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GAZETTE
JULY-AUGUST
1979
appointed the Plaintiff his executrix
and made her universal legatee. The
deceased made a later Will on 23
Fe b r u a r y, 1971, in which he
appointed the first Defendant, Con
MacGillicuddy, as his executor, but
the first Defendant subsequently
renounced his executorship and was
dismissed from the action. In this
later Will the deceased bequeathed the
12 acres in Tallaght to the second
Defendant subject to a life interest in
the Plaintiff. He gave bequests of
£2,000 to each of the Plaintiff's two
brothers and left the residue of the
estate to the Plaintiff. According to
the Plaintiff that bequest was of no
value as virtually the deceased's only
asset was his valuable 12 acre farm.
The Plaintiff claimed that the
second Defendant exercised undue
influence over the deceased in
relation to the later 1971 Will.
According to her the influence which
he exercised over the deceased was
far from benign; he led the deceased
into habits of excessive drinking; he
bullied the deceased and borrowed
considerable sums of money from
him which he did not repay and he
led the deceased into other
improvident t r ans ac t i ons. The
Plaintiff also claimed that the
deceased did not know and approve
of the contents of the 1971 Will. The
Plaintiff claimed an Order that the
1971 Will be condemned and a
further Order that the 1965 Will be
admitted to Probate in solemn form.
By agreement no evidence was heard
relating to the 1965 Will and so this
judgment only related to the later
one.
At the commencement of the
hearing it was accepted that there
was an onus on the second
Defendant to establish that the 1971
Will was made in accordance with the
provisions of the Succession Act
1965. At the conclusion of the
second Defendant's evidence the
Plaintiff claimed that suspicious
circumstances in the preparation of
the Will had been established in the
course of the cross-examination, that
they were such as to have cast on the
Defendant the burden of establishing
that the Will had been properly made
and that this burden had not been dis-
charged.
4
The Plaintiff at this stage
asked for a declaration against the
1971 Will but this was refused.
Reference was made to
In the Goods
of Corboy
119691 I.R. 148.
Having heard all the evidence the
Cou rt (Costello J.) gave its
conclusions on it as follows:
(a) The deceased was in failing
health from about the year 1970. On
23 February, 1971, the second
Defendant brought the deceased to
his solicitor (to whom the deceased
had been introduced by him early in
1971) for the specific purpose of
making a Will in his favour. The
solicitor wrote out a Will for the
deceased and it was executed and
signed by the deceased and witnessed
in accordance with the provisions of
the Succession Act. It was not
accepted that the solicitor did not
have the Will typed up merely because
the deceased asked him not to do so.
When he made this Will the deceased
was physically feeble and his memory
was not good.
In these circumstances the solicitor
had a duty to caution his client and
not to permit him to take precipitous
action in relation to the important
transaction he was entering into. He
did not carry out this duty not
because of the deceased's wishes but
in deference to the wishes of the
second Defendant.
(b) The second
De f endant
gradually over the years acquired
domination over the Will of the
deceased. He acquired this partly by
virtue of force of character, partly by
his domineering manner towards the
deceased and partly by ingratiating
himself as a drinking companion and
by making the deceased dependant
on him for drink and entertainment.
This domination was facilitated by
the declining health of the deceased.
As á result of it the second Defen-
dant was able to extract considerable
sums of money from the deceased
from the year 1968 onwards, money
which the deceased gave to the
second Defendant against his better
judgment.
(c) The deceased had genuine
affection for the Plaintiff. He was
also conscious of the moral duty
which he had for her welfare after his
death arising from the services she
had given him throughout his life. He
failed adequately to express his
affection and fulfil the duty towards
her in his Will and instead he made
the second Defendant the principal
object of his bounty. The deceased
had no strong sentiments of friend-
ship for the second Defendant and
the 1971 Will was not executed in his
favour because of such sentiments.
The deceased hardly knew the
Plaintiffs two brothers and had no
reason to make bequests in their
favour. The second Defendant
procured the making of the Will in his
favour. In doing so, he exercised
more than mere persuasion. The
deceased was not a free agent when
he executed the Will on 23 February,
1971. His Will was overborne by the
second Defendant on that occasion,
just as it has been on previous and
subsequent occasions in relation to
benefits conferred by the deceased on
the second Defendant.
Held
(per Costello J.) that:
(1) No presumption of undue
influence arises in the case of Wills
and the burden of proving undue
influence always rests on the person
alleging it. It was not sufficient to
establish that a person had power
unduly to overbear the Will of the
testator; it must be shown that the
power was exercised in fact and that
it was by means of it that the Will
which is being impugned was
obtained. In the circumstances of this
case this burden was discharged and
the purported Will of 23 February,
1971, should be condemned on the
grounds that it had been obtained by
undue influence.
(2) When a person has been instru-
mental in having a Will prepared and
takes a benefit under it an onus may
be placed on such a person to
establish that the testator knew and
approved of its contents. [At the
conclusion of the evidence adduced
on the second Defendant's behalf in
support of the Will of 23 February,
1971, Costello J. was unable to
apply the principles laid down by the
Supreme Court in
Corboy's Case
because at that time he was not
satisfied on the evidence that the
second Defendant had in fact been
instrumental in framing the Will.
Having heard all the evidence he was
so satisfied.] In this case the second
Defendant did not discharge the
burden of proof on him, which was a
heavy one, that the deceased when he
signed the Will, knew and approved of
its contents.
Accordingly, probate of the Will of
23 February, 1971, was refused.
In the goods of Patrick Kavanagh
Deceased; Annie Healy v. Con
MacGillicuddy and Laurence Lyons
High Court (Costello J.) -
Unreported - 24 October, 1978.
Summaries of judgments prepared by
John F. Buckley, Hugh M. Fitz-
patrick, Deirdre Morris, E. Rory
O'Connor and edited by Michael V.
O'Mahony.