A dispute concerning whether €434,000 from a deceased woman’s estate will be shared between seven of her adult children, or just four of them, has come before the High Court.
The dispute concerns a two-sentence hand-written codicil purportedly amending the 2007 will of Elizabeth Falvey, of Ballyrehan, Lixnaw, Co Kerry, who died in October 2019 aged 90. Her death certificate recorded, among other things, “dementia certified” as a cause of death.
In her will dated July 17th, 2007, the mother of nine left her house at Ballyrehan West, contents and furniture, and her plot of bog to her son Sean Falvey for life and thereafter to another son, Ronan Falvey.
Net value
Land at Ballyrehan West and another plot of bog were left in equal shares to her daughter Maura Prout and son Aidan Falvey; other lands were left to another son, Declan Falvey; and a plot of bog to another son, Brendan Falvey.
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The total net value of the estate was some €637,000, of which the residue had an estimated value of €434,000 at date of death. Under the will, the residue was to be divided between two sons and two daughters, Noel Falvey, Brendan Falvey, Helena Kehoe and Ann Purcell.
It is claimed, by a codicil dated July 15th, 2010, Ms Falvey amended her will to include another daughter, Maura Prout and two sons, Aidan Falvey and Ronan Falvey, in the residue.
An application by Ms Kehoe, a joint executor with Brendan Falvey of the 2007 will, to prove the codicil along with the 2007 will was before Ms Justice Marguerite Bolger at the High Court on Monday.
In an affidavit, Ms Kehoe, of Slieverue, Kilkenny, said her mother kept a copy of her will in a file box in the bedroom of her home. When she visited her mother on July 29th, 2009, her mother said she wished to make a change to the will but did not wish to engage solicitors.
Ms Kehoe said, at her mother’s request, she wrote out changes on a card stating: “Mom wants to make an amendment to the will dated 17th July 2007. It is her wish that Maura and Aidan and Ronan will share equally with Helena, Anne, Noel and Brendan in the division of ‘all the rest, residue and remainder of her estate’.”
Ms Kehoe said she knew her mother had to sign this document in the presence of two witnesses for it to be valid. Ms Kehoe said she did not wish to ask a family member or a neighbour to do that and put the copy will and the lined card, dated July 29th, 2009, in the file box.
When she visited her mother in November 2009 and again in February, April and May 2010, her mother remained “adamant” she wished to make the changes but, despite Ms Kehoe’s urging, would not go to a solicitor’s office, she said.
On July 15th, 2010, when her brother Ronan and his then girlfriend — now wife — Helen O’Loughlin, were visiting, her mother signed the codicil in the presence of Ms Kehoe and Ms O’Loughlin, who also both signed it. On “numerous” occasions after that, including the week before her mother died, her mother had asked her: “Is the will done?” and: “Is everyone looked after?” she said.
‘Pretend’ codicil
Ms Kehoe’s application is opposed by her brother, Noel Falvey, represented by barrister Bonnie Hickey.
In an affidavit, Mr Falvey, of Seapark, Malahide, Co Dublin, referred to the codicil as the “pretend” codicil and said he was “greatly surprised” with his sister’s statement their mother wanted to make changes to her will without instructing her solicitors, whom she held “in high regard”.
He did not consider Ms Kehoe’s explanations for the use of different coloured biros to write, date and sign the codicil were “plausible” and said she failed to refer to Ms O’Loughlin being hesitant about witnessing it.
It seemed as if efforts were being made to prevent the law firm, who had acted for her parents over years, dealing with the matter, he said. He took issue with Ms O’Loughlin’s sworn statement that she agreed with the facts as set out by Ms Kehoe.
The judge was told by barrister Karl Dowling, for the estate, that if the codicil stands up, it will dilute the share of the residue of the four siblings named in the 2007 will.
Adjourning the matter to November, the judge said there was no issue about Mrs Falvey’s testamentary capacity when she made the 2007 will but the court wanted additional medical evidence concerning whether she had testamentary capacity in 2010.
