High Court of Ireland Decisions

1. Andrew O'Donnell was born on St. Stephen's Day 1916. Because of his birth date he was known throughout his life as "Wren" O'Donnell rather than by his Christian name. In this Judgment I will refer to him either as "Wren" or "the deceased". He died on the 17th May, 1995.

2. On the 3rd March, 1982 the deceased executed his last will and testament. He appointed the Plaintiff as his sole executor and left him the bulk of the estate. The Plaintiff is a brother of the deceased.

3. The Defendant is also a brother of the deceased. He lodged a caveat in respect of the estate of the deceased in the Principal Probate Registry of this Court. That caveat was warned and duly appeared to by the Defendant. These proceedings began on the 24th November, 1995 and they seek the admission to Probate of the will of the deceased in solemn form of law.

4. The Defendant has delivered a defence and counterclaim. In it he alleges that the will in question was not executed in accordance with the provisions of the Succession Act, 1965 and that the deceased was not of sound disposing mind at the time that the will was allegedly executed. Furthermore, it is alleged that the deceased at the time of the execution of the will did not know and approve of its contents.

5. On the 26th April, 1996 the Master of this Court directed the following issues to be tried:-

6. These are the issues which have to be addressed in this Judgment.

7. Wren O'Donnell was the eldest of seventeen children. At the time that he executed his will two of his siblings had pre-deceased him. One died in 1940 and the other died in 1977.

8. The deceased's father died in 1962 but his mother was still alive at the time of the execution of the will in suit.

9. The O'Donnell family were comfortably off. the deceased's late father owned in excess of 600 acres of land. He died testate on the 18th May, 1962. The deceased was appointed as joint executor with his mother of his late father's will.

10. The principal asset of the deceased's father's estate was land. He bequeathed his farm at Blanchvillestown known as "Ned McGrath's Farm" to the Plaintiff and his mother jointly for her life and after her death to the Plaintiff absolutely. The farm at Clashwilliam known as "Breens" and the stock thereon were bequeathed to the Plaintiff's brother John jointly with his mother and after her death to John absolutely. He bequeathed his farm at Blanchvillestown other than the lands known as "Ned McGrath's Farm" and the lands at Clashwilliam to the deceased and his mother jointly for her life and after her death to the deceased subject to a right of the deceased's brother Maurice to reside in the dwellinghouse on the lands of Clashwilliam and to be supported, clothed and maintained therein during his life.

11. In effect the deceased's father split his land holding in three ways between three of his sons. The lands at Clashwilliam bequeathed to the deceased contained the principal residence of the O'Donnell family. These were the lands left to the deceased subject to the right of residence to Maurice who was throughout his life mentally ill.

12. The deceased had a good academic record whilst in school. He was quite athletic and was an excellent and well known horseman.

13. In 1949 he suffered from a mental breakdown as a result of which he was hospitalised for a period of about four years. It is common case that the deceased was then diagnosed as a paranoid schizophrenic and that he remained so for the duration of his life.

14. Following this lengthy hospitalisation, the deceased was discharged and did not require in-patient treatment again until 1966. In that year he had another breakdown and was admitted to hospital for about three weeks. Following his discharge in 1966, he did not require in-hospital treatment again until 1991 when a further breakdown occurred.

15. The Plaintiff contends 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 that was particularly so at the time which I have to consider, namely, March 1982 when the deceased made the will in suit. A different view of the matter is urged upon me by the Defendant.

16. The defence delivered on behalf of the Defendant recites that the Defendant does not admit that the will was executed in accordance with the provisions of the Succession Act, 1965.

17. Evidence as to execution was given by both of the attesting witnesses. They are both solicitors of considerable experience. Mr. James Harte, the first witness, had been in practice as a Solicitor for nineteen years at the time the deceased made his will. The second attesting witness was his brother, Mr. Nicholas Harte, who had been in practice for five years at the time the will was executed. Both gave evidence of precise compliance with the provisions of Section 78 of the Succession Act, 1965 and neither were cross-examined in relation to this part of their testimony. Neither was any evidence called in rebuttal on this topic. Indeed, in closing, junior Counsel for the Defendant conceded that there really was no issue in so far as this aspect of the case was concerned. Accordingly I have no difficulty in answering the first question in the affirmative.

18. I propose to take the second and third questions together since there is a certain amount of overlap between them. Before doing so I ought to address a number of legal questions which were the subject of argument.

19. Mr. McCarthy S.C. on behalf of the Plaintiff accepts that the onus of proof is on him to demonstrate to the Court that at the time of the making of the will the deceased knew and approved of its contents. In aid of the discharge of this burden he says that the will is regular on its face and if that is so then there is a rebuttable presumption that the deceased knew of its contents and approved of them.

20. He went on to argue 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 question which I must deal with, namely, whether the deceased was of sound disposing mind and testamentary capacity at the time the will was made? In that context he relied upon the Judgment of McCracken J. delivered on the 28th June, 1996 in the case of Blackall -v- Blackall and Another .

21. In the course of that Judgment McCracken J. said:-

22. Mr Maguire S.C. on behalf of the Defendant says that in making the comments which he did McCracken J. read more into the Glynn decision than is warranted and he sought to demonstrate this by reference to a series of cases going back over the last few hundred years.

23. This argument as to where the onus of proof lies in a case such as this is clearly nothing new and that much can be illustrated by reference to the decision of the privy council in Waring -v- Waring and Others (1848) 6 Moo.PC 341. In the course of delivering his opinion Lord Brougham said at 355:-

24. In the result, it is not necessary for me to decide this issue. That is because in the course of his closing address Mr. McCarthy S.C. was content to accept that if the burden of proof lay on him in relation to question No. 3 he had discharged it. I am prepared to approach the case on that basis and so I begin my consideration of the evidence on the assumption (though without deciding the issue) that the burden of proof is on the Plaintiff in respect of all of the questions that I now have to decide.

25. The question of due compliance with the provisions of Section 78 of the Succession Act has already been decided in favour of the Plaintiff.

26. Sub-paragraph (b) re-enacts the law prior to the Act. The classic statement of what is meant by the phrase "sound disposing mind" has been defined by Cockburn C.J. in Banks -v- Goodfellow (1870) LR 5 QB 549 at page 565 in the following terms:-

27. I turn now to a consideration of the evidence which was tendered in the case.

28. The evidence can be divided into three different types. First, there was evidence from individuals who were not family members and who were not medically qualified. Secondly, there was evidence from members of the family (one of whom is medically qualified) and a valuer. Thirdly, there was medical and psychological evidence. I will deal with each in turn.

29. The most direct evidence given concerning the deceased and his condition at the time the will was made came from the two solicitors who were the attesting witnesses to the will. They were Mr. James Harte and his brother Mr Nicholas Harte. Of the two Mr James Harte had by far the greater dealings with the deceased.

30. Mr. James Harte is an experienced Solicitor who has been in practice for the last thirty-four years. As already recorded, he had been practising for nineteen years at the time when the deceased made his will. He is a member of a family practice of solicitors in Kilkenny and the O'Donnell family have been clients of that practice for many years. He first met the deceased in 1962/1963 shortly after the deceased's father died. At that time Mr. James Harte was an apprentice Solicitor. He used to sit in at interviews which would be attended by the deceased's mother and the deceased who came to the office regularly in their capacity as executors of the deceased's father's will. Mr. Harte 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 Mr. Harte had little dealings with the deceased until he began setting lands on his farm in the 1970's. In the interim, however, he would meet the deceased socially at race meetings because the deceased was both a shareholder, director and regular attender at Races run by Gowran Park Racecourse Company.

31. The deceased began letting part of his lands in the 1970's. He would come and give instructions to Mr. Harte concerning a proposed tenant to which the lands would be let, the purpose of the letting, the area to be let and the rent to be paid.

32. During all of these dealings which Mr. Harte had with the deceased he found him to be business like. He described him as a quiet spoken man and a gentleman farmer. At no time during this period or indeed up to and including the period involving the making of the will had Mr. Harte any idea that the deceased was a schizophrenic. He never noticed anything in the deceased's behaviour which was untoward; he was business like and as far as he was aware he never set any of his lands at an undervalue.

33. On the 16th February, 1982 the deceased attended at Mr. Harte's office. At that stage he was in his sixty-sixth year. He gave instructions to Mr. Harte for the purpose of having his will drafted. Those instructions were committed to writing by Mr. Harte and were produced in evidence before me. The instructions read as follows:-

34. These instructions were taken in the context of a consultation lasting of the order of half an hour. In the course of that consultation Mr. Harte gave evidence of discussing amongst other things the question of tax which might fall due on the deceased's estate. He formed the view that the deceased was aware of the tax position because he had to pay about £6,000 in taxes at the time of the deceased's father's death. The deceased was, he said, very much aware that duty would be payable and said he had sufficient in the bank to cover it. The deceased also said to Mr. Harte that unless he made a Will there were so many brothers and sisters there would be nothing in it for anyone.

35. Mr. Harte also gave evidence that during the entire of his dealings with the deceased he did not appear 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

36. Mr. Harte had an appreciation of those who needed to be protected in particular his brother Maurice whom Mr. Harte took to be retarded. In fact Maurice was also a paranoid schizophrenic but was much more disabled by reason of that condition throughout his life than the deceased.

37. Mr. Harte was, at all relevant times, unaware of the deceased's mental health condition or that he had had medical treatment. His evidence satisfies me that when he dealt with the deceased he regarded him as perfectly normal and was not put on enquiry as to his mental condition.

38. The involvement of Mr. Nicholas Harte was a great deal less than that of his brother. 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 which gave rise to any suspicion on the part of Mr. Nicholas Harte as to his condition. At the time of this meeting Mr. Nicholas Harte had been in practice as a solicitor for about five years. In the course of the exchange between the deceased and Mr. Nicholas Harte the deceased commented that he had not met Mr. Nicholas Harte before and that he was glad to meet the other member of the family. In this the deceased was accurate, in that he had never met Mr. Nicholas Harte on any occasion beforehand, but had of course a good deal of business with his brother.

39. I reproduced in some detail the evidence given by these two witnesses because it is 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 evidence satisfies me that in so far as both these experienced solicitors were concerned there was nothing whatsoever about the behaviour or demeanour of the deceased which suggested to them that there was anything the matter with him. Both of them were unaware of the fact that he had a psychiatric condition and neither were put on enquiry concerning any aspect of his behaviour. I am satisfied that had Mr. James Harte had the slightest suspicion concerning the deceased's mental condition he would not have proceeded as he did but would have had his medical condition assessed before proceeding to draw the will and have it executed.

40. The next witness was Mr George McGrath. He is the County Psychiatric Nurse for the Gowran district. He has held that position from 1971 to date. Since 1985 he was the exclusive nurse for the Gowran area. Prior to that he shared responsibility with a Mr Martin Meaney.

41. He gave evidence of calling to the O'Donnell farm since 1971 with a view to attending to the deceased's brother Maurice. He visited the farm every two weeks for a period of six months in every year and then the visitation would be taken over by Mr Meaney for the remaining six months. Since 1985 he called all the year round. Maurice was Mr McGrath's patient. However, he would meet Wren frequently but he never had to deal with him professionally until 1991. He would see Wren sometimes on the premises. On occasions Wren would open the door for him when he called and would exchange greetings. However, there was no conversation between the deceased and Mr McGrath.

42. This witness was aware of the fact that Wren had a history of psychiatric illness. He described seeing Wren pacing in the garage on occasions when he would call. On occasions his visits would last of the order of twenty minutes and he would see Wren pacing in the garage when he was going into the house and he would still be in the garage when the witness was leaving. The witness was sure that this was odd behaviour but he said that there was never anything about Wren's behaviour on those occasions which caused him to be concerned. Neither did he ever feel that there was any deterioration in Wren's condition until 1991 when Maurice brought it to his attention and he took steps to deal with Wren.

43. The evidence of this witness satisfies me that, although not medically qualified, he had long experience as a Psychiatric nurse. He knew of Wren's psychiatric condition from before the time that he started to visit the O'Donnell household. He observed him behaving in an odd fashion but had no concerns about him from a psychiatric point of view nor did he think that there was any deterioration in Wren's condition during that time.

44. The next witness in this category was Mr Alexis Fitzgerald, an Auctioneer who carries on business in Kilkenny. He was the auctioneer to Kilkenny Livestock Mart from 1959 until the end of the 1970s. He was the regular auctioneer there and attended at the mart on three or four days per week. He was acquainted with the deceased. Wren was a familiar person who came to the livestock mart in order to buy cattle. Mr Fitzgerald would see him three or four times every year. He never found anything unusual about the deceased in any respect. He did his business and he went away. On average he would buy ten to fifteen cattle per visit. They would be store bullocks of 8½cwt - 9½cwt. The deceased bid like any other person. He was visible to the auctioneer and he sat in the same area of the arena each time. The cattle would come in under him giving him a good opportunity to see them. The deceased did his bidding himself and he bid in a manner similar to most farmers. Mr Fitzgerald described him as being rather outgoing in his bidding. He described Wren as having an eye for a certain type of beast and he consistently bought that style. He bought his quota and Mr Fitzgerald could not recall anything odd or peculiar about him.

45. The evidence of Mr Fitzgerald satisfies me that insofar as his business dealings at the Kilkenny Livestock Mart were concerned, the deceased was perfectly competent, knew what he was about and conducted himself in a business-like fashion. Mr Fitzgerald struck me as a man of considerable business experience who, had the deceased displayed any oddity or peculiarity, would have been alert to it.

46. Fr John O'Brien was the next witness in this category called on behalf of the Plaintiff. Between September, 1976 and September, 1983 he was the curate in Gowran. He was acquainted with Wren as a parishioner and visited him at his home. He had more personal contact with the deceased through Wren's membership of the local conference of St Vincent de Paul Society. Wren was a member of the committee of the conference though nothing much turns on that since the membership was so small that every member was also a committee member. The conference met once per month and there would be two or three meetings coming up to Christmas. Wren was very charitable and a supporter of the society and attended all these meetings.

47. Fr O'Brien described the deceased as immaculately dressed. He was very punctual and would be present for the 8.00pm meeting five minutes before hand. He drove himself to and from these meetings. He described him as being quiet and not a man of many words. However, when the moment came to agree or disagree he did so.

48. The priest was interested in shooting and used to do so on the Clashwilliam lands. He went there with the deceased's brother Jim and the parish priest. Subsequent to shooting outings he was always hospitably received by Wren's late mother. If Wren was at home at such a time he would have a chat with him.

49. He knew that Wren enjoyed racing and that he was an avid newspaper reader. He described Wren as a wonderful horseman. He knew that Wren liked music and when he met him he would discuss the weather, cattle and horses with him, but they never had much discussion or time for discussing fine arts. He described Wren as a normal person. He was not on the sick list. He drove his own car. He did his own business. Fr. O'Brien said that he would not have any reservation about witnessing a will made by Wren. He also found him to be exact in the payment of his dues and described him as a very nice man. He was however, a man of few words and was reserved. The priest used to attend some card games with Wren. Wren would have his tea and join in with the others at the card game. He described him as carrying on as normal. He was unaware of Wren's psychiatric history. Nothing ever put him on enquiry concerning Wren or suggested to him that Wren was odd.

50. Fr O'Brien is an experienced and genial priest. He had dealings with Wren over a long number of years which included the time at which the will was executed. His dealings with him were much closer than that of priest and ordinary parishioner. The regular meetings of the St Vincent de Paul Society and the social occasions upon which he met Wren gave him, I am satisfied, an opportunity of forming a balanced picture concerning him. If Wren had demonstrated any untoward behaviour I believe it would have been spotted by Fr O'Brien, but there was never anything about the demeanour of Wren to suggest to the priest that there was anything the matter with him.

51. The final witness in this category was Mr Michael Malone. He worked with Kilkenny Livestock Mart since 1962 as office manager. That position gave him good contact with all of the buyers who attended at the mart. He took charge of the payments from purchasers.

52. He knew the deceased in the 1970s and 1980s. He knew him on a business basis. He described him as a reserved gentleman who would pay his account. He had few words but he appeared quite normal. He described him as an immaculate dresser and found nothing different in the deceased's behaviour to that of any other customer of the mart. He always paid by cheque. He would write his cheques himself. In the view of this witness this was the sign of a good businessman. This was so because only 3 - 5% of the mart customers wrote their own cheques. 95% of them would let the witness write the cheques for them.

53. He had a clear recollection of the deceased's handwriting. Two cheques were put to him in evidence and he identified them and knew the handwriting of the deceased. He confirmed the evidence of Mr Fitzgerald that Wren normally bought a load of twelve to fourteen cattle. He said that he had no suspicions concerning the deceased's demeanour or concentration. His contact with him would occur three or four times per year and he said that he had no reason to doubt Wren's commercial good sense. He never discussed family or personal circumstances with Wren but did exchange pleasantries with him. He was not aware of the fact that he was paranoid schizophrenic.

54. Again in the case of this witness I am satisfied that he was somebody who had wide experience of business dealings in the world of cattle. Not merely did he not consider the deceased to be normal but regarded him as an astute and good businessman. He never found anything about him to suggest otherwise.

55. The testimony of all of these witnesses satisfies me that insofar as his business dealings were concerned the deceased demonstrated not merely an ability to attend to his affairs but a good knowledge of what he was about and a clear insight into how to go about it.

56. My views in this regard are fortified by the bank accounts and cheques which were put in evidence before me. The cheques date from as early as 1979 to as late as 1984. They are written by the deceased and drawn on his account with the Bank of Ireland in Parliament Street in Kilkenny. They show cheques made payable to the deceased's mother on a regular basis. They also show cheques for feed, hardware, insurance premia, church dues, the Electricity Supply Board, rates, the Collector General of Revenue and the telephone accounts. There are payments made to the Department of Social Welfare, the parish priest, the curate, the butcher, the newspaper vendor (the deceased took a newspaper every day) and the livestock mart.

57. All of these cheques were drawn and signed by the deceased. To my mind they demonstrate a clear appreciation on the part of the deceased of the business side of his farming activities. They are precisely the sort of cheques that one would expect to see being paid by a competent farmer in the conduct of his affairs. There appears to be meticulous attention to detail insofar as the regular payments to the deceased's mother were concerned. All of the other payments suggest to me 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 in suit was executed.

58. Two family members gave evidence in favour of the Plaintiff. They were the Plaintiff himself and his wife. Eight family members, including the Defendant, gave evidence for the defence.

59. There will be little to be achieved by setting out in extenso the evidence given by each of these witnesses. What I propose to do is set out in summary form features of their evidence which I consider to be relevant to the issues that I have to try.

60. The Plaintiff was one of the three brothers who were left land by their father. He was left about 180 acres. These lands adjoined those which were left to the deceased. In fact the Plaintiff worked in partnership with the deceased for three years subsequent to their father's death. There were no buildings on the Plaintiff's lands at that time. In 1965 the partnership which the Plaintiff had with the deceased was dissolved on a friendly basis. Thereafter the Plaintiff did not work with the deceased but would help out when asked. During the time that Wren was working his farm he employed two workmen. He had tillage, cattle, sheep and horses. The deceased had a huge interest in horses right up to the end of his life. In fact he had his own colours and kept horses running.

61. The Plaintiff described the breakdowns which the deceased had. Subsequent to his first breakdown, the deceased was prescribed tablets. He took them and as far as the Plaintiff was concerned and appeared normal. He gave instructions to his workmen and ran his farm and organised his tax affairs in a normal way. The deceased's tax affairs were always in order. After the first breakdown the Plaintiff did not think that the deceased had to be reminded to take medication and none of his siblings expressed any concern in this regard. In 1966 however the deceased had a breakdown. The Plaintiff could not recall the cause of this. When he returned from hospital after a three week period of in-patient treatment, the deceased was again required to take pills which he would do in his room to which he would retire after lunch each day.

62. The Plaintiff described the deceased's interests as being racing, cards and classical music. He would host classical music evenings at home at which a number of people would attend. The well known broadcaster, the late Tommy O'Brien, was a friend of the deceased although he did not attend these musical evenings. These friends would in turn host musical evenings which the deceased would attend.

63. Up to the late 1970's the deceased had two men working on the farm. Thereafter he had one. When the deceased got on in years, he set the tillage land but kept the grass land. He phased out his sheep rearing around that time. He would generally direct the workmen as to the work to be done and would assist them whenever required. The Plaintiff gave me evidence of a normal farm being operated under the supervision of the deceased.

64. Apart from the musical evenings and the races, the deceased (in common with many other members of the O'Donnell family) had a great interest in card games. He would host these in turn and they were a regular feature of O'Donnell family life.

65. In 1981 the Defendant was approached by the deceased who asked him if he would be interested in coming back to the farm around that time. The Defendant declined. This was at a time when the deceased was phasing down his farming activities and a relatively short period before he made his will. The Defendant is a radio officer by profession but was apparently content to continue to live in Ennis as he had done for many years rather than return to the family farm. There was a certain suggestion in the evidence that of all of the O'Donnell brothers, Hugh was perhaps the least well provided for. All of his brothers were farmers and substantial farmers at that. To this there were two exceptions. One brother became a veterinary surgeon and the other became a bank manager. All of the sisters married substantial farmers. The only member of the family whom the deceased appeared to invite back to the family home was the Defendant but as I have already said, he declined that invitation in or about 1981.

66. The Plaintiff never had any fear visiting the Defendant. He went there twice or three times every week subsequent to his mother's death and up to the time of her death he visited every day. He never knew the deceased to be aggressive. He denied that instructions were ever given to his children not to go to the house and he did not believe that his wife could have told the Defendant's wife not to let their children go to the house. He knew at all times that Wren was schizophrenic and he admitted that he would be seen pacing in the garage from time to time but he regarded him as normal in every other way. The Plaintiff's wife was an attender at the musical evenings hosted by the deceased. The Plaintiff confirmed the general lifestyle of the deceased as being a regular churchgoer, looking after his own business, buying his own cattle, discharging the bills, and attending to his income tax affairs in conjunction with his Accountant the late Mr. Coffey. He also described the situation which arose in 1991 when all of the family became concerned about the deceased. The deceased had stopped taking his medication and became unwell. He ceased to care for himself and went down hill quite rapidly. He was taken to hospital and from there to a Nursing Home. His brother Jim the Bank Manager took over the discharge of the bills whilst the Plaintiff looked after the setting of the lands. He confirmed that at no stage was any complaint ever made concerning the conduct of the deceased.

67. In respect of the period from 1966 to 1982 he regarded the deceased as normal. He was never aggressive. He denied that his wife could ever have told the children not to go to the deceased's house.

68. He also gave evidence concerning the 1966 hospitalisation and the events immediately before it. He freely admitted that the deceased would sit in the sittingroom and was under the illusion that he was the Holy Ghost.

69. The next witness was the Plaintiff's wife. She said that she went to the deceased's premises regularly as did her four children who are now aged from 25 to 13. She said she was never prevented from going to the home and she denied any discussion having taken place concerning her children not going there. Neither she nor her children were ever prevented or asked not to go there. She described the deceased as a quiet man.

70. The Plaintiff was cross-examined concerning the relationship between the deceased and Maurice. He said that they both got on well. Wren would let Maurice have his car to use from time to time. He would also give him money when required. Even though Maurice was undoubtedly the worse of the two from the point of view of their psychiatric condition, nonetheless, he would drive on occasions even further afield than Kilkenny and did so for years. He was also asked about an issue which subsequently figured in evidence from a valuer concerning the letting of lands. The Plaintiff rented lands from Wren in the 1980's. Wren set the rate. As far as the Plaintiff was concerned he set the rate at market value and Wren did not do him any favours by letting the lands to him.

71. I turn now to the evidence which was given by the Defendant and on his behalf.

72. Kevin O'Donnell was born in 1926. He came in the middle of the family with eight older and eight younger siblings. He was friendly with Wren at all times. He gave evidence of Wren falling from a horse called "cheque book" in 1938. He was thrown against a wall and was unconscious for days. The deceased appeared to get over this. He went on to be successful in racing, was the number one in the local tennis club, and continued to display his interest in music. During the 1940's this witness rode out with Wren every morning. It was in the Winter of 1948 that there was a change in Wren's attitude. He became very religious. He went to confession every week. In March 1949 Wren began to stare at him during meals. Wren accused him of drinking. He became scared and he described Wren's eyes as getting darker. Two days later Wren said that he was going to Dublin. He did so and was missing for three days. He was found by his sister in Dublin. On return to home he was hospitalised. Thus began a hospitalisation which lasted for about four years culminating in a long stay in the psychiatric hospital in Ardee. On discharge from there he went to work with a horse trainer for 12 months. Then he returned home. He described him as a changed man. He said he was reserved and quiet. He said he could not give a decision about anything. Wren disagreed with the stable man and could not decide what to do with the horses. Notwithstanding this however Wren was this witness's bestman when he got married in 1960.

73. He described the second breakdown in 1966. The witness went to see Wren in hospital and found him quite chatty and anxious to get home. He did not have many dealings with Wren between 1966 and 1982. He used to visit the home every three weeks when the mother was alive. He would go there between November and Christmas to do shooting twice a week. It was only in the shooting season that he would visit home in the day time. Wren would be in the garage or the car. It became a bit of a joke. He wondered how he could live life in the garage or in the freezing cold. He said that Wren would spend up to half the day there. He thought that Wren was antagonistic to the mother. She would be trying to get him to do things and he would not. He said that the relationship between Wren and Maurice was not a happy one. They were not great friends. Maurice would complain of Wren. Whilst Maurice was worse that Wren he was easier to talk to. He said that he was disappointed and shocked to find the farm falling down. The doors of the stables were unattended to, the haybarn was falling and slates were broken. Wren never asked for help from him. He said that Wren was an erratic car driver. He described a dislike that Wren had of the sisters Sheila and Angela. When the mother died Wren would not have anything to do with the funeral arrangements. He remained in the garage. When it was put to him that the mother should have a decent funeral Wren pleaded that he had no money. But he did in fact come to the funeral.

74. This witness like Wren was also a member of the Board of Gowran Park Racecourse having been elected to that position in 1979. He attended the meetings at which Wren was present . Wren spoke only once. This was when he spoke on behalf of the St. Vincent de Paul Society in Gowran. He wanted money from the racecourse company for the society and got very agitated about it. He had been asked by the society to get it and he indicated that he wanted it. Wren would not speak unless spoken to.

75. Subsequent to the mother's death in 1983 he thought that Wren was no better. He indicated that he had no expectation of being left anything in Wren's will. He first became of this will subsequent to Wren's death. He did however feel that it was an injustice to leave Hugh out of the will because he had not gone on to third level education and never got a penny from the farm. He felt that John should also have been considered because he lived on the other side of the farm. In cross-examination he agreed that the cheque writing demonstrated a very orderly life on the part of the deceased but he felt that the mother had an input into this aspect of the matter.

76. The Defendant also gave evidence. He qualified as a Radio Officer in 1953 having been born in 1935. He joined the Merchant Navy and remained in it until 1972. He lived in Dublin for a few years and then in 1976 went back to work as a Radio Officer at Shannon where he continues to reside. He married in 1978.

77. He first saw Wren spending time in the garage in 1965. Thereafter he saw him in the garage quite often and he said that Wren would stay there from 10 a.m. to 2.30 p.m. at times. Between 1965 and 1972 Wren would rise at 9 a.m., have breakfast alone in the kitchen, lunch in the parlour again alone and an evening meal in the kitchen again on his own. He did not think that Wren knew what was going on. He thought he had to be told what to do by his mother or the Plaintiff. He found Wren difficult to communicate with. He did not think that Wren got on well with Maurice. Between 1966 and 1982 he thought that things were going on in the house that he could not figure out. Even though Wren would give out about the mother he would still take instructions from her. He got the impression that Wren did not want the family in the house He would visit three to four times per annum with his wife and he would also visit the Plaintiff. He gave evidence of being advised that he should not let his kids walk across the field to the deceased's premises in 1984 and 1985. He recounted the Plaintiff's wife saying that the children should not be let over there on their own because Maurice and Wren were dangerous. He said that the Plaintiff also said that he would not let his wife go over there and that she did not do so. These statements have, of course, been specifically denied by the Plaintiff and his wife.

78. In cross-examination this witness freely admitted that he had not been on the farm regularly between 1972 and 1982. For example he had never heard of Mr McGrath the Psychiatric Nurse until the Court proceedings. He was not aware of very much of what was going on on the farm although he assumed that Wren was involved in buying and selling cattle. He was very hurt that no benefit accrued to him under the will. He also agreed that the deceased knew that he was not coming back to the family home because he refused an invitation to return and live there.

79. A sister of the deceased Grace Keogh also gave evidence. She was born in 1927. She left boarding school in 1942-43 but would have been at home during the holidays from school. She thought Wren was very hard to get to know. She went to train as a nurse in 1947. She studied in the Meath Hospital. In 1949 whilst a student there she met Wren in O'Connell Street after she had come off night duty. He did not know what he was doing. He had been in the Phoenix Park. She stayed with him all day but could not get him to go to a bus. Eventually she put him on the train home. He was very agitated and disorientated. Shortly after this her mother wrote to her and said that he was in hospital in Dublin. She did not get to go to see him there but she did visit him in Ardee seven or eight times. She described Ardee as a frightening place. His condition she described as terrible. The attendant would stay with him whilst she was visiting. Eventually he improved and he was discharged from that hospital.

80. The deceased got on well with her husband who did a lot of racing talk with him. Between 1954 and 1966 she did not see much of him. Subsequent to her marriage in 1955 she visited the parents regularly. Subsequent to her father's death in 1962 she visited about once a week. Wren would be there at the fire and he would talk to her husband but not to her. Maurice would be in bed. Wren was a different man and more reserved than what she formerly knew him to be. Before 1949 he was fun at times but subsequent to that he was not she said. She did not think that Maurice and Wren got on well. Wren always had a welcome for her when she visited however. She had no expectation in sharing in the will but she thought it was unfair that Kieran had got everything. She knew nothing of card games or musical evenings. She was aware that Wren had invited Hugh to return to live at the home. She thought that Wren was a more a man's man.

81. She described a deterioration in the premises over the years and how she sent her son to put slates on the roof so bad was the deterioration in later years.

82. Joe O'Donnell a brother of the deceased and the youngest of the family also gave evidence. He is now a Veterinary Surgeon in practice at the Curragh. He was born in 1940. He remembered the breakdown which occurred in 1949. He was only nine at that stage and he never visited Wren in Ardee. He next saw him subsequent to Ardee and his year working with the horsetrainer. He said that generally Wren was withdrawn but could be helpful. He was not always easy to get conversation from. There was a problem in getting him to talk on an every day basis. In the years 1960 to 1961 he did not notice any tension between Wren and the father. He never witnessed any bad reactions between the father and Wren. He had no memory of what occurred in 1966 because he was in England at that time and indeed he remained there until 1970.

83. When he returned to Ireland in 1970 he would visit the family home and indeed sometimes his work took him there. He saw Wren on these occasions. He noticed a deterioration since the early 1960's. He was slightly more withdrawn. He was not able to maintain conversation over an extended period. When he would visit Wren would make the tea and they would have it together. He would try to engage him in horse talk. But he found Wren had a problem in conversing at an extended level. He observed him walking the garage which he considered quite strange. When he would drive into the premises he would regularly find Wren in the garage aimlessly walking about. This witness did not get involved with farm management but he said it was quite obvious that the buildings were deteriorating all through the 1970's. He never considered the farm to be fully stocked. He did not think that in the years prior to the mother's death Wren was a well man mentally.

84. In cross-examination he was unaware of the psychiatric visits that were paid to Maurice and only heard of them whilst in Court. He did not do anything despite his concern regarding Wren from 1970 onwards. He admitted that it was a totally practical way of dealing with the question of support for Maurice to leave the farm to the Plaintiff. He knew that Hugh had declined to come back to the place and that that refusal left problems. He admitted that leaving the farm to the Plaintiff was a practical way of dealing with the matter. However in re-examination he pointed out that there was no reason for excluding Jack from the will because he also was an adjoining owner.

85. Hugh's wife Patricia O'Donnell was the next witness. She visited Clashwilliam subsequent to her engagement and Wren was there. She found him very gentlemanly and very polite. However he was difficult to keep conversation with. They visited Clashwilliam four to five times a year and she was always in company with her husband. She thought Wren was rather like a "special child" who needed minding. There was something about him not quite right. He was getting quieter as he got older. She recalled the Plaintiff saying on one occasion that "Maurice and Wren were not well at times and that you could not trust them" . She also recounted that Anne said that the Plaintiff did not allow her to go over there on her own. She always found Wren to be very nice. She knew well that Wren was not well but did not think him dangerous.

86. She said that Wren was almost always in the garage. Sometimes he would be just looking at a wall. On 99% of their calls he was in the garage. There was no rapport with him. She remembered Wren at the time of his mother's death. He was not in command of himself. He did not seem to know what to do.

87. In cross-examination she admitted that Wren was always polite and gentlemanly. He always welcomed the children. She said she never saw him do anything positive and she described him as eleven pence halfpenny rather a shilling.

88. Anita O'Donnell the widow of Jim also gave evidence. She married Jim on the death of his first wife in 1965. Jim's first wife was her sister. She knew the O'Donnells before her marriage. She met Wren when he was bestman at her sister's wedding. He was very pleasant but not the life of the party. She got to know more of him subsequent to her marriage. She was a regular visitor. There were five children from Jim's first marriage. She also had children of her own. She remembered Wren being in hospital in 1966. Visits to the house were always very emotional for her husband. He was very fond of Wren and would be worried and fretting concerning him. The first five miles of the journey home were always taken up discussing this. Subsequent to 1966 Wren would never engage in conversation with her but did continue to talk to Jim. She only saw him in the garage on one occasion. She was never at the premises in the course of the day.

89. She got on well with Wren. She had great affection and deep pity for him. He was always very kind and sweet to her. He came on holidays with them. He would read the paper, have lunch, have a sleep, have tea and then go to bed. He even went swimming one Summer. She said he was an exceedingly nice man. He was very quiet, difficult to communicate with but she had no fear of him.

90. She recounted an occasion when there was a chimney fire at the house. Four people were there. Wren, his mother, Jim and her. Logs were being burned. Smoke began to come down the chimney,. The mother said "run for the salt" and Jim did so. Chunks of hot embers began to fall out on the hearth which had no fender. Wren just sat in the chair. Jim asked was there a bucket. Wren stood up. Jim told the mother to ring the fire brigade. Jim struggled on fighting at the fire. He had to tell Wren to vacate the room. The fire brigade arrived quickly. It was a frightening experience but Wren never participated in anything that went on at the fire but simply left the room when he was told. This fire occurred in March 1982.

91. She described poker games in which Wren participated. He was not a conversationalist and he got irritated if there was too much chat at times.

92. Her late husband only assisted in looking after the accounts from 1991 onwards. Before that however he would have advised Wren concerning investments and made suggestions to him in that regard. Wren disapproved of gossip and womens chat. Gabbling was not approved of by him. She thought that nobody ever did anything about Wren because nobody was prepared as she put it to "bell the cat".

93. Mona O'Donnell the wife of Joe O'Donnell also gave evidence. She is a Medical Doctor. She is an Area Medical Officer in the employment of a Health Board. Her particular interest is learning difficulties for children and adults. She married in 1966. She met her husband four to five years beforehand. He brought her home on the first weekend of their meeting. She got to know Wren later. They were regular visitors to the house.

94. On her first meeting she noticed that Wren was handsome, sitting at the fire and doing nothing. She knew of no psychiatric history and was given none at this stage. She thought he was depressed. She was then told that he had had a breakdown. It is clear however that this was not to be a subject for discussion. She got along with just this amount of information until the last few years.

95. When she would visit the house she would talk to Wren. She found him to be isolated within his family. She thought that she as a doctor should be able to do something for him. She would search him out and chat to him. She did this for three to four years but got nowhere. This was a little plan that she had worked out but nobody knew of it until later. He was pleasant and he would smile but she thought that even the children knew that there was something not too right with him. They would ask why does he not play or talk to us. Her husband would be upset by this. It was very much one sided chat with Wren. He was absolutely withdrawn. He kept his own counsel. She thought that he was suffering from severe depression. All of these attempts at conversation by her took place in the 1970's. When she was unsuccessful she really did not try too hard anymore. She thought Wren to be on a slow decline at the time and one which he continued upon. She was of opinion that a full psychological assessment and a full psychiatric report would be required before she would allow him make a will.

96. In cross-examination the Psychologist's report (which I will deal with later in this judgment) was put to her. She agreed that that indicated a positive overall position as distinct from her own view of Wren. She was surprised that he could have been tested so satisfactorily. She said however that she could not agree with the report but admitted that she was not a Psychologist. It reported a normal IQ. That did not amaze her too much. But she was surprised that it was normal.

97. A report from Dr Grace (which I will also deal with later) was also put to her. The effect of that was that no psychosis was present as of 1985. Neither was there any change in the deceased's medication at that time. She could not agree that the deceased was functioning normally. She was also surprised concerning the deceased's cheque writing. She believed he must have been helped by somebody else. She was surprised also at his mart attendance and cattle buying. She was amazed at his Vincent de Paul, Gowran Park, music and card evening activities. Her view was that his mother was his slave. She thought that everybody in the family was cosseting and supporting him.

98. Finally towards the end of her evidence she made it clear that there had been tension between her and Wren's mother and in my view this may have unwittingly coloured her view of the family to some extent.

99. Sheila Greene also gave evidence. She was a sister of the deceased.

100. When she came home from boarding school in 1944 she used help Wren to ride out every morning. She did that between 1944 and 1949. Even then he very seldom spoke to her except to give her an order to do with the horses. She thought that there was some friction between Wren and his father. She never really had very much to do with Wren except to go out with the horses and he was never really friendly towards her. She described events immediately prior to the breakdown that occurred in 1949. She was married in 1955 and went to live about two miles away from Clashwilliam. She would have occasion to meet Wren from time to time but he never spoke to her. If she were with her husband he would speak to the husband but never to her. When she would go and visit her mother she would see him walking around the garage but he never saluted her. She knew of the 1966 hospitalisation but said there was no change in his behaviour towards her after that. She also described the card schools which would take place. She described how Wren would attend at her house as her guest and she would provide a meal. Even at that he never acknowledged her on such occasions but would communicate with her husband. She described him as arrogant. There had never been any argument between them to give rise to this. Notwithstanding all of this he got on well with this witness's husband.

101. In cross-examination she said that she never saw Wren do a day's work on the farm in her life. She said that she concluded between 1966 and 1982 that Wren was unable to manage his affairs. She did nothing about it. She regarded herself as a married woman with six children and did not see why she should interfere. However she was aware that he was buying and selling cattle at that time. Neither had she any knowledge of him ever being misled in his business dealings. She knew nothing of his business dealings at the Kilkenny Mart and she acknowledged that he engaged in the social activities which have already been mentioned. She did not think that Wren was ever concerned about Maurice but she acknowledged that it was a rational thing for the deceased to protect Maurice by having him maintained and supported by Kieran.

102. This concluded the testimony given by family members. Looking at it as a whole there can be little doubt but that certainly following his first hospitalisation the deceased was not the man he was beforehand. I think he was quite withdrawn and remote. He appears to have been able to have a more normal relationship with men than with women including his own sisters. He had peculiarities of behaviour and I think would be described as an odd person. But there is little in the testimony to persuade me that he did not have a realistic knowledge of his business affairs.

103. At this stage it is probably appropriate that I should make mention of one further non-medical and non-family witness who was called by the defence. This is Mr Greene who is an Auctioneer and Valuer. He was called with a view to demonstrating that when the deceased was letting his lands he did so at an under-value. I did not find this evidence persuasive on this topic.

104. I turn now to the third category of witness who gave evidence, namely the medical witnesses.

105. The third category of witness who gave evidence were medical practitioners and a psychologist. All but one of the doctors were Consultant Psychiatrists. He was Dr Finian Gallagher a General Practitioner in Gowran who was called on behalf of the defence.

106. Gowran is about three miles from Clashwilliam. Dr Gallagher commenced practice there in 1980 and the deceased's mother was one of his first patients. He was a regular visitor to her residence thereafter attending about once per month. Maurice was also a patient of his. He saw him infrequently. He knew he was a chronic schizophrenic. He did not deal with that aspect of his illness but rather with a bronchitic condition which affected Maurice.

107. He attended the deceased for the first time in 1987. Prior to then he would see him when visiting the house. Wren would usually leave on his arrival and sit in the car in the garage. He would be there for up to half an hour. He was aware of the deceased's schizophrenic condition and he said that his dealings with him might have been prejudged by that knowledge. He knew that Wren was withdrawn and not very socially communicative. When he saw him first in 1987 he recorded that Wren had early Parkinson's disease which would have been developing from the early 1980's and would have made him withdrawn and slow. Wren attended him on this occasion for the purpose of obtaining medical certification to allow him renew his driving licence. He was then just 70 and was obliged to have a medical examination and certification so as to renew his licence. Dr. Gallagher examined him and certified him as fit. He did that again in 1988. He was satisfied that the schizophrenia was relatively stable and was not a problem.

108. He gave evidence of an acute episode of schizophrenia in 1991. It was Dr Gallagher who looked after him when Wren was finally admitted to the nursing home. It was he who wrote the admission letter for Wren's hospitalisation at this time. The letter makes it clear that Wren was refusing to take his tablets. He became paranoid and delusional.

109. In cross-examination the general practitioner expressed the view that when a person was diagnosed once as a schizophrenic he was always a schizophrenic but he went on to point out that there would be times when there would be acute exacerbations of the illness. He did not accept a comparison which was drawn between epilepsy and schizophrenia. He said that schizophrenia was a chemical disorder in the brain and he accepted that there could be normality between acute collapses into paranoid schizophrenia. He confirmed that when he certified the deceased as fit to drive in 1987 and again in 1998 he checked his motor reactions, his sight and there was nothing wrong with the deceased apart from having chronic schizophrenia and Parkinson's disease. But the doctor pointed out that there are many people driving who suffer from Parkinson's disease and schizophrenia. He did not consider that Wren was a danger on the road. Although he could not say categorically that Wren would not have had a relapse he said that taking medication reduces the chances of a relapse but does not altogether prevent it. If it prevented a relapse then schizophrenia would be curable and that is not the case. As schizophrenic condition is more stable when medication is being taken. If somebody were to cease taking medication without medical advice the chances are that schizophrenia would relapse. The doctor believed that when he examined him in 1987 and 1988 Wren was not taking any medication and in cross-examination he accepted that the symptoms which he saw were parkinsonian but he was unable to say whether they were related to Parkinson's disease or medication. Subsequently in his testimony he accepted that what the deceased manifested were features of Parkinson's disease. He also accepted that that type of symptom is a well known side effect of anti-psychotic drugs. He however never prescribed such drugs for Wren.

110. The doctor made it clear that he could not answer concerning the deceased's general commercial ability in 1982. He also said that it would not be possible for him to give a judgment concerning testamentary capacity in that year either. However there was nothing of concern in his mind concerning Wren when he examined him in 1987 and 1988. He had chronic stable schizophrenia. Wren was reserved but was able to carry on normal social intercourse with him or the local shopkeeper.

111. In response to questions which I put to this witness he expressed the opinion that if Wren's schizophrenia was no longer controlled either by medication not being taken or being ineffective he would expect to see overt symptoms of this loss of control. He said that in his opinion these symptoms would be capable of being identified by a reasonably educated alert lay person. I put to him the possibility of a schizophrenic consulting an experienced Solicitor with a view to making a will when such schizophrenia was no longer being controlled. The doctor said that if the person were actively schizophrenic at the time and was delusional or had hallucinations he would expect that such a Solicitor would recognise that over an interview lasting of the order of half an hour or forty minutes. Given that Wren suffered in the past from religious delusions he would have expected that form of delusion to manifest itself if he were having a breakdown at the time that the will was made. He was quite satisfied that if Wren were having a breakdown then in the space of half an hour's consultation with an experienced solicitor he would have expected such a solicitor to be able to spot that something was wrong even though he might not be able to put a medical label on it.

112. Dr Brid Corcoran is a Consultant Psychiatrist and Lecturer in Psychiatric medicine at University College Cork. Between 1983 and 1986 she was a Consultant Psychiatrist at St Canice's Hospital, Kilkenny.

113. In November 1983 she saw the deceased at a clinic held at Thomastown. 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. Nevertheless she referred him to Mr Giffney, a Psychologist, for testing. The deceased told her that he had been in hospital under Dr Grace in the past. He told her that in the past he had shied away from people. On examination by her there was no evidence of paranoid ideation or psychotic manifestation. Neither was there any evidence of depression. She found Wren to be aware of his problems in the past and he gave her a good account of those difficulties. He had forgotten the name of his family doctor. She saw him again in August 1984 and in 1985.

114. When she examined him in 1983 he was on an extremely small dose of Stelazine. This is an anti-psychotic medication and is the most effective treatment for paranoid delusions. She had access to the original notes. He had been diagnosed as a chronic paranoid schizophrenic. She said that if one has to suffer from schizophrenia then paranoid schizophrenia is the one with the best prognosis. It usually comes on later in life. In her view such people can lead normal lives unlike those with other types of schizophrenia. Stelazine rectifies the dopamine intolerance in the brain. Once the drug is taken patients can remain very well. Paranoid schizophrenia is due to in an imbalance in dopamine in the brain. When she examined him she made no change to his drug regime. She found him to be functioning well and there was no need to change it. The dosage was two milligrams three times per day. The recommended dose for this drug is up to fifteen milligrams per day. Normally she would prescribe ten to fifteen milligrams in accordance with the Maudsley practice.

115. Stelazine has side-effects. It can give rise to both salivation and tremors. She found no evidence of increased salivation in this case. Wren mentioned that he had a tremor but she could not say if she noticed it. She said a tremor would be a good indicator of compliance with the drug regime. She mentioned other drugs which are used to water down the side-effects of Stelazine but described it as the most efficacious drug for the treatment of delusions. It is a drug which allows an active life to be lived. It gets rid of false beliefs and is most effective. She said that functioning under it should be very good and the quality of life good. It can return a person to normality in terms of function. It allows motivation and a normal every day life. The side-effects that it has can be controlled.

116. On the three occasions that she saw him the following was the position. The first time he came worried concerning his memories and paranoid ideation. She found no evidence of either. She found his memory in tact. He did say that he found he was turning away from people. She thought it significant that he realised that he had been sick in the past. He had a subjective feeling that his memory was not good and he asked her to test it. He was aware of the symptoms that he thought he had. She found he had good insight and awareness and was functioning at a good level. Over the three meetings he continued to function well. He needed very little intervention. She had no reason to interfere and there was no evidence that he was not able to manage his affairs and no evidence of psychosis. There was nothing that he failed to comprehend from her. She found him to be in keeping with persons who have well controlled paranoid schizophrenia. She said they could lead a normal life. If there was anything which she gathered from his appearance or symptoms she would have intervened. She did not. She saw no evidence of any impairment on any occasion that she saw him. Because his original illness lasted longer than six months she had no doubt but that he was a chronic schizophrenic. She described how in the early 1950's the first of the effective anti-psychotic drugs came on the market. Prior to them there was no effective treatment. She also thought it significant that his 1966 hospitalisation was a very short duration. That was particularly so in Kilkenny where there was no pressure on beds.

117. She said that she found no evidence to say that he was incapable of making a will.

118. In cross-examination she reiterated that when she examined the deceased in 1983 he was mentally well and living an independent existence in her view. She was a recently appointed Consultant and was thorough in her examination. She had no recollection of business affairs being discussed with him by her. She was not examining him concerning this litigation or in that context. She did ask him quite a bit about persons who might have been against him and she tested him for paranoid ideation, There was no evidence on testing that he was actively paranoid. Paranoid people are very guarded and hostile and there was no evidence of that in him. Neither did she find any evidence of a dislike of persons. She said that a paranoid person is easy to spot by a trained Psychiatrist but she saw no evidence of paranoia here. Indeed one of the symptoms of paranoid schizophrenia is that despite delusions the patient does not attend a Doctor. In 1983 Wren came to her himself.

119. In response to questions which I put to her the Doctor expressed the same view as the General Practitioner to the effect that she would expect symptoms to be manifested if a paranoid schizophrenic were having a breakdown. She said she would expect such a person to have definite delusions. She said that she would expect a Solicitor who is used to relating to people to be able to recognise a person who was not communicating and was not trusting him as a Solicitor. That would be the type of hostility or evasiveness that would be present if a breakdown were being suffered. She agreed that in order to decide on testamentary capacity as of 1982 one would have to be familiar with the past history. She accepted that in 1966 Wren was mentally very unwell. He had poor insight and delusions. The 1949 episode was four years in duration but the reason for that was that there was no appropriate medication available at the time. Wren's illness was of long standing with lapses so it was not appropriate to drop the medication at any time. When she examined him there were no active psychotic manifestations but given his diagnosis she did not change his medication.

120. She disagreed with the evidence which was given on commission to the effect that he was a hyperphrenic schizophrenic. If that were the case he would have required constant hospitalisation. His outcome she said belied that diagnosis. Such a diagnosis would make it extremely unlikely that a person could stay out of hospital for as long as Wren did. There is no effective treatment for this form of schizophrenia. People who suffer from the hyperphrenic form of schizophrenia do not live in the community. A loosening of associations is much more common in other forms of schizophrenia than in the type that Wren suffered. The medication used on him is reserved for chronic paranoid schizophrenics and they stay well whilst on it. Patients who suffer from this disease and who are most deluded on presentation are the ones who respond best to medication. When she examined him she did not find any evidence of psychosis and from her training she would be looking for this. Use of the expression "autism" by Dr Grace was also put to her. She said this term is used by some Psychiatrists to suggest withdrawal. But she was quite satisfied that Wren was not autistic. He would not have had the intelligence which he did if he had been truly autistic. He did not have the syndrome of autism. She believed that it was being used as an adjective by Dr Grace. She said that sitting in a car for hours is not evidence of illness. She reiterated that on her first dealings with him he had two complaints, memory and turning away from people but she found no evidence of either.

121. She said that the fact that the deceased mentioned Maurice in his will suggests that he was thoughtful and was considerate towards somebody in need.

122. Mr Giffney the Psychologist to whom Wren was referred by Dr Corkery also gave evidence. Dr. Corkery wished to outrule organic brain disorder concerning Wren's memory. Mr Giffney tested the deceased. He saw him twice in order to do so. His first consultation was for an hour and the second for thirty to forty minutes. He found Wren to be co-operative and in good spirits. There was no hostility and no reluctance on the part of the patient. He found him to be between average and very bright in his IQ testing. The deceased was forthcoming concerning his past and was not complaining of bad feelings for people. He conducted himself in a very normal way. Mr Giffney's report was put in evidence. He summarised it by saying that his tests indicated "an absence of organic impairment from memory, new learning ability and for overall intelligence". He also said that he appeared well and emotionally balanced on his two visits.

123. Dr Griffin the Chief Psychiatrist in Kilkenny Hospital since 1984 was also called to give evidence. At the request for the solicitors for the Defendant he searched and found out-patient notes and the deceased's files for 1966 and 1991. There were no notes for the 1970's when the deceased was coming to the hospital for medication.

124. He saw the deceased eight times between 1983 and 1987 as an out-patient and three times in 1991 as an in-patient. In 1991 Wren was admitted as a temporary in-patient. He was in the hospital for seven weeks. For about three months beforehand he had stopped taking his tablets. He believed that he was God and had special powers.

125. This witness saw the deceased in out-patients in 1984. He found nothing of note recorded between then and 1985. The deceased was on a low dosage of Stelazine and he decided not to change it. The deceased was seen on the 30th August 1985 by Dr Grace but was found not to be psychotic. The medication was reduced because he was well.

126. This witness agreed with Dr Corkery that paranoid schizophrenia has the best prognosis of all of the schizophrenias. It is more organic with bio-chemical features. It can come from organic damage being done to the brain. He agreed with the history of the deceased and the breakthrough which occurred with the development of the new drugs in the early 1950's. These made an enormous difference to patients who were capable of being discharged when formerly such would not have been the case. He took the view that paranoid schizophrenics would have normal conduct if they were responding well to the drug. They could certainly write cheques etc and would appear normal.

127. He referred to the 1966 hospitalisation which he also considered to be a short stay. He was of the view that the deceased functioned for long periods of time out of hospital. Medication would not interfere with him having an appreciation of his property. The lack of memory complaint with which he went to Dr Corkery in 1983 was a subjective one and was in his view of no significance.

128. When the diagnosis of hebephrenic schizophrenia was to put him he was very surprised at this. He said that if the deceased had been suffering from that he would not have been able to handle his affairs or make a will. That form of illness shows disordered thinking and disordered behaviour. For example if he were suffering from this the deceased would not have been taking a daily paper nor would he care about himself. He would look for his meals alright but he would have no interest in life or his affairs or in property or even in making a will.

129. He said that apart from the deceased's florid episodes people would not be aware of the fact that he was a schizophrenic.

130. From this witness's knowledge of the deceased he felt he had the capacity to make a will. There would be no mental impairment. He would know what his assets were and he took the view that the fact that he provided for Maurice in the will indicated that he was alive to a moral duty towards him. In cross-examination he said that he would not regard going to the garage and sitting in the car for hours or pacing up and down there as withdrawal. However he would have asked about it and his view would depend upon the answers that he got. If the deceased had had no relationship with others then that would be significant. As to the incident concerning the fire in the house he said that not seeming to react could be cited as evidence of relapse. It would have been appropriate for everyone to get involved. This could be evidence of withdrawal in the context of a paranoid schizophrenic. However without actually speaking to the person about the incident the Doctor was not prepared to go any further than this.

131. He said that people can hide their symptoms and camouflage the signs. For example in July 1991 the deceased denied that there was anything wrong with him. He admitted that taking meals alone could be a sign of withdrawal. If he had been told in 1983 of the garage situation, fire or the unreasonable dislike of somebody he would have been more thorough in his questioning of the deceased . If he thought he was showing evidence of relapse he would have increased his medication. He accepted that an unreasonable dislike of somebody would interfere with testamentary capacity. If testing for testamentary disposition he would test cognitive ability.

132. In response to questions which I put to this witness at the end of his evidence he said that assuming the existence of the behaviour in the garage taking meals alone and 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 present and observable by a Doctor but he was unable to say whether they would be observable by a lay person. He also said that if the provision for Maurice which was inserted in the deceased's will came spontaneously from him then he would regard him as acting in a very sane manner. If however the insertion of Maurice's name was prompted by the Solicitor and that was not so it would be a contra indication of paranoid ideation that Maurice was included in the will at all whether spontaneously or otherwise. He thought that the fact that Maurice was included was indicative of an absence of paranoid ideation. This must be particularly so when the deceased confessed to the Psychologist that he had differences with his brother Maurice.

133. Dr. Paddy Grace gave evidence on commission on behalf of the Defendant. He is a retired Consultant Psychiatrist having qualified as a doctor in 1943. He was appointed to St. Canice's Hospital in 1947. He left there in 1969 to go to St. Senan's in Enniscorthy. He returned to St.. Canice's in 1979 as its Medical Superintendent. He was friendly on a social basis with the deceased's parents. He first heard of the deceased being ill in 1949 and it was through his association with the family that Wren was sent to Ardee.

134. He became involved with the deceased clinically in July of 1966. He went to Clashwilliam at the request of the deceased's mother and there he examined him. The deceased was resentful of his questions, shouted that he wasn't mad but also stated that he was the Holy Ghost and knew everything. The deceased also expressed strong ideas of resentment about his mother and his uncle and sister. Dr Grace advised the deceased's mother that Wren should be taken into hospital. He diagnosed him as suffering from simple schizophrenia. Three psychiatric nurses had to be sent out to fetch Wren into the hospital. He was excited and disturbed upon admission and was given an injection of a tranquillising drug. He received electric treatment whilst in the hospital. Dr. Grace gave evidence that Andrew developed hebephrenia, which he described as a more serious form of schizophrenia in which the disturbances of thought are very manifest. He started Wren on Stelazine. He said that there was no known cure for schizophrenia. He also prescribed other drugs to deal with the side effects of Stelazine. Wren responded reasonably well to electric treatment and was in hospital for three weeks. When asked about the hostility towards particular members of his family, Dr. Grace referred to the question of autism. He said the deceased would not be aware of who should benefit from his estate through his state of thinking and lack of feeling as a result of autism. He would not appreciate who would benefit or who should benefit from his estate and he said with autism there was a degree of callousness and that he would not be concerned about that person. This was as of 1966. He said he was very surprised when he heard the deceased made a will. He recounted a conversation which he had with the deceased's mother in which he indicated to her that she should get some legal advice about Wren's future because he regarded the outlook and prognosis as not good. If he was being left anything by his father in his will he felt that his future should be made secure and he was thinking of him being made a Ward of Court. He could not put a date on this conversation save to say that it was in summer time and must have been after the time that the deceased had been in hospital (which was 1966). The deceased's father died in May 1962.

135. Dr. Grace was not asked for an opinion about the deceased's capacity to make a will in 1982. He set forth the steps he would have taken if he had been asked to express such an opinion. Dr. Grace retired in 1984. He could not remember meeting Wren on a specific date between his return to the hospital in 1979 and the time of his retirement but he did recall Wren being present in the County Clinic in James's Street in Kilkenny. He remembered him coming into the room and sitting down in front of him but he said as usual the conversation was one-sided and Wren contributed nothing. The witness then went on to give evidence concerning his involvement with Wren at the time of the 1991 breakdown.

136. In cross-examination, he revisited the question of autism and said that Wren had this remoteness about him all the time. He said he could not see him being enthusiastic or warm-hearted or alert and able to respond. The hospital records were put to him demonstrating the improvement which occurred in Wren following his hospitalisation. He said that where the expression "well enough to continue as an out-patient" occurred, it meant that Wren wasn't prone to abnormal behaviour or prone to expressing delusions and hallucinations. He agreed that in the out-patient reviews which occurred, Wren was not displaying florid symptoms and was able to carry on within his own capacity subject to his own limitations. However, he could still have odd ways about him but was not bad enough to be in hospital. He admitted that he could give no information in relation to the decade that he was absent from St. Canice's, namely, 1969 to 1979. He said that if the deceased took his medication, he would maintain a state of well-being. If afflicted by a state of autism, he would be callous and indifferent to the needs of those around him. The doctor was not greatly impressed with the fact that Maurice had been remembered in Wren's will as being indicative of normality. He thought that this really arose from a form of apathy on the part of Wren. An opinion expressed by Dr. Griffin on the 31st May, 1996 was put to Dr. Grace. In that opinion Dr. Griffin had expressed the view that, having regard to the medical history, Wren was more than likely well at the time he made his will as he had been prior to that. Dr. Griffin said that he was inclined to conclude that Wren was of testamentary capacity. Dr. Grace said that was Dr. Griffin's opinion but he was of the view that Wren was autistic all through and 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. In his view, Wren did not fully appreciate the allegiances he should have had at the time he made his will. However, he would have known that he was making an arrangement to take effect after his death. He thought that a lot of what Wren could have done might have been automatic. He could be signing cheques automatically or if he was told that he owned 450 acres of land, he could tell the solicitor that. It would not necessarily follow that he knew all about this. He said that Wren's psychosis was there all the time but that it was up and down.

137. The final witness for the defence on the medical side was Dr. John Connolly. He is the Chief Psychiatrist and Medical Superintendent in St. Mary's Hospital, Castlebar. He has been practising as a Consultant Psychiatrist since 1972. 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 that was given during the course of the trial. On those days that he was absent, he was furnished with a transcript of the evidence. In common with the other psychiatrists, he described schizophrenia as one of the major psychiatric illnesses. He said it is a psychotic illness that involves every aspect of the patient's personality and functioning. He described different types of schizophrenia. There was simple schizophrenia, paranoid schizophrenia, hebephrenia, catatonic schizophrenia and differentiate schizophrenia. These are classifications which are made on the basis of the symptomology of the illness. The categories overlap into one another by times and the category into which a patient falls may change from one relapse to another. Symptomology is divided into both positive and negative symptoms. The positive symptoms are the more florid ones. The negative symptoms have more to do with thinking, social thinking and social interaction. He had not seen any of the medical records concerning the breakdown in 1949. However, because Wren was already a mature person at that stage, the schizophrenia would not have interfered with the development of his personality or his education. They might, however, be impaired. He might not function after his initial breakdown at the level that he was capable of functioning beforehand. He said that the florid symptoms of schizophrenia had been described in relation to the breakdowns that had occurred. However, he thought that the negative symptoms of schizophrenia were quite graphically described by the various members of the family. Spending long periods of time pacing up and down the garage or sitting in the car was behaviour which can arise from two aspects of the illness. One was the negative part, but there could also have been some of the positive symptoms present and some psychiatric patients would tend to isolate themselves because in a very socially stimulating situation, the florid symptoms might come to the fore. By isolating himself, the patient is cutting down stimulation and sensory input. He never regarded Wren as having made a recovery from his illness. Between the attacks in 1949, 1966 and 1991 he manifested, in this doctor's view, many negative symptoms of schizophrenia. One of the negative symptoms was a certain emotional blunting in the personal relationship with other people. Whilst a patient might have a lot of social skills in his relationships with people superficially, when probed deeper there would be a lack of depth.

138. The doctor said that Stelazine alleviates the florid symptoms of the illness. He described what he would have done if he had been asked to form a view as to testamentary capacity.

139. He was asked if matters that would interfere with his testamentary capacity would necessarily be apparent to an experienced solicitor who was unaware of previous psychiatric problems or illness. He said that he was of the view that such symptoms would only be apparent to the lay person when the patient was in a very florid condition. In quieter times they would not necessarily be so. He said that his view, on the basis of what he had heard and read, was that in 1982 at the time the will was made, Wren was suffering from schizophrenia but was in partial remission. He had suffered from delusions before and subsequently but he could not say how things were at precisely the time he made the will. However, he could not rule out the presence of delusions. Nor could he rule out the presence of grudges. He said there was nothing in the evidence that would lead him to say that Wren was of sound testamentary capacity. He reiterated that the behaviour of walking around the garage, isolation etc. was a manifestation of negative symptoms of the illness. He referred to Dr. Mona O'Donnell's evidence concerning her attempts to deal with Wren and her description of him as a "burnt out schizophrenic" . He said that that was how people in the past used to describe people who suffered from the negative symptoms of schizophrenia.

140. As to the psychologist's test, he said that that was to rule out organic brain disease. It was not done for the purposes of testamentary capacity. A more subtle test might have detected more subtle cognitive changes in a schizophrenic. The result of this test did not alter his view of Wren because the traditional definition of schizophrenia is that it occurs in the absence of gross organic brain damage. He took the view that because Wren had bad feelings about people and turning away from them, there was still something going on in relation to his grudges and delusions.

141. In cross-examination he disagreed with Dr. Corkery's view that Stelazine was the more effective and superior form of treatment for paranoid schizophrenia. However, he accepted that it at least alleviated all of the florid symptoms of paranoid schizophrenia in many cases. He drew the distinction between hallucinations and delusions. He defined a delusion as a fixed strong false belief and an hallucination as a false perception which takes place in the absence of an outside stimulus. He accepted that Doctors Corkery, Griffin and Mr. Giffney were in a better position to form a judgment on Wren O'Donnell's clinical condition than he. But he said they were not addressing the issues. The daily routine and the social activities of Wren were put to him and the doctor said that there were signs that Wren had an interest in those but how well he functioned in the areas, he could not say. Neither could he comment on the level of participation which Wren had in these activities. He said that somebody might be going to a mart or a social function but that these may not be significant in terms of the patient's level of illness because they could still be severely disturbed but he could not say what the position was in this particular case. He accepted that human action could be divided into initiative participation and repetition. Of these he described initiative as quite an important thing. He agreed that Andrew took the initiative insofar as music, horse-racing, farm business and card playing were concerned but questioned the quality of that initiative. When pressed he admitted that Wren had the initiative to attend card games for twenty years, had attended the St. Vincent de Paul meetings, went to race meetings, employed two workmen and dealt with his accountant. The doctor said, however, he had to balance those things against the other things that he had heard which had to do with the deterioration in the farm and resources not being used to their maximum. He thought that perhaps going to one's accountant or the mart was just habit as opposed to showing any great deal of initiative. He finally said that he just did not know. Schizophrenics can do all kinds of things. He confessed that there were a lot of things that he did not know about Wren and there were things that nobody looked at specifically in relation to his behaviour. He said there were many elements in arriving at a judgment of somebody's testamentary capacity. He also admitted that neither Dr. Gallagher nor the psychiatric nurse or any of the outsiders who had a greater or lesser opportunity to come into contact with Wren over the years when he was not manifesting florid symptomology had concern about him managing his affairs. He thought that this was never an issue for them. He admitted that Wren managed his affairs and that he was capable of running the farm to a certain level. He said that he could not know how much of the deceased's decisions were motivated by his underlying schizophrenia. However, he did know that he suffered from schizophrenia and that it may well be that he did harbour delusions. He admitted that the will was a rational will on its face. In response to a question which I put to him concerning the evidence that had been given by the solicitor who drew the will, he accepted that the comment made by the deceased to the effect that unless a will were made, there would be nothing in it for anyone was rational. It also demonstrated insight but what he did not know was about specific delusions.

142. I have set out in considerable detail what I consider to be the relevant parts of the exhaustive evidence that was given in this case running over many days. Having considered it, I have come to the following conclusions:-

143. Applying the test in Banks and Goodfellow , I am of opinion that Wren 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. I do not believe that any disorder of his mind poisoned his affections or perverted his sense of right or prevented the exercise of his natural faculties. Neither am I of the view, on the evidence, that any insane delusion was present which influenced his will or brought about a disposal of property which, if the mind had been sound, would not have been made. It is true of course that some members of the family may be disappointed as a result of the way in which the deceased's property was disposed of. But it was up to him to make the decision. The decision which he made was rational, clear, insightful and sensible. I therefore proceed to answer the second and third questions in the affirmative. The result of the case is that the Plaintiff succeeds, the will is admitted to probate in solemn form of law and the counter-claim is dismissed.