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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Re Glynn, deceased [1989] IESC 3; [1990] 2 IR 326
URL: http://www.bailii.org/ie/cases/IESC/1988/1989_IESC_3.html
Cite as: [1990] 2 IR 326, [1989] IESC 3
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THE SUPREME COURT
Walsh J.; Hederman J.; McCarthy J.
THE SUPREME COURT
(16/87)
IN THE GOODS OF WILLIAM GLYNN, DECEASED
BETWEEN/
SARAH GLYNN
Plaintiff
and
WILLIAM GLYNN
Defendant
JUDGMENT delivered on the 28th day of July 1989 by
WALSH J.
The late William Glynn was a bachelor and a farmer who died at his farm in Kilchreest, Loughrea, Co. Galway on February 14th 1982 aged 77. The plaintiff in the present case was his sister. She was older than he was and appears to be the only survivor of the family. She, too, was unmarried, but had lived all her life on the farm with the deceased. The defendant, William Glynn,was a second cousin of the deceased and had little or no contact with deceased during the deceased's life-time. He is the executor named in the will and he has in this action sought to propound the will.
So far as the evidence is concerned it does not appear that the deceased had ever turned his mind to the making of a will until the question was raised with him about two years prior to his death by a Fr. Donoghue, who apparently claimed to have had some experience in drawing wills. According to the evidence the deceased had expressed some distrust of a solicitor drawing a will for him and after his conversations with Fr. Donoghue decided to entrust the drawing of the will to the latter. He had decided to leave all of his property to the defendant, who was described as being a bank clerk living and working in London. There is evidence that Fr. Donoghue did point out to him the merits of leaving his farm to somebody who would carry on the family name. As it happened the defendant was of the same name as the deceased. The instructions he gave were to leave all of his property to the defendant, but, apparently on the suggestion of Fr. Donoghue, he made a bequest in favour of his sister, Sarah in the sum of £20,000 sterling. There is no evidence that the deceased expressed any view or even indicated any appreciation of the difference between a bequest in pounds sterling and in Irish pounds although the bequest in pounds sterling would be in value approximately 15 to 20 per cent greater than the same sum in Irish pounds. In fact the evidence was that the testator was never told of the reference to sterling which was solely the idea of Fr. Donoghue. This was particularly remarkable in view of the fact that the evidence was that originally it was the testator's intention, which he repeated to other persons, to leave nothing to his sister. What is even more remarkable is that it appears that there was a sum of approximately £100,000 in a joint deposit account in a bank in the names of his sister and of himself and he made no mention of that to Fr. Donoghue or to anybody else. Nevertheless the will was drawn in a form which apart from the bequest to the sister left everything else in the form of residuary bequest to the defendant. As far as this case is concerned the deposit account was not mentioned to anyone and the Court is unaware of the circumstances of the creation of the deposit account in the bank or if the sister would take by survivorship or whether simply she would have held it on a resulting trust for her brother. Be that as it may Fr. Donoghue, who drew the will in a form where all the property of the deceased passed by way of a residuary bequest save the bequest to the sister, was totally unaware that the residuary estate was anything other than the farm.
Having given his instructions to Fr. Donoghue the latter then proceeded to draw up a will on a sheet of paper which he kept in his own possession. The evidence shows that it was never seen by the deceased until the date of execution. There was evidence that the deceased had spoken to other persons and had indicated that he had made a will and generally indicated the effect of the will.
The deceased suffered a massive cerebral stroke on the 5th October 1981 and was thereafter confined to hospital until the date of his death, the 14th February, 1982. The purported execution of the will took place on October 20th, that is to say fifteen days after the deceased suffered the massive stroke.
The question which arises for decision in the present appeal is whether the purported will was executed in accordance with s. 77, subs. 1 of the Succession Act, 1965, which lays down the general rule that to make a valid will a person must be of sound disposing mind. It is a matter for the Court to decide whether the document in question is the will of a free and capable testator.
There is no doubt on the evidence that the instructions for the will (save as to the reference to sterling) were given by the deceased at a time when there would be no question of his lacking a sound disposing mind. There is ample evidence to show that the text of the document was in accordance with the instructions he had given prior to suffering the stroke. The question which arises for decision is whether at the time of the purported execution of the will the testator was of sound disposing mind. The learned President of the High Court was of the opinion that he was and it is from this decision the present appeal has been taken.
On the 20th October 1981 it was apparently thought that the time had come for the execution of the will. On that day Fr. Donoghue and a Mr. Noel Carter attended at the hospital where the deceased was confined with the view to having the will executed. Fr. Donoghue had not since the stroke seen the deceased. Mr. Carter was well known to the deceased and in fact had been present when the deceased had given instructions to Fr. Donoghue to draw up the will. Neither Fr. Donoghue nor Mr. Carter consulted the medical attendants of the deceased either before or during their purported interview with the deceased as a result of which he signed the will in the presence of both these gentlemen by affixing an X as his signature. By reason of the stroke he was totally capable of writing and also totally incapable of speech. According to the evidence of the priest and of Mr. Carter given before the President of the High Court each sentence of the will was read out to the deceased with a request to nod if he was in agreement with it. Both witnesses said that he nodded as they interpreted it affirmatively in respect of each provision in the will. The learned President of the High Court found them to be witnesses of integrity and of truth and who had no private or personal interest, and that they were quite satisfied that the sick man knew what he was doing. That is a conclusion as to the opinion of both of these gentlemen but that opinion did not establish that the sick man knew what he was doing.
While neither of the two medical practitioners who attended the testator during his illness had known him before his admission to hospital, after he was admitted they had ample opportunity for observing him during their treatment. In respect of the date in question namely, the date of the purported execution of the will, one of these practitioners, Dr. O'Gorman, who saw him
regularly considered that the deceased was disorientated and that it would have been practically impossible to communicate with him. He expressed the view that it might well be, that the patient did not understand what was being said to him and that his level of consciousness was such that he was not able to communicate any of his own ideas. He said that some method of communication or a code of some kind would have had to be established in the first instance which the patient himself would clearly understand and by which he could then indicate his understanding and agreement with any of the ideas which were being communicated to him and indicating his own assent to these ideas. The other medical practitioner, Dr. Heskin was of the same opinion.
In fact no such code was ever established nor was any effort made to do so. In those circumstances therefore it cannot be said. that the testator was of sound disposing mind at the time of execution as distinct from the time the instructions were given for the will. On the day in question the testator had, to say the least of it, extreme difficulties of communication. The circumstances are such that I would adopt the words taken from the unanimous judgment of this Court in In bonis Corboy; Leahy v. Corboy 1969 I.R. 148 at 167:
"It would seem to me that nothing less than firm medical evidence by a doctor in a position to assess the testator's mental capacity could suffice to discharge the onus of proving him to have been a capable testator. No doctor was brought to see him on that occasion. Such evidence as was adduced does nothing to aid matters. The testator said nothing and one does not have any material on which a judgement can be formed as to his mental capacity so far as he himself is concerned."
In that case the evidence had been that the testator was a man who had except during the attacks of the illness he suffered from a reasonable degree of understanding although with a difficulty of communication. In the present case the entire basis of the finding that the deceased had the necessary understanding was based upon the interpretation put upon his smiles and his nods. To quote again from Corboy's case at the same page:
"One is left to deduce from the fact that the testator nodded his head that he understood and approved of what had been read out to him. (Fr. Godfrey's)previous contacts with the testator did not put him in a position to evaluate his power of comprehension in a matter of this kind, nor did he put himself in a position, by way of questioning the testator, to assure himself of what the testator really intended to convey by his nod. A skilled lawyer would have found great difficulty in assessing the testator's real attitude of mind, considering the difficulties of communication that existed."
In the case of In re Julia Begley, Deceased; Joseph Begley and Others v. The Very Rev. Michael
Canon McHugh and Others 1939 I.R. 479 the former Supreme Court of Justice decided that a presumption arises where a testator, of sound mind, memory and understanding, has had a will read over to him and has duly executed it, that he knew and approved of its contents, but in order that such a presumption should apply, in the event of the validity of the will being contested, it must be established to the satisfaction of the Court, or of the jury if the case be tried with a
jury, that not only was the will read over to the testator, but that it vas read in such a way as to make plain its contents to him. In that particular case the jury had found that a will had been duly executed and that the testatrix was of sound mind, memory and understanding, but that she did not know and approve of its contents. The only evidence in the present case that the deceased knew and understood and approved of the contents of the document read to him was the assumption that his nodding and smiling at a time when no code of communication had been established to indicate that he knew and approved of its contents and understood what he was doing.
So far as Fr. Donoghue and Mr. Carter were concerned what is in issue in this case is not their integrity or their veracity but simply the correctness of their assessment of what was essentially a medical problem. In the light of the medical evidence given in this case it is my opinion that it cannot be held to be proved that at the time of execution of the will the deceased was of sound disposing mind.
On behalf of the defendant it has been contended that because of the dispositions in the document being ones to which the deceased had fully assented when he had been in good health the deceased's nodding on the 20th October followed by his marking the document was sufficient to establish his knowledge and approval of it. Reliance is placed on judicial views expressed in a number of English cases. In Parker and Anor. v. Felgate and Tilly 8 PD 171 the President of the Probate Division said at p. 174 that if a testator is able to say to himself:
"I will settle up the business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it"
that the testator in question has a testamentary capacity if he is capable of such a train of thought.
This point of view was put forward in a context in which a person might no longer have capacity to go over the whole transaction from beginning to end and think it out all over again. While I do not find it necessary to explore this matter upon the basis of the assumptions embodied in it there is nothing whatever in the present case to indicate that the deceased either did follow or was capable of engaging in such a train of thought. In my view therefore this case is not of any assistance. In another English case namely,The Estate of Wallace, Deceased, Solicitor of the Duchy of Cornwall v. Batten and Anor. 1952 2 TLR 925 the testator though seriously ill wrote out and signed a statement of his testamentary intentions or directions. These were embodied in a will which was not read over to him but which he executed shortly before his death. The evidence established that when he executed the document he understood what he was doing and accepted it as one carrying out his last wish. Devlin J. in upholding the will stated that:
"if a testator gives instructions for a will to be drawn and if the Court is satisfied that he knew and approved of the contents of those instructions it is not necessary that the Court should also be satisfied that he knew and approved of the contents of the will provided the circumstances were such as would enable the Court to say that he knew the will had been drawn according to his instructions."
The point in issue in this case and which apparently was not in issue in that case was whether the deceased was capable of knowing and approving of the contents of his will. In the English case the evidence of the circumstances apparently established that he was so capable.
These cases may be authority for the proposition that a testator may "nod through" a document read over to him which is his testamentary disposition and even when has not had it read over to him and thus manifest sound disposing mind at the time of execution provided he understood at that time what was in the document and that he had sufficient mental capacity to approve it or reject it and that he was capable of communicating and did in fact communicate his approval
or rejection as the case may be. In the present case the President of the High Court decided that the deceased had all these attributes. The decision was based only on the opinion formed by Fr. Donoghue and Mr. Carter, who, having no medical expertise whatever, based their opinion on their previous acquaintance with the deceased, though they had never seen him in that condition before, as against the expert medical testimony of the medical practitioners attending the deceased. In fact they do not appear even to have known how serious was the condition of the deceased or that he had suffered a stroke. In my view that is a finding which cannot be upheld.
I would therefore condemn the will as not having been executed in accordance with the provisions of s. 77(1) of the Succession Act, 1965.
IN THE GOODS OF WILLIAM GLYNN, DECEASED
Walsh J. Hederman J. McCarthy J.
16/87
BETWEEN
SARAH GLYNN
AND
WILLIAM GLYNN
Judgment of McCarthy J. delivered the 28th day of July 1989 (Hederman J concurring)
Section 77 of the Succession Act 1965 requires that to be valid a will shall be made by a person who "is of sound disposing mind", a legislative adoption of a judicial term of art requiring that the testator should know and prove the contents of the will and, at the time of execution of the will, be of sound mind, memory and understanding.
William Glynn, of Kilchreest, Loughrea, Co. Galway, died on the 14th February 1982 at the age of 77. He was a bachelor and had lived all his life on the family farm at Kilchreest, enjoying a reputation as a strong farmer with a particular skill as a judge of livestock. Sarah Glynn was his immediate elder sibling and, when William died, was the only survivor of that Glynn family. She was unmarried and had, also, lived all her life on the farm at Kilchreest. She was the obvious most apparent object of his bounty.
It is unnecessary to detail the many events described in the judgment of the Learned President of the High Court. Sufficient to say that William had been contemplating the making of a will for some considerable time prior to August 1981 when he gave instructions to Fr. Patrick Joseph Donoghue, in the presence of Noel Carter, to draw up a will for him. He was an intelligent hardworking businesslike individual; because of some earlier problem, he did not trust a solicitor to draw his will, a skill in which Fr. Donoghue had some experience. He had decided to leave all his property to William Glynn, the Defendant, a Bank Clerk J in London. This William Glynn was a second cousin with no other connection with the family farm and unknown to Sarah. His only real qualification, so far as the testator was concerned, was that he was of the next generation and he bore the testator's name. Other apparent objects of the testator's bounty would have been his neighbours and kind friends, Mr. & Mrs. Stewart.
William suffered a massive stroke on the 5th October 1981 and was thereafter confined to hospital until the 20th October when the purported execution of the will took place. On that day, without any medical assistance, Fr. Donoghue and Noel Carter concluded that William knew what was going on and was capable of making a will. They did not consult anybody in that. regard. Dr. O'Gorman, who saw him on a regular basis, considered that on that date "he was still disorientated." It was practically impossible to communicate with him; "it may very well be the case with this patient that he didn't understand what Was being said to him." He concluded "that his level of consciousness was such that he was not able to communicate any of his own ideas and some method of communication would have had to be established with him, some code whereby he understood and agreed that the ideas that were being communicated to him coincided with his own ideas." In sum Dr. O'Gorman appeared to think that if a code of communication could have been established then William had testamentary capacity. Dr. Heskin had the same view, neither medical gentlemen had know William before his admission to hospital.
As far as can be ascertained, the estate consisted of the balance of the farm of land retained by William, the house and contents on the land, and a sum of approximately £100,000 on joint deposit receipt held by William and Sarah, some £38,000 of it having come from the sale of a portion of the land. In the discussions that preceded the making of the will with Fr. Donoghue, no reference was made to the monies on deposit receipt; William was intent on leaving his property to his namesake; by his property in context he meant the lands. He was prevailed on by Fr. Donoghue to make a cash provision for Sarah and a charitable disposition to his parish priest. Fr. Donoghue thought that Sarah would enjoy a right of residence for her life and it might be presumed that William thought the same. Such is not the case. The residuary bequest in the purported will was as follows:
"I bequeath (sic) remainder of my estate in land and monies to my cousin William Glynn. This includes all resting thereon at the time of my death."
There were some bizarre circumstances surrounding the wording of and the execution of the will but, in my judgment, these do not bear upon the essential issue. Did William know what he was doing at the time he affixed his mark? The Learned President, who accepted the honesty and truthfulness of all of the witnesses, held that William did know what he was doing on the 20th October 1981. This holding is an inference of secondary fact to be derived from the primary facts as found by the President who heard the witnesses, of whom he found Noel Carter to be a most impressive and reliable witness. The document drawn by Fr. Donoghue did represent the testamentary wishes of William Glynn " as of the 5th October. Was it then sufficient, as described by Fr. Donoghue and Noel Carter, that William nodded it through on the 20th October?
Fundamentally, the challenge to the finding of the Learned President. upholding the will was twofold -that in respect of the use of the word sterling, and of the bequest to Sarah, without providing for her residence, this did not represent the intentions of the testator, and that on the 20th October, it could not be ascertained if he had changed his mind.
Mr. O'Flaherty, for the residuary beneficiary, contends that since the document contained the dispositions intended by William as of the 5th October and earlier, and this was conveyed to him on the 20th October, his apparent consent by marking the document was sufficient to establish his knowledge and approval of it. Even, it is said, if a testator could not remember what was the nature of his earlier instructions, if he believed that the document being executed, albeit in an informal manner reflected his wishes, then the execution was valid. Reliance was placed upon the reasoning contained in a summing up to a jury by Sir J. Hannen (President of the Probate Division) in Parker & Another -v- Felgate and Tilly approved in Perera -v- Perera (1901) AC 354 at 361 and applied in the estate of Wallace deceased; Solicitor of the Duchy of Cornwall -v- Batten & Another. In Parker's case the deceased, a young married woman left the residue of her estate to a children's hospital excluding her apparently improvident father and brother to whom she gave pecuniary bequests. The Learned President of the Probate Division, whose summing up might be categorized as favouring the will said, at p. 174,
"A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself "I have settled up business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it", it is not, of course necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient."
The jury found that the deceased did not remember and understand the instructions she had given to the solicitor nor could she have been made to understand each clause of the will if it had been put (2) (1952) 2 T.L.R. 925 to her but that she did understand that she was engaged in executing the will for which she had given instructions. On these findings, the will was upheld, the report of the case containing a footnote to the effect that a motion for a new trial was compromised.
In Wallace's case, where the beneficiaries were those who had befriended and looked after the deceased and the estate on intestacy would have fallen to the English Crown, the testator, when seriously ill, wrote and signed a statement, called "Last Wish" giving the defendants all he had. These directions were formally embodied in a will which, without it being read over to him, (my emphasis) he executed shortly before his death. when he executed the document he understood what he was doing and accepted it as one carrying out his last wish. Devlin J., upheld the will. In doing so, he said (p. 930):
"The defendants therefore rely on the principle, which according to the authorities has been well established, that if a testator gives instructions for a will to be drawn, and if the Court is satisfied that he knew and approved the contents of those instructions, it is not necessary that the Court should also be satisfied that. he knew and approved of the contents of the will, provided that the circumstances were such as would enable the Court to say that he knew the will had been drawn according to his instructions."
I can deal with this principle quite shortly, because the essential part of it, as far as I am concerned, has been summarized by Lord MacNaghten in giving the judgment of the Privy Council in Perera -v- Perera. In the relevant passage Lord MacNaghten approved the rules laid down by Sir James Hannen in Parker -v- Felgate in the following terms:
"If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far:
"I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out."
It appears clear that. this is the law of England. I am unable to identify any weakness in the conclusion as expressed by Lord MacNaghten. Further, it seems to me to be supported by common sense and, indeed, by public policy. A duly attested will carries a presumption of due execution and testamentary capacity. That presumption was displaced because of the circumstances of the will in the instant. case as well as in Wallace and in Parker.
It is a fundamental matter of public policy that a testator's wishes should be carried out. however, at times, bizarre, eccentric or whimsical they may appear to be. One man's whimsy is another man's logic. I am far from saying that William Glynn's wish to preserve his name as the owner of these lands is in any sense bizarre, eccentric or whimsical. Albeit that he may have thought his sister would have had a right of residence, that does not invalidate his will. He just happened to be mistaken but he still knew what he was doing when he gave the instructions to Fr. Donoghue and confirmed them to Noel Carter. Sarah would scarcely wish to challenge the validity of the bequest of £20,000 sterling to her. These are peripheral matters - the nub is William's capacity as of the 20th October. If on that date he had been required to give instructions for the making of any sort of testamentary document, even as simple a one as the one in question, it may be that the validity of its execution could be challenged. That is not what he was doing; he was confirming instructions already given; he was told that the document represented, as it did, what he had expressed to be his testamentary wishes. The two individuals concerned, Fr. Donoghue and Noel Carter, whose integrity is beyond question, who had no private or personal interest, were quite satisfied that he knew what was going on. In that sense, the case is stronger than it was in Wallace or in Parker. For my part, it is sufficient to say that there was ample evidence before the President that the testator fully appreciated what was going on and that the terms of the document upon which he placed his mark fully represented what he wanted done with regard to his property. Admittedly, the conclusion of the Learned President is expressed as being that Fr. Donoghue and Mr. Carter had the opportunity to and did satisfy themselves as to this circumstance; that was not the issue; their opinion or conclusion is immaterial; it is a necessary inference, however, that the Learned President came to the same conclusion and that, consequently, the will should stand.
I would dismiss this appeal.