Courts

Lawyers must continue to represent woman seeking part of man’s estate, judge rules

Woman’s lawyers want to come off record on grounds she has lost mental capacity to give proper instructions

The woman was named a coexecutor of the man’s estate but formally renounced those rights to allow her to bring her action

Aodhan O'Faolain
Thu Apr 27 2023 - 16:11

A High Court judge has refused to allow lawyers to cease representing a woman in proceedings seeking part of the estate of a man with whom she claims she was in a relationship for more than 30 years.

The woman’s lawyers made an application, 19 days into the hearing of her case, to “come off record” on grounds that she lost the mental capacity to give them proper instructions.

The woman, who is aged in her late 70s, denies she lacks capacity. She wants her case to proceed and said she would source new lawyers if the court agreed to her current lawyers’ request.

The parties in the case cannot be identified by order of the court.

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Ruling on the application, Ms Justice Siobhán Stack said the woman’s lawyers did not establish that the woman lacks capacity to progress the case.

The court accepted that medical evidence was produced showing the woman suffers from certain cognitive difficulties but it was not established that she does not understand the nature of the proceedings in which she is involved.

Her lawyers acted in a proper manner and there was no question regarding the ‘bona fides’ of their concerns, the judge said.

In proceedings against the executor of the man’s will, the woman claims she is “a qualified cohabitant” under the 2010 Civil Partnership Act and is entitled to proper provision from the estate. She claims she was in a long-standing, intimate and committed relationship with him.

The court heard the man, who died in 2011, a few months after the 2010 Act commenced, left “a very valuable estate,” comprising trusts in favour of his children.

The man made no provision for the woman in his will.

He did mention her in a letter of wishes accompanying his will where he described her as an “assistant”.

He said in his letter that she should remain employed in his companies and should be paid a salary of €40,000 for a time after his death. She should have a non-exclusive right of residence for life in the “extensive property” they allegedly cohabited, he also said.

She should not have any interest in the property, where she has continued to live since the man’s death, the letter concluded.

The woman was named a coexecutor of the man’s estate but formally renounced those rights to allow her to bring her action.

Her claims are denied and her application is opposed.

In addition to those proceedings, the court noted the woman brought a related case seeking to prevent her removal as a director of a company originally run by the deceased.

The executor also brought proceedings against the woman seeking possession of the deceased’s property.

Ms Justice Stack said the case brought under the 2010 Civil Partnership Act ran before the court for 19 days and is likely to take many more days to conclude.

It was adjourned in 2021 after medical evidence was given by a psychiatrist saying the woman lacked capacity to give the instructions or to further participate in the trial.

Her lawyers became concerned for the woman’s health and wellbeing during the trial after she became distressed.

It was also proposed that the woman should be made a ward of court, the judge said.

Due to cost implications, the judge said that nobody, including the woman’s family members, was willing to act as the woman’s “next friend” to permit her claim to be maintained.

The High Court nominated an independent medical practitioner to assess the woman.

That assessment, conducted last year, stated that the woman does have the capacity to make health and welfare decisions, as well as decisions to relating to property and financial affairs.

The court accepted that there was a “significant delay” of more than two years, caused by the issue about the woman’s capacity, which risks significant injustice to the executor.

However, there was a risk to the fairness of the trial if it does not resume shortly, as some of those listed to give evidence about the relationship between the woman and the deceased are of advanced age.

The judge said that, after considering the medical evidence, she was satisfied the woman understands the nature of the proceedings in which she is involved and their ultimate purpose.

The woman’s cognitive difficulties may well be material to an assessment of her evidence, the judge added, but do not establish on the balance of probabilities that she lacks the capacity to conduct the proceedings.

The judge said that in the circumstances the court was not giving the woman’s lawyers permission to come off record in any of the three actions in which she is involved.

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