High Court admits will to probate despite dementia diagnosis, finding testamentary capacity satisfied.

THE HIGH COURT

PROBATE

[2025] IEHC 750

PO 2024/9634

IN THE MATTER OF THE ESTATE OF TERESA McGOLDRICK, LATE OF 4

HIGHFIELD ROAD, SLIGO, COUNTY SLIGO, DECEASED

AND IN THE MATTER OF THE SUCCESSION ACT, 1965,

AND IN THE MATTER OF AN APPLICATION BY MARY DURCAN-MULLANE

Judgment of Ms. Justice Siobhán Stack delivered 19th December, 2025.

Introduction

1. Teresa McGoldrick late of 4 Highfield Road, Sligo, County Sligo, (“the Deceased”), died on 11 May, 2022, having executed her last will and testament on 29 April, 2015, (“the 2015 Will”) and died subsequently without having altered or revoked it. In that will, she left her house, which was her principal asset to her niece, Mary (the applicant) and the residue to her sister, Madge, who is the applicant’s mother. The applicant is a niece of the Deceased, and she applies to have the 2015 Will admitted to probate. The central issue for determination is whether the Deceased had testamentary capacity on the date of the making of the 2015 Will.

2. It is a notable feature of this case that the Deceased had made eleven previous wills, between 2006 and 2014. These vary considerably in their terms and it will be necessary to refer to some of those in more detail later in this judgment. If the Deceased did not have capacity to make the 2015 Will, it will be necessary to decide in a future application which of her earlier wills should be admitted to probate.

3. The Deceased died a widow, without parent or issue, leaving her surviving: her sister, Madge, a brother, Christopher (who has since died), and at least 24 nieces and nephews.

4. The matter came on previously for hearing in the Probate List and, it appearing from a letter from the Deceased’s GP in which he declined to provide an affidavit confirming testamentary capacity that the Deceased had suffered cognitive difficulties from Easter, 2014, I directed that the applicant would put on notice all beneficiaries named in the Deceased’s wills of 14 May, 2014 and 1 September, 2014, being the two wills executed by her immediately prior to the execution of the will in question in this application.

5. In response to that, some of the issue of the deceased’s late sister, Bridie, have instructed solicitors and counsel to express their concerns about the deceased’s capacity to make the will. However, they are not contesting the will of 29 April, 2015 and, in essence, simply feel the matter should be left to the court to decide.

6. I should add that, even if none of the family members had taken this course, this matter would have had to be referred to court in any event, as it was noted on the Deceased’s death certificate that she was suffering from vascular dementia at the time of her death. Where dementia is recorded as a cause of death on a death certificate, the Probate Officer will request an affidavit of a medical practitioner to the effect that the Deceased was, on the date of execution of the will, of sound mind, memory and understanding. Therefore, while the family members who have participated in the application have supplied further information, it is not their intervention which has necessitated the bringing of this application.

7. In any event, in this case, as the general practitioner has not felt able to swear the required affidavit due to the cognitive decline which was noted from Easter, 2014, onwards, it now falls to the court to decide whether the Deceased had capacity to make her will on 29 April, 2015.

Previous Wills

8. As already indicated, the Deceased made eleven wills prior to the 2015 Will which it is now sought to admit to probate. None of these wills is identical to any other will, but some broad themes emerge over time and I think it is convenient to group the wills which are in similar terms. In doing so, I will only refer by name to those who have taken part in the application.

Wills executed prior to the death of the Deceased’s husband

9. The Deceased was married to Tommy McGoldrick, who died on 21 September, 2007. Prior to his death, the Deceased made a will on 23 May, 2006, leaving everything to her husband and appointing him as sole executor. She revoked that will just three days later, on 26 May, 2006, and left her dwelling house and premises to her husband for his life and after his death directed that her executor (her sister, Mary) sell the house and divide the proceeds between her sister, Madge, her husband’s niece, Dorothy, her brother John, and a small number of her nieces and nephews. She made a number of charitable bequests and left the residue to her husband. In the event of her husband predeceasing her, the beneficiaries of the proceeds of the sale of the house became her residuary legatees.

- Wills dated 5 December, 2007, 12 November, 2008, 3 June, 2009, 18 November, 2009, and 2 March, 2011

10. As one would expect, the tenor of the Deceased’s wills changed quite substantially after the death of her husband. It is not necessary to recite the contents of these wills in full. However, generally speaking, in these wills, the deceased nominated either her niece, Collette, or her sister, Madge, as executrices. This is relevant because testators generally choose people they trust to act as executor.

11. These wills directed that the Deceased’s house would be sold and the proceeds used to pay various pecuniary legacies in amounts which generally measured in the tens of thousands. The beneficiaries of these legacies are those of the Deceased’s siblings who were still alive, a selection of her nieces and nephews, some charities and one or two relations of her husband.

- Wills dated 14 May, 2014 and 1 September, 2014

12. In the will made 14 May, 2014, for the first time, the Deceased’s nephew, Damian, is nominated as joint executor along with the Deceased’s solicitor . The familiar list of fluctuating bequests to the Deceased’s various family members appears, though Collette is no longer named as a beneficiary. This is consistent with Collette’s affidavit to which I refer further below. The applicant is bequeathed the sum of €20,000, while her mother, Madge, receives €30,000. The bequests in total add up to €240,000, and the residue is to pass to Damian. However, the likely value of the residue at the time of execution of the will is unclear. The Deceased’s house was worth €350,000, approximately eight years later, and was likely worth considerably less in May, 2014. I think the probabilities are that the residue, at the time that will was executed, would not have been particularly valuable.

13. In the will made 1 September, 2014, the Deceased’s nephew, Paul and her solicitor, are nominated as joint executors, again with a direction to sell the Deceased’s dwelling house. A series of bequests amounting to €210,000 are left (including the sum of €30,000 each to the applicant and her mother) and the residuary legatees are named as the applicant, her mother, Madge, and her sister, Siobhán. However, it is again unclear as to how valuable that residue would have been at the time the will was executed.

14. This will therefore represents something of a shift towards the applicant’s family. This is perhaps explained by the fact that the Deceased suffered a fall in 2013 and from 2014 onwards, had the benefit of “home help” every morning but relied on her sister, Madge, to call to her in the afternoons and provide her with her main meal. The applicant called at weekends and, where possible, after work in the evenings.

- Wills dated 16 October, 2014 and 12 November, 2014.

15. In the will of 16 October, 2014, Madge Durcan and the Deceased’s solicitor are nominated as joint executors and Madge is the universal beneficiary. The gift over in the event of Madge predeceasing the Deceased was to the applicant for her sole use and benefit.

16. In the will dated 12 November, 2014, Madge is appointed as sole executrix and the applicant is the substituted executrix in the event that Madge predeceased the applicant. This will again nominates Madge as the universal beneficiary with a gift over in favour of the applicant.

17. These wills represent a significant departure from the earlier wills as, for the first time, the Deceased nominates only Madge and the applicant as her beneficiaries, as opposed to her earlier approach of directing the sale of her house for the purpose of dividing the proceeds between a significant number of her extended family.

18. There is nothing irrational about this, as the Deceased was requiring more assistance with her daily life and it is natural that she would favour those who were most involved in her life, especially as she had been in hospital in September, 2014, and may have had to call on them more. The applicant’s solicitor has exhibited the attendances for these wills and these show that the Deceased contacted him herself from time to time for the purposes of changing her will and there is no reference to Madge or the applicant having anything to do with the making of the will. By all accounts, the Deceased was an independent-minded and forthright lady. Having said that, it is clear from such medical evidence as is available that she was already having problems with her short-term memory. Furthermore, the notes from her GP demonstrate that she was aware of this and was embarrassed about it. In fact, it seems that she tried to hide that from others.

The test for testamentary capacity.

19. The test for establishing testamentary capacity is that set out in Banks v. Goodfellow

(1870) 5 L.R. Q.B. 549, 565, as follows: “It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall extend 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….”

20. In Flannery v. Flannery [2009] IEHC 317, Feeney J. confirmed (at p. 14) that that remained the law in this jurisdiction and stated: “That statement has been broken down into a three part test, namely firstly, that the testator must understand that he is executing a will, secondly, that he must know the nature and extent of his estate, and thirdly, that he must be able to call to mind persons who might be expected to benefit from his estate and decide whether or not to benefit such persons.”

21. Incapacity can arise in various ways – psychosis, intellectual disability, dementia and cognitive decline associated with old age, and the impact of physical illness on capacity are all mentioned in Banks v. Goodfellows - and Cockburn C.J. rejected the idea that any particular type of lack of capacity would mean that a testator was generally lacking in capacity or could automatically be said not to have testamentary capacity.

22. The case itself concerned the capacity of a testator who had previously been of unsound mind and had in fact been admitted to an asylum. Even after his discharge, he continued to have certain fixed delusions. In particular, he thought that he was being pursued and molested by a man who in fact had died some years earlier. Critically for the outcome of the case, this man was not a family member of the testator nor was he a friend, companion, or employee whom it would be thought that the testator would ever benefit. As a result, Cockburn C.J. was satisfied that delusions did not affect the testator’s choice as to who to benefit and upheld the will, which is relevant to the third aspect of the test.

23. It is that aspect of the test which has given rise to difficulties in this case, but I will consider each aspect in turn.

Application of Banks v. Goodfellow to this case: Being aware of the nature of the transaction and calling to mind assets

24. As regards the first aspect of the test, I think it is clear from the solicitor’s attendances of 22, 27 and 29 June, 2015, that the Deceased knew she was making her will. This is sufficient to satisfy the first aspect of the test.

25. The second question that a court must be satisfied of in finding that a testator had capacity to make a will is whether she could call to mind her assets.

26. Perfection is not required in this score. In Buckley v. Cooper [2019] IEHC 424 this Court (Meenan J.) did not think was significant that a testator did not know the precise acreage of his farm. The evidence was that, while the testator was uncertain on that point, he gave instructions in response to advice on the tax implications of the will.

27. It follows that, if a testator did not know precisely what they had in a bank account the day they gave instructions, or if he overlooked a bank account with a very small balance, then that would not tend to show that a testator was lacking in capacity. On the other hand, if a significant shareholding or bank account was overlooked that might be different. Another circumstance which can arise is where a testator deliberately seeks to keep some of his or her assets out of the estate and therefore does not mention them to the solicitor drawing the will. This occurred in Scally v. Rhatigan [2010] IEHC 475, [2011] 1 I.R. 639 where the will was upheld. On the facts of that case, if anything, the efforts of the testator to ensure that certain offshore assets did not go into his estate was evidence of impropriety rather than incapacity, and in fact supported the finding that he was capable of making a will as he was demonstrating that he was in a position to consider what assets he had and indeed who should benefit from them after his death.

28. During the consultations with her solicitor on 22 and 27 April, 2015, the Deceased resisted the insertion of any residuary clause in the 2015 Will, stating that she would have no money left after her funeral and testamentary expenses were paid. It is not on affidavit, but counsel for the applicant informed the court that his instructions were that the Deceased might have had about €60,000 in cash assets at the time she executed the will. This seems significant in comparison to the likely value of her house at the time. However, I accept counsel’s submission that the Deceased did not inaccurately state that she had no cash, rather that there would not be anything left when she died save for what was required for funeral and testamentary expenses.

29. In the events that have occurred, it seems – though I do not have clear evidence on this

– this is not entirely accurate. However, it is not so inaccurate as to suggest that the applicant did not know what she was disposing of her in her will. It is of the nature of a residue that its value is uncertain, and the applicant was correct in regarding her house as her principal asset. Indeed, many of her wills from her husband’s death onwards showed that she envisaged that her house would have to be sold to pay the various pecuniary legacies to a large number of family members. Her house was her principal asset and she correctly anticipated that her cash assets would be exhausted or almost exhausted before she died. An 81 year old woman might well envisage that future care costs, together with funeral and testamentary expenses, would significantly deplete the sum of €60,000.

30. I am therefore of the view that the first and second limbs of the Banks v. Goodfellow test are satisfied.

31. It is the third aspect of the test which has given rise to the greatest difficulty and I now turn to consider the evidence on that point.

Calling to mind and choosing between those likely to benefit

32. There are three broad categories of evidence in this case. First, there is the evidence of the solicitor who drew the will and his attendances with the Deceased in connection with the drawing of the will. Secondly, there is medical evidence in the form of medical notes and an ex post facto written view of a consultant, based on those notes. However, there is no assessment of capacity contemporaneous with the making of the will. The absence of such an assessment has made the task of assessing the evidence quite difficult, for reasons I will expand on further below. Thirdly, there is the evidence of family members and those who knew the Deceased as to her conduct around the time of the making of the will.

33. By definition, the evidence of the solicitor drawing the will would be more focused on the precise date upon which the will the subject of the application was executed, whereas the medical and family evidence spans a larger timescale either side of the relevant date. Nevertheless, the medical and family evidence is relevant in obtaining an overall picture of the Deceased’s medical condition, how it is manifesting, and to what extent any particular medical condition or indeed medication might affect the Deceased’s capacity.

34. In this case, it is accepted that the presumption of capacity has been rebutted. Had this concession not been made, I would in any event have found that it was rebutted on the facts. The modern Irish authority is Re Glynn (deceased) [1990] 2 I.R. 326, where Hamilton P. stated (at p. 330): “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. However, in cases such as this when a person suffers a stroke which may affect his capacity, the onus shifts and lies on the party propounding the will.”

35. That was a relatively clear case as the stroke suffered by the deceased had quite obviously limited his capacity and, in particular, his capacity to communicate. The presumption was addressed again by Laffoy J. in Scally v. Rhatigan, where she cited with apparent approval the persuasive authority of In re Key decd., but ultimately found that the court must make an overall finding on the balance of probabilities as to whether the Deceased had capacity as of the date of execution of the will.

36. In this case, I would – had it been necessary – have found that the presumption was rebutted because the evidence is that, from at least March, 2015, the Deceased was suffering from anxiety, paranoia, delusions, and progressive vascular dementia (albeit that the latter diagnosis was not made until a later time). Indeed, the process of cognitive decline had commenced in Easter, 2014. While evidence of mild dementia is not sufficient, in my view, to rebut the presumption, in this case the Deceased had been admitted to hospital the month before she made her will, suffering from significant confusion. From March, 2015, she had also come under the care of the psychiatric team, first in the hospital and subsequently in the community.

37. It seems that as of mid-March, 2015, the Deceased would not have had testamentary capacity. Given that the will was made only a matter of weeks after that loss of capacity and there is no medical evidence specific to April, 2015, which deals with the matter one way or another, there is therefore an issue of fact as to whether the Deceased had recovered or not by

22 April, 2015, when she first rang the solicitor to instruct him to draw up a new will.

38. In those circumstances, the onus is on the applicant to show that the Deceased’s condition was sufficiently improved as of late April, 2015, that she could be said to have had testamentary capacity.

39. For that purpose, it is necessary to consider the three strands of evidence. I will start with the medical evidence.

Medical evidence

40. The Deceased lived alone without a carer until 2017. However, in December, 2012, she lost her brother to whom she was close and this triggered an abnormal grief reaction with consequent anxiety and depression. Although living alone, she had contact in particular with her two sisters and at least some of her nieces.

41. The Deceased had a fall in 2013 after which Madge organised morning home help for her. Madge also visited in the afternoons and the applicant says that she called at the weekends and, where possible, in the evenings after work.

42. In March, 2015, the Deceased was admitted to Sligo Regional Hospital for two days. Her primary diagnosis was, inter alia, memory loss. The deceased’s MMSE score was 22/30, which indicates mild cognitive deficiency, but the doctor discharging the Deceased stated: “I feel this may fluctuate.” The Deceased was referred to Old Age Psychiatry in the community. The doctor records that the Deceased’s family described her behaviour as paranoid, and that she had changed the locks in her house a number of times and had called the gardaí on occasions.

43. A letter dated 20 March, 2015 from a social worker who had reviewed the Deceased at home on 16 March, 2015, and found her to be “confused and disorientated”. On review at home on 19 March, 2015 by a member of the mental health services team, her working memory was noted to be poor and there was deterioration in function. The medical notes record that the Deceased had been non-compliant with her medication for a time up to end of March, 2015, but became compliant – it would appear with the help of the applicant and her mother – from late March, 2015 and certainly no later than 7 April, 2015.

44. A Registrar in the Mental Health Services for Older Persons expressed the opinion on

30 March, 2015, that the Deceased was orientated well in place and person, but not in time. Her short-term memory was poor and she had limited insight into her memory problems. On that date, her MMSE score was 24/30 and her MOCA score was 15/30. This MMSE score also indicates mild cognitive decline.

45. Interestingly, this doctor expressed the view that while the Deceased’s thought form seemed normal, it was difficult to assess in view of the limited insight of the Deceased into her memory problems. It appears that the collateral history given at this time by the applicant and Geraldine, another of the Deceased’s nieces, was that she was suffering from delusions about family members and neighbours, accusing them of stealing from her and so on. The Deceased, however, had little insight into her memory problems or, it would seem, her other problems. The report of the Registrar of 30 March, 2015 is the medical record closest in time prior to execution of the 2015 Will.

46. Shortly after the execution of the 2015 Will on 3 June, 2015, a locum consultant psychiatrist visited the Deceased at home and stated that: “[h]er mood was euthymic and there was no indication of any paranoid thinking.” The question is whether the improvement which seems to have taken place by early June was sufficiently advanced by late April, 2015, that it can be said that the Deceased had recovered sufficiently to make her will.

47. The medical notes have been reviewed by Professor Geraldine McCarthy, a Consultant in the Psychiatry of Old Age. Her conclusion is as follows: “At the time [the Deceased] was purported to have written her will in April 2015, she was undergoing assessment for dementia and was subsequently diagnosed with Vascular Dementia. As her confusion was noted to fluctuate at that time, her capacity may well have fluctuated as well. Her short-term memory was noted to be poor on the 19.03.2015 and MOCA 15/30 indicating moderate impairment (in a pre-morbidly highly functioning woman). This had deteriorated further when assessed 10.02.2016 and was 12/30. Based on this evidence it is likely that there was an established dementia process with fluctuating and moderate cognitive impairment from March 2015. I would therefore question her capacity in April 2015.”

48. The essential reasoning of Professor McCarthy seems to be that, by April, 2015, the Deceased was suffering from vascular dementia, a progressive condition which appears to have first been identified as a result of a CT scan in 2014. Accordingly, she doubted whether the Deceased had capacity in April, 2015.

49. The medical notes were the subject of a detailed and very able submission by counsel for the applicant. In doing so, counsel emphasised a number of specific points.

50. The first related to the applicant’s MMSE score which was 22/30 on 12 March, 2015, but had recovered somewhat to 24/30 by 30 March, 2015, when it was reviewed in Liscarney Day Hospital. However, not that score is an indicator of mild cognitive decline. By November, 2015, when it is accepted that the Deceased had lost capacity, her MMSE score was not much lower, at 22/30. Furthermore, this slight improvement in MMSE score obviously did not persuade Professor McCarthy that the Deceased would have had capacity in late April, 2015. (By the time she was assessed as not having capacity in February, 2016, it had fallen to 19/30 and her MOCA score was 12/30.)

51. I do not therefore accept that the slight fluctuation upwards in the MMSE score in late March, 2015, is indicative of a recovery of capacity.

52. Secondly, it is said that the Deceased became compliant with her medication by 7 April, 2015, and was therefore compliant on 22 and 29 April, 2015, when she gave instructions for and executed her 2015 Will. That may be so, but there is no medical evidence to say for how long one has to be compliant with medication before the improvement will be such that one could say that capacity had been regained. Furthermore, as with the submissions on the MMSE score, Professor McCarthy would have been aware of this from her review of the notes and it is not something that has persuaded her that the Deceased had capacity at the relevant time.

53. There is a practice in the non-contentious probate list, where a contemporaneous assessment of capacity was not conducted at the time of execution of the will and where no doctor is satisfied on review of the notes, and where it is necessary to confirm capacity retrospectively, to simply exhibit the medical notes and then comment on them by way of submissions. The limitations of exhibiting medical notes and commenting on them in this fashion need to be acknowledged. The medical notes can show relatively clear datelines for fluctuations in medical conditions material to capacity, and it is therefore often useful for the court to have sight of them for the purposes of forming an overall view of whether capacity can be said to be in issue. However, the ability of the court to draw any more detailed inferences from them is necessarily limited when there is no expert medical opinion on what those inferences should be.

54. I therefore do not accept that it can be inferred from the medical notes that the cognitive difficulties suffered by the Deceased had resolved by 22 April, 2015 when instructions for the 2015 Will were given, or by 29 April, 2015 when it was executed. Any support for a finding of capacity on that day will have to result from the evidence of the solicitor who took the will, and the evidence of the family as to the Deceased's general capacity at that time, if it addresses the Deceased's mental health in April, 2015 and, specifically, whether she improved over the course of that month. I consider these matters further below. However, the evidence of the solicitor and the family must be read in light of Professor McCarthy's evidence that the Deceased had been suffering, from Easter, 2014, from a progressive condition which affected her capacity. It must also be read in light of the statements in the medical notes in March, 2015, that, while the Deceased did not present with obvious mental health difficulties in June, 2015, it was difficult to assess that given that she had limited insight into her memory problems.

55. Before passing on from the medical evidence, a particular feature of this case must be mentioned: both the affidavit evidence of family members and the medical records shows that, not only did the Deceased have memory problems from at least Easter 2014, but she was suffering from paranoia which led, for example, to her accusing family and neighbours from stealing things from the house. It is accepted that accusations made about a third-party cleaner, for example, were false. However, it appears that family members were not sufficiently concerned about these issues to refer the Deceased to the appropriate medical services until her overall memory difficulties became more acute. By March, 2015, however, medical intervention was required and the Deceased was referred to the relevant mental health services.

56. That was not something of which the Deceased’s solicitor appears to have been aware, for the good reason that no one told him and it is of the nature of such paranoia that the person suffering from it will have little or no insight into it. (Indeed, even in relation to her cognitive difficulties, it is something of a theme across the medical reports that the Deceased was embarrassed about her failing memory and went to some lengths to hide it.)

57. It is not clear to me that the Banks v. Goodfellow test could be meaningfully applied by a doctor on a retrospective basis, given that no conversation was had by any medical practitioner about the deceased’s assets and family members or close friends at the time the will was made. A retrospective review of the medical notes in this way, however, can be helpful in identifying medical conditions which are material to what is now, of necessity, a retrospective assessment by the court of the Deceased's testamentary capacity in late April, 2015.

58. I now turn to the evidence of the Deceased’s solicitor.

Solicitor’s attendances

59. The applicant relies on the authorities which tend to show that a detailed attendance drawn up by a solicitor taking instructions for a will are sufficient to demonstrate capacity, and cites, inter alia, Buckley v. Cooper [2019] IEHC 424, where a will was drawn up in hospital by a solicitor. The solicitor in that case had a detailed attendance which was preprinted to address specific issues in Banks v. Goodfellow. (It should be noted that there was also medical evidence to show that the medication taken by the testator at time of execution of the will would not have affected his capacity.)

60. It is therefore necessary to look at the attendances recording the giving of instructions for and the execution of the will, and to see whether I can be satisfied from those that the threefold test in Banks v. Goodfellow has been satisfied.

61. The Deceased’s solicitor has sworn an affidavit in which he says that at the meeting with the Deceased on 29th day of April, 2015, the Deceased was “coherent, rational and I was satisfied that the deceased knew the nature of the document she was signing and understood the ramifications of the new will and how it would affect her estate on her death. I say that on the [29th day of April, 2015], the deceased was able to bring to mind her next of kin…. [T]he deceased was aware of her assets and in particular how she wished to bequeath her house and contents to [the applicant] and to appoint her as executrix.”

62. It should be noted that capacity cannot be demonstrated merely on the opinion of the solicitor who drew the will. However, a solicitor can, through the provision of a contemporaneous attendance, supply the evidence upon which the court can satisfy itself that the legal test for testamentary capacity is satisfied. This is clear from Re Glynn [1991] 2 I.R.

326 Where McCarthy J. stated (at p. 341): “For my part, it is sufficient to say that there was ample evidence before the President that the testator fully appreciated what was going on and that the terms of the document upon which he placed his mark fully represented what he wanted done with regard to his property. Admittedly, the conclusion of the learned President is expressed as being that Fr. Donohue and Mr. Carter had the opportunity to and did satisfy themselves as to this circumstance. That was not the issue; their opinion or conclusion is immaterial.“ It is therefore usually necessary for a solicitor to exhibit an attendance taken at the time of the giving of instructions for the will and at the time of execution of the will which shows that the testator was able, as a matter of fact, to call to mind their assets and the persons whom they were likely to benefit, that they knew they were making a will, and which shows them choosing between the potential beneficiaries as to whether they should benefit and to what extent.

63. The Deceased’s solicitor exhibits the attendance and later says that:- “I had known the deceased for upwards of 25 years prior to the execution of her will [29 April, 2015] and was familiar with the deceased and her family circumstances.” He reiterates that he drafted all the earlier wills and then says that over the years he had come to know the Deceased and her family. He states:- “I was aware of the identity of the deceased’s next of kin and the general extent of the estate of the deceased from the many previous instructions I had received for the creation of wills over the years.”

64. Finally, he states:-

“I say and believe that on [29 April, 2015], the deceased was fully aware that she was making a will, she was aware of the extent of her estate and the identity of her next of kin and who would benefit from her will. I say that having acted for the deceased over the previous number of years, I was satisfied that the deceased was of sound disposing mind.”

65. The Deceased’s solicitor has exhibited his attendances relating to the taking of instructions, drafting, and execution of the 2015 Will, and these are dated 22 April, 2015, 27 April, 2015, and 29 April, 2015, the first two being typed attendances and the latter being a manuscript attendance endorsed on the typed attendance of 27 April, 2015.

66. In the first attendance dated 22 April, 2015, the Deceased’s solicitor indicates that he spent 45 minutes with the Deceased, that he read her previous will of 12 November, 2014, and she indicated that she wanted to leave her house and contents to the applicant and appoint her as the sole executrix. Her solicitor asked what she wanted to do about the residue of her estate, namely whatever monies would be there and she said there would be no monies there. Her solicitor then very prudently advised her that if there were in fact monies left over, they would be divided in accordance with the rules on intestacy and would go between her surviving siblings and the children of any predeceased siblings. He also explained the tax thresholds for gifts to the beneficiaries and the relevant tax rate.

67. His attendance dated 27 April, 2015. It states:-

“[The deceased] telephoned just before lunch today and I returned her call. I told her that I had a revised Will ready for her. I reminded her that what she wanted to do in her Will was to leave the house and its contents to her niece, appoint her niece as her Executrix, but that she didn’t want to make any further bequests, as she said there would be nothing left after her funeral and expenses for her Will. I reminded her of the advice I had given her on the last occasion, namely that if at the date of her death or other monies over and above to be distributed, these would be distributed to those of her siblings who survived her and the children of her siblings who had not survived her. I also reminded her again that she could only leave approximately €35,000-00 to a niece or nephew and after that the excess would be taxed at 33%. I wanted her to come the Office tomorrow, the 28th, at 2.00pm but she said she would prefer to leave it until Wednesday, so I have arranged for her to come to the Office at 2.00pm on Wednesday, the 29th.”

68. The attendance of the execution of the will on 29 April, 2015, is written in manuscript on the typed attendance of the telephone call on 27 April, 2015. A hand written attendance related to the execution of the will on 29 April, 2015, states as follows:

“Met with [the deceased], if there is any money left over she wants her sister Madge to have it. Her will was prepared on that basis. I read it over for her – she confirmed that it contained her wishes. She signed it in my presence and [name of the other witness].”

69. The attendances, I think, make it very clear that the Deceased was capable of expressing her testamentary wishes. As I have already said, she may have underestimated the value of her residue, but there was no doubting that she was aware that her principal asset was her house. This was what was concerning her most. However, having been given time to think about it, she took her solicitor's advice and nominated a residuary legatee. She also seems to have taken on board the relevance of the CGT thresholds, which are highly material to someone in the position of the Deceased, who was predeceased by her husband and was choosing from among her remaining siblings and nieces and nephew.

70. I am of the view, therefore, that the Deceased’s solicitors evidence supports a finding, that the Deceased was able to choose between her likely beneficiaries and to choose what they would get, even though she was already suffering from vascular dementia. On the face of it, therefore, the Banks v. Goodfellow test is satisfied.

71. The only issue then remaining is whether the evidence from family members should persuade me to take a different view. I now turn to consider that evidence.

Evidence of family members

72. As indicated at the outset, some family members have also sworn affidavits. One of the matters I have to consider is whether the Deceased’s family are able to give an account of the Deceased’s general conduct and health in or around the time of the execution of the will. The applicant swore the grounding affidavit in these proceedings and a large portion of it refers to the medical evidence, which is a matter I have to consider directly myself. In essence, these are submissions rather than admissible evidence. At para. 33 of her affidavit, the applicant states that the Deceased was “up to date on information regarding family members and did not display any confusion on the identity of extended family members.” In my view, this is material to the Deceased’s capacity to recall those whom she might benefit. The reference to the Deceased speaking of her time in America is not particularly helpful as the medical evidence demonstrates that it was the Deceased’s short term rather than long term memory which was relevant.

73. It seems that the Deceased managed her own pension, utility bills, and other financial affairs and household accounts, which is indicative of capacity. However, the applicant is forthright in saying that from mid-2014 onwards and to the middle of 2015 she observed that the Deceased could be forgetful and needed to be reminded to take medication and to go to her appointments.

74. Significantly, the applicant says that in or around April, 2015, the Deceased was in good physical health, was mobile and active, spoke of current affairs and matters relating to extended family affairs. She says that the Deceased’s recall of her family and her affairs was very good and it was not until May, 2017 that the Deceased required a carer. However, in 2016, there was a significant deterioration of physical and mental abilities and the Deceased expressed her reluctance to leave her home.

75. All of that general information supports a finding of capacity.

76. In this case, however, there is the additional issue of whether the Deceased’s choices were influenced by her irrational beliefs about others, including certain family members. The question then arises as to whether, even though her cognitive difficulties did not prevent her from recalling her assets and next of kin, or from deciding to make a will and then choosing who to benefit and to what extent, her paranoid beliefs have caused her to omit from her will persons which, had she not been suffering from paranoia, she might have benefitted.

77. From Collette’s affidavits, it appears that the Deceased became annoyed with her around St. Patrick’s day, 2014. It also appears that this seems to have been caused by the Deceased’s anxiety more than anything else. In May, 2014, the Deceased excluded Collette from her will. However, she had already considered doing so in March, 2011, but ultimately decided simply to reduce the bequest as she had already given her an inter vivos gift. Therefore, the Deceased was already considering removing Collette as a beneficiary, long before the dispute in 2014. In addition, and perhaps even more importantly, Collette says that she visited the Deceased in hospital in September, 2014, and that the Deceased was warm and friendly towards her. It therefore does not appear that the Deceased was harbouring any grudge towards Collette.

78. The issue of the Deceased’s mental health issues affecting her family relationships and who she might benefit in her will arises most acutely in relation to Damian. Damian was named as executor and residuary legatee in the Deceased's will of 14 May, 2014. However, when drawing up her next will of 1 September, 2014, the Deceased gave instructions to her solicitor that she did not want Damian to benefit and it seems that her reasons may well have been affected by her tendency to hold paranoid beliefs about certain individuals. This issue requires some consideration because it raises a concern about whether this aspect of the test can be satisfied.

79. Damian says on affidavit that he noticed a change in the behaviour of the Deceased from June, 2014, from which time she appeared anxious and confused, and showed signs of agitation, confusion and paranoia. In particular, the Deceased was paranoid about being broken into and had a CCTV system installed on the exterior of her home. He watched some of the footage back with the Deceased and it showed that nobody had entered the house, contrary to the Deceased’s beliefs. As recorded in the medical notes Damian spoke directly to Dr. Zakaria in June, 2014, about his concerns.

80. Damian also gives evidence about his contact with the local gardaí when he asked them to check up on the Deceased throughout July 2014, and to ensure her safety. However, much of it this evidence is hearsay and therefore unreliable.

81. At para. 23 of his affidavit, Damian states that the Deceased was angry with him in mid-September, 2014 for interfering in her affairs and, in particular, effecting some of her home improvements without her permission. He says that the Deceased had actually requested improvements and had paid for them and had been very happy with them. Damian says that the Deceased asserted that he was “colluding with others just to steal from her and take liberties at her home.”

82. It therefore seems from Damian’s affidavit that the Deceased may have suffered delusions which might have persuaded her not to benefit him in her will. These were expressed from September, 2014, onwards and no doubt explain why, when the Deceased made a fresh will on 1 September, 2014, she removed Damian as executor and instructs that he is not to get a legacy, as provided for in the previous will.

83. For several reasons, however, I do not think that this has affected the will that is in issue here.

84. The first is that the Deceased made 12 wills since 2006, and all of them up to that executed on 1 September, 2014, nominated a selection of family members. In particular, they selected from among the Deceased’s many nieces and nephews. However, even in the wills of

3 June, 2009, 18 November, 2009, and 2 March, 2011, Damian – like many other nieces and nephews – did not benefit. Although he had benefitted under earlier wills, the Deceased had excluded him from her will for approximately five years prior to making the will of 1 May, 2014, in which he was not only named as a beneficiary, but nominated as an executor.

85. Secondly, it appears from Collette’s affidavit that the Deceased had mental health issues even prior to March, 2014. There are no medical records from prior to that time, however, because the Deceased had up to March, 2014, been attending another GP who no longer has records relating to the Deceased. Indeed, Damian himself refers to such difficulties in 2013. The relevant mental health difficulties were present, therefore, even prior to the Will in which Damian was favoured, albeit that it seems that they became more obvious from 2014, and that it was only from March, 2015, that one could go so far as to question the Deceased’s capacity.

86. Thirdly, it was entirely rational that the Deceased’s wills would change as she became more frail. In 2013, the applicant needed additional help after she suffered a fall. From 2014, there was more significant involvement by the applicant and Madge in the Deceased’s life. Madge provided the daily meal – a very significant help for an older person – and the applicant (along with Geraldine, Damian’s sister) attended with the Deceased at medical appointments and sought to get her admitted to hospital in March, 2015, when the Deceased obviously needed medical help. Although there is no direct evidence on this point, it may well be that the Deceased’s hospital stay in September, 2014, persuaded her that Madge and the applicant should be her primary beneficiaries. This was a choice she was entitled to make.

87. Against that background, and recognising the importance of testamentary freedom and the necessity to respect the choices of a testator as to who is to benefit, it is my view that the Will of 29 April, 2015, was not influenced by any delusionary beliefs about any family members.

Conclusion

88. As a result, on the facts of this case, neither the doubts arising from the Deceased’s diagnosis with vascular dementia nor the collateral history of the family to the effect that the Deceased could have irrational beliefs about some family members undermines the probative value of the solicitor’s attendances which contain sufficient detail to allow the court to satisfy itself that the threefold test in Banks v. Goodfellow was satisfied in this case.

89. I will therefore make an Order admitting the Will of 29 April, 2015, to probate.