The issue of Testamentary Capacity and whether the deceased had testamentary capacity to make her Will was once again considered by the High Court on the 21st November 2022 in an Application to the Court by the Executors of the Estate of Margaret Stella O’ Reilly Deceased, High Court Record No 2022/7200  IEHC 663.
The deceased died on the 9th January 2018. At that time (and since 2010) the deceased was resident in a Nursing Home. The deceased was 80 years old at the date she made her Will. The testamentary capacity of the deceased was at issue as one of the causes of death in her death certificate was “advanced dementia” and “cognitive impairment”. The deceased died almost 6 years following the date of making her Will in July 2012.
Before the Will could be admitted to Probate
The Probate Office, before admitting the Will to Probate, had requested an Affidavit of Testamentary Capacity from a doctor who had treated the deceased at the time she made her Will in July 2012. Medical evidence was that the deceased had probably had a stroke in June 2012; although this was not confirmed or communicated at that time. She had scored quite poorly at a rate of 3/10 on a cognitive assessment test that was carried out on her on the 11th July 2012, which was only one week after executing her Will. The deceased’s GP, Dr. Fiona Murphy, had advised the deceased’s Solicitor Mr. Simpson in correspondence that over the years she had noticed the deceased’s mental state could alter, due to a depressive illness from which she suffered. Neither the deceased’s GP nor the deceased’s Consultant in old age psychiatry could provide the required Affidavit as at July 2012 as they had not been requested to do so at that time.
The Medical Records
The medical records in the Nursing Home in April 2010 contained references to the deceased being “confused on and off” and having low mood. However, in May 2012 she appeared “brighter” and “in good form”, but there were still references to occasional “confusion”, anxiety and the need for reassurance. There was nothing in the medical notes from the date of the Will to indicate that the deceased was confused or unable to understand matters on that day.
The evidence presented to the Court
The evidence presented to the Court however by way of Affidavits by the Solicitor and by the friends of long-standing to the deceased indicated to Ms. Justice Roberts that, where the deceased was merely making amendments to a previous Will which she had made in 2008, she had rationally dealt with the changes in her Will. The Solicitor Mr. Simpson had met her on a number of occasions in advance of her making her Will and she had dealt with other issues, including an advance health care directive, her VHI policies, putting in place a caretaker’s agreement for her apartment and possible tax refunds due to her for payments she was making on a monthly basis to the nursing home.
Section 77 of the Succession Act 1965 and the requirement to be of sound disposing mind
Referring to Section 77 of the Succession Act 1965, the Judge stated that for a Will to be valid it must be made by a person who “is of sound disposing mind”. Referring to a Decision of the Irish High Court in Flannery -v- Flannery and Hehir  IEHC317, she repeated the principle that “the testator should know and approve the contents of the will and, at the time of execution of the will, be of sound mind, memory and understanding”.
In Flannery, the High Court had approved the long line of authority identifying the necessary ingredients to establish a sound disposing mind as articulated in Banks -v-Goodfellow  LR 5 QB549. This is a threefold test, all elements of which must be satisfied in order for a person to have testamentary capacity; namely that:
- The testator must understand that she is executing a Will and that this document will dispose of her estate on death.
- The testator must know the nature and extent of her estate.
- The testator must be able to call to mind the persons who might be expected to benefit from her estate and decide whether or not to benefit them.
Ms. Justice Roberts found that despite her underlying depression and dementia, the deceased had testamentary capacity in July 2012 and accordingly the Will was admitted to Probate.
So, what have we learned?
It is significant to note that, despite the fact that all medical personnel had expressed concerns with regard to the deceased’s mental capacity to make her Will in July 2012 (the Judge noting that the deceased’s GP had stated in correspondence to the Solicitor that “at no time during her stay can I confirm that she had mental capacity to manager her affairs”), the Judge, having noted that there was no Affidavit from any medical professional that the deceased lacked testamentary capacity in July 2012, and noting the care taken by the Solicitor in taking instructions and the surrounding evidence of close friends, was still happy to admit the Will to Probate.
Obviously, detailed records and instructions on the part of the Solicitor preparing the Will are important at all times.
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