the purpose of the meeting was to transfer the house to Carmel Lynch and make a will. Handwritten instructions were presented at this meeting”. Mairead does not explain her concerns any further. In particular, there is no allegation made of any undue influence by Carmel or any other person and that position was clearly articulated at the hearing of this application by counsel for Cornelius Bradley and his daughters.

30. Marie Bradley, daughter of Cornelius Bradley, also provided an affidavit to the court. She confirmed that while the Deceased was in Kanturk Hospital Marie raised concerns about the release of the Deceased’s assets to fund her care. She stated that those assets should have been released and an application for the Fair Deal Scheme made as soon as the Deceased was ready to be discharged from Mercy Hospital in Cork. Marie also raised concerns with Dillon solicitors regarding the occupation of the Deceased’s home by Carmel, allegedly on a rent-free basis, and she queried how the Deceased’s pension and other assets were being managed.

31. Medical records establish that the Deceased was admitted to Cork Community Hospital on 1 August 2017. The notes record that her sister Maureen was the first named contact followed by Carmel as the second point of contact and then by Mairead as the next point of contact. By that stage the Deceased was noted to have had “advanced dementia”. Records confirm visits by the Deceased’s sisters, her sister-in-law and nieces. There is a gap in the records between September and 20 November 2017. It appears from a record timed 16.45 that Carmel visited the Deceased on the 27 November, being the date the Deceased died. Mairead Bradley confirmed in her affidavit that her mother was with the Deceased when she died later that evening in Cork University Hospital following an emergency admission and that no-one else was there.

The evidence regarding testamentary capacity

32. The direct evidence of testamentary capacity comes from Mr Dillon as the solicitor instructed by the Deceased to prepare the 2011 Will. He avers on affidavit that he believes the Deceased “was lucid and capable of executing the Will on account of my own personal experience of her at this time”. He met the Deceased alone in his office on 8 July 2011 and says that it was “clear to me that the Testatrix was in a position to give clear instructions both in relation to her Enduring Power of Attorney and also additional instruction in relation to her Will. I say that when the Testatrix attended the meeting, she handed me a handwritten letter of instructions and when I realised that this related to more than the collection of Deeds, I asked Carmel Murphy (Lynch) to leave”.

33. The handwritten notes were exhibited. They are dated the 8 June 2011 and are signed by Margaret Bradley and appear to be written in her hand. They express firstly a wish to transfer the ownership of her house to her niece Carmel Lynch. They then deal with instructions for her will requiring that her sister Maureen Lynch get a one fifth share of land at Ruhill in Cork (a new bequest), that Sheila get €2000 (which she had already been given under the 2010 Will) and that Carmel get the remainder of the Deceased’s bank account in AIB Dame Street after funeral expenses are paid (this would have been captured by the residuary clause in the 2010 Will). There is no evidence as to how this note came to be written. It appears to be written in quite a formal style and language, which may appear a little unusual. There is however no evidence or challenge that the note was not freely prepared by the Deceased. It formed the basis of the discussion between Mr Dillon and the Deceased and was accepted by Mr Dillon as a note of the Deceased’s wishes.

34. The evidence is that having listened to Mr Dillon’s advice, the Deceased did not proceed with an inter vivos disposal of her property (as had been set out in the handwritten note) and opted instead to dispose of her property by will. Mr Dillon avers that he is satisfied that it was clear that the Deceased “was capable of giving instructions and listening to advice and acting on that advice”. He prepared the 2011 Will and an Enduring Power of Attorney and later sent them to the Deceased. The Deceased attended Mr Dillon’s offices on 22 June 2017 to execute both documents in the presence of Mr Dillon and a legal executive in his office. There is no complaint regarding the formal execution of the 2011 Will.

35. The attendance note exhibited by Mr Dillon previously referred to does not set out the revised instructions he received in relation to the 2011 Will. It is focused on the Enduring Power of Attorney only. Mr Dillon’s affidavits do not deal specifically with the instructions he received regarding the 2011 Will although he exhibits the handwritten note brought by the Deceased to his office. Given that the Deceased’s brother Daniel died in the period between the 2010 Will and the 2011 Will it is entirely logical that the previous bequest to Daniel was not repeated in the 2011 Will. However the attendance note makes no reference to this change and it was not explained by Mr Dillon until filing his supplemental affidavit on 20 May 2025 when, at para 5 he avers that :”I say that the purpose of omitting Daniel Joseph Bradley as a beneficiary in the 2011 Will was by reason of the fact that he had passed away on the

13 December 2010 which was subsequent to the making of the 2010 Will”.

36. The court has reviewed the correspondence referred to by Mr Dillon in paragraph 6 of his initial affidavit sworn 27 July 2023. It confirms that on 9 September 2011 Dr Clodagh Maguire wrote to Mr Dillon stating that the medical form relating to the Enduring Power of Attorney could not be signed as the Deceased was on medication for cognitive impairment and that she had been on this treatment “for a number of years now”. This handwritten note attached a copy letter from the HSE (Department of Cardiology) dated 4 April 2011 addressed to Dr Terry Maguire listing “Cognitive Impairment” as one of the background medical conditions of the Deceased, listing the medication she was receiving for this condition and stating that the Deceased had “some cognitive impairment and is quite a poor historian”.

37. It is worth emphasising some points regarding this correspondence. Dr Clodagh Maguire may not have been the Deceased’s GP (as she later claimed) although she was part of the same medical practice as Dr Terry Maguire. Dr Clodagh Maguire confirmed to Dillon solicitors in an email dated 27 January 2020 that:“ As [the Deceased] was not my patient, I would not be in a position to pronounce on her capacity in 2011.” The handwritten note she sent to Mr Dillon on 9 September 2011 declining to sign the form attached to the Enduring Power of Attorney explained that it was not being signed because the Deceased was on medication for cognitive impairment (backed up by the letter from the cardiology division in the HSE’s Connolly Hospital). It does not address the Deceased’s testamentary capacity at all. Dr Clodagh Maguire took the precaution of having the Deceased write on Dr Maguire’s handwritten note that the Deceased consented to the release of the HSE correspondence to Mr Dillon. This handwritten consent is also dated the 9 September 2011. It indicates in my view that Dr Clodagh Maguire believed that the Deceased could at that time give her consent to this matter and understood what this meant.

38. Mr Dillon avers that notwithstanding this correspondence, his recollection is that the Deceased had testamentary capacity to make a will and that she understood the instructions which she was gave to him in June 2011. He further avers that the Deceased had made a previous will and that her 2011 Will made some, but not substantial, changes to her previous instructions.

39. The medical evidence confirms that the Deceased was attending medicine for the elderly in Connolly Hospital when she made the 2011 Will. There does not appear to be separate records available from that department (if indeed it is such) in the records received from Connolly Hospital for 2010 and 2011.

40. Copies of the Deceased’s medical records for 2010 and 2011 were received from Connolly Hospital on 8 April 2025 on foot of an order from the court made on 31 March 2025. Those records are extensive and largely deal with medical matters other than the Deceased’s mental capacity. While I have reviewed these records in their entirety, I refer here only to those aspects I believe to be relevant to the Deceased’s mental condition at that time.

41. In reviewing any medical records it is important that they be viewed in context, recognising that patients (particularly elderly patients) are often distressed when hospitalised and that medical or nursing staff may express opinions using medical language that may not necessarily correspond with how language is generally used in normal parlance. It is also important to note that assessing testamentary capacity is a specific legal test and is not the same as assessing general mental capacity. Having said that, it is clear from the records that the Deceased had some cognitive impairment in 2010. The question is whether that condition was of such severity as to negate her testamentary capacity at that time. Because there was no contemporaneous medical assessment of testamentary capacity made at the time of the 2011 Will (or indeed the 2010 Will) it is necessary to review the medical records for that period through a prism that was not applied at the time.

42. I am satisfied from my review of the medical records that the following is relevant evidence:

I. The Deceased was admitted to Connolly Hospital on 8 August 2010 by ambulance under the care of a general medical consultant. At that time her home address in Ballinteer was given - although there are handwritten notes that she was then living with her sister and niece. The admission notes record a fall at home and note the Deceased was “confused” on examination and was unable to recall the fall and had a history of poor short-term memory. She was on medication for treatment of cognitive impairment. There are differing entries noting the Deceased over the period of her stay being both oriented and not oriented to place, person and time. Entries note that she was “reading newspapers” and that she was “pleasantly confused sometimes” but also that she was “very paranoid about care”.

II. The Deceased was admitted to Connolly Hospital for cardiology review on 4 November 2010 and again on 17 December 2010 when she had a pacemaker inserted as an elective procedure. The Deceased signed the consent form for her pacemaker procedure on 17 December 2010 which was witnessed by her treating doctor. At the time there was no apparent issue as to her cognitive ability to give a valid consent for this surgery. She is noted at that time as having a history of “mild Cognitive Impairment” and being “forgetful at times”. The notes record that the Deceased was upset on 18 December 2010 regarding the then recent death of her brother and that she was comforted by nursing staff.

III. The Deceased was admitted to Connolly Hospital on 6 October 2011 under the care of an orthopaedic consultant for treatment of a fractured wrist following a fall at home. While reattending for check-ups on this injury she also attended her cardiologist for a check-up. He wrote on 8 December 2011 that “Unfortunately, it is not possible to get a detailed history from herself because of her Dementia”. However, he confirmed that her cardiac check was reassuring and that he “did discuss the situation with her”. The orthopaedic notes make no reference to the Deceased’s mental condition.

43. The records also contain 2 Mini-Mental State Examination forms, but they appear somewhat in isolation on the chart and there is no other material commenting on them. The first test is dated 11 August 2010 and the Deceased scored 25/30, being able to write a sentence of her choosing (she wrote “It is a very humid Day”), register and recall 3 objects, spell a word backwards and follow simple commands. She struggled to repeat a particular sentence or to recall the date or the floor of the building she was in but knew where she was and the day and season. Overall, this score appears consistent with the mild cognitive impairment noted in her other records from that period. The second test dated 9 November 2011 indicates that the Deceased “Refused to finish” so it does not specify a score. It was suggested by counsel for Mr Bradley that this refusal to finish should be seen as an inability to finish, but I do not accept this conclusion in the absence of evidence to support it.

44. As at 20 May 2010 cardiology outpatient notes show that the Deceased was “unaware of which tablets she takes”. A letter from her GP's practice dated 1 July 2010 refers to the Deceased as suffering from “mild cognitive impairment”. Correspondence to the Deceased’s GP from the cardiology department dated 4 April 2011 states “As you know she has some Cognitive Impairment and is quite a poor historian." This is the letter that was copied to Mr Dillon in September 2011 by Dr Clodagh Maguire. The same sentence is repeated in a later letter from the same department dated 9 May 2011.

The legal principles applicable to testamentary capacity

45. Section 77 of the Succession Act 1965 requires that, to be valid, a will shall be made by a person who “is of sound disposing mind”. This phraseology was stated by Feeney J in Flannery v. Flannery and Hehir [2009] IEHC 317 (at p.13) as “a legislative adoption of the judicial term of art requiring that the testator should know and approve the contents of the will and, at the time of execution of the will, be of sound mind, memory and understanding.”

46. In In the matter of the estate of Brian Rhatigan, deceased [2011] 1 I.R. 639, Laffoy J. considered the principles relevant to proof of a will in solemn form. She followed the long established authority of Banks v. Goodfellow [1870] L.R. 5 Q.B. 549 and held that in deciding whether a deceased possessed sound disposing mind at the date of execution of a will, the following three questions required consideration and all elements of which must be satisfied in order for a person to have testamentary capacity:

(a) whether the deceased understood the nature of the act of making a will and its effect;

(b) whether the deceased understood the extent of the property of which he or she was disposing; and

(c) whether the deceased comprehended and appreciated the claims to which he or she ought to give effect. (This latter requirement has also been explained as being that the testator must be able to call to mind the persons who might be expected to benefit from his or her estate and decide whether or not to benefit them - per Feeney J in Flannery).

47. Ms Justice Laffoy in Rhatigan cited with approval (at p.645) the judgment of Hamilton P. in In Re Glynn deceased [1990] 2 I.R. 326 (at p. 330) where he said: “Normally the legal presumption is in favour of the will of a deceased and in favour of the capacity of a testator to dispose of his property and to rebut this presumption, the clearest and most satisfactory evidence is necessary.”

48. She also referred with approval (at p. 646) to the judgment of Briggs J. in In re Key, deceased [2010] 1 W.L.R. 2020 where he said (at p. 2040): “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 none the less”

49. This same test has been applied consistently by the courts including by Noonan J in Rippington v Cox [2015] IEHC 516 and by Meenan J in Buckley v Cooper [2019] IEHC 424.

50. As with every will duly attested and executed in accordance with the requirements of section 78 of the Succession Act (as the 2011 Will clearly was) there is a presumption of testamentary capacity.

51. Assessing the evidence against these legal requirements for testamentary capacity I find as follows.

52. The first requirement is that the testator must understand that she is executing a will and that this document will dispose of her estate on death. In the present case it is clear that the Deceased intended to discuss her legal affairs with her solicitor Mr Dillon, and she attended his office on two occasions in relation to her 2011 Will. The Deceased had made a previous will with the same firm in 2010. The court is satisfied from the affidavits that the Deceased understood she was executing a will and that it would direct how her estate would be administered on her death. The Deceased took the advice of Mr Dillon regarding an inter vivos transfer of her property and instead decided to include it in her will so that her niece would only become entitled to it following the Deceased’s death. The Deceased had a long-standing relationship with her niece Carmel and expressed the wish that Carmel would get the property.

53. The second of the three tests set out in Banks is that the testator must know the nature and extent of her estate. In the present case the evidence points to the Deceased understanding the nature and extent of her estate. She was able to identify her assets comprising her home in Ballinteer, her interest in her original homeplace in Cork and her bank account with AIB. There is no suggestion that any other assets exist. The attendance on the 2010 Will indicated that at that time the Deceased was aware of the balance in her bank account. I accept there is no similar evidence in relation to the 2011 Will, but neither is there any evidence of a significant deterioration in the Deceased’s mental condition between 2010 and 2011, noting, for example, that her medication for cognitive impairment remained at the same level throughout that period.

54. The final limb of the test for testamentary capacity is that the testator must be able to call to mind the persons who might be expected to benefit from her estate and decide whether or not to benefit them. In this case the Deceased’s 2011 Will references the intended beneficiaries by name and address. There is a significant overlap between the parties the Deceased wished to benefit in 2011 compared with her previous will in 2010. These changes rationally addressed the changes which had occurred since the date of the 2010 Will, being the death of her brother Daniel who was to receive a legacy under the 2010 Will. It is clear from the Deceased’s medical records that she was fully aware of Daniel’s death and indeed was upset by itindicating her appreciation of what had occurred and showing that she understood and reacted to that loss as any other person would.

55. I have considered that neither the 2010 Will nor the 2011 Will make any reference to the Deceased’s brother Cornelius. The attendance note for the 2010 Will references three siblings when the Deceased in fact at that time had four siblings. There is no evidence that Mr Dillon was advised by the Deceased regarding Cornelius and there may be a concern therefore that she was unable to recall him as a sibling. However, the Deceased clearly knew she had a one fifth interest in the original family home, indicating an equal split between five children in total, i.e. that she had four siblings. The Deceased also had a record of the birthdays of Cornelius’s children (as they themselves have averred to) and so was aware of that side of her family. There is no suggestion at any time that the Deceased did not know who Cornelius or his family were. I believe therefore that the more likely explanation based on the evidence is that the Deceased simply decided not to benefit Cornelius who had his own family to look after him.

Conclusion and Orders to be made

56. While concerns have been raised by some family members regarding the evidence of the Deceased’s testamentary capacity, in fact no evidence has been provided by them regarding this matter. Their challenge to the Deceased’s testamentary capacity is based entirely on noting from medical records that she had cognitive impairment or dementia and was being treated with medication for this condition. They place emphasis on the fact that it is not known when that treatment commenced but they failed to explain how that fact alone is relevant. Testamentary capacity must be considered as a snap shot at the relevant time.

57. Solicitors for Cornelius Bradley confirmed in February 2025 that they were unable to obtain his instructions due to illness. They confirmed that Marie and Mairead “have no details of the activities of the deceased in 2011”. This is the period that is relevant for the assessment of testamentary capacity. No evidence is given that they ever observed or became concerned with the Deceased’s level of cognitive impairment, based on their interactions with her. Instead, they point to certain sentences in detailed medical notes to demonstrate a lack of testamentary capacity. Even the references they rely on however do not in my view meet the standard required to create a real doubt about testamentary capacity. Even if such real doubt was raised, I am satisfied that the applicant has established the testamentary capacity of the Deceased on the balance of probabilities. The medical notes available to the court from 2010 and 2011 are largely prepared by cardiologists or orthopaedic personnel whose focus was on other aspects of the Deceased’s health and were generally not prepared by specialists in mental health.

58. While there were certainly concerns expressed by Cornelius Bradley and his family relating to the period from September 2015 onwards, these concerns related to the management of the Deceased’s affairs rather than to her testamentary capacity in June 2011. It is understandable that differences of opinion or a lack of communication between various family members about the care of a loved one often give rise to frustration and a lack of trust. However, this is a separate matter to the question of the Deceased’s testamentary capacity in 2011. The scheduling of the Deceased’s assets and liabilities (including any monies due in respect of the Deceased’s care during her lifetime) will be dealt with in the normal course as part of the administration of the Deceased’s estate.

59. Counsel for Mr Bradley also relied on what she says are the inadequate records and notes held by the solicitors who prepared the 2011 Will. Mr Dillon was criticised for not observing the golden rule referred to by Laffoy J in Rhatigan at p.646-647 where she states: “[24] By reference to the judgment of Briggs J. In re Key, decd. [2010] EWHC 408 (Ch), [2010] 1WLR, 2020, counsel for the defendant submitted that the Court should have regard to what was referred to as the golden rule in that case. In his judgment Briggs J. stated, at pp. 2022 and 2023: - ‘[7] 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...’ [25.] However Briggs J. went on to say at p. 2023: - ‘Compliance with the golden rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance 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 their scope.’ [26.] 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.”

60. Mr Dillon is an experienced solicitor and has averred (at para 11 of his supplemental affidavit dated 20 May 2025) that “..it is clear from my contemporaneous note and my own recollection of my dealings with Ms Bradley that on the occasions I met with her she was capable of giving clear instructions to me in relation to her wishes”. The Deceased attended his offices with a view to transferring property to her niece Carmel. The evidence confirms that Mr Dillon met the Deceased alone, explained the risks associated with such a transfer and that the Deceased took on board this advice and gave him alternative instructions namely that she wished to leave her house to Carmel in her will. This position was consistent with the wish expressed by the Deceased in her previous will made on 25 March 2010 and indeed at that time the Deceased was also cautioned against an inter vivos transfer.

61. It would of course have been preferable had a medical report on testamentary capacity been obtained in 2011. This case illustrates well the difficulties in trying to create that evidence after the fact when some records and the treating doctors are no longer available and where the available records must be reviewed in a different context to that in which they were created.

62. It would also have been preferable for more detailed notes to have been available to indicate the full extent of the engagement between the Deceased and Mr Dillon in June 2011. However testamentary capacity is a question of fact having regard to all the evidence irrespective of whether the golden rule or best practice was followed in a particular case. I accept the evidence which Mr Dillon has given regarding his assessment of the Deceased’s testamentary capacity.

63. I view the assessment letter from the Deceased’s GP dated 1 July 2010 confirming a diagnosis of “mild cognitive impairment” as particularly important given the ongoing relationship patients generally and the Deceased in this case had with her GP over a period of years. I do not believe there is evidence of any material disimprovement in the Deceased’s cognitive status between July 2010 and June 2011.

64. It is important that the rights of persons with cognitive impairment be respected and that they are permitted to conduct their own affairs insofar as that is possible. Having dementia, particularly at a level described as mild cognitive impairment, is not of itself inconsistent with testamentary capacity. Each case will turn on its own specific facts and the evidence available to the court as to the level of understanding which the testator had at the relevant time.

65. In the circumstances as I find them here of a duly executed will that is rational on its face and in light of all the available evidence outlined in this judgment, this court finds that despite her underlying cognitive impairment, the Deceased had testamentary capacity in June 2011 and that she made the 2011 Will in the knowledge that it would deal with her estate on death as she wished it to.

66. I therefore make an order in terms of paragraph 1 of the notice of motion dated 27 July 2023 pronouncing for the force and validity of the 2011 Will and admitting same to probate in common form of law. I also make an order granting liberty to Carmel Lynch, as residuary legatee, to extract a grant of probate of the 2011 Will.

67. I will list this matter for mention on Tuesday 8 July at 10.15am for the purposes of making final orders including in relation to costs.