High Court dismisses appeal, affirming Circuit Court's condemnation of a will due to lack of testator capacity and knowledge.

THE HIGH COURT

ON CIRCUIT

[2026] IEHC 35

Record No. 2016/00464

BETWEEN/

GORDON HOGAN AND NORMAN HOGAN

PLAINTIFFS/RESPONDENTS

AND

MARGARET KIERSE AND REGINA NEVIN

DEFENDANTS/APPELLANTS

JUDGMENT of Ms. Justice Siobhán Stack delivered 21 January, 2026.

Introduction

1. Patrick Hogan, late of Bushy Park, Ennis, County Clare, (“the Deceased”) was born 26th May, 1930, and died on 27 April, 2012, shortly before his 82nd birthday. He was survived by his wife, Gisela, who died shortly afterwards on 6 June, 2012, (aged 79) and by his five adult children, Regina, Gordon, Angela, Peggy, and Norman. As is evident from the title to the proceedings, four of them are parties to these proceedings. Angela died in 2018.

2. The Deceased made his last Will and testament shortly before his death, on 4 April, 2012 (“the April Will”). In the April Will, he devised all his lands, houses, stock and entitlements to his daughter, Peggy, the first defendant herein, and appointed her and the second defendant, another of his daughters, as executrices. Rights or residence, support and maintenance were reserved in favour of the Deceased and Gisela and these, obviously, no longer have any effect. A right of residence for Norman in the old, derelict dwellinghouse situate on the Deceased’s agricultural lands, “subject to Peggy Kierse carrying out the necessary repairs to the property to render it habitable if required by the said Norman Hogan”.

3. It is the April Will which is challenged in these proceedings by the plaintiffs, who are the Deceased’s two sons. The matter comes before this Court by way of appeal from an Order of the Circuit Court (His Honour Judge Meghen) dated 10 April, 2018, in which the Will was condemned and the defendants were made personally liable for the plaintiffs’ costs. (The plaintiffs were represented in the Circuit Court but represented themselves in this appeal.)

4. While this was a de novo appeal, that is, the entire case was run again from the beginning, and I am therefore not aware of the precise reasons why the Circuit judge condemned the Will nor am I aware of precisely the evidence that he heard, I agree with the learned Circuit judge that the Will should be condemned and I propose to affirm his Order so far as it condemns the Will. I will, however, hear the parties further before I decide whether or not to affirm, set aside or vary his order for costs and before I decide how the costs of this appeal should be dealt with.

Factual background

5. The Deceased met Gisela, who was a German national, when working in Canada as a young man. They married in 1955 in Canada, and each of their five children was born there. She understood English very well but, despite living in Ireland for many years, she spoke only very limited English. (The family had made arrangements for her to have German channels in the TV in her room.)

6. These proceedings largely concern events which took place in March and April, 2012. At that time, Gisela had been in poor health for some time. She had been bedridden for the previous ten to twelve months after a series of strokes and from that time on needed

24 hour care as she could not feed herself or speak.

7. One of the unusual features of this case is that the Deceased made not one but two wills in the last weeks of his life. First, on 24 March, 2012, the Deceased executed a Will (“the March Will”) which revoked all earlier wills, and – very significantly - was executed on the same day as a voluntary Deed of Transfer by virtue of which all of the Deceased’s lands were transferred into Peggy’s sole name. Although the March Will and the Deed of Transfer in favour of Peggy are challenged in separate proceedings in this Court, the Deed of Transfer is relevant to these proceedings as it was the signing of the Deed of Transfer which provoked the execution of both wills in quick succession. The March Will was executed consequent on the execution of the Deed of Transfer. Indeed, instructions given prior to execution of the Deed of Transfer are relied upon by the defendant to uphold the April Will.

8. It will therefore be necessary to refer in some detail to the evidence concerning the instructions for and execution of the Deed of Transfer and the March Will, as well as the April Will with which this appeal is concerned. Three relevant consultations took place at the Deceased’s home: on 5 March, 2012, 24 March, 2012, and 4 April, 2012. It will be necessary to consider the evidence relating to each of these three consultations in detail.

9. The Deceased’s lands comprised the modern bungalow in which he lived with Gisela, and agricultural lands comprising approximately 120 acres. On part of those agricultural lands was an old farmhouse on the lands which had not been occupied for approximately ten years and was derelict. The Deed of Transfer in favour of Peggy was stamped on the basis that the residential portion of the lands transferred were worth €355,000 and the non-residential (that is, agricultural) portion was worth €776,650, amounting to a total value at that time of €1,131,650. Valuations obtained by the plaintiffs in 2018, around the time of the Circuit Court hearing, valued the lands (including the Deceased’s family home and the old farmhouse) at over €1.5m. The value of the dwellinghouse was approximately €330,000. I do not have a valuation for the lifestock. Presumably, the property the subject of the Deed of Transfer are worth considerably more now.

10. All of the Deceased’s livestock and farm entitlements were transferred to Peggy by virtue of forms signed by the Deceased on 4 April, 2012, at the same consultation during which he executed the Will the subject of this appeal.

11. As a consequence of the transactions in favour of Peggy, the only assets in the Deceased’s estate are prize bonds worth €25.40, and perhaps also a second hand car and a tractor. While it was anticipated during the consultations with the Deceased in March and April, 2012, that the Deceased would have approximately €100,000 in cash which would fall into the residue of his estate, these funds were held in joint accounts with Gisela, who

– contrary, it would appear, to everyone’s expectations,– survived the Deceased. She died intestate and the monies in the joint accounts therefore fall to be divided between the Deceased’s five adult children.

12. Unless the Deed of Transfer is set aside in the related proceedings, the only assets in the Deceased’s estate are the prize bonds held in the Deceased’s sole name and worth €25.40 (and perhaps a tractor and a second hand car). However, had this appeal been allowed, the validity of the Deed of Transfer would become moot as the April Will would in any event have resulted in Peggy becoming entitled to all of the Deceased’s assets of any value.

13. These proceedings and the related proceedings challenging the Deed of Transfer and the March Will have the potential to significantly affect the amount of assets falling into the Deceased estate. If the challenge in the related proceedings fails, then these proceedings will have no substantial effect on the ownership of the Deceased’s lands as they will pass to Peggy in any event under the Deed of Transfer.

14. However, if the Deed of Transfer is set aside and the March Will is upheld, then all of the Deceased’s assets will pass to Gisela under the terms of his March Will and will be distributed to her five children in equal shares. The March Will was a handwritten will prepared by Mr. David O’Meara, solicitor, immediately after execution of the Deed of Transfer. It left everything to Gisela, should she survive the deceased. In the event that she predeceased the Deceased or died in common calamity with him, it provided that everything would go to all of the Deceased’s children (including Peggy) as tenants in common in equal shares.

15. Mr. O’Meara’s evidence was that he erred in writing out the March Will and that the terms of the Will as discussed with the Deceased were that his assets would go to Gisela for her life and thereafter to their children as tenants in common. It appears he only realised this when doing up his attendance the following evening. The effect of this error on the validity of the March Will is a matter for determination in the related proceedings. However, the evidence of the error relating to the March Will is material to the determination of the issues in the within proceedings, as explained further below.

16. If the March Will is also condemned, then the Deceased’s estate will pass according to the terms of a Will made by him 4 March, 2008 (“the 2008 Will”), which is referred to in more detail below.

Challenge to the April Will

17. The plaintiffs’ challenge to the Will is made on a number of grounds: i. That the Deceased lacked testamentary capacity on 4 April, 2012; ii. That the Deceased did not know and approve the contents of the April Will; iii. That the April Will was executed as a result of the exercise by Peggy of undue influence on the Deceased ;

iv. That the Will was not executed in compliance with s. 78 of the Succession Act, 1965.

18. The last of these challenges can, I think, be easily disposed of. Insofar as it was alleged that the April Will was not in fact signed by the Deceased, I am completely satisfied from the evidence of the two witnesses to the Will, Mr. O’Meara and his associate solicitor, Ms. Fitzgerald, that that is not so and that the Will was signed by the Deceased in the presence of both of them and that they then attested by their signature in his presence as required by s. 78 of the 1965 Act.

19. The first plaintiff and his uncle, Michael, a brother of the Deceased, at various points in their evidence suggested that their father could never have signed either Will and seemed to suggest that he might have been tricked into it by thinking he was signing a form for farm payments or the like. This would, on the facts of this case, have involved Mr. O’Meara slipping a will under the Deceased’s hand on two occasions and then witnessing the Deceased’s signature in circumstances where it had been represented to the Deceased that the document was other than a will. So far as the April Will is concerned, it would also involve Ms. Fitzgerald going along with the deception. The execution of the March Will is only relevant insofar as it might affect the credibility of Mr. O’Meara’s evidence relating to the April Will. I am satisfied that no deception of this kind took place in relation to the March Will either.

20. I have significant doubts about how clear it was made to the Deceased on 4 April, 2012, that he was executing a will and consequently, whether he could be said to have understood the nature of the document he was signing. But I am quite certain that it was not represented to the Deceased that the document was something other than a will. The problem lies in lack of clarity and possible haste, and consequently whether the Deceased understood what he was being told. But I am quite certain that there was no positive misrepresentionto the Deceased as to the nature of the document he was signing.

21. I am also satisfied however, that the allegation does not destroy or completely undermine the credibility of either Gordon or Michael. They both seem to be of a somewhat hot-headed nature and are upset and outraged at the circumstances surrounding the execution of the Deed of Transfer, the March Will and the April Will. Their belief is that Peggy took advantage of her parents’ infirmity and vulnerability in the final weeks of their lives, and they are upset and emotional about this. In addition, I think it is likely that Gordon harbours a personal grievance as he and his family stood to benefit substantially (along with Peggy) under a will made by the Deceased in 2008. As a result, while I cannot accept everything that Gordon and Michael have said, there is certainly some of their evidence which is entirely reliable. In particular, Michael’s description of the Deceased’s confusion and lack of capacity was broadly in line with that given by his sister, Florence Chambers.

22. Before turning to the issues in the appeal, I think it is useful to set out some family background and the provisions of the earlier Wills executed by the Deceased.

Family background

23. There was an attempt on both sides to go back into the family history at some length. Not all of this evidence is material and it is in my view sufficient to note the following: the Deceased was a strong willed person who, when he was younger, sometimes drank too much and at least one point had to go into a rehabilitation centre to deal with his abuse of alcohol. Peggy helped out on the farm from a young age, though I am satisfied that she exaggerated the extent to which she did so. Although at times stating that she had worked on the farm “all her life”, in fact she worked for approximately 20 years as a Quality Assurance Inspector before she gave up her job in 2001. She is married with one son, born in 1979 and, in 1981, need to take up employment in order to pay her mortgage. She and her husband farm other lands in Killinaboy, about 12 miles from Bushy Park, but much of that land is rented, not owned.

24. I am also satisfied that Gordon worked on the lands when he was younger. He was estranged from his parents from about 2002 to 2009 and he is of the view that Peggy was at least part of the reason for the estrangement. However, the dispute between Peggy and Gordon as to who is the more deserving beneficiary is largely irrelevant in my view as the evidence is clear that the Deceased took the view from at least the time when he gave instructions for the 2008 Will – at which point he was still estranged from Gordon – that the agricultural lands should remain “in the Hogan name”, that is that they should go to his male descendants.

25. However, the Deceased’s other son, Norman, has lived a somewhat trouble life and it seems to be assumed by everyone that he would not be a suitable person to inherit the lands. As a result, the Deceased’s concern about the land remaining “in the Hogan name” meant that Gordon and his sons were chosen as beneficiaries by the Deceased. There is no satisfactory evidence as to why the Deceased suddenly abandoned what seems to have been a strongly held, traditional view as to the appropriate way to deal with his agricultural lands in his will. (Insofar as Peggy gave evidence that her father asked her at one point to change her name to Hogan, I don’t accept that evidence. For the reasons referred to further below, I am quite certain that Peggy is a wholly unreliable witness who gave deliberately untruthful evidence on issues of importance to the proceedings.)

26. In any event, Peggy was predominantly responsible for the care of the Deceased and Gisela during their final illnesses, but she got considerable assistance from Regina, who called upon Tuesday evenings after work and essentially took over the care of her parents at weekends so as to let Peggy return to her own family until Sunday evening. Both Peggy and Regina got respite from time to time from Angela, who returned from the United States for extended periods to give them a break.

27. I think it is fair to say, therefore, that while Peggy took the lead both in providing and coordinating the care of her parents, and dealt with all of their medical appointments

– which can be very time consuming – she did in fact get help from her sisters and was therefore the principal – but not the sole - carer. However, her role was important as the Deceased wished to be cared for and to die at home, and this could not be achieved without Peggy’s cooperation.

28. The Deceased’s sister, Florence Chambers – who was the most impressive and reliable witness of all who gave evidence in the appeal - praised her nieces for their care of her brother and sister-in-law. While Gordon tried to insinuate at times that Peggy was not in fact that caring of her parents or was doing it for ulterior motives and, in particular, for the purposes of inheritance, I do not think that he really took on board what a difficult task it can be to provide live-in care for elderly parents over several years can be, even with help, and I am satisfied that he too was anxious to inherit. Indeed, I think it is likely that his unproven allegation that his father had previously made a will in 2010, is motivated by a dissatisfaction with the terms of the 2008 Will.

29. As will become clear, Peggy was involved in each of the three consultations with which this judgment is concerned and Gordon had no involvement Insofar as the issues in these proceedings are concerned, therefore, it is Peggy’s actions and her credibility which attract greater scrutiny.

30. Relations between Gordon and the Deceased were poor for many years and they did not reconcile until the Deceased was very unwell with pneumonia in late 2009. During this illness, the other children decided to call Gordon as it was thought that the Deceased was dying. Apparently the Deceased was annoyed but it does seem that from at least this time onwards, relations between Gordon and the Deceased were better. Gordon attended his father’s 80th birthday in May, 2010, and he called every Saturday night. Relations between Gordon and Peggy appear to have been very poor for many years and neither of them is a reliable witness about the other. I think it is notable that Gordon called to his parents on Saturday nights, when Peggy was not there. Their poor relationship, however, is not particularly material to the case save that the mutual ill will between them would make it unsafe to find Peggy had exercised undue influence on the basis of Gordon’s evidence alone. There would have to be an objective, reliable basis for making such a finding. I return to this issue below.

31. In 2010, the Deceased had recovered somewhat from his illness and was able to drive. He walked the lands and, according to Peggy, was fit and well enough to climb a gate if needed. Gordon’s evidence was that he watched the All-Ireland hurling final with his father in 2010 and that his father followed the match and that they had a good day. However, it is clear that, even in 2010, the Deceased was very frail. A photo put in evidence of the Deceased with Gordon, Gordon Junior, and Gordon Junior’s young son, taken at his home on his 80th birthday, shows a frail and sickly man who looked much older than 80. Notwithstanding his extremely frail appearance in that photograph, the medical and oral evidence was that, the Deceased’s health declined further and very significantly in the remaining two years of his life.

32. From 2011, Peggy said her father was weaker. He would get up at night and walk past the room where she was sleeping. She would follow him down and to see if he was alright and he would think there were people in the house. She said he was “not with it” at night. Gordon said that his father was unable to follow the All-Ireland hurling final in 2011, which Gordon found upsetting. Gordon’s evidence that his father was in decline was corroborated by Ms. Chambers who gave clear evidence that from not later than the end of 2011, the Deceased was frequently very confused and that any conversation with him would be “fragmented” and that he might lose track of it after perhaps five minutes. She was of the strong view that he did not have testamentary capacity, and that he would not even have been able to make a phone call.

33. Before setting out the terms of that Will, I should say that Gordon alleged that his father made a will in 2010 with Mr. O’Meara and that Mr. O’Meara had suppressed it. He claims that he knew there was a will because his father told him about it.

34. The harsh reality is that testators often mislead family members about the making of wills and, in particular, about their contents. It is far easier to tell a close relative, such as an adult child, that they are going to benefit under a will than to reveal that they are getting no benefit or that they are not going to get as much as they would like. It can even be that, by virtue of such misrepresentations, the elderly and infirm get not only a reprieve from questions about their affairs, but they sometimes get a higher level of care.

35. As I have said, while the plaintiffs had legal representation in the Circuit Court for their successful challenge to the Will, they were unrepresented for the purposes of the appeal to this Court. As a result, the proceedings were conducted by the first plaintiff, Gordon. It was clear from some of the questions that he put to Peggy’s witnesses, that he had confused some of the documents and was somewhat too quick to allege improper conduct. For example, he put to Ms. Aisling Fitzgerald, who witnessed both the Will made on 4 April, 2012, and the 2008 Will, that she had witnessed the handwritten Will executed by the Deceased on 24 March, 2012. However, she did not and Gordon was simply confusing the March Will with the 2008 Will, even though the March Will was handwritten and the 2008 Will was typed. On the basis of his own confusion, he appeared to think that Ms. Fitzgerald was not being truthful in denying that she had met the Deceased on 24 March, 2012.

36. However, he was quite wrong in his suggestion that Ms. Fitzgerald had had any involvement in the execution of the Will made on 24 March, 2012, and in fact it was the case that Gordon was liable to mistakes and misunderstandings in the manner in which he put the case. I am satisfied that his recollection of his father telling him that he had made a will in 2010 is unreliable and that his animosity to Peggy is such that he subjectively believes she should not have got any farmlands under any will. It is possible that his view in this respect is influenced by traditional gender roles, but, fortunately, I do not have to decide this.

37. I therefore want to state in the clearest possible terms that I am entirely satisfied that there was no will made in Mr. O’Meara’s offices in 2010 and that Gordon’s belief is based either on an inaccurate recollection caused by the effect of high levels of emotion and distrust of his sister, Peggy, or that it results from misinformation given to Gordon by his father. In view of the other allegations made by Gordon on which I cannot rely, I think it is far more likely to be the former. I am quite certain that Mr. O’Meara has not suppressed a will and that this allegation is without any foundation whatsoever. Indeed, in the course of the appeal, at the request of the court, he furnished the handwritten notes relating to the three consultations. This included, so far as the consultation of 24 March, 2012 was concerned, a note which appears to have been directed to Ms. Fitzgerald and which is in my view highly significant to the issues in the proceedings. Had Mr. O’Meara been of a character to suppress documentation, he most likely would not have disclosed that note. There is no foundation to the allegation that Mr. O’Meara has suppressed a will made in 2010.

38. I therefore now turn to the 2008 Will as it is material to the factual background and also puts the significance of these and the related proceedings in context, as it is the terms of this will which will apply if the plaintiffs are successful in setting aside the Deed of Transfer and the March Will.

The 2008 Will

39. This will was made on 4 March, 2008, in Mr. O’Meara’s office and appointed Ms. Chambers, and her son, Dónal, as Executors. The Deceased’s brother, Michael, gave evidence that his sister was “the right person” to be an Executor because she was “very upright” and there would be “no messing”. Having heard Ms. Chambers’ evidence and observed her in the witness box, I can only agree. I found her to be a measured, truthful and impressive witness, not given to the bouts of hot-headedness to which other members of her family are subject and clearly a person of integrity. Although not herself a beneficiary under any will, Ms. Chambers would be a suitable person to act as executor and, moreover, she seems to have the respect of the wider family. Her son, Dónal, is a solicitor, and I assume that this was the reason that it was thought suitable that he act as executor.

40. The 2008 Will was witnessed by Caitríona Lanigan, a solicitor working in Mr. O’Meara’s office at the time, and by Ms. Fitzgerald. Ms. Fitzgerald did not draw the will and her only role was to come in to Ms. Lanigan’s office to witness its execution. I accept her evidence that she would, as a practising solicitor, routinely witness wills in this way and that she has no specific recollection of meeting the Deceased or of executing the 2008 Will. In fact, such an event would be so routine for a solicitor in a general practice that there would probably need to a be an unusual feature or some prior acquaintance with the client before a solicitor who attends for only a few minutes to witness a signature would have any specific recollection of it years later. Any suggestion by Gordon that Ms. Fitzgerald was being untruthful in saying she did not remember execution of the 2008 Will is misconceived and unfounded, in my view.

41. The 2008 Will made the following bequests: i. The old dwellinghouse and lands at Bushy Park, all the Deceased’s milking and suckler cows together with their calves and all cows in calf, the Deceased’s lands at Gortmore, his herd number and all the Deceased’s farming entitlements to Gordon’s son, Gordon Hogan, Junior;

ii. The new dwellinghouse and approximately an acre of ground at Bushy Park to Gisela for her life and thereafter to Peggy and her son, Darren, as joint tenants. iii. All dry stock that he might have under his herd number on the date of his death to Peggy; iv. His lands at Toonagh (comprising 35 acres or so) to Gordon and his son, Gordon Junior, as joint tenants; v. The sum of €100,000 to his daughter Angela; vi. The sum of €100,000 to his daughter Regina; vii. The sum of €20,000 to Norman and his then partner (giving their address as Bushy Park, which I assume was because they were in rented accommodation and might have been regarded for that reason as not having a permanent address) as tenants in common in equal shares; and viii. The residue to Gisela.

42. Ms. Chambers drove the Deceased to Mallow on the day he made the 2008 Will. She said her brother told her afterwards about the terms of the Will and, although she didn’t particularly want the job of being an executor, she thought the Will was fair because everyone got something, though she wondered if he really had sufficient cash assets to meet the legacies for Angela and Regina.

43. This will, therefore, achieved the Deceased’s intention of keeping his agricultural lands in the “Hogan name”, notwithstanding his continuing estrangement from Gordon at that time.

44. Gordon, of course, lived in Toonagh himself, so it appears that the Deceased thought it more appropriate to give Gordon an interest in his lands there, and it is probably for this reason that he left his Toonagh lands to Gordon and Gordon Junior as joint tenants. The likelihood is that Gordon will be outlived by his son, and therefore, the lands would not only stay in the “Hogan name”, but Gordon himself would not have full control over them. Or perhaps even if they had not been estranged, the Deceased – who by all accounts was by nature a strong-willed man – would have wanted to exercise control over the ownership of the lands for as long as possible, even after his death.

45. However, it is notable that the Deceased in his 2008 Will left all of his agricultural lands to his son and grandsons and that it contained substantial benefits for Gordon and his family, notwithstanding the estrangement. The estrangement therefore does not appear to have persuaded the Deceased that he should cut Gordon and his family out of his will, or that he should favour Peggy alone.

46. Of course, notwithstanding that the lands were left to Gordon and his son, the bequest to Peggy was very valuable and, based on the stamping of the Deed of Transfer in her favour, seems to have been worth almost as much as the lands at Bushy Park, Gortmore, and Toonagh put together. This estimate does not take into account the value of the livestock left to her, about which I have no evidence, but which obviously significantly increased the value of the overall bequest to her.

47. In any event, Ms. Chambers said that, in the car on the way back from making the Will in March, 2008, her brother was happy about the terms of his 2008 Will and he told her it was a “total relief” to him to have made his will. Ms. Chambers said that the Deceased was already frail by this time and in pain. She had to stop the car on a number of occasions so that the Deceased could walk for a while to relieve his stiffness.

48. I note from correspondence put in evidence at the hearing of the appeal that, in April 2010, the Deceased got confirmation from Ms. Lanigan that the dwellinghouse had been put in a separate Folio. This suggests that he remained of the view that his various holdings would be held separately after his death. It is not otherwise evident why putting the dwellinghouse in a separate Folio would have been of any concern to him.

Medical evidence

49. Dr. Tom Reynolds gave evidence at the appeal. He also provided an undated report for the benefit of the Court. Dr. Reynolds was at one time the Clinical Director of the Clare and North Tipperary Mental Health Services and a Consultant Psychiatrist with the Clare Mental Health Services for Older People. Dr. Reynolds became involved in the clinical care of the Deceased in January, 2010, when the Deceased’s case was discussed by a Senior House Officer in Psychiatry after his clinical assessment of the Deceased in the medical ward of Ennis General Hospital following a request for consultation advice from his treating consultant physician. His involvement continued after the Deceased’s discharge from hospital following referral by the Deceased’s General Practitioner, Dr. Aidan Feore. Dr. Reynolds reviewed the Deceased in his home on 1 March, 2010, and was of the view that the Deceased was suffering from depression but that there was no cognitive impairment and that the Deceased had been wrongly diagnosed with dementia while in hospital. Dr. Reynolds recommended to Dr. Feore that his anti-dementia medication be discontinued. This was the only occasion on which Dr. Reynolds met the Deceased. It is not in dispute that the Deceased was in significantly better health and that there were no concerns about his capacity at that time.

50. Dementia is diagnosed on evidence of progressive decline in cognitive abilities over a period of at least six months, whereas the Deceased had intermittent deficits in his cognitive abilities but no progressive decline. Dr. Reynolds has the superior relevant expertise in this area and I accept his opinion that the Deceased never suffered from dementia.

51. The Deceased was seen for the rest of 2010 by the community psychiatric nurse, who conducted a Mini Mental State Examination on 9 November, 2010. The Deceased scored 27/30 which was a normal score, indicating no cognitive deficiency, though the MMSE test is not definitive and had to be considered in light of a patient’s full medical history. (This is to be contrasted with his state while in Ennis General Hospital in early 2010, when his MMSE was 20/30, a score consistent with cognitive decline.)

52. Arrangements for follow up with the psychiatric nurse ceased from late 2010 because a nurse unexpectedly left the service and advised Peggy that if she was concerned about her father she could call. It seems Peggy did not call with any such concern until late 2011. On 28 November, 2011, a telephone call was received from Peggy, expressing concern that her father had not been seen for a year and requesting a follow-up. An appointment was made for 30 November, 2011, but the Deceased did not show up. Peggy rang instead. In that phone call, Peggy said her father slept all day, was off his food, and that her father was worried about decisions about the farm. She also said her father was on Oxycontin and felt that it gave him a lift.

53. The Deceased had also failed to attend all medical outpatient follow-up appointments made for him, other than the one arranged for 1 April, 2010. The last appointment was made for 10 March, 2011.

54. Dr. Reynolds’ main concern from speaking to Peggy and reading her letter was that the Deceased might be on too much medication, and, specifically, on too high a dose of Oxycontin. He wrote to Dr. Feore by letter dated 30 November, 2011, recommending that the Deceased’s Oxycontin habit would be addressed and that he should be weaned off it. Dr. Reynolds said that Oxycontin could have a tranquilising effect.

55. Files from Dr. Feore showed that the Deceased had recurring problems with his lungs and further recurrent chest infections, leading to further investigation by X-ray in November, 2011. He was ultimately diagnosed with lung cancer and referred to the relevant service in University Hospital Limerick in January, 2012. There were subsequent deliberations by consultants in medical and radiation oncology in March, 2012, at which point he was referred to palliative care. The various specialists involved in the diagnosis of and his treatment for cancer did not record any concern about the Deceased’s cognitive ability. For example, the Deceased and Peggy attended with a consultant radiation oncologist on 13 March, 2012, and she subsequently wrote to the consultant medical oncologist that the Deceased’s palliative care options were put to him and he was to consider them and decide. She did not indicate any concern about his capacity to make this

decision. However, a letter written by a Registrar on the same day indicated that, during a later consultation on 13 March, 2012, with a different aspect of the oncology services in UHL, the Deceased “appeared agitated and breathless” and that he declined to be examined.

56. A letter from Consultant in Palliative Medicine of 27 March, 2012, describing a consultation the same day, said the Deceased “looked gaunt with waxy skin”. It is clear from that letter that the Deceased was on a worryingly high dose of Oxycontin and was addicted. He was refusing medical advice to reduce this dose and was in fact seeking an increase.

57. On 30 March, 2012, the Consultant Radiation Oncologist records that it was Peggy who communicated her father’s decision not to proceed with any palliative radiotherapy. The decision had been left over on 13 March, 2012.

58. Dr. Reynolds’ opinion was that the Deceased did not suffer from dementia but had multiple physical health problems which were giving rise to episodes of acute confusion. These included infections, episodes of pneumonia, episodic problems with his blood pressure and arrhythmia of his heart, as well as prostate cancer and a duodenal ulcer. The blood pressure and heart problems would cause an increased risk of cerebrovascular disease. This was exacerbated by the Deceased’s likely addiction to Oxycontin. This was an opiate and could have a significant tranquilising effect.

59. He was also on nighttime sedatives and Quetiapine, an anti-psychotic, at a dose of 50mg two to three times a day which also had a sedative effect. In addition, the Deceased was on particularly potent benzodiazepines, which were also tranquilisers, and could lead to episodes of delirium particularly in older people and particularly at night. So the Deceased was on a number of different drugs which contributed to episodic delirium.

60. Delirium then, resulted in episodic confusion, which could last from minutes to days, or even weeks or months. It would mean that a person’s level of consciousness would be impaired and they could not attend to things. It could present as hypoactive delirium, in which a person would appear quite sedated, distant and unable to engage, whereas in hyperactive delirium a person could be agitated, troubled with other symptoms, including hallucinations or delusions.

61. To a lay person, it would generally be very apparent that a person could not engage and was withdrawn and sleepy, or the person could come across as agitated or distracted.

62. Dr. Reynolds said the notes showed an inexorable decline in the Deceased’s health over the last two years of his life.

63. On 17 April, 2012, Peggy sought to admit the Deceased to Milford Hospice, she says for respite. However, the Deceased refused to stay. Dr. Reynolds was of the view from the records that the Deceased was in an episode of delirium on that day. This appears to be corroborated by a letter from the Palliative Care Team who recorded the Deceased as being “agitated, paranoid, and aggressive.” It was recorded that he was confused as to where he was. It was also recorded that he was “verbally aggressive and physically threatening”. This appears to have escalated the assessment of the Deceased’s behaviour from the handwritten notes which say that he was “agitated and mildly aggressive”.

64. Dr. Reynolds was of the view that the Deceased’s correct clinical diagnosis was that he suffered from delirium, which was common in old age. In essence, this meant that he suffered from episodes of confusion which could last for days, weeks, or even months. These would be obvious to anyone interacting with the person. This was because, during such an episode, the person would have difficulty attending to and concentrating on matters and their speech might wander off point or appear irrelevant.

65. Dr. Reynolds concluded that, while the Deceased did not have dementia, it would be highly unlikely that the Deceased would have been in a position to engage with the process necessary to make a will or transfer land ownership during one of these episodes of acute confusion. The conclusion of his written report, in which Dr. Reynolds suggests that the Deceased had capacity, must be read in light of this evidence. Considering that

conclusion in light of his oral evidence, I think Dr. Reynolds’ view is best summarised by saying that, while there was no permanent or continuous impairment of the Deceased’s capacity, his capacity would be impaired while in an episode of delirium and that such an episode could last days, weeks, or months. In addition, his addiction to Oxycontin would produce a tranquilising effect.

66. The admission notes from Milford Hospice on 17 April, 2012, were put in evidence. These note that the Deceased presented with three essential complaints: intermittent pain (in his shoulder blade and his abdomen, with the latter being very severe), depression, which it was noted had lasted for years, that the Deceased was sleeping with the aid of sedation, and that he had lost three and a half stone in the previous nine months, and “confusion/disorientation”.

67. In relation to the latter, it is noted that the Deceased was confused and agitated and it appears to indicate that this occurred in the daytime as well as at night time. That the Deceased could be aggressive at times, and that he was up at night. Perhaps most interesting, it notes “x 5/52” which indicates that this state of confusion or disorientation had persisted for the previous five weeks. This would extend not only to the consultation of 4 April, 2012, but also that of 24 March, 2012. It is probably approximate, so it is not possible to say whether it had commenced as of 5 March, 2012, the date of the first consultation. This collateral history was given to the staff in Milford Hospice by Peggy.

68. Unfortunately, when he first gave evidence Dr. Reynolds did not deal with this entry in the medical notes. Given its potential relevance, the defendants were given the option of recalling Dr. Reynolds to comment. Ultimately, after procuring the record for Dr. Reynolds’ evidence, there was a brief hearing on 15 December, 2025, during which Dr. Reynolds and Peggy gave evidence on the significance of the Milford Hospice records.

69. During that hearing, Dr. Reynolds seemed to downplay somewhat the references to confusion in the admission records from Milford Hospice. For example, he said that, in the Symptoms/Concerns Summary, Mild delirium was indicated but that this was because there was no column to indicate no confusion. It is true that there was no specific box but in the neighbouring columns, on the same part of the page, the nurse or staff member completing the form had indicated N/A for other symptoms from which the Deceased did not suffer. This could have been done for confusion also. In addition, this page indicates that the Deceased was suffering from moderate cognitive impairment.

70. In the circumstances, Dr. Reynolds’ efforts to deemphasise the evidence of confusion undermines the weight of his evidence, as I think it is clear from the records that the Deceased was suffering from confusion on 17 April, 2012. It does not, however, render his evidence unreliable. Indeed, Dr. Reynolds’ evidence was of great assistance in distinguishing between dementia and delirium, and in explaining how a person suffering from a bout of delirium would present to others

71. Another point of relevance from the Milford hospice records is that, while the Deceased was not oriented in time or place, he recognized people. This is potentially relevant to an assessment of his condition on 4 April, 2012.

72. In addition, Dr. Reynolds had not himself seen the Deceased for two years prior to the events at issue in these and in the related proceedings. Ms. Chambers and Gordon said that there had been a significant change in the Deceased from late 2010, and I accept their evidence on this. Dr. Reynolds therefore did not observe the Deceased in the condition in which he was in from late 2010 onwards.

73. In the circumstances, I do not accept Dr. Reynolds’ opinion that the Deceased’s baseline state in March and April, 2012, was that he was not confused. I prefer the evidence of family members to the contrary effect and in particular that of Ms. Chambers that the Deceased could only hold a fragmented conversation for the whole of this period and that he might change from five minutes to the next. Her brother, Michael, gave evidence to similar effect, which I accept. Gordon also stated that his father was an avid reader of newspapers but had stopped reading them some months prior to March, 2012.

74. Secondly, Peggy informed Mr. O’Meara on 3 April, 2012, that the Deceased had declined. Peggy made that statement at a time when she was unaware that it would be mentioned in evidence in court and for the purposes of ensuring that Mr. O’Meara returned as a matter of urgency to ensure that the farm entitlements and herd number were transferred to her before her father died.

75. In fact, the one aspect of Peggy’s evidence which I did find credible was that she accepted at the reconvened hearing on 15 December, 2025, that her father had deteriorated in the five weeks prior to 17 April, 2012, and that she had told the medical staff in Milford Hospice of this when she sought to admit her father on that date. I am satisfied that she was well aware of the specific purpose for which the hearing was reconvened and had familiarised herself with the relevant reference in the admission record and realised that there was no point in being untruthful about it.

76. I am of the opinion that the medical evidence is to the effect that the Deceased suffered from delirium which could last for weeks or months at a time and I am also satisfied that he was not only in an extended period of delirium on 4 April, 2012, which had commenced some weeks previously and certainly included 24 March, 2012, but that he had deteriorated further in the days immediately prior to 4 April, 2012.

77. In the circumstances, I am satisfied that the presumption of capacity is rebutted in this case as the Deceased’s general condition in March, and April, 2012, was that he was confused and unable to hold a conversation or concentrate for more than a few minutes. I am also of the view, based on the evidence of Ms. Chambers, Michael and Gordon, that the Deceased had been like that from late 2011, and that the reference to confusion for the previous five weeks in the Milford Hospice admissions records is a reference to an increased level of confusion over that time.

Background to and arrangement of the first consultation

78. In late January or early February, 2012, the Deceased, who was already quite frail, was diagnosed with terminal lung cancer. He was advised by his doctors that he would not be able for the treatment and to get his affairs in order. The events giving rise to these proceedings began with a phone call to Mr. O’Meara’s office on 28 February, 2012, which ultimately led to Mr. O’Meara calling to the Deceased’s home at Bushy Park on three occasions: 5 March, 2012, 24 March, 2012, and 4 April, 2012. Indeed, the defendants rely on the consultation of 5 March, 2012, as the occasion on which the Deceased called to mind his assets and family members - two matters which are important to a consideration of testamentary capacity – for the purposes of proving the April Will. In any event, the April Will came about as a result of misgivings on Mr. O’Meara’s part as to whether the Deed of Transfer executed on 24 March, 2012, could be regarded as having been validly done. It is therefore necessary to consider the evidence relating to each of these consultations, both as to how and by whom they were arranged, and how they progressed.

79. From an attendance done up by Mr. O’Meara’s then secretary of a phone call on 28 February, 2012, it seems that the first consultation was brought about because the Deceased or someone ringing on his behalf rang Mr. O’Meara’s office on 28 February, 2012. The secretary’s attendance, which, although hearsay, is admissible by reason of s. 14 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, discloses that the Deceased’s concern on that date was to regularise the title to the site at the back of the bungalow. I am satisfied as a fact that the Deceased was concerned about this. Regina gave evidence, which I accept, that when the Deceased was talking at night, he was worried about the title to the site.

80. Ms. Chambers was very doubtful that the Deceased could have made this call. She said he was not able to make a phone call at the time. Mr. O’Meara’s receptionist did not give evidence but, given the way subsequent calls were logged as being from Peggy, I think it is most likely that the Deceased rang himself. I am satisfied from Regina’s evidence that the need to rectify the title was on his mind and that he was anxious to sort it out before he died.

81. It is convenient to say at this point that I do not believe that the Deceased had any concern about his affairs in general. He had made his will in 2008 and was happy with it. Peggy gave evidence that he wanted to put his affairs in order but I am satisfied that she is an entirely unreliable witness and that she said this purely to try to explain why the Deceased suddenly, and contrary to any testamentary wishes expressed by him in the previous decades, suddenly decided that she was to get all of his lands and livestock to the exclusion of any of her siblings, and in particular Gordon.

82. In any event, I am satisfied that the Deceased made the phone call on 28 February, 2012. This is the only point on which I do not accept Ms. Chambers’ evidence. I nevertheless am of the view that she gave all of her evidence truthfully and that this was her honest opinion, given that the Deceased was generally very frail and confused. A mobile phone number was given to Mr. O’Meara’s receptionist and it appears that this may have been the Deceased’s mobile, which he rarely used, but no one was sure about this. In the accompanying call log, the landline at Bushy Park was given. That log also confirms that the subject matter of the call was the site which had been troubling the Deceased.

83. It seems that a field or site which the Deceased appears to have purchased from neighbours, the O’Dea’s, was inadvertently excluded from the transfer to the Deceased and he wanted this rectified, though for some reason he wanted it in a different Folio. (Indeed, from Mr. O’Meara’s attendance of the first consultation on 5 March, 2012, it seems he wanted it in a different name.) In any event, it seems that the Deceased left his mobile number and said he would ring back in two days.

84. However, the only relevance of this call is that the Deceased’s stated reasons for ringing his solicitor did not concern the making of a Will or the signing over of all of his lands and livestock to his daughter. They concerned a discrete issue which was never in fact pursued or followed up in any meaningful way. The Deceased’s concern seems to have been overlooked beyond a brief discussion of it at the first consultation. By contrast, very substantial transactions in favour of Peggy which were not mentioned by the Deceased in this call were prioritised and brought to conclusion.

85. However, that was the only call made by the Deceased of which there was any evidence. All later calls were made between Peggy and Mr. O’Meara or his office. The next call was made two days later, on 1 March, 2012, and the receptionist’s call log records that Peggy rang, saying that her father was at an advanced stage of lung cancer and needed to get his affairs in order. She said he was enquiring if a site beside the house was on a separate Folio. Peggy left her own mobile number, saying that she would make sure he was ready to take the call. She also said that “Sometimes he is [a] little disorientated but otherwise he is fine.”

86. This is significant for a number of reasons. It shows that Peggy was taking charge of contact with Mr. O’Meara’s office. It shows that she had introduced wider issues about her father’s affairs, other than just regularising the title to the site as she refers to “getting his affairs in order”. It is important to note that she said this even though she knew her father had previously made a will because she said he has spontaneously volunteered this information to her some time before.

87. Indeed, Peggy was so concerned about her father’s affairs prior to this time that she wrote to Dr. Reynolds on 30 November, 2011, referring to the fact that her father’s will was “outdated”. She said in evidence that what she meant by this was that it was outdated to want to leave all agricultural lands to the male descendants. She might be right about that but, nevertheless, the Deceased seems to have held these old-fashioned view and they seem to have formed the basis of his testamentary intentions until at least 2008. Indeed, Peggy’s letter shows that she believed that they remained his intentions even in late 2011. A further significance of the letter of 30 November, 2011, was that it showed that Peggy was already directing her mind to her father’s will and how he could be prevailed upon to change it.

88. I am satisfied that, as Peggy was in the house with her parents for most of the week, she was aware that her father had taken steps to contact Mr. O’Meara for the purposes of rectifying the title to the site and she took this opportunity to ensure that she would succeed to the lands. I am less certain that she had any particular method of doing this in mind, that is, whether her father should make a will in her favour or whether he should sign over the lands to her, but I am satisfied from the call logs from 1 March, 2012, onwards that she quickly took control of contact with Mr. O’Meara with a view to ensuring that this was achieved. As she knew her father already had a will, there was no need for him to get his affairs in order, other than to rectify the title to the site. Her reference in the phone call to this supposed need to get his affairs in order was, in my view, evidence that she was seizing on a general comment by the doctors at the time of giving a terminal diagnosis as an excuse to get her father to revisit his will.

89. I should add that all agreed that the Deceased was not, by nature, someone who could be prevailed on to do something he did not want to do. The fact that she felt able to take control of arrangements to meet his solicitor and to sit in on large parts of the consultations between he Deceased and his solicitor is evidence, in my view, which tends to support the proposition that the Deceased generally lacked the capacity to manage his own affairs, the apparent phone call of 28 February, 2012, being very much an exception to the general position.

90. The receptionist note of the call on Thursday, 1 March, 2012, was to the effect that she told Peggy that Mr. O’Meara would ring back that evening at 5 p.m. There is no attendance of any such phone call and Mr. O’Meara said he didn’t remember if he rang Peggy back. However, I think it is probable that he rang back, either later that day as promised, or the following day, as an arrangement was made for Mr. O’Meara to call to the house on Monday, 5 March, 2012 and this was more than likely done either late on the previous Thursday or on Friday, 2 March, 2012. Furthermore, the arrangement can only have been made with either Peggy or the Deceased. I am satisfied from the fact that there is no evidence of any direct contact between the Deceased himself and Mr. O’Meara’s office after that initial call of 28 February, 2012, that Peggy thereafter undertook all contact with Mr. O’Meara’s office, commencing on Thursday, 1 March, 2012. All further calls of which there is a written record are made by Peggy and demonstrate that contact was directly between Peggy and Mr. O’Meara.

91. There is a further, very significant issue arising from the log of Peggy’s call on 1 March, 2012. In her evidence, she said that she knew nothing whatsoever about Mr. O’Meara calling to the house on 5 March, 2012, until her father asked her that morning to be sure and get fruit cake when she went to the shops as Mr. O’Meara was calling.

92. This was quite evidently a direct lie to the court. It is perfectly obvious that Peggy had already left a message for Mr. O’Meara the previous Thursday and had been told he would call her back. It was quite plain that Peggy decided to give dishonest evidence in order to hide from the Court her involvement with the transactions at issue in this and the related proceedings. I will refer elsewhere in the judgment to her false evidence as to why she did not get a certificate from her father’s doctor as requested by Mr. O’Meara. She also said that her father was talking about his will when he was talking at night from late 2011 onwards. However, Regina in her evidence said her father would mention the site at those times. I am satisfied that Peggy fabricated her evidence about her father having a concern about his will and that I should place no reliance on Peggy’s evidence on any of the matters in controversy in this appeal.

Consultation of 5 March 2012

93. Mr. O’Meara’s attendance shows that he commenced this consultation in the Deceased’s house in Bushy Park at 10.45 a.m. on Monday, 5 March, 2012. He says this consultation lasted about an hour or an hour and a half. The length of the consultations is important because Ms. Chambers was of the view that the Deceased would not be able to maintain a conversation for very long.

94. The first issue discussed at the consultation seems to have been the registration of the site at the back of the house, which needed to be checked out. There was also a discussion about stamp duty which was still owing on the transfer which had been dealt with by other solicitors in or about the year 2001. The stamp duty had been underpaid as it seems that the deed was executed in November, 2001, but the stamp duty was not paid until 2002, by which point the euro had been introduced. The amount payable by way of stamp duty had been calculated in pounds but this figure was ultimately paid in euro, but without recalculating the amount to reflect the euro amount, leaving a shortfall of €9,224.00 owing to Revenue. The Deceased thought this had been paid but Peggy was much clearer on the fact that there was still a shortfall, how much it was, and how it had arisen.

95. It is interesting to note that Mr. O’Meara’s memo on this point demonstrates that Peggy was present and that she had a better grasp than the Deceased of the stamp duty issue, as she recognised that there was money owing whereas the Deceased thought it had been paid. This is evidence that Peggy seems to have been acquainted with the details of the Deceased’s financial affairs. Indeed, the fact that she was fully conversant with the details of a transaction which had taken place 10 or 11 years earlier, demonstrates that she was paying some considerable attention to the Deceased’s affairs. Mr. O’Meara’s attendance suggests that she had a clear understanding the issue relating to the underpayment of stamp duty and did not need to check it and revert to Mr. O’Meara on another occasion. She stated in her evidence that she did not concern herself with her father’s affairs, but I am satisfied that that is not true.

96. It is not entirely clear how the stamp duty issue came to be raised as the most recent correspondence in evidence in relation to it was a letter from Ms. Lanigan to the Deceased of 23 April, 2010, in which she confirmed that the dwellinghouse at Bushy Park was now on a separate Folio from the lands, as he had requested, and asked him to contact the solicitor dealing with the purchase of 30 acres of land in order to pay the shortfall. It may have come up because the call logs from Mr. O’Meara’s receptionist show that another secretary had left the Deceased’s file in his pigeon hole for him and when the issue about the title to the site was discussed, this most recent letter also referred to the stamp duty issue. In any event, a handwritten note on this letter in Mr. O’Meara’s writing and dated 6 March, 2012, is to the effect that the Deceased thought this had been sorted out, indicating that it was discussed at the consultation.

97. Conversely, the Deceased was somewhat confused about the stamp duty issue and did not understand that there were monies outstanding. In the context of the Deceased’s significant medical issues, this confusion on his part as to whether or not the stamp duty was paid tends to show that the Deceased did not have capacity to manage his affairs and required Peggy’s assistance. It is not determinative in itself, as it would not be unusual for anyone to forget the detail of a transaction from so many years ago. However, it does tend to support at the very least a reliance on Peggy for assistance in managing his affairs and is consistent with a lack of capacity, particularly as it does not appear that the Deceased was by nature the type of person who would look to others for help with his affairs.

98. The memo then moves on to the Deceased’s affairs “in general” and sets out his various assets, including the various portions of lands. It is entirely unclear why the discussion moved from the issue of the rectification of the title to the site to the question of his affairs “in general”.

99. On the balance of probabilities, I am satisfied that the discussion moved from the issue of the site to the issue of the Deceased’s affairs “in general” because Peggy instigated that transition. She repeated in her evidence the alleged need for the Deceased to “get his affairs in order” even though, other than the issue about the site they were in order.

100. The evidence is to the effect that the Deceased had a concern about regularizing the title to the site near the house, but that Peggy had been concerned about the 2008 Will once she heard about it some weeks or months before she wrote to Dr. Reynolds on 30 November, 2011.

101. The manner in which instructions were given about the Deceased’s assets and family members and their circumstances is now a critical issue as it is relied upon as instructions for the April Will which is under consideration in this appeal. This is the only time when the Deceased’s assets and family members were called to mind.

102. Mr. O’Meara confirmed – albeit reluctantly - that Peggy gave some of the information as to the Deceased’s assets and also relating to the Deceased’s family members. However, I am in fact satisfied that Peggy probably gave the greater part of that information about assets and family members. She said that she was not present for much of this consultation and left her father to conduct business with Mr. O’Meara, though she accepted that she provided “clarification” about the Deceased’s assets. I am satisfied that she was present for a lengthy portion of this consultation, at the least, and that she took the lead in providing the necessary details.

103. I say this for a number of reasons. First, I am satisfied from Ms. Chambers’ evidence that the Deceased would not have been able to call to mind his various assets as his level of confusion was such that he was unlikely to have been able to list all of the various townlands and give the various acreages, or to identify his financial assets. Mr. O’Meara’s attendance is consistent with Ms. Chambers’ evidence that the Deceased would not be able to hold the thread of a conversation for very long. While he may have participated in the initial discussion about the rectification of the title to the site and the stamp duty issue referred to in correspondence dealing with that site, on Ms. Chambers’ evidence, he would not be able to continue concentrating. That suggests that, from quite early on in as the consultation, the Deceased would have been less competent to participate. In my view, the memorandum supports this as it started out with a reference to the rectification issue, then moved to the stamp duty issue (which the Deceased had misunderstood) and them moved to the Deceased’s affairs “in general”, a discussion in which I am satisfied Peggy was the principal participant.

104. As regards family members, the description in Mr. O’Meara’s typed memorandum of the consultation, insofar as it sets out the circumstances of the Deceased’s five children, are more likely to reflect Peggy’s input than the Deceased’s.

105. For example, the memorandum says that Norman was on social welfare and didn’t own his own house but that he didn’t want for anything. Mr. O’Meara was not sure who said this. On the balance of probabilities, I find that the Deceased did not say this. The only specific evidence of any intervention by the Deceased in the giving of instructions for the Deed of Transfer is that he said during the consultation of 24 March, 2012, that Peggy should do up the old farmhouse and furnish it for Norman. Peggy did not want to do this and said maybe the old farmhouse should not be transferred. I am satisfied that she did not want the farmhouse because it was not worth much anyway and she did not want the expense of doing it up for Norman. The evidence is, therefore, that the Deceased had a concern about Norman and I think it is very unlikely that he would say that he “didn’t want for anything”. He was in private rented accommodation and did not own his own home, which meant she was in markedly more poor circumstances than his siblings.

106. I am therefore satisfied that the reference to Norman not wanting anything is a misrepresentation made by Peggy as a justification for her efforts to ensure that the lands were transferred into her name to the exclusion of her siblings. The deaths of both her parents obviously being imminent, her concern was to ensure that she, rather than her siblings, would succeed to ownership of the lands.

107. Mr. O’Meara also said that it was the Deceased who said that Peggy had worked on the farm all of her life. This seems, however, to be an overstatement. It seems to have been said – and certainly seems to have been taken by Mr. O’Meara, as evident from a portion of his attendance quoted below – that Peggy had not worked elsewhere.

108. However, Peggy worked for approximately 20 years in outside employment as a Quality Assurance Supervisor, only giving up her job in 2001. Furthermore, she lived with her husband and her son, farming other lands, until at least 2009, when she claims that she moved in with her parents. (It should be noted that this latter point is disputed. The plaintiffs, as I understand their position, say that Peggy was in Bushy Park for most of the working week and took the lead in organising care of her parents. However, they do not accept that she moved in and it seems that she went home to her husband at weekends. Her staying in Bushy Park during the week was connected with care of her parents, in my view, and she had not permanently changed residence.)

109. The memorandum also relates that the Deceased had not seen Gordon for 20 years and this was also incorrect. It was accepted by Regina in evidence that Gordon called on Saturday nights, and he attended the Deceased’s 80th birthday party. It is evident from a photograph of the Deceased’s 80th birthday party, in which the Deceased is pictured with Gordon and Gordon Junior, that the Deceased and Gordon had reconciled by May, 2010. It is also clear from Regina’s evidence that Gordon called every weekend. Although these visits took place on a Saturday night when Peggy would have returned to her family and would not be there, she would have been aware of them as this must have been general knowledge within the family, at least mentioned from time to time and almost certainly discussed. The comment in Mr. O’Meara’s attendance is quite absolute in its terms and echoes Peggy’s statement in her letter to Dr. Reynolds that Gordon and his sons were strangers to her father. I am satisfied that Peggy gave this misinformation to Mr. O’Meara.

110. Although Mr. O’Meara surmised that Peggy would not have said these things because it was inaccurate, I do not think the premise for this surmise is correct. As already stated, I am quite satisfied that Peggy deliberately gave untruthful evidence to the court. I am therefore satisfied that she was quite capable of giving inaccurate instructions to Mr. O’Meara. On the balance of probabilities, I am satisfied that it was Peggy who gave this information to Mr. O’Meara in order to provide a justification for what she intended would be a transfer of the entire of the Deceased’s real assets into her name or perhaps a will to the same effect. I think it is probable that she was thinking along the lines of ensuring that the Deceased changed his 2008 Will.

111. However, if I am wrong in that, then the provision of inaccurate information by the Deceased about his relationship with Gordon and about Norman’s circumstances can only be evidence of the Deceased’s incapacity on the day. In addition, he could hardly have been unaware that Gordon was calling over every Saturday night. If he thought he had not seen his son in 20 years, this would strongly suggest that he was quite confused on the day and unable to make rational choices about who he should benefit in any will he might make.

112. I am satisfied that Peggy took the lead in setting out the family circumstances for Mr. O’Meara and that her description of those circumstances was such as to heavily influence Mr. O’Meara in all of his subsequent conduct and was also such as to convince Mr. O’Meara that the fairest course was to transfer all of the lands into her sole name. Regrettably, Mr. O’Meara from this consultation onwards seems to have regarded it as his business to ensure that all of the Deceased’s lands ended up in Peggy’s ownership. Indeed, some of his typed attendance of this consultation tends to show that Mr. O’Meara took up Peggy’s cause in hoping to have the lands transferred to her. It contains the following passage: “I emphasised to Patsy Hogan that he needs to be fair to everyone. Obviously Peggy has given up a lot. She is on a carers allowance but she apparently had worked on the farm all her life and this was acknowledged by Angela, and that she should be entitled to the farm. She also gave up a job to look after her parents on a full time basis and is their full time carer and apparently only gets home every second weekend to her own family.”

113. Mr. O’Meara acknowledged in his evidence that these were his own thoughts. I think the better view is that they were formed on the basis of information received from Peggy. On my reading of that portion of the consultation, Peggy told Mr. O’Meara that she had worked on the farm all of her life and also given up her job to look after her parents and that she should, therefore, get the entire farm. Mr. O’Meara seems to have agreed with this and for reasons best known to himself set about achieving it. The first line of the excerpt from the attendance shows that Mr. O’Meara was at the very least persuading the Deceased to sign over the farm to Peggy, and quite possibly pressing him to do so. Why he entered the fray in this way is best known to himself and despite giving evidence at length, he did not explain it. In my view, Mr. O’Meara continued to pursue Peggy’s interests for the remainder of his dealings with the Deceased, up to and including the execution of the April Will.

114. It is also important to note that the Deceased did not say during the consultation of

5 March, 2012, that he wanted to make a will. This is unsurprising as he had already made his will in Mr. O’Meara’s office in 2008. Indeed, since making the 2008 Will, he had instructed Ms. Lanigan to ensure that the dwellinghouse was on a separate Folio to the lands in Bushy Bark. This reflected his testamentary intentions that the dwellinghouse would go to Peggy and her son and that the lands would go to his grandson and remain “in the Hogan name”.

115. There is no clear reference in either the handwritten notes or the typed attendance relating to the consultation of 5 March, 2012. There is a reference to the 2008 Will because Mr. O’Meara records that to put all of the lands into the joint names of himself and Peggy would be significantly at variance with the 2008 Will. But even that reference does not proceed to include any explicit reference to the need to make a new will. Instead, Mr. O’Meara advises that the transfer into joint names with Peggy needs to be attended to urgently as it was at such variance from the terms of his will, the necessary implication being that the 2008 Will would remain in place and would take effect if the Transfer were not executed as a matter of urgency.

116. There is also a reference at the end of the typed memorandum about needing instructions in relation to “the will” but this seems to be a reference to the fact that the 2008 will would be made obsolete by the Deed of Transfer and that instructions on making a new will should be sought, as opposed to confirming instructions for a will the Deceased had already said he wished to make.

117. In any event, the discussion of the Deceased’s affairs “in general” seems to have moved quickly to a discussion of how the Deceased would transfer his assets into the joint names of himself and Peggy and there was some discussion of the two forms of coownership known to law, that is, a joint tenancy and a tenancy in common. (The former is most commonly used by married couples and means that the property transfers to the survivor automatically on death and does not pass into the estate of the first co-owner. The latter is often used where commercial lands are held by a number of co-owners or where property is purchased by siblings, and each person has a share which they can dispose of in their will.)

118. Mr. O’Meara said that the Deceased gave instructions to put the lands into joint names. It must of course be recalled that the lands were never in fact put into the joint names of the Peggy and the Deceased. In any event, I do not accept that evidence and I regret to say that I do not think Mr. O’Meara’s evidence is wholly reliable. Mr. O’Meara made a number of important statements in his evidence which, objectively, must be regarded as incorrect.

119. Among the most important of these is Mr. O’Meara’s evidence as to why, in drafting and procuring the execution of the Deed of Transfer into Peggy’s sole name, he did not insist on the Deceased being separately advised. There were two facets to this evidence.

120. The first was that Mr. O’Meara said that he was advising the Deceased and not Peggy. However, in his direct evidence he said that Peggy wasn’t his “client per se” and that the Deceased was his “principal client”, the reasonable inference being that while the Deceased was his nominal client, the was not the only client. While he attempted to insist later in his evidence that the Deceased was his sole client, in my view this was not an error under pressure in the witness box but an inadvertent acknowledgement that Mr. O’Meara was acting for both Peggy and the Deceased. My interpretation of this is corroborated by Mr. O’Meara asking Peggy at the second consultation if she wanted independent legal advice. This is consistent with her already receiving legal advice from Mr. O’Meara which meant that she was not being represented separately from her father.

121. In addition to that, the whole manner in which Mr. O’Meara proceeded – allowing Peggy to be present for the taking of instructions, taking instructions directly from her as to the Deceased’s assets and family, arranging consultations with her and even – as recorded in the typed attendance – going so far as to persuade the Deceased in the first consultation that he should favour Peggy as she had “given up a lot” - are all consistent with Mr. O’Meara acting not for the Deceased, but for Peggy. Or, to put it another way, notwithstanding that the Deceased was nominally his client, he in fact pursued Peggy’s interests almost exclusively. At best, the evidence can be interpreted as Mr. O’Meara purporting to act for both Peggy and the Deceased.

122. Finally, although Mr. O’Meara relied on the fact that the Deceased signed a cheque to pay Mr. O’Meara’s fees in connection with the Deed of Transfer as evidence that the Deceased was his client, I am afraid this does nothing to change my mind on this point. On the contrary, if Peggy was to receive a gift of the entire of the Deceased’s assets the fact that the fees were paid by the Deceased tends to show, in my view, that the Deceased was taken advantage of and not that he was issuing the instructions.

123. There was a further, somewhat disquieting aspect to his evidence. It has been clear since at least the Supreme Court judgment in Carroll v. Carroll [1999] IESC 11, [1999] 4 I.R. 241 that where an elderly parent transfers their entire – or indeed a very significant portion – of their assets to their adult child, the parent and child should have separate legal advice. This kind of transaction can attract a presumption of undue influence, which generally requires that the parties to the transaction would be independently advised.

124. Prior to the events the subject of this judgment, the Law Society issued a Practice Direction dated 4 February, 2011. This advised solicitors that a special duty of care was owed to vulnerable clients who were disposing of property and that the client should be represented by a firm other than that representing the purchaser.

125. Mr. O’Meara initially gave evidence that the Law Society’s Practice Directions permitted him to continue to act without insisting on independent legal advice. When this Practice Direction was drawn to his attention, he gave evidence that that it did not apply because the Deceased was not a vulnerable person.

126. In my view, this statement by Mr. O’Meara in his evidence cannot be accepted. It quite frankly flies in the face of all of not only all of the reliable evidence, but even the uncontested evidence. The uncontested evidence is that, by March, 2012, the Deceased was almost 82, had been physically and mentally frail for some time, and had received a terminal cancer diagnosis a short time previously. He was being cared for at home, principally by Peggy, and was therefore dependent on her for his care. He was spending increasing parts of the day in bed and was on oxygen. He was suffering from very long episodes of delirium and was addicted to Opiates, which had a tranquilizing effect on him. He was sleeping poorly. The evidence of Ms. Chambers was that her brother was cutting a rather pathetic figure at this stage.

127. I have no hesitation in refusing to accept Mr. O’Meara’s evidence that the Deceased was not a vulnerable person and in fact I think it is disquieting that Mr. O’Meara expressed that opinion. Given that it conflicts with the evidence of the Deceased’s state of health at the time, I am of the view that Mr. O’Meara expressed that view in order to seek to uphold the April Will and the preceding Deed of Transfer rather than on the basis of any objectively reasonable opinion on his part that the Deceased was not a vulnerable person. In fact, I have doubts as to whether Mr. O’Meara subjectively believed that when he said it.

128. I regret to say that, by reason of his evidence on this point, I cannot place any great weight on Mr. O’Meara’s evidence as to the state of health of the Deceased, his capacity on any of the relevant dates, or indeed as to what was explained to the Deceased and the extent to which the Deceased gave instructions or understood what was said to him on any of the three occasions which are relevant to this appeal. (So far as the Deceased’s instructions, capacity and understanding are concerned, I also base my conclusion that I cannot rely on Mr. O’Meara’s evidence as to these matters on the uncontested evidence of how Gisela came to sign a Family Home Protection Act consent on 24 March, 2012, which I deal with further below.)

129. In my view, Mr. O’Meara failed to follow the Law Society Practice Direction relating to property transactions involving vulnerable persons and his attempt in the witness box to insist that he acted only for the Deceased is contrary to the facts of what occurred and how Mr. O’Meara proceeded. Insofar as, at least nominally, the Deceased was his client, Mr. O’Meara did not act in his best interests or seek to ensure that he was protected.

130. In addition to having concerns about the reliability of Mr. O’Meara’s evidence, the documentary evidence suggests that the Deceased was happy with his 2008 Will and did not want to one person to succeed to all of it, whether that was by way of his last will or by way of a transfer to an individual donee or indeed the creation of a joint tenancy which would result in all of the lands passing to his survivor after his imminent death. I have already referred to the fact that the 2008 Will was drafted at a time when the Deceased was estranged from Gordon but Gordon was still named as a beneficiary. It showed an intention to divide up the Deceased’s lands and indeed his livestock, and there is no explanation as to why the Deceased would have changed his mind so completely about how he wanted to deal with his estate.

131. Perhaps even more tellingly, there is reference at the beginning of the typed attendance of 5 March, 2012, to the fact that the site “above the house” was to be not only in a separate Folio, but in a separate name. Mr. O’Meara said he did not identify who this was to be, which is perhaps surprising given that the Deceased obviously had a concern about the site and, as he was in imminent danger of death, his instructions on that should have been treated as urgent.

132. In any event, it is difficult to square the Deceased’s wish to ensure that this site was in the name of an individual other than the registered owner of the folio in which the dwellinghouse was comprised with a sudden decision to transfer everything he owned to one person. It is very unclear to me how the Deceased’s desire to sort out the title to the site at the back of the house moved to a discussion of the transfer of the Deceased’s lands to Peggy and whether it should be transferred to them as joint tenants or tenants in common and I am satisfied as a matter of probability that the Deceased did not instruct that he wished to transfer all of his lands into the joint names of himself and Peggy.

133. The memo records that the Deceased said he would reflect on matters and get back to Mr. O’Meara the following week. Mr. O’Meara gave evidence that the Deceased fully understood what was going on. For the reasons already given, I do not accept Mr. O’Meara’s evidence on this.

134. In any event, Mr. O’Meara seems to have left some kind of explanatory note as to the difference between a joint tenancy, where the lands would pass to the co-owner (Peggy) on the death of the Deceased, and a tenancy in common where a share would go to Peggy and the remaining share would remain in the ownership of Deceased and would ultimately go into his estate. Mr. O’Meara said he left this note with Peggy. Peggy denies this, saying the note was left but it was not left with her. I prefer Mr. O’Meara’s evidence on this point as Peggy, by her evidence in which she falsely claimed that she knew nothing about Mr. O’Meara’s first visit, when in fact she had arranged it, has shown that she gave her evidence in a manner calculated to downplay her own involvement as she was well aware that evidence of her involvement would be unhelpful to her position that the April Will should be upheld.

135. What is clear is that, even on Mr. O’Meara’s evidence, the Deceased had not made any final decision at this point as to what he wished to do as the note records that Mr.

O’Meara said: “All questions that you are asking will be answered next week.” Mr. O’Meara said that he was referring here to the Deceased. I am not sure about that, but I don’t find it necessary to decide as, in the events which transpired, the question of whether it should be a joint tenancy or a tenancy in common was never answered.

136. I find the suggestion of co-ownership somewhat strange as the Deceased was in palliative care and knew he was dying (and if he did not, then he most certainly was not capable of giving any instructions). It is difficult to understand the logic of putting his property in joint names, whether that was by means of a joint tenancy or – even less likely

– a tenancy in common.

137. The next question is how matters progressed to the point where, having left it with the Deceased (Mr. O’Meara says) to decide on whether it should be a joint tenancy or a tenancy in common, Mr. O’Meara turned up to the next consultation with a Deed of Transfer for the purpose of transferring all of the Deceased’s lands into Peggy’s sole name.

138. The handwritten notes of the consultation on 5 March, 2012, were produced at the hearing. They do not make any mention of putting the lands into Peggy’s sole name. However, in the typed version, which was dictated and done up a day or two later, there is a reference to the fact that: “if assets are to be transferred including the dwelling house full rights will need to be reserved for both in terms of residence, maintenance and support for their lives and the life of the survivor.” The inclusion of this in the memorandum prepared later suggests that, while it was not noted at the time, it occurred to Mr. O’Meara as he dictated his attendance a few days later that, if the dwellinghouse was to be transferred to Peggy along with the lands, and as Gisela was living in the dwellinghouse and was bed ridden, requiring 24 hour care, Gisela would need to be protected by reservation of the rights which he suggested.

139. However, the typed memorandum does not refer only to Gisela but suggests that the Deceased himself would require, for example, a right of residence. If the Deceased was to retain ownership of the lands as co-owner with Peggy, this would not be required. This suggests that, by the time Mr. O’Meara dictated the attendance, he already understood that the transfer might be into Peggy’s sole name. However, he had not, on 7 March, 2012, when he was dictating from his notes, received instructions on which option would be taken, though he understood that he would receive them the following week.

140. Although not mentioned in the handwritten notes as a possibility, Mr. O’Meara said in his evidence that an outright transfer was discussed as an option on 5 March, 2012. He also said that the Deceased said that he wanted to transfer his lands to Peggy. Peggy was there for most of the conversation, according to Mr. O’Meara.

141. On balance I am satisfied that an outright transfer was mentioned on 5 March, 2012, but only as one of a number of options. Mr. O’Meara said he left a note with Peggy so that the Deceased could further consider the options of a joint tenancy or tenancy in common, a clear indication that no decision to sign an outright transfer had been made.

142. Mr. O’Meara said, however, that the reservation of the various rights in favour of the Deceased, Gisela, and Norman was not discussed on 5 March, 2012, and the reference to them in the typed memorandum, which was not done up until two days later, corroborates this.

143. Another odd feature of the typed memorandum is that, in the section dealing with the five adult children, where Angela’s circumstances are set out, Mr. O’Meara notes:

“Angela was present in the house and I spoke with her and she was fully in agreement and support that the house and farm should go to Peggy.” This is not contained in the handwritten notes, which are less detailed than the typed memorandum. Angela was present on 5 March, 2012, in the kitchen area at the back of the main room, which had a living area to the front. It is entirely unclear why her opinion was sought in relation to her elderly parents’ affairs or why Mr. O’Meara consulted with her.

144. In any event, this portion of the typed memorandum is not consistent with the creation of a tenancy in common of all of the lands, as then half of the lands would pass under the Deceased’s 2008 Will. Other than that, while non-specific, it probably contemplates an outright transfer rather than the creation of a joint tenancy. I find it difficult to see why Angela would have thought her father, who was evidently in the last weeks of his life, would have been contemplated any form of co-ownership of the lands. She was far more likely to have understood that her father was going to make a will in favour of Peggy.

145. It is very unclear why Mr. O’Meara thought he should be consulting with Angela as to what the Deceased would do as it seems to be an obvious breach of his duty of confidentiality to his client. It is all very unsatisfactory.

Contact between the consultations of 5 March, 2012, and 24 March, 2012

146. Mr. O’Meara arrived to the consultation on Saturday, 24 March, 2012, with a draft Deed of Transfer with accompanying declaration of consent for the purposes of the Family Home Protection Act 1976, typed up and ready for execution by the Deceased, Peggy, and (so far as the Family Home Protection Act declaration was concerned) Gisela.

147. The effect of the Deed which had been prepared was to transfer all of the Deceased’s lands, including the new dwellinghouse, into Peggy’s sole name. It was subject to the reservation of rights of residence, support and maintenance in favour of the Deceased and Gisela, and to a right of residence for Norman in the old dwellinghouse, which was derelict at the time. It also provided that this right was “subject to the house being maintained and renovated to proper modern building standard to include contents by Peggy Kierse”.

148. Where there is an outright transfer of property to an adult child, particularly agricultural land which might have provided a living for an elderly parent or couple, the reservation of rights of residence, support and maintenance might be thought to be standard. Furthermore, on the facts of this case, these were not onerous rights given that both the Deceased and Gisela were very evidently at the end of their lives. However, there was no clear or reliable evidence as to how this right in favour of Norman came to be included in the Deed of Transfer, or who had decided what its specific terms would be.

149. Further, how Mr. O’Meara came to draft an outright transfer in the first place is very unclear, given that his evidence was that he had left it with the Deceased at the end of the consultation on 5 March, 2012, to choose between a joint tenancy and a tenancy in common. One would have thought that he might have brought draft Deeds to suit either purpose and then taken instructions, but he did not bring any draft Deed to transfer into the co-ownership of Peggy and the Deceased, whether by means of a joint tenancy or a tenancy in common.

150. Mr. O’Meara was entirely unable to explain when and from whom he had received instructions to draft a deed transferring all of the Deceased’s assets into Peggy’s sole name.

He did not give evidence that the Deceased had given any instructions to this effect. While Mr. O’Meara in his evidence referred in a very general way to the Deceased’s “wishes” on a number of occasions, in a context which showed he understood them to be that Peggy would take ownership of the entire of the Deceased’s assets, he never at any point gave specific evidence that the Deceased actually said that he wanted to transfer all his lands into Peggy’s name. Indeed, Mr. O’Meara seems to have assumed prior to the consultation of 24 March, 2012, that it would be an outright transfer, and drafted a deed for that purpose.

151. In the absence of clear or reliable evidence, it is difficult to say where the instructions to draft the deed in those terms came from. However, it does appear that there was a discussion of the right in favour of Norman on 24 March, 2012, in which the Deceased participated. Peggy did not want the right included, whereas the Deceased insisted on it. This discussion suggests to me that Peggy had not previously known of the right of residence in favour of Norman. This suggests she did not know of the terms on which the Deed was drafted until the draft was produced at this consultation.

152. As against that, I am quite certain from Mrs. Chambers’ evidence that the Deceased did not conduct any phone conversation in which he instructed that he wanted to transfer all of his lands to Peggy or that he wanted to provide for Norman. Ms. Chambers was doubtful that the Deceased could even have made the brief and much more straightforward call on 28 February, 2012. In light of the receptionist’s call log, I think it must be accepted that the Deceased made that particular call. However, Ms. Chambers was in general a wholly reliable witness and I do not think the Deceased had the capacity, in March, 2012, to ring Mr. O’Meara to give detailed instructions for the transfer of his lands and the precise rights to be reserved in favour of Norman. Nor did Mr. O’Meara suggest that he did.

153. I am satisfied that the idea of an outright transfer was either decided in a telephone conversation between Peggy and Mr. O’Meara between 5 March, 2012, and 24 March, 2012, or that Mr. O’Meara took it upon himself to recommend this course of his own volition. Mr. O’Meara’s attendance of the meeting on 5 March, 2012, demonstrates that he was urging the Deceased to benefit Peggy and that he was doing so on the basis of her account of working on the farm all her life and indeed giving up her job to look after the Deceased and his wife. From Peggy’s reaction to the rights in favour of Norman, I think the most likely explanation is that Mr. O’Meara realized that Norman was in particularly poor circumstances and came up with this right himself. I do not think the Deceased gave those instructions over the phone: I do not think he was capable of such a phone call and it should also be noted that he had not may significant provision for Norman in the 2008 Will.

154. The typed memorandum of the consultation on 5 March, 2012, shows that Mr. O’Meara was himself taking the initiative on behalf of Peggy, I think the more likely position is that Mr. O’Meara thought it would be as well to draft an outright transfer and that Peggy went along with this, but was not particularly happy when Mr. O’Meara included the right of residence in favour of Norman as it obliged her to renovate the derelict farmhouse, and to provide contents, which would be expensive.

155. By 24 March, 2012, the Deceased had deteriorated both physically and mentally. This emerges from various pieces of evidence.

156. First, the admission records for Milford Hospice dated 17 April, 2012, recorded that Peggy had told the staff on admission that the Deceased had been suffering from confusion for a period of five weeks. That period certainly included 24 March, 2012.

157. Secondly, the call logs show a long interregnum between the consultation on 5 March, 2012, and the next call to reception. That call took place on Tuesday, 20 March, 2012, when Peggy rang reception looking for Mr. O’Meara, saying that her father was “good today”. The inference I draw from the relatively long period of time which passed before Peggy rang in comparison with the speed with which the consultation of 5 March, 2012, was arranged, and from the reference to the Deceased being “good today”, was that Peggy was well aware that her father had now deteriorated to the extent that his capacity was seriously in doubt and that she was waiting for a day where he was better than normal

– or at least somewhat better – so that Mr. O’Meara could be called and the Deed of Transfer signed. The note records that Mr. O’Meara should call the Deceased back and the landline in Bushy Park was left with the receptionist. In my view, this was more than likely disingenuous on Peggy’s part. The Deceased was probably not capable of any meaningful telephone conversation by this point but she was aware that her father was nominally the client, even if she was giving the instructions. In any event, whe was likely to answer the landline as she was there during normal working hours during the week.

158. The only other record of contact between Mr. O’Meara and Peggy is a note of Mr. O’Meara’s receptionist calling Peggy on 21 March and asking if Mr. O’Meara could call on the following Saturday, 24 March, 2012. Peggy said this was fine. The receptionist gave Peggy Mr. O’Meara’s mobile number and noted not only the landline at Bushy Park but Peggy’s mobile number for Mr. O’Meara. On Friday, 23 March, 2012, Peggy left a message at reception asking Mr. O’Meara to call her back on her mobile. No attendances of any calls to or from Mr. O’Meara’s mobile phone were put in evidence.

159. There is no record of Mr. O’Meara ever calling the Deceased directly. There is no attendance of any such call in evidence and Mr. O’Meara did not give evidence of any such call.

160. Mr. O’Meara’s evidence on how the question of an outright transfer came to be suggested was quite unsatisfactory. He made repeated reference to the Deceased’s instructions that he did not want to split up the lands, and this is mentioned in his typed attendance of 24 March, 2012. However, while this would likely occur if the lands were transferred into the names of the Deceased and Peggy as tenants in common, it was unlikely to occur if the lands were transferred to them as joint tenants.

161. In any event, it is not clear where this concern about not splitting up the lands came from. This was quite a change from the 2008 Will, where the Deceased had decided to leave different portions of his lands to different people.

162. Mr. O’Meara said in his evidence that there could also be a problem with transfer to the Deceased and Peggy as joint tenants, as the lands could revert to the Deceased in the event of Peggy’s untimely death. This is not mentioned in any of his attendances.

163. However, there is simply no mention whatsoever in Mr. O’Meara’s contemporaneous notes of the meeting of 5 March, 2012 of instructions from the Deceased not to split up the lands or any suggestion of a problem with the lands reverting to the Deceased if something happened to Peggy. I have to say also that it is not entirely clear to me why this would be such a significant problem. If the Deceased wished to benefit Peggy, and if some tragic accident occurred so that Peggy in fact predeceased him, then it does not seem to be inconsistent with the supposed wishes of the Deceased –to benefit Peggy as a reward for her work on the farm.

164. I am satisfied that the suggestion of co-ownership was one made to the Deceased for his consideration and was left with him for consideration at the end of the consultation on 5 March, 2012. I am also satisfied that the Deceased’s delirium at this point was such that his baseline state was to be confused, though he may have had very brief periods in which he was lucid but considering technical issues about the different types of coownership would have been beyond his capacity. I am satisfied that the Deceased never in fact considered the two types of co-ownership and that Peggy proceeded to instruct Mr. O’Meara to draw up the Deed providing for an outright transfer. It is immaterial whether or not she did so in response to a suggestion from Mr. O’Meara that it would be a better way to proceed.

165. There is another factor suggesting that, by the time Mr. O’Meara arrived on 24 March, 2012, a final decision had been taken to proceed with the outright transfer, even though this had not been discussed with the Deceased. This was that the consultation was not arranged with the Deceased’s health or capacity in mind. It was Mr. O’Meara who asked to attend on the Deceased on a Saturday. This was because his son was playing rugby in Limerick that day and he, his wife and daughter were going to the match and he was, therefore, already travelling the greater part of the drive from Mallow to Ennis. Therefore, even though it was a Saturday, it would be convenient for Mr. O’Meara. In fact, it did not particularly suit Peggy because she normally went home for the weekend and usually Regina would have been there. However, she asked Regina not to call until later in the day, indicating that she was happy to give up her time with her own family, even though she had respite for the weekends, in order to make sure she was there when Mr. O’Meara called to arrange for the execution of the Deed of Transfer.

166. In my view, it is significant that the consultation was arranged to suit Mr. O’Meara. The call logs, sparse though they are, demonstrate that consultations had to be arranged around the Deceased’s health on a particular day. However, the delay in organising the second consultation suggests that the Deceased was obviously incapable of signing a deed. It seems that the urgency expressed on 5 March, 2012, would otherwise have ensured that Mr. O’Meara did not wait nearly three weeks to attend on the Deceased. Notwithstanding that fact, the consultation was arranged for a day which suited the solicitor and not the Deceased. This suggests that Mr. O’Meara regarded the signing of the documents on 24 March, 2012, as an exercise in attending to the formalities of instructions already received. He was not going to obtain further instructions but to attend to formal execution of the necessary documentation.

167. This is also suggested by the fact that Mr. O’Meara has no handwritten attendance of the consultation on 24 March, 2012. I infer that he did not take a note on the day because he did not regard himself as taking any fresh or additional instructions. This is possibly somewhat problematic from the point of view of the Will executed on that date, as Mr. O’Meara’s evidence was that the March Will was executed on his suggestion in order to deal with the joint accounts held with Gisela and unexpected windfalls, such as a Lotto win.

168. A further unsatisfactory element of the evidence is that Mr. O’Meara advised Peggy on 24 March, 2012, that a medical report to confirm the Deceased’s capacity would be required. However, when it did not materialise – because Peggy said the doctor “wasn’t there” – he felt he had to proceed because the Deceased’s time was limited. Peggy said that she did not get the certificate because the GP had said to her that Mr. O’Meara was a professional man and he would be in a position to assess capacity himself. This evidence from Peggy seems to me to be clearly untruthful: doctors are frequently asked to undertake capacity assessments and they do so. I do not think any doctor would have said that. I prefer Mr. O’Meara’s evidence that Peggy stonewalled him. Unfortunately, he proceeded anyway. The capacity issue in this appeal would be much easier to determine if the Deceased had undergone a capacity assessment with his GP at the time. Yet another unsatisfactory aspect of the evidence was that Mr. O’Meara, when this point was addressed in his evidence, said that Aisling Fitzgerald would deal with it. However, despite being led through her evidence by senior counsel, Ms. Fitzgerald, who I am satisfied gave her evidence honestly and appropriately and acted properly throughout all of the events discussed in this judgment, was never asked to deal with this matter.

Consultation on Saturday 24 March, 2012

169. Mr. O’Meara attended at Bushy Park for the second time on Saturday, 24 March, 2012. He was accompanied by his wife and daughter. His wife appears to have stayed in the car but his daughter, Sarah, accompanied him into the house. It seems that this was for the purpose of witnessing documents. Ms. O’Meara is now a practicing solicitor and gave evidence in the appeal. However, at the time, she was very young and a final year law student. She was present for the signing of documents but of course did not have any responsibility for any of the transactions which took place on the day.

170. One of the issues which arose from the drafting of the Deed of Transfer in favour of Peggy was that it included all of the Deceased’s lands and therefore included the family home in which he was residing with Gisela. As a result, Gisela had to consent to the transfer as required by s. 3 of the Family Home Protection Act 1976.

171. However, Mr. O’Meara gave no evidence of consulting with Gisela on 5 March, 2012, nor did he address the outright transfer of the dwellinghouse or the need to get Gisela’s consent to the transfer. His first contact with Gisela for the purposes of that consent was on 24 March, 2012. His evidence was that Peggy brought himself and his daughter down to the bedroom where Gisela was. Gisela was medicated at this stage. He said she nodded and smiled and knew who he was (though he also said that Peggy said who she was). Gisela tried to reach out to Mr. O’Meara but was unable to do so as she was very physically invalided. As I have already said, she was unable to speak due to multiple strokes. After introductions, Peggy left the room.

172. Mr. O’Meara said that he then explained in simple language what the Deed of Transfer was about and he said that he went through the Deed and explained it to her and that she and the Deceased would have a right to live in the property and be maintained for the rest of their lives. Mr. O’Meara said that, having explained the Deed, he asked Gisela if she understood and she nodded to indicate that she did. He says he also explained that he needed her to consent to the Deed of Transfer.

173. While it must be recalled that it was believed that Gisela was close to death and that she did in fact die approximately ten weeks later, this was still a significant Deed from Gisela’s point of view. While she did not own any of the lands, her power of veto under the Family Home Protection Act 1976, would cease once she consented to the Transfer. Her remedy should there be any breach of the rights of residence and support would, in effect, be to sue her daughter. I want to stress that the Ms. Chambers praised Peggy, Regina and Angela for the excellent care provided to their parents so there was no need for any suspicion that they would not be looked after once the Transfer was executed. However, it was a relevant consideration as a cause of action was a less powerful legal protection than the power of veto she already enjoyed.

174. In addition, the Deceased and Gisela were, by all accounts, happily married and Gisela could reasonably expect to benefit under the Deceased’s will. It will be recalled that under the 2008 Will, she was left a life estate in the family home. Furthermore, she would be entitled to a legal right share of one third of his entire estate under s. 111 of the Succession Act, 1965, regardless of the terms of his will. As part of those rights, she would have the right to appropriate the family home to her legal right share. The effect of consenting to the Transfer would be to confine Gisela’s rights to the rights reserved in the Deed of Transfer, which, as I have said, were much less valuable and powerful.

175. While the effect of the Deed of Transfer was explained to Gisela, she was not advised that it was not in her interests to give her consent, and in particular, it does not appear her succession rights should she survive her husband were not explained to her. It seems that Mr. O’Meara simply explained what the effect of the Deed would be. He did not give her any advice about her rights or how these would be affected by the Deed.

176. In any event, after the explanation of the effect of the Deed was given, Mr. O’Meara put the pen in Gisela’s hand to sign. She was unable to hold it and, Mr. O’Meara said, in effect unable even to make her mark. He then went out and got Peggy who came into the room, steadied the pen in her mother’s hand, covered her mother’s hand with hers, and then moved her mother’s hand over the page so as to write out her mother’s name.

177. Mr. O’Meara confirmed that the “G” was Gisela’s effort to sign and that the remainder of Gisela’s signature was in fact applied by Peggy’s action in moving the pen and her mother’s hand. The first plaintiff put in evidence documents signed by Gisela on her marriage and on the birth of Norman which show that she had a very distinctive “G”. The “G” that appears at the beginning of the purported signature on the Family Home Protection Act consent is a much more conventional “G”, but it is also little more than a squiggle. I accept Mr. O’Meara’s evidence that Gisela tried and failed to write the “G”.

178. I am not asked in these proceedings to determine the validity of the Deed of Transfer. However, this is very significant to my mind as to Peggy’s attitude to the entire sequence of events. It is consistent with an intention on her part to ensure that the Deed of Transfer by which she was to obtain a gift of the entire of the Deceased’s assets was executed and completed and that this would be done before her father died.

179. It is also highly material to Mr. O’Meara’s attitude to whether he should have any concerns about capacity. Gisela’s inability to communicate was such that he could not have been satisfied as to whether she understood what was being said to her or not. In my view, her situation was analogous to the situations which arose in both Leahy v. Corboy [1969] I.R. 148 and in Laaser v. Earls [2016] IECA 63 where the testators in question were so enfeebled that they were reduced to making a mark. In Laaser v. Earls, the Court of Appeal set aside the determination of this Court that the will should be admitted to probate and remitted the matter for rehearing on the basis that medical evidence would be required in order to establish capacity.

180. Mr. O’Meara’s approach to Gisela’s capacity to give her consent under the Family Home Protection Act is, in my view, relevant to an assessment of his evidence of the capacity of the Deceased to give instructions at the consultations on 5 and 24 March, 2012, and to execute the April Will. It appears that he took the approach that the absence of any objection was sufficient to demonstrate capacity, even in the case of a person who was not able to communicate and who had not previously been consulted. In my view, this demonstrates that Mr. O’Meara was wrongly equating lack of objection with capacity.

181. Finally, the circumstances in which Gisela’s consent to the Transfer was procured would be material to an assessment of Sarah O’Meara’s evidence as she did not have any clear recollection of Peggy being brought into the room to, in substance, sign on behalf of her mother. I would have thought this was unusual and therefore memorable. However, Ms. O’Meara said she did not recall it, though it is not disputed that she was in the room for the whole transaction. She said that she prepared for her evidence by reading her father’s attendance of the consultation and it is not mentioned in the attendance that Gisela had any difficulty in signing. I am satisfied that Ms. O’Meara did not have a clear recollection of the events of the day.

182. I mention this because, in closing submissions, the defendants relied on the evidence of all three solicitors: Mr. O’Meara, Ms. O’Meara and Ms. Fitzgerald. However, I do not think Ms. O’Meara’s evidence is very material as she was not present for the execution of the April Will and I do not understand it to be contended that the Deceased somehow gave instructions on 24 March, 2012, about his assets and those he might benefit. The only discussion of assets on this particular occasion was after the Deed of Transfer had been signed when it appears Mr. O’Meara brought up the topic of the 2008 Will which had, of course, been completely superseded by the Deed of Transfer. However, the purpose of seeking to uphold the April Will is on the basis that it might apply to the assets which it was purported to transfer to Peggy by this Deed. I do not see how the consultation of 24 March, 2012, avails the defendants in attempting to uphold the April Will. However, if I am wrong in that, as I say, I am satisfied that Ms. O’Meara did not in any event have any clear or specific recollection of the day and her evidence would not have been of assistance.

183. In any event, Mr. O’Meara said that he then went up to the Deceased and he explained the Deed of Transfer to him and that he and his wife had a right to reside and be supported out of the lands for the rest of their lives and that the Deceased was happy with that. The Deceased signed the Deed, as did Peggy Kierse. He was not clear in his direct evidence as to whether Peggy was there when he explained the effect of the Deed to the Deceased.

184. Somewhat bizarrely, Mr. O’Meara then asked Peggy if she wanted independent legal advice. In reply to a question from the court as to why he had advised Peggy, rather than the deceased, to get independent legal advice, he replied that she was not his “principal client”. I have to say that this is at variance with Mr. O’Meara’s actions throughout, which were at all times geared towards ensuring that Peggy’s interests were advanced.

185. Mr. O’Meara then wrote out the March Will for the Deceased. This question of a Will did not come up until after the Deed of Transfer was signed. It seems to have been raised by Mr. O’Meara on the basis that, even though it seemed that the Deceased’s cash assets were held jointly with his wife, it was sensible to do a will in case there was a bank account with a forgotten balance somewhere, or in case the Deceased received a windfall

– he used the usual example of a Lotto win – after the Deed was signed. The Deed would not capture any cash assets and the Will of 24 March, 2012, was designed to deal with those.

186. Mr. O’Meara had will paper with him, as apparently he always carries this with him. I accept that aspect of his evidence. He then wrote out a handwritten Will which the Deceased executed. The fact that the March Will had not been drafted in advance is consistent with there being no mention of a will on 5 March, 2012.

187. Mr. O’Meara’s evidence on this point did not at any point refer to the Deceased asking to make a will. It seems that it was Mr. O’Meara who suggested that the Deceased make a will. Any discussion of the assets which would likely fall into the estate now that the Deed of Transfer had been signed was confined to bank accounts. He said that he recommended that the Deceased make a simple will to deal with those. There was no discussion of the 2008 Will.

188. Senior counsel for the defendants, in his closing submissions, contended that a Deceased could call to mind their assets at an earlier time and that would suffice for the later execution of a will. That is not a particularly surprising proposition in itself, as most wills are drawn up after the taking of instructions for that purpose and the will is not executed until a later consultation. There is nothing untoward about that and, in fact, it is probably no harm, in the vast majority of cases, to let the Deceased review everything before the will is actually executed.

189. But that is not what happened here. In this case, by the time the March Will had been prepared, the Deceased had signed over the vast majority of his assets. It was also intended that he would transfer all of his livestock and farm entitlements to Peggy. It seems that, at this point, his remaining assets consisted of a sum of just under €100,000 held in joint accounts with Gisela, prize bonds worth €635 held jointly with Gisela, together with prize bonds in his own name worth €25.40. He also had a tractor and a car.

190. In fairness to senior counsel for the defendants, I do not think he sought to rely on the assets called to mind on 24 March, 2012, prior to the execution of the March Will. For the avoidance of doubt, however, this could not suffice for the purposes of the April Will which I understand is contended to apply to all of the lands purportedly transferred by the Deed of Transfer.

191. In fairness to the defendants, they actually rely on the setting out of the Deceased’s assets at the consultation on 5 March, 2012. The March Will was drawn up at Mr. O’Meara’s suggestion because it was now clear that the 2008 Will was obsolete. Mr. O’Meara advised the Deceased that he had better do a Will in case he had a windfall, i.e., on the basis that he had little or no assets, and the Deceased went along with that. Whether he knew what he was doing when he went along with it is a matter to be decided in the related proceedings.

192. To be clear, it would be entirely legitimate for Mr. O’Meara to suggest to the Deceased that he should now review his 2008 Will in light of the execution of the Deed of Transfer, for the Deceased to agree, and for them then to review his remaining assets and decide who should get what. The assumption seems to have been that Gisela would predecease the Deceased – perhaps not unusual in light of her very poor health – but there is no evidence whatsoever of any discussion by anyone of the purpose of this Will, which

– if the Deed of Transfer is upheld - would only have any real meaning if the Deceased survived Gisela. And if the Deed of Transfer is not upheld, then it is clear that Deceased executed the March Will wrongly believing that only his cash assets would be captured by it.

193. What is also of concern is that Mr. O’Meara’s memo of 24 March, 2012, says that the handwritten will was to leave all other assets to his wife for her life and thereafter to their children “but that I would call again in relation to same”. This is confusing as the handwritten will was in fact executed on the day with his daughter Sarah acting as a second witness and the memorandum goes on to allude to the fact that will was witnessed by Mr. O’Meara and his daughter. Mr. O’Meara said in his evidence that he told the Deceased that he would call again with the forms for the livestock and farm entitlements and it may be that this is what was being referred to but, if that is so, it suggests that Mr. O’Meara regarded the Will as being part of the same transaction as the Deed of Transfer and the related transfer of livestock.

194. Secondly, the March Will did not in fact leave the assets to Gisela for her life with the remainder being divided between their five children: it leaves everything to Gisela should she survive him (which she did) and the gift over in favour in favour of the five adult children does not, in the events which have occurred, take effect. I understand that Gisela did not make a Will and the joint accounts – together with any assets that might fall into her estate as part of her legal right share should the Deed of Transfer be set aside in the related proceedings – devolved on her five children in equal shares in accordance with the usual provisions governing intestacy.

195. It seems that Will was either something of an afterthought because it was known that the cash assets held jointly with Gisela were very limited, and that it was executed in a rush, on the same day that it was first discussed, and very much as a side issue to the main business of executing the Deed of Transfer, which had been prepared in advance.

196. Mr. O’Meara in his direct evidence read from the memo which says that he spoke “at length” about the Will. He did not seem to recall it specifically. Mr. O’Meara said that he drafted the Will when he was alone with the Deceased. There is no evidence that the Deceased was able to set out his assets – which had radically diminished since the execution of the Deed of Transfer - or that he indicated whom he wished to benefit. In fact, such evidence as is available suggests that the March Will as executed does not accord with his wishes which was to leave any other assets to his wife for her life only. As the handwritten will which was executed is in materially different terms from the attendance, I can only conclude that the attendance is of dubious accuracy.

197. I should add that Peggy said that, after everything was signed over to her on this date, her father stook up, shook her hand, wished her well and she said she would make him proud. I am satisfied that this never happened. Peggy demonstrated that she was willing to give deliberately false evidence to the court and this is, unfortunately, another instance of that, in my view.

Leadup to Consultation of 4 April, 2012

198. Mr. O’Meara dictated the attendance of the consultation of 24 March, 2012, in his office the following evening. He says that, in the course of doing up that memo, he appears to have developed some misgivings about the validity of the Deed of Transfer and whether it would withstand challenge. It seems that these were based on his doubts as to whether it could really be said that Gisela signed the Family Home Protection Act consent. He did not record in the attendance which he was dictating how Gisela had signed the consent. He wrote out a handwritten note, the original of which was produced in court, which said: “Aisling … we need to do a Will”. Mr. O’Meara, in reply to the court, confirmed that the idea of making another Will was his.

199. Indeed, Peggy, contrary to her sworn evidence that her father’s affairs were of no interest to her and that she did not interfere in them, was evidently very keen to ensure that all aspects of the transfer of such of the Deceased’s assets were in his sole name were secured to her before his health deteriorated further. She rang Mr. O’Meara at 11.37 a.m. on Monday, 26 March, 2012. Given that the only matter outstanding from her point of view at this stage were the transfer of the farm entitlements and herd number, I infer that the reason for her call was to ensure that this was progressed. I further infer from the fact that she rang quite early on the Monday morning that she was eager that the farm entitlements and herd number would all be transferred to her as quickly as possible.

200. Mr. O’Meara candidly stated in his direct evidence, in reply to the defendants’ senior counsel, that he rang Peggy about the forms but also because “I had a concern myself about the events of the Deed of Transfer on the Saturday” and that he wanted to discuss that with the Deceased. He also said that he wasn’t happy that the March Will reflected his overall instructions given to him previously, in that there was a discrepancy between the memo and the actual Will, which was not in the instructions. In addition, he was concerned about Gisela’s signature, that it might be regarded as not being her signature or that she might not be regarded as being fit to sign it and that it “might not stand up, basically”.

201. Accordingly, he did a note to Ms. Fitzgerald at the end of his handwritten notes of the consultation which said, among other things, “Need to do a New Will – to include the Farm Transfer + go up again.” He also made notes indicating that he needed to liaise with accountants on the tax advisability of the transaction, and that matters relating to the stock and herd number needed to be dealt with. It is notable that the tax implications would have been a concern for Peggy, rather than the Deceased, which tends to show that Mr. O’Meara regarded himself at the time as acting for her as well as the Deceased.

202. Very importantly, Mr. O’Meara also noted: “Paula [the public health nurse] to send on doctor’s cert.” It does not appear that this certificate was ever provided.

203. As regards the March Will, he was concerned because it didn’t reflect his “overall instructions”. The Will had been intended to leave the Deceased’s estate to Gisela for her life, whereas the entire estate had been left to her. In other words, it was not in accordance with what he had thought were the instructions for the Will. I am satisfied that, like the April Will – which Mr. O’Meara explicitly concedes was his idea – and the Deed of Transfer – which I infer was Mr. O’Meara’s idea – the March Will was executed by the Deceased at Mr. O’Meara’s suggestion and not as a result of any instructions received from the Deceased. This is material to a consideration of the validity of the April Will.

204. Mr. O’Meara said his office was contacted by Peggy on 3 April, 2012, to say the Deceased had “taken a downturn” and was not well and asking him to come back. (Although Mr. O’Meara said that his office was rung, no log of that call was available in the booklet of call logs.) I am satisfied that this is correct and that Mr. O’Meara remembers that date because he recalls that he attended with the Deceased the day after this phone call.

He went up the following day because the Deceased had deteriorated so the matter was urgent.

Consultation of 4 April 2012

205. Mr. O’Meara returned to the Deceased’s house at Bushy Park on Wednesday, 4 April, 2012, with Ms. Fitzgerald. He brought with him the forms for the farming entitlements and a preprepared Will which he says he explained to the Deceased that he felt encapsulated the Deceased’s instructions and that it was wiser and better to have this will signed, in effecting the transfer, that it would give Norman the rights over the old farmhouse, and that it would look after his wife. Interestingly, Mr. O’Meara gave evidence that this was a document the Deceased could execute himself, that is, on his own. By executing the April Will, the Deceased could sign everything over to Peggy without the need for his wife’s consent.

206. Of course, while this is correct so far as it goes, it entirely overlooks the fact that Gisela would have a legal right to one third of the Deceased’s estate if she survived him, which of course she did. As with the consultation of 24 March, 2012, no advice on the effect of either s. 111 or s. 117 of the Succession Act, 1965, appears to have been given at all.

207. Peggy was present with the Deceased for the first part of this consultation, which Mr. O’Meara says about 45 minutes in total. The Deceased was in bed when Mr. O’Meara and Ms. Fitzgerald arrived. They went down to the bedroom and indicated that the Deceased need not get up but he said he would get up. They went up to the living room and he subsequently got up and went up to them. It was put to Ms. Fitzgerald that the Deceased could not have come up on his own. Ms. Fitzgerald couldn’t remember but said if that was the case, it would have been Peggy who brought him up. However, he did not dress and instead wore a dressing gown. (Peggy said he was dressed but I do not accept that evidence.) He was on oxygen.

208. The first part of the consultation seems to have been taken up with signing over the farm entitlements. There were several forms to be signed by both the Defendant and Peggy. It also seems that they might have to be completed as well as signed. After that, Peggy left the room and Mr. O’Meara and Ms. Fitzgerald saw the Deceased alone.

209. Mr. O’Meara explained to the Deceased that Mr. O’Meara himself felt that the Will should be executed. Mr. O’Meara said he went through it in detail with the Deceased and he said he did this because “I wanted him to understand that this was a document that I felt needed to be put in place bearing in mind the documents signed on the 24th.” He estimated that he went through it for about 20 minutes, and the Deceased was happy with the Will. Mr. O’Meara had blank will paper with him in case the Deceased had other requirements but it was not needed. The Deceased signed the Will and Mr. O’Meara and Ms. Fitzgerald saw him sign and then signed themselves to confirm that they had witnessed his signature.

210. The Deceased had deteriorated physically but Mr. O’Meara said that, although he was less gregarious than normal, he had not deteriorated mentally and that he was “bang on”. This phrase was used a number of times by Mr. O’Meara in his evidence and it is not particularly helpful as, in my assessment of the evidence, it merely conveys that Mr. O’Meara didn’t notice anything untoward. For example, Mr. O’Meara used it to describe the Deceased stating definitively at the first consultation on 5 March, 2012, that the stamp duty issue had been dealt with. However, the Deceased was wrong about that and had to be corrected by Peggy.

211. In any event, there is a specific test for testamentary capacity and what it means to be of “sound disposing mind”. The following test set out by Cockburn J. in in Banks v. Goodfellow (1870) L.R. 5 Q.B. 549, 565, has been accepted as settled law in this jurisdiction: “It is essential that a Deceased 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.”

212. Interestingly, Mr. O’Meara did not go through the Deceased’s assets again. Ms. Fitzgerald said they did not go through the Deceased’s assets nor did he call to mind his family or those who might be expected to benefit. Mr. O’Meara had himself drafted the April Will in advance of the consultation and Mr. O’Meara accepted that it was he who suggested to the Deceased that he should make a fresh will, and that he did so as a “belt and braces” measure, in case the Deed of Transfer would be struck down. There was no evidence given, and nothing recorded in Mr. O’Meara’s attendance of the meeting, to suggest that Mr. O’Meara took instructions from the Deceased as to what assets he had left or what he wanted to do with them.

213. Ms. Fitzgerald gave evidence that she thought that the Deceased was lucid. She also gave clear evidence of going down to the bedroom thinking that the Deceased would execute the Will there, but it was the Deceased who said he would go up to the living room. She described chitchatting later and that Peggy was there. She said she remembered that it was a “belt and braces” Will but this is contained in the attendances so her recollection may have been swayed by that.

214. Beyond that, it has to be said her evidence was somewhat vague. For example, she did not specifically recall getting a note addressed to her by Mr. O’Meara to the effect that they needed to do a will and “go up again”. Her clearest recollection was of being in the bedroom, which she said she regarded as unusual and it stuck out in her mind. She also recalled that the Deceased asked Mr. O’Meara how his son had gotten on in the rugby match, which she said was important to Mr. O’Meara. It indicated that the Deceased knew who they were and remembered that he had met Mr. O’Meara on 24 March, 2012. However, the Deceased was undoubtedly in a stage of mild delirium in Milford Hospice on 17 April, 2012, was assessed as having moderate cognitive impairment on that day, and was not oriented in date or place. However he was oriented in person and recognized people. The fact that he recognized Mr. O’Meara and remembered the circumstances of their last meeting is, in those circumstances, not something to which I can give much weight.

215. So far as substantial validity is concerned, logically, the issue which should first be determined is that of testamentary capacity and I will therefore deal with that issue first.

Whether the Deceased had testamentary capacity

216. I am satisfied that the Deceased’s medical condition and in particular the fact that he was suffering from delirium and was addicted to Oxycontin was such that the presumption of capacity was rebutted. Peggy herself told the staff in Milford Hospice on

17 April, 2012, that he had been suffering from confusion for the previous five weeks. That period covers, at the very least, the consultations of 24 March and 4 April, 2012. Arguably, it also covers 5 March, 2012, as I doubt it was intended as a very estimate of the period for which the Deceased was confused. Dr. Reynolds confirmed that periods of delirium could last weeks or even months.

217. In addition, I am satisfied from the evidence of Gordon, Michael, and Florence that the Deceased’s baseline condition from at least late 2011 onwards was that he was confused and delirious to the extent that he was generally unable to make a phone call. He was unable to maintain a conversation beyond a short period, perhaps about five minutes. I do not accept Peggy’s evidence that “mentally, he was fine”. I am of the view that that evidence was untruthful.

218. In those circumstances, the presumption of capacity is rebutted. As a result, the onus is on the defendants to demonstrate that the Deceased had testamentary capacity as defined in Banks v. Goodfellow. This requires proof that: i. the Deceased knew on 4 April, 2012, that he was making a will; ii. that he could call to mind his assets; iii. that he was able to call to mind those whom he might benefit and could choose between them.

219. There was much reliance on the fact that the Deceased’s personality was that he was strong willed and forceful and would not be told what to do. If that is so, and if he had retained capacity, it is difficult to see how he would have simply acquiesced in Mr. O’Meara’s recommendations in March and April to make a will. The evidence of the execution of both Wills is to the effect that the Deceased requested no changes, asked no questions, and generally did not object. This seems far removed from the strong willed testator of 2008 who told his sister that it was a relief to have made his will, indicating that he had given it a lot of thought and consideration before deciding. It is difficult to reconcile that person with the meek testator of March and April, 2012, who seems to agree to whatever was suggested to him. Dr. Reynolds’ evidence that the Oxycontin to which he was addicted would have had a tranquilizing effect would seem to explain this change in personality. Allied to the compelling evidence from the Deceased’s siblings, who do not stand to benefit from any will, that the Deceased was unable to maintain a conversation in March or April, 2012, I am satisfied that the Deceased did not have testamentary capacity at that time.

220. I am satisfied that the Deceased’s general condition was that he was confused or, to use the medical term, delirious, and that he was unable to call to mind his assets or the circumstances of his adult children or to maintain concentration for sufficiently long to make decisions about his estate and to give the necessary instructions. The onus is therefore on the defendants to show that he had capacity on the relevant dates: see Jarman on Wills, 8th ed., Vol. 1, at p. 53, citing Cartwright v. Cartwright 1 Phillim. 100, as follows: “If you can establish that the party affected habitually by a malady of the mind has intermissions, and if there was an intermission of the disorder at the time of the act, that being proved, is sufficient, and the general habitual insanity will not affect it; but the effect of it is this – it inverts the order of proof and of presumption; for, until proof of habitual insanity is made, the presumption is, that the party like all human creatures, was rational; but where an habitual insanity in the mind of the person who does the act is established, then the party who would take advantage of the fact of an interval of reason must prove it.”

221. The defendants rely on the fact that the Deceased had periods where he was not confused. On the facts of this case, the defendants therefore have to show that the Deceased gave instructions to make a will, that he was able to tell Mr. O’Meara what assets he had (though he did not need to state them with absolute accuracy or precision), and that he was able to identify his family members and choose between them, and that he did all of this on a day or days when he was not suffering from delirium or confusion.

222. In closing submissions, senior counsel for the defendants relied on the proposition that instructions could be given at an earlier time, relying on Parker v. Felgate (1883) 8 P.D. 171 which was applied by the Supreme Court in Re Glynn deceased [1990] 2 I.R. 326. Barron J. (with whom, on this point, O’Flaherty J. agreed) clarified in Blackall v. Blackall (Unreported, Supreme Court, 1 April 1998) that Re Glynn, deceased, is support for the proposition that, where instructions are given for a will at a time when there is no doubt about capacity, it may only be necessary to show that, at the time of execution, the testator was aware that the will was drawn in accordance with instructions given at an earlier time. However, referring to Re Glynn, deceased, Barron J. states (at p. 77) :- “That case is not an authority for what is needed to establish a sound disposing mind in the ordinary case. It is an authority for the proposition that when a will is drawn in accordance with instructions given by a testator with a sound disposing mind, it is sufficient to establish that at the time of execution of the will the testator was aware that the will had been drawn up in accordance with those instructions. Nevertheless, it recognises a connection between the giving of instructions for and the execution of the will.”

223. Parker v. Felgate and Re Glynn, deceased, therefore are not relevant as they concern testators who had given instructions when capacity was not in doubt and who later executed wills at a time of limited capacity.

224. It would of course be not only possible but usual and – I think in a large majority of cases actually preferable – that instructions for a will would be given on a day prior to the day the will is executed. This would be evidence tending to show that a testator had had a chance to reflect on the instructions before executing and would also be relevant to a consideration of whether the testator could be said to have known and approved the contents of the will, an issue discussed below. However, in this case, there is no evidence whatsoever that the Deceased ever gave instructions for a Will in favour of Peggy and it is not in fact suggested that he did so on any day prior to 4 April, 2012.

225. The attempt to rely on Parker v. Felgate is based in this case on the fact that the Deceased’s assets, and the identities of his adult children and their circumstances were all set out by the Deceased at the first consultation on 5 March, 2012. However, as already stated, not only was it conceded by Mr. O’Meara in evidence that Peggy gave at least some of those instructions but I am satisfied that she gave the greater part of those instructions.

226. The problem that then arises for the defendants is that it is clear that there was no consideration of assets or indeed family members who the Deceased might be likely to benefit. Ms. Fitzgerald said it might have been referred to as a “belt and braces” will – that is, one designed to shore up the provisions of the Deed of Transfer – but she stated positively that there was no discussion of assets at the relatively brief consultation on 4 April, 2012, and it appears she assumed this had been done previously.

227. The only discussion of the Deceased’s assets was on 5 March, 2012. As already stated, I am satisfied that the Deceased did not set out his assets on that day and that Peggy contributed substantially to the information given to Mr. O’Meara about the various holdings in the ownership of the Deceased. Furthermore, the discussion on 5 March, 2012, was solely for the purposes of what was then said to be a proposed transfer into the joint names of Peggy and the Deceased. I remain very unclear on why co-ownership was canvassed at all but it is accepted by the defendants that the Deceased did not say on 5 March, 2012, that he wanted to make a new will. (The reference in the typed memorandum to “the will”, insofar as it refers to a new will, I am satisfied records Mr. O’Meara’s thoughts that, if the Deed of Transfer were executed, the Deceased would need to execute a new will.) The first mention to the Deceased of a new will was on 24 March, 2012, when Mr. O’Meara recommended that the Deceased execute a will to deal with his joint account ands any unremembered bank accounts or windfalls. And of course the March Will was in entirely different terms to the April Will which I am considering (and indeed was executed in terms other than were discussed).

228. Finally, I regret to say that the whole manner in which these transactions were dealt with by Mr. O’Meara does not give me any confidence that the terms of the April Will were discussed in any detail with the Deceased even on the day it was executed. Ms. Fitzgerald’s evidence in my view corroborates this. She thought that the instructions for the will had been taken previously. There was a reading out of the will which I am satisfied was quite brief in nature and linked to the need to ensure the validity of the Deed of Transfer. I am satisfied from a consideration of all of his evidence that it is unlikely that Mr. O’Meara’s evidence that he saw the Deceased alone for 20 minutes in connection with the April Will and discussed it in detail with him is correct. I have to view his evidence as being influenced by his desire to uphold the April Will which was drafted in order to cure what Mr. O’Meara saw as difficulties in upholding the validity of the Deed of Transfer. Regrettably, I am of the view that this motivation remains and has influenced his evidence and that 20 minutes is probably an over estimate as is his evidence that he discussed the will in detail with the Deceased. Ms. Fitzgerald would not be drawn on how long it took.

229. I am however satisfied from Ms. Fitzgerlad’s evidence that they saw the Deceased alone. I am also satisfied that Mr. O’Meara probably read out the will but I am not satisfied that he went through individual clauses in detail or gave any detailed explanation. I think it is probable that his main purpose was to ensure that it was signed and that his explanation probably did not go much beyond informing the Deceased that the Will was a “belt and braces” and, in effect, a back up document designed to ensure the Deed of Transfer was upheld. He certainly made no mention of the changes to the terms of Norman’s rights of residence, in which Peggy’s obligations had been significantly diluted.

230. It must also be noted that the Deceased himself never gave instructions that he wished to make a will in favour of Peggy or that he wanted to devise all of his lands to her. Mr. O’Meara’s reference to the residue being divided among his children as previously discussed seems to be a reference to that being the intention on 24 March, 2012, but even this was, in my view, likely to be entirely confusing. The discussion of the March Will was in terms that the Deceased would need to deal with his cash assets and any windfall such as a Lotto win. It was executed on the basis that it would not apply to any of the Deceased’s houses, lands, livestock, or entitlements, as these had already been disposed of or – in the case of the livestock and entitlements - were about to be transferred.

231. I am satisfied that no instructions were given by the Deceased on 4 April, 2012 and that the Deceased signed the April Will on the basis of a relatively brief explanation by Mr. O’Meara that this would copper fasten the Deed of Transfer and would otherwise reiterate the contents of the March Will. I found Ms. Fitzgerald to be a truthful witness but I am satisfied that she had little enough specific recollection of what was explained to the Deceased other than that it was a “belt and braces” Will.

232. On 4 April, 2012, the Deceased was presented with a pre-prepared will for which he had never given instructions and he was given a very brief explanation and Mr. O’Meara recommended that he sign it. This is not sufficient to discharge the onus on the defendants to satisfy the court that the Deceased knew he was making a will, could call to mind his assets, and could call to mind the people he might be thought likely to benefit in his will.

233. Even if I am wrong in saying that the presumption of capacity was rebutted, I am nevertheless satisfied on the balance of probabilities that the Deceased did not have testamentary capacity on 4 April, 2012. Taking all of the evidence into account, including his propensity for confusion, Peggy’s statement to the medical staff less than two weeks later that he had been suffering from confusion for five weeks, and his inability since at least late 2011 to have more than a brief and “fragmented” conversation – which tends to suggest that he could not retain information – I am satisfied on the balance of probabilities that the Deceased did not object to signing the document but he did not at any point understand what assets might be governed by it nor did he consider whether Peggy should benefit in this way to the exclusion of the Deceased’s remaining four children.

234. Indeed, I am satisfied on the balance of probabilities that the Deceased did not know he was making a will at all. His sister called later that evening and he did not mention that he had made a will or that she was no longer an executor. I am satisfied that he reposed trust in this sister and, had he had capacity, his personality was such that he would not have been shy about telling her that he had entirely altered the terms of his will. I am satisfied that he never said anything to Ms. Chambers about the April Will (or indeed the Deed of Transfer or the March Will) either that evening or at any time prior to his death because he did not understand that he had made a will.

235. In those circumstances, I am satisfied that the Deceased did not have capacity to make a Will on 4 April, 2012.

236. That is sufficient to affirm the Order of the Circuit Court condemning the April Will. However, I propose in any event, out of an abundance of caution, to consider the next issue which is whether the Deceased can be said to have known and approved the April Will.

Whether the Deceased knew and approved the Will of 4 April, 2012

237. The question of whether a testator can be said to have known and approved of the contents of a will logically only arises where he has capacity. As I have found that the testator did not have testamentary capacity on 4 April, 2012, it is not strictly necessary to consider this issue but I will do so on an alternative basis, lest there be any dissatisfaction with my findings on capacity.

238. This issue falls for determination before the consideration of the allegation of undue influence. As Lindley LJ said in Tyrrell v. Painton [1894] P. 151, at 157: “… wherever such circumstances [ie, circumstances which excite the suspicion of the court] exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.”

239. The concept of whether a testator can be said to “know and approve” his will relates to whether it can be said that the will truly represents the testator’s testamentary intentions.

240. The relevant caselaw commences with Barry v. Butlin (1838) 163 E.R. 223, 1 Curt.

636, Parke B. stated at p. 223:-

“The rules of law, according to which cases of this nature are to be decided, do not admit of any dispute …. These rules are two, the first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.”

241. In Fulton v. Andrew (1875) L.R. 7 H.L. 448, Lord Hetherley stated (at pp. 471 - 472):- “There is one rule which has always been laid down by the Courts having to deal with wills, and that is, that a person who is instrumental in the framing of a will, as these two persons undoubtedly were, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the will was read over to the testator and that he was of sound mind and memory, and capable of comprehending it. But there is a further onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of showing the righteousness of the transaction”.

242. “Righteousness of the transaction” is, as stated by the Court of Appeal of England and Wales in Fuller v. Strum [2002] 1 W.L.R 1097, at p. 1107, “an unfortunate term”, which suggests that some moral judgment of the court is required. However, that is not in issue. As Peter Gibson LJ explained in that case:- “What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be ‘vigilant and jealous’ in examining the evidence in support of the will.”

243. In Gill v. Woodall [2010] EWCA Civ 1430, [2011] Ch. 380, Lord Neuberger M.R.

stated at p. 387:-

“Knowing and approving the contents of one’s will is traditional language for saying that the will ‘represented [the testator’s] testamentary intentions’: see per Chadwick L.J. in Fuller v. Strum … at para. 59.”

244. In Re Begley, Begley v. McHugh [1938] I.R. 479 and Leahy v. Corboy [1969] I.R. 148, the Supreme Court accepted and applied the principles in Fulton v. Andrew. Leahy v. Corboy, the Supreme Court (per Budd J.) also approved the approach in Wintle v. Nye [1959] 1 W.L.R. 284 – which seems to have been a cause célèbre in the neighbouring jurisdiction - where the House of Lords, in overturning the decisions of both the High Court and the Court of Appeal, stressed the need for vigilance in examining the evidence. In Leahy v. Corboy, Budd J. at p.158, approved in particular the following statement of Sellers L.J., who had dissented in the Court of Appeal:- “Where any witness whose evidence is challenged in vital matters stands alone, unsupported by any corroborative testimony or circumstance in an ordinary trial, the tribunal, whether judge or jury, is under an obligation to scrutinise it carefully, to seek its inconsistencies and to balance the probabilities of its accuracy and reliability. In a trial of the present character there is an extraordinary burden of investigation. The approach to the evidence which is challenged should be suspicious and critical. The approach should be an unreadiness, but not an unwillingness, to believe it after close scrutiny and careful consideration."

245. The circumstances of this will are highly suspicious, in the sense in which that term is used in the caselaw. I am satisfied that the only business which the Deceased wished to transact with his solicitor was to rectify the title to the site near the house, and perhaps also to put it into the name of his brother. He did not at any time contact his solicitor for the purposes of changing his 2008 will. In addition, it is entirely unclear how the Deceased could have been said to instruct Mr. O’Meara to draft the Deed of Transfer. In fact, I am satisfied that he did not: the Deed of Transfer was already drafted and a form of right reserved for Norman before the consultation on 24 March, 20212, and without any instructions from the Deceased, who had been left with various options at the end of the previous consultation and with whom there had been no contact in the interim.

246. In contrast, Mr. O’Meara was in contact with the principal beneficiary of that Transfer and, insofar as he got instructions to draft the Deed of Transfer, he must have got them from her. Mr. O’Meara was, in essence, hopelessly conflicted throughout, if not acting almost solely in Peggy’s interests.

247. Furthermore, the Deceased never gave any instructions to draft the April Will: it was drafted for him by his solicitor after his solicitor realised, on doing up an attendance of the events of 24 March, 2012, on the following day, that the Deed of Transfer was of questionable validity. The purpose of drawing up the will was purely to shore up the Deed of Transfer: it was not drawn up as a reflection of the Deceased’s testamentary wishes or on the basis of any instructions received from him that he wished to make a new will. There is in fact no evidence at all that the Deceased ever altered his testamentary wishes from his 2008 Will, which he continued to put into effect by ensure in 2010 that the new dwellinghouse was put on a separate Folio. Moreover, the Will is in entirely different terms from the Will executed by the Deceased only 11 days previously (and which was itself in materially different terms from the explanation given to him of its contents).

248. In Hoff v. Atherton [2004] EWCA Civ 1554, Chadwick LJ referred to circumstances which might arouse suspicion and thus require affirmative proof of knowledge and understanding by those propounding a will: “[63] Whether those are inferences which should be drawn depends, of course, on the facts of the particular case. The fact that a beneficiary has been concerned in the instructions for, and preparation of, the will excites suspicion that the testator may not know the contents of the document which he signs – or may not know the whole of those contents. The degree of suspicion – and the evidence needed to dispel that suspicion – were considered by this Court in Fuller v Strum …. [64] Further, it may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will – that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents – in the wider sense to which I have referred.”

249. At para. 45, Gibson LJ had similarly contrasted the facts in that case with one where the suspicions of the court should be aroused, stating: “The present case is not one where undue influence is alleged against Mrs Atherton, although undoubtedly she played a significant part in the preparation of the 1994 Will under which she took the chief benefit as residuary legatee. It is not a case where the chief beneficiary has procured that his or her own solicitor should draw up the Will.”

250. I am struck by the fact that in Hoff v. Atherton, one of the features which dispelled suspicions over a will which was prepared with the assistance of its principal beneficiary was that the testatrix attended with an independent solicitor prior to executing it, and that the will, which was straightforward terms, was read over carefully to her by that solicitor, and she positively indicated her understanding of its contents prior to execution. That stands in painful contrast to the facts of this case, where Mr. O’Meara was hopelessly conflicted throughout.

251. The question then is whether the defendants can prove affirmatively that the Deceased knew and understood the terms of the April Will and understood its effect. On the facts of the case, that would have included an understanding that it was designed to ensure that the purpose of the Deed of Transfer was achieved in the event that it was found to be invalid. It was intended to apply to all of the Deceased’s assets, other than cash, as it bequeathed to Peggy all of the Deceased’s “lands, [new] dwellinghouse, contents, entitlements, all stock and farm machinery subject to a right of residence in the dwellinghouse for my wife Gisela hogan for her life and subject to a right of maintenance and support out of the said lands for my said wife Gisela Hogan for her life.” But there is no evidence that the Deceased was ever able to call to mind all his assets so as to appreciate the effect of such a will.

252. There was also in the April Will a separate bequest to Peggy of the old dwellinghouse, because that was subject to a right of residence in favour of Norman. However, the terms of this right had been redrafted since the Deed of Transfer had been executed 11 days earlier and consequently the April Will provided that Peggy should have: “My old dwellinghouse at Bushy Park, Ennis, County Clare subject only to a right of residence in favour of my son, Norman Hogan for his life and subject to Peggy Kierse carrying out the necessary repairs to the property to render it habitable if required by the said Norman Hogan.”

253. This is in different terms from the relevant clause in the Deed of Transfer which provided that the right of residence for Norman for his life was “subject to the house being maintained and renovated to proper modern building standard to include contents by Peggy Kierse”:

254. The April Will significantly dilutes Peggy’s obligations. Renovating a derelict property so that it is merely “habitable” is, in my view, much less onerous than requiring the renovation to be to a “proper modern building standard” which probably involves an obligation to comply with Building Regulations. The Deed of Transfer also requires Peggy to maintain and property and to furnish it, whereas these obligations are not included in the April Will.

255. This is very concerning. It is quite clear from the somewhat limited recollection that Ms. Fitzgerald had of the execution of the April Will that there was no mention whatsoever of any differences between the Deed of Transfer and the Will. On the contrary, the Will was presented as being in the same terms. Given that the sole input the Deceased seems to have had into the Deed of Transfer was to keep the right of residence for Norman in the old dwellinghouse – which Peggy sought to have removed as being too onerous – it is very telling that the Deceased’s attention was not drawn to the dilution of Peggy’s obligations towards Norman at all.

256. I think it is appropriate to repeat here a finding which I have already relied on for the purpose of finding that the Deceased did not have testamentary capacity, namely, that I am satisfied that the Deceased did not know he had executed a will. Had he been aware of that, I am satisfied that he would have told his sister when she called that evening that he had made a new will and that she was no longer an executor. The fact that he did not mention it was probably because the Deceased did not appreciate that he had made a will at all.

257. He had not given instructions for the document to be drawn up and he was not given a copy in advance to read and consider. It was placed in front of him during a relatively short consultation, and he executed it more or less straight away. Ms. Fitzgerald simply couldn’t say how long that consultation took, but it involved preliminaries, they had to wait for the Deceased to get up and come up to the living room, there was small chat before and after and most likely tea was drunk. In addition to the will, forms for the transfer of farm payments and the herd number were also produced and signed. This was all done within perhaps 30 to 40 minutes and Peggy was present for all but what seems to have been quite a short period where the pre-drafted will – never before discussed with the Deceased – was produced, read over and executed. I am satisfied that the explanation was not an in depth one and further Ms. Fitzgerald has confirmed that, while she thought the phrase “belt and braces” might have been used, there was no reference to the assets which might be disposed of by this Will. She, quite reasonably, assumed that had been done at an earlier time, as would be the normal practice. I am further satisfied that the circumstances in which this will was executed and the explanation given make it more likely that the Deceased thought he was executing a document which was in some way ancillary to the Deed of Transfer executed by him on 24 March, 2012.

258. Ms. Fitzgerald, for the good reason that she was just there to witness the will, and therefore did not take the lead in the conversation or do up her own attendance. She said Mr. O’Meara read the will to the Deceased and he appeared to understand it. However, she did not remember any other documents being signed. This means that she does not – as she stressed throughout her evidence – have an entirely clear recollection of the day as it is clear that the forms for the farm entitlements and herd number were also signed that day. Indeed, it seems the relevant forms may in fact also have been filled in on the day, which would of course itself have taken some time.

259. On the balance of probabilities, I find that the Deceased was told that this will would be a “belt and braces” for the Deed of Transfer but the nature of the potential difficulty with the Deed of Transfer was not outlined to him nor was it made clear to him to what assets it might apply. I am not satisfied that the Deceased understood that this was a will. The primary purpose of the visit was to sign the forms relating to the farm payments and the herd number, all of which were ancillary to the Deed of Transfer which had been executed 11 days earlier. The Deceased had made a will on 24 March, 2012, and now he was presented with a will in entirely different terms. I am satisfied that he did not know prior to the Will being produced by Mr. O’Meara that he was going to be executing a will that day. Taking all of the evidence of what transpired that day and on the pervious occasions into account, I am satisfied that the Deceased probably thought this was a document relating to the Deed of Transfer and was not aware that it could operate to dispose of his entire estate on his death. I do not accept Mr. O’Meara’s evidence that he went through the Will in detail for 20 minutes. I am satisfied that the will was simply read out and the Deceased was advised by Mr. O’Meara to sign it as a “belt and braces” for the Deed of Transfer. There was no mention of the less onerous terms of Peggy’s obligation to renovate the derelict dwellinghouse.

260. A similar approach had been taken on 24 March, 2012, to the signing of the handwritten will. Mr. O’Meara gave evidence that the March Will was read over and the Deceased was happy with it and that he was “fine”. However, he never explained how, if there was nothing to give him any concern about the Deceased’s understanding of the March Will, a will in terms different from that explained to the Deceased was signed. The difference between the March Will and what the Deceased was told he was signing on the day he signed it was possibly such that this might be regarded as being less obvious to a lay person. However, it should have been obvious to Mr. O’Meara, but it was not. Whatever the reason, the March Will was in different terms from the explanation given to the Deceased before he signed it. It may have been read out quickly and not understood by the Deceased. Yet the Deceased seems to have signed it on Mr. O’Meara’s recommendation.

261. While I am satisfied from Ms. Fitzgerald’s evidence that some form of brief explanation was given along the lines that the Will would serve to reinforce what had already been done in the Deed of Transfer, I am satisfied that the Deceased did not understand that he was executing a Will or that this document could end up dealing with all of his assets on death. I understand completely why Ms. Fitzgerald would not see anything untoward in the reading of the will as she assumed that the Deceased had gone through his assets and given the instructions on an earlier occasion. In fact, he had not done so but Ms. Fitzgerald was not to know that as she had not been present at any of the earlier conversations and her involvement was restricted to preparing the Deed of Transfer. There is no reason why she would not have assumed that everything had been done on the basis of instructions taken from the Deceased himself. Indeed, I think she may have been put in an invidious position and I wish to state that she gave her evidence appropriate, truthfully and acted properly in all her dealings with the Deceased.

262. However, having reviewed the contemporaneous attendances and heard the evidence of Mr. O’Meara I am satisfied that it is at least probable – indeed I think practically certain – that the Deceased himself never gave instructions for the Deed of Transfer and that at all three consultations matters proceeded on Mr. O’Meara’s initiative in Peggy’s interests without proper regard for the Deceased’s true wishes or instructions.

Mr. O’Meara allowed himself to become hopelessly conflicted in allowing Peggy to have so much involvement in the taking of the initial instructions on 5 March, 2012, and thereafter he seems to have proceeded as if her wishes and interests represented the Deceased’s wishes and interests.

263. In those circumstances, a reading of the will as a document designed to ensure the Deed of Transfer was enforceable is not sufficient to dispel the suspicions that have been raised about how the will came to be drafted in the first place. Even if the Deceased had capacity, he was certainly very frail and it would not be sufficient to arrive with a will already drafted and to simply read it out and ask him if he wanted to make any changes. It also bears emphasis that the terms of the April Will were entirely different not only from the March Will but from the terms of his 2008 Will, which, while substantially benefitting Peggy, ensured that the Deceased’s agricultural land would remain in “the Hogan name”. From Peggy’s letter to Dr. Reynolds of 30 November, 2011, it seems that the Deceased’s wishes in that respect had not changed by late 2011, and there is no explanation of why he would suddenly alter his views so completely.

264. The situation would be entirely different if the Deceased had actually instructed Mr. O’Meara to draft the will but since Mr. O’Meara has acknowledged that he did not, the mere acting of reading out the will is insufficient in the particular circumstances of this case to establish that the Deceased knew and approved the April Will.

Conclusion

265. In conclusion, the Deceased’s baseline state from late 2011 onwards was that he was confused and unable to maintain the thread of a conversation for more than five minutes or so. He deteriorated further in March, 2012, as confirmed to the admission staff in Milford Hospice on 17 April, 2012. This confusion was caused by delirium which expert medical opinion establishes can last for weeks or even months at a time. Given that he could not hold a conversation, he may have had very brief periods where he could interact with a solicitor and give instructions, but the three consultations in this case all exceeded the length of time for which he was able to interact in that way. He was also addicted to Oxycontin and this had a tranquilising effect.

266. This appeal concerns a challenge to a Will executed by the Deceased on 4 April, 2012, by virtue of which the Deceased devised and bequeathed all of his assets, a valuable estate, to his daughter Peggy. It is acknowledged that this Will was prepared in advance by the solicitor who was nominally acting for the Deceased but who, regrettably, consistently had contact with and took instructions from Peggy – in particular during the first consultation of 5 March, 2012 - and was therefore hopelessly conflicted. Indeed, he seems to have prioritized Peggy’s interests throughout.

267. The April Will was produced to the Deceased during on 4 April, 2012, and he was recommended to sign it as a “belt and braces” for the Deed of Transfer. There was a significant difference between the April Will and the Deed of Transfer relating to Peggy’s obligations to renovate the derelict farmhouse for her brother, Norman, who was in much poorer circumstances than any of his siblings. This difference was not discussed with the Deceased or drawn to his attention and there is no evidence as to how the Deceased’s solicitors got instructions to alter the nature of these obligations.

268. The assets to which the Will would or might apply were not discussed and the Deceased had never, at any prior consultation, called to mind his assets which is an aspect of the long-standing test for testamentary capacity. (The Deceased’s assets had been previously set out at a consultation on 5 March, 2012, but only with the substantial input of Peggy.) The Will was briefly read out to the Deceased and he executed it. However, I am satisfied that the presumption of capacity is rebutted by the clear evidence of family members, in particular the Deceased’s siblings who do not stand to gain anything from the Will, this appeal, or the related proceedings. The defendants cannot show that the Deceased was able to call to mind his assets or those he might benefit and I am further satisfied that the Deceased did not know he was executing a will.

269. I am therefore satisfied that the Order of the Circuit Court of 10 April, 2018, condemning the Will should be upheld.

270. If I am wrong in that, the circumstances in which this will came to be executed by the Deceased are ones which excite the suspicion of the court (to use the traditional language derived from caselaw going back to at least the 19th century) and that the defendants, who seek to propound the will and admit it to probate, are required to positively demonstrate that the Deceased knew and approved the contents of the will. I am satisfied that they cannot show that. The Deceased most likely thought the document was something to do with the forms for the transfer of farm entitlements and a herd number to Peggy, which he also signed in the same 30 minutes or so.

271. The Deceased had never given instructions in connection with the April Will and it was put before him as a document which would shore up a Deed of Transfer which he had executed 11 days previously and the effect of which was to transfer all of the Deceased’s lands, houses, livestock and entitlements to Peggy, and to render obsolete a Will executed by him in 2008 in which Peggy benefitted along with other family members. I think it is probable that he did not realise he was executing a Will.

272. It is also notable that the Will is in completely different terms from another Will also executed 11 days previously. That Will was also recommended by his solicitor and it is accepted that it is not in the terms advised to the Deceased on the day that he executed it. I do not have any confidence that the explanation given by the Deceased’s solicitor or his action in reading out the April Will with which I am concerned were sufficient to actually explain to the Deceased the nature, effect, and specific provisions of the April Will.

273. For those reasons, the appeal is dismissed and I will affirm the Order of the Circuit Court. I will list the matter before me in early course to arrange for a further brief hearing to deal with the costs of this appeal and also for the purpose of making directions in the related proceedings which seek to challenge the Will and Deed of Transfer executed by the Deceased on 24 March, 2012. The parties might also be in a position to inform the court whether a limited Grant has issued pending determination of these and the related proceedings challenging the March Will.

[The approved judgment has been relodged as of 10 February, 2026, so to remove minor editing errors in paras. 20, 187, and 203.]