In the matter of the estate of Andrew O'Donnell, deceased.

Kieran O'Donnell (plaintiff) v Hugh O'Donnell (defendant).

Probate - Testamentary capacity - Onus of proof - Whether testator of sound disposing mind at the time the will was executed - Whether testator knew and approved of the contents of his will.

The High Court (Mr Justice Peter Kelly); judgment delivered 4 March 1999.

Where a testator, who has attained the age of eighteen years and who is a diagnosed paranoid schizophrenic, understands the nature of the act which he is carrying out in the making of a will, and its effects, understands the extent of the property of which he is disposing, is able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, where no disorder of the mind poisons his affections, perverts his sense of right or prevents the exercise of his natural faculties or no insane delusion influences his will in disposing of his property or brings about a disposal of it which, if the mind had been sound, would not have been made, then he will be regarded as of sound disposing mind and as having testamentary capacity, and will be taken to have known and approved of, the contents of his will. Mr Justice Kelly so held in admitting the will of the deceased to probate in solemn form of law.

Patrick McCarthy SC and David Hardiman SC for the plaintiff; Conor Maguire SC and Eamon Mongey BL for the defendant.

Mr Justice Kelly set out the facts of the case stating that the deceased, Andrew "Wren" O'Donnell, who was born on 26 December 1916, and who died on 17 May 1995, executed his last will and testament on 3 March 1982. He appointed the plaintiff, who was his brother, as his sole executor and left him the bulk of his estate. The defendant, also a brother of the deceased, lodged a caveat in respect of the estate of the deceased in the Principal Probate Registry of the Court, which caveat was warned and duly appeared to by the defendant. The proceedings began on 24 November 1995, seeking the admission to probate of the will of the deceased in solemn form of law.

The defendant delivered a defence and counterclaim in which he alleged firstly, that the will was not executed in accordance with the Succession Act 1965; secondly, that the deceased, at the time of the execution of the will, did not know and approve of its contents; and thirdly, that the deceased was not of sound disposing mind at the time that the will was allegedly executed. The deceased's father, who died testate on 18 May 1962, split his land in three ways between three of his sons. One of the sons was the deceased, another was the plaintiff in these proceedings. The lands bequeathed to the deceased contained the principal residence of the O'Donnell family. They were left to the deceased, subject to the right of residence to the deceased's brother, Maurice, who was mentally ill throughout his life. The lands left to the deceased by his father adjoined the lands left to the plaintiff and for a period of three years subsequent to the father's death, the deceased and the plaintiff worked in partnership.

In 1949 the deceased was hospitalised for a period of about four years. It is common case that he was then diagnosed as a paranoid schizophrenic and that he remained so for the duration of his life. He was discharged in 1953 and did not require in-patient treatment again until 1966. In that year he had another breakdown and was admitted to hospital for a period of about three weeks. He did not require in-patient treatment again until 1991, when a further breakdown occurred. The plaintiff contended that during the periods when the deceased was not in hospital, his psychiatric condition was well controlled and to all intents and purposes he led a normal life. The plaintiff contends that this was particularly so in March 1982, when the deceased made the will in suit.

In relation to the question of whether the will was executed in accordance with the Succession Act 1965, evidence was given by Mr James Harte and Mr Nicholas Harte, two practising solicitors, of considerable experience, who were the two attesting witnesses. Both gave evidence of precise compliance with the requirements of section 78 of the Succession Act 1965 and neither were cross examined in relation to that part of their testimony nor was any evidence called in rebuttal on this topic. The defendant conceded that there was really no issue in so far as this aspect of the case was concerned. Accordingly, the court had no difficulty in answering this question in the affirmative. Before dealing with the other allegations made by the defendant, Mr Justice Kelly first dealt with a number of legal questions which were the subject of argument. The plaintiff accepted that the onus of proof was on him to demonstrate to the court that, at the time of the making of the will, the deceased knew of its contents and approved of them. The plaintiff submitted that if the court were satisfied that the deceased knew and approved of the contents of the will, such a finding had implications for the third issue, namely, whether the deceased was of sound disposing mind and testamentary capacity at the time the will was made. Reliance was placed upon Blackall v Blackall and Another (unreported, 28 June 1996), in which Mr Justice McCracken held that the onus of proving the formal validity of a will was undoubtedly on the person who propounded the will, but where there was a challenge based on the state of knowledge or health of the testator, the onus was on the person who challenged the will. It was long established that there was a presumption of due execution and of testamentary capacity where a will was formally valid; this was confirmed by the Supreme Court in In Re Glynn Deceased [1990] 2 IR 326. Mr Justice Kelly stated that the argument as to where the onus of proof lay in such cases was clearly nothing new; in the Privy Council case of Waring v Waring and Others (1848) 6 Moo. PC 341, Lord Brougham stated, at 355, that the burden of proof often shifted around as the successive steps of the inquiry, by leading to inferences decisive, until rebutted, cast on one or the other party the necessity of protecting himself from the consequences of such inferences; nor could anything be less profitable as a guide to the court's ultimate judgment, than the assertion which all parties were so ready to put forward in their behalf severally, that, in the question under consideration, the onus was on the opposite side. Mr Justice Kelly held that it was not necessary to decide the issue as the plaintiff was content to accept that if the burden of proof lay on him, in relation to the third question he had discharged it. The judge was prepared to approach the case on that basis and so began his consideration of the evidence on the assumption (though without deciding the issue), that the burden of proof was on the plaintiff in respect of all questions that had to be decided. Mr Justice Kelly recited the provisions of section 77 of the Succession Act 1965, which provides, that to be valid, a will should be made by a person who has attained the age of eighteen or who was or had been married, and was of sound disposing mind. The phrase "sound disposing mind" was defined in Banks v Goodfellow (1870) LR 5 QB 549, by Cockburn CJ, at 565, who stated that it was essential that a testator should understand the nature of the act and its effects; should understand the extent of the property of which he was disposing, should be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind should poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion should influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

The evidence in relation to the matters in dispute was divided into three categories: firstly, evidence from those who were not family members and who were not medically qualified; secondly, evidence from family members, (one of whom was medically qualified), and a valuer and; thirdly, medical and psychological evidence.

The most direct evidence given concerning the deceased and his condition at the time the will was made, came from the two solicitors who had acted as attesting witnesses. One, Mr James Harte, was a solicitor who had been in practice for the last 34 years and had been practising 19 years when the will was made. He first met the deceased when he used to sit in at interviews as an apprentice solicitor, when the deceased's mother and the deceased came to the office regularly, in their capacity as executors of the deceased's father's will. He remembered the deceased taking an active part in the affairs of the estate of his late father, the administration of which was ultimately completed in 1966. Thereafter he had little dealings with the deceased until the latter began setting lands on his farm in the 1970s. In the interim however, he would meet the deceased socially at race meetings as the deceased was a shareholder, director and regular attender at races run by Gowran Park Racecourse Company. The deceased began letting his lands in the 1970s and he would come and give instructions in that regard to Mr Harte. During all of these dealings Mr Harte found the deceased to be business-like. At no time during this period, or indeed up to and including the period involving the making of the will, had he any idea that the deceased was schizophrenic. On 16 February 1982, the deceased attended at Mr Harte's office and gave instructions to Mr Harte for the purpose of having his will drafted.

These instructions were taken in the context of a consultation lasting of the order of half an hour. Mr Harte gave evidence of discussing, amongst other things, the question of tax which might fall due on the deceased's estate and of forming the view that the deceased was aware of the tax position. The deceased also said to Mr Harte that there were so many brothers and sisters, unless he made a will, there were would be nothing in it for anyone. Mr Harte also gave evidence that during the entire of his dealings with the deceased, he did not appear to Mr Harte, to be remote or indifferent nor uncaring or apathetic, towards his family. He appeared to be fully aware of his assets and the extent of his estate and in the view of Mr Harte, had an appreciation of those who needed to be protected, in particular his brother Maurice, who was also a paranoid schizophrenic, but who was much more disabled by reason of that condition than the deceased. Mr Harte was, at all relevant times, unaware of the deceased's mental health condition or that he had had medical treatment. The judge was satisfied that when Mr Harte dealt with the deceased he regarded him as perfectly normal and was not put on inquiry as to his mental condition. The involvement of Mr Nicholas Harte, who had been in practice for about five years at the time, was a great deal less than that of his brother Mr James Harte. He played no part in the taking of instructions for the will but did witness it on the day of its execution. He had no detailed discussion with the deceased but had, what he described as a very brief exchange of pleasantries. All of this lasted less than five minutes. There was nothing about the appearance or behaviour of the deceased to give rise to any suspicion, on the part of Mr Nicholas Harte, as to his condition. In the course of their conversation the deceased commented that he had not met Mr Nicholas Harte before, in which particular he was correct, and that he was glad to meet the other member of the family. Mr Justice Kelly stated that the evidence given by these two witnesses was the only evidence concerning the state of the deceased at the precise time that instructions were given for the will and at the time of its execution. The judge was satisfied that insofar as these two experienced solicitors were concerned, there was nothing whatsoever about the behaviour or demeanour of the deceased which suggested that there was anything the matter with him. Both of them were unaware that he had a psychiatric condition and neither were put on inquiry concerning any aspect of his behaviour. The judge was further satisfied that had Mr James Harte had the slightest suspicion concerning the deceased's mental condition, he would not have proceeded to draw the will and have it executed.

There was also evidence from Mr George McGrath, county psychiatric nurse for the Gowran district, who had visited the O'Donnell farm since 1971 to treat Maurice, the brother of the deceased. He knew of the psychiatric condition of the deceased but did not have to deal with him professionally until 1991. On his visits to attend Maurice he would sometimes see the deceased who would, on occasions, open the door for him when he called and would exchange greetings. However there was no conversation between the deceased and Mr McGrath. The witness described seeing the deceased pacing the garage on occasions when he called and though he was sure that this was odd, there was never anything in the deceased's behaviour which caused Mr McGrath to be concerned. Neither did he feel there was any deterioration in the deceased's condition until 1991. Evidence was also given by Father John O'Brien, curate in Gowran between 1976 and 1983. His dealings with the deceased were much closer than that of priest and ordinary parishioner because he met the deceased on social occasions and also because the deceased was a member of the St Vincent de Paul. Father O'Brien said he would not have any reservations about witnessing a will made by the deceased.

There was also evidence from an auctioneer who carried on business at the Kilkenny Livestock Mart from 1959 until the end of the 1970s, and from an office manager of the mart. Both of these witnesses found the deceased to be business-like. The judge also had regard to the bank accounts and cheques of the deceased, which suggested that the deceased was clearly in possession of his faculties when it came to administering the business affairs of the farm, at the time around which the will was executed. Mr Justice Kelly next dealt with evidence in the second category. Two family members gave evidence for the plaintiff. They were the plaintiff and his wife. Eight family members, including the defendant, gave evidence for the defence. One witness for the defence testified that there was a chimney fire in the deceased's house, in March 1982, and that the deceased never participated in anything that went on at the fire, but simply left the room when he was told. A number of witnesses for the defence testified that the deceased spent long periods of time in the garage, sometimes sitting in his car. It was also alleged that the deceased took his meals alone. A sister-in-law of the deceased, Dr Mona O'Donnell, testified that she was of the opinion that a full psychological assessment and a full psychiatric report would be required before she would allow the deceased to make a will. In cross-examination the psychologists report, which indicated an overall positive position, was put to her. She said that she would not agree with the report but admitted that she was not a psychologist. She made it clear that there had been some tensions between her and the deceased's mother and the judge was of the opinion that this might have unwittingly coloured her view of the family to some extent. Mr Justice Kelly held, that looking at it as a whole, there was little in the testimony to persuade the court that the deceased did not have a realistic knowledge of his business affairs. He also found that the evidence of an auctioneer and valuer, called on behalf of the defence, to show that the deceased had let his lands at an undervalue, to be unpersuasive.

The third category comprised medical practitioners and a psychologist. All but one of the doctors were consultant psychiatrists. The exception was Dr Finian Gallagher, a general practitioner in Gowran, called on behalf of the defence. In response to questions put to the doctor by the judge, he said that if a person were actively schizophrenic at the time and was delusional or had hallucinations, he would expect that an experienced solicitor would recognise this over an interview lasting of the order of half an hour or forty minutes. The next witness was Dr Brid Corkery, a consultant psychiatrist and lecturer in psychiatric medicine at University College Cork, who saw the deceased in November 1983, when he came to the clinic of his own volition. He was worried about his memory. She found no objective evidence of memory impairment on examination. She also said that she found no evidence that he was incapable of making a will. In response to questions put to her by the judge, she said that she would expect a solicitor, who was used to relating to people, to be able to recognise a person who was not communicating and was not trusting him as a solicitor. She disagreed with evidence given on commission that he was a hyperphrenic schizophrenic because if that were the case, he would have required constant hospitalisation, and she further said that sitting in a car for hours was not evidence of illness.

Mr Giffney, a psychologist, saw the deceased twice, for the purposes of testing. He said that the deceased appeared well, and emotionally balanced on his two visits. Dr Griffin, chief psychiatrist in Kilkenny Hospital since 1984, saw the deceased eight times between 1983 and 1987, as an out-patient, and three times in 1991, as an inpatient. From his knowledge of the deceased, this witness felt that the deceased had the capacity to make a will. In response to questions put to the him by the judge, he said that assuming the existence of the behaviour in the garage, taking meals alone, and the inactivity when the fire occurred, he would have expected other symptoms to be present if the deceased were having a breakdown. These would have been observable by a doctor, but he was unable to say whether they would have been observable by a lay person. He thought that the inclusion of Maurice in the will, particularly when the deceased had confessed to the psychologist that he had had differences with Maurice, was indicative of an absence of paranoid ideation.

Dr Paddy Grace, a retired consultant psychiatrist, who became involved clinically with the deceased in 1966 and diagnosed him as suffering from hebephrenia at that time, gave evidence on commission on behalf of the defendant. He was of the view that the deceased was autistic, that who should benefit under the will might not have been apparent to him on the day he made his will due to autism, and that he was callous or forgetful or remote. The final medical witness for the defence was Dr John Connolly, chief psychiatrist and medical superintendent in St Mary's Hospital, Castlebar. He was never involved in the care or management of the deceased. He was given copies of the medical notes and the transcript of the evidence of Dr Grace, whose evidence was taken on commission. He was present for a lot of the evidence given at the trial and on those days that he was absent he was furnished with a transcript of the evidence. He said that there was nothing in the evidence that would lead him to say that the deceased was of sound testamentary capacity. He admitted that the will was a rational will on its face.

Mr Justice Kelly held that insofar as there was a conflict of evidence between, firstly, the psychiatrists, he preferred the evidence of those who were actively involved in the clinical care of the deceased to the evidence of Dr Connolly, who was not; and secondly, the psychiatrists who were involved in the clinical care of the deceased, the evidence of Dr Corkery and Dr Griffin, to that of Dr Grace. He rejected the suggestion that the deceased suffered from hebephrenia or that he could be described as autistic. The judge was satisfied, as a matter of probability, that at the time when the deceased made his will, he was not manifesting any of the florid symptoms of schizophrenia, that if any of these symptoms had been present, they would have been apparent to Mr Harte, and that his condition was well controlled by medication. He was further satisfied, that insofar as any of the negative elements of schizophrenia might have been present, they would also have been apparent to Mr Harte and that even if they were present, they did not interfere with the testamentary capacity of the deceased. Although the deceased was a reserved and withdrawn man, was a not a great conversationalist, and displayed odd features in his behaviour, the judge was not satisfied that any of these things, taken individually or in combination, demonstrated that he was lacking in testamentary capacity when he made the will. At the time of the making of the will he displayed considerable insight, his comment to the solicitor about the necessity for a will, given the large family, was absolutely accurate. He had made provision for the one member of his family who was most in need of it, namely his brother Maurice. It was true that father had already made such provision, but this was reiterated by the deceased. He also bore in mind other members of the family by giving them small sums of money. In leaving the farm to the plaintiff he was doing a very sensible thing. The plaintiff owned one of the adjoining farms and was the person who formerly had a good deal of contact with the deceased when they had worked in partnership and thereafter. It ensured that the rights conferred on Maurice could be implemented sensibly.

Applying the test in Banks v Goodfellow, Mr Justice Kelly was of the opinion that the deceased understood the nature of the act which he was carrying out in making the will, and its effects. From his dealings with the solicitor, he clearly understood the extent of the property of which he was disposing. In making provision for his brother Maurice, and the sisters, he had an appreciation and comprehension of the claims to which he ought to give effect. The judge did not believe that any disorder of the deceased's mind poisoned his affections or perverted his sense of right or prevented the exercise of his natural faculties, neither was he of the view that any insane delusion was present which influenced the deceased's will or brought about a disposal of property which, if the mind had been sound, would not have been made. It was true that some members of the family of the deceased might be disappointed about the way in which the property of the deceased had been disposed of, but it was up to him to make that decision. The decision which he made was rational, clear, insightful and sensible.

Accordingly, Mr Justice Kelly proceeded to answer the second and third questions in the affirmative and the result of the case was that the plaintiff succeeded, the will was admitted to probate in solemn form of law and the counter-claim was dismissed.

Solicitors: James Harte & Son (Kilkenny) for the plaintiff; Edward FitzGerald & Son (Mayo) for the defendant.