257 / 270
GAZETTE
JULY-AUGUST
198
suffering from orchitis (swelling of
the testicles). He was admitted to and
remained a patient in hospital in
Cork from 29 May 1974 to 10 June,
1974. On his discharge he returned
to live with the Plaintiff. He rarely
moved out of the Plaintiff's house
and lands. He went to Mass on
Sundays, made odd visits to the
Defendants and visited his mother as
long as she was alive. His mother
died on 24 August, 1974.
On 10 December, 1974 the
deceased made his first will. He was
brought to the Solicitor's office of Mr.
B. in Charleville by the Plaintiff's
husband who had other business to
attend to there.
On 12 March, 1975 the deceased
returned to Mr. B's office and gave
instructions to transfer his lands to
the Plaintiff. At this stage Mr. B. was
acting for the Plaintiff and so he told
the deceased that he would have to
obtain independent legal advice.
Arrangements were made for the
deceased to attend the office of Mr.
McC., Solicitor, in Charleville on 26
March, 1975 who advised the
deceased that he should not transfer
his lands to the Plaintiff subject to the
safeguards which were then being
reserved for the deceased, which Mr.
McC. regarded as being insufficient.
In view of the deceased's age Mr.
McC. advised him that it was a most
improvident
transaction.
The
deceased accepted Mr. McC's
advice.
Then Mr. McC. (and there was no
evidence that he had any instructions
to do so) negotiated with Mr. B., as
to the terms upon which he (Mr.
McC.) would be prepared to advise
the deceased to execute the transfer.
These were that the deceased should
be paid an annuity of £520.00 with a
cost of living escalation clause, by
weekly payments of £10.00 for life
and further that he should be paid
£10,000.00 to be payable by
£1,000.00 per annum for 10 years
and that the usual rights of residence
and support should be reserved. A
transfer was drafted containing these
provisions and also providing for a
charge in the sum of £ 1,000.00 each
in favour of the three nieces, who
were given legacies of £3,000.00
cach in the deceascd's will of 10
December, 1974. This draft transfer
was sent to the Plaintiff by Mr. B.
The deceased did not approve of the
terms in the draft and on 14 April
1975 wrote to Mr. B. to let him know
his views on the matter.
The Plaintiff sought another
solicitor to give independent advice
and gave the deceased a choice
between three solicitors. He picked
Mr. N., Solicitor, at Doneraile. Mr.
B., after he had been telephoned by
Mr. N., sent him an engrossment of
the transfer which Mr. N. read over
to the deceased who then realised
that difficulties might arise, as under
the will the deceased had made the
previous December he left his three
nieces £3,000.00 each whereas under
the transfer he gave them £1,000
each. Mr. B. accordingly wrote to the
deceased asking if he wished to make
a new will. Mr. B. got a message that
he did and on 5 May 1975, Mr. B.
(Junior) and Mr. W.D., then a clerk
with Mr. B (Senior's) office and since
deceased, saw the deceased at the
Plaintiffs house. Mr. B. (Junior)
brought the previous will of 10
December, 1974 with him and also a
copy of the transfer. The deceased
told Mr. B. (Junior) that he
was going to hospital. Mr. B.
(Junior) read the transfer and the
previous will to the deceased. He
asked the deceased whether he
wished to clarify it in any way. The
deceased said that his nieces were
only to get the £ 1,000.00 in the deed.
Everything else was to go to the
Plaintiff. Mr. B. (Junior) there and
then wrote the will of the deceased
dated 5 May 1975. The will was read
to and approved by the deceased. It
was then properly executed by the
deceased in the presence of Mr. B.
(Junior) and Mr. W. D. Mr.
B. (Junior) and Mr. W.D. then
executed the will in the presence of
the deceased. Mr. B. (Junior) said in
evidence that the deceased was
perfectly normal although physically
weak and that he showed no signs of
distress. That night the deceased was
brought to hospital in Mallow and
died there of lung cancer on 16 May
1975.
In this case the substantial issue
was one of the degree of mental
incapacity; how far, it at all, the
deceased had recovered from his
admitted brain injury.
The Court stated that the onus of
proof lay on the plaintiff propounding
a will. In this case it went further and
was heavier. The deceased was living
"under the protection" of his sister,
the Plaintiff.
Per D'Arcy J.:
"The facts of this
case bear no resemblance to those of
Corboy deceased, Corboy v. Leahy
(19691 I.R. 148, but I consider the
circumstances are such that the
principles enunciated in
Fulton
v.
Andrews
(1875) L.R. 7 H.L. 448,
and in
Conboy's case
must be
applied. One must be suspicious of
(the Plaintiffs) evidence and be
vigilant and zealous in examining it. I
must not pronounce in favour of
either will unless my suspicions are
removed, and I am satisfied that the
paper propounded expresses the true
will of the deceased".
All the witnesses gave evidence as
to the degree of mental incapacity on
the deceased's part. There was
conflicting evidence by members of
his family as to the degree of the
recovery made by the deceased after
his first discharge from hospital.
There was a conflict of evidence
among the non-professional witnesses
also as to why the deceased moved
from Ballyhooly to the PlaintifTs
house at Doneraile in March 1974.
However, the evidence of five
solicitors and two of the doctors who
attended to the deceased satisfied the
Court that the deceased had the
mental capacity to make a will on
both 10 December, 1974 and 5 May,
1975.
In relation to the question of
knowledge and approval the Court
considered the cases of
Julia Begley,
Begley and others
v.
McHugh 119391
LR. 479,
and also considered
Re
Morris (deceased), Lloyds Bank
Limited
v.
Peake 11970/
1 All E.R.
1057 and in particular the judgment
(not reported) of
Sachs J.
in
Re
Crerar
referred to by Latey J. in Re
Morris
(supra).
Per D'Arcy J.:
"1 do not consider
that the presumption of knowledge
and approval has been rebutted by
any of the circumstances in this case.
However, I am unwilling to put
myself in any such straight-jacket as
referred to by Sachs J. in
Crerar
v.
Crerar.
Independently
of any
presumption, 1 am satisfied, on the
evidence of Mr. B. (Junior), solicitor,
that the deceased knew and approved
of his will dated 5 May, 1975."
Held
(per D'Arcy J.):
(1) that on 5 May, 1975 the
deceased was of sound disposing
mind;
(2) that the Will of the deceased
dated 5 May, 1975 was duly