Court of Appeal orders re-trial in case of noted diplomat’s contested will

The Court of Appeal has ordered a retrial of a case concerning a man’s last will and testament following an application by his surviving civil partner, which was originally refused by the President of the High Court. The case concerned two testamentary documents. The first had been executed by Mr Brian Earls, a noted diplomat, in March 2013, and left his house to his civil partner Mr Said Laaser, as well as bequests to his family and a specific bequest of some €50,000 to a Mr Ararat Andressian, an Armenian friend of his. This will had been executed after the presence of a lump in the deceased’s mouth was discovered following a dental procedure. Although his initial prognosis for recovery was good, he returned to hospital at the end of June 2013 because of a recurrent infection which was impeding the continuation of his chemotherapy treatment. On July 2nd, however, his family received the unpleasant and deeply distressing news that he had developed secondary forms of cancer and that the prognosis was now extremely bleak. The testator was ultimately to die at about 4am on the morning of Friday, July 5th, 2013. Mr Maurice Earls was a brother of Brian Earls, and executor and beneficiary under both the March and July wills. He was the first named defendant and chief witness. Mr Earls gave evidence that on Wednesday July 3rd, the testator had indicated to Mr Earls that he intended writing a new will and that he was dividing his assets between Mr Lasser and his siblings. Mr Earls therefore brought the March will to the hospital, where he drafted a new will following discussions with the testator. Mr Earls typed up a draft, and returned on the afternoon of the 4th July. Realising that his brother was too physically weak to sign the will, he asked a nephew who was a legal practitioner, who said an “X” would suffice. The will was then executed at about 6.30pm in the presence of Mr Earls and his witnesses, namely, his nephews, Mr Fitzgerald and Mr Roberts. Mr Earls went home briefly and returned at about 10pm. He stayed with his brother through the night, reading to him a review from The Times Literary Supplement. Mr Earls acknowledged that his brother’s articulation at that point was not “great”, but that at times he saw his brother nodding through an oxygen mask in acknowledgment. Evidence was also heard from Fr. Gerard Deignan, who was called to give Brian Earls Last Rites. He did not know the testator, but formed the view that the testator had the capacity to receive spiritual ministration of this kind. Ms Mary Early, the testator’s sister, gave evidence that she had read the will to her brother, and that she considered that he had consciousness until about 9pm that evening. The nephews who had acted as witnesses also gave evidence that the testator knew that it was his will and that he knew what he was signing, and that they did not know the content of the will. Mr Laaser testified that he was aware that a new will had been prepared, but he had not been present for its execution. He emphasised that the testator was asleep or otherwise barely conscious for much of July 4th. He had no recollection of the testator talking during that day. While Mr Laaser wanted to communicate with the testator, there was either no response or a minimal response any time he tried to speak with him. Mr Laaser objected to the will on the ground that he was not satisfied that the July will truly represented the will and wishes of the testator. The President of the High Court Kearns P. originally dismissed Mr Laaser’s challenge, finding that “in all the circumstances I am satisfied to admit this will to proof in solemn form of law and will so direct”. On appeal, the Court found that the principal issue was whether the testator had sufficient competence in the circumstances to execute the will of July 4th, 2013. Section 77(1)(b) of the Succession Act 1965 (“the 1965 Act”) provides that in order to be valid, a will “shall be made by a person who…is of sound disposing mind. The Court cited the Supreme Court’s decision in In bonis Corboy I.R. 148, a case which is generally regarded as the leading authority on testamentary capacity. That case found that “it was vitally important that testamentary capacity on the evening should be firmly established. It would seem to be 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 proof of proving him to have been a capable testator.” The Court of Appeal Judge Hogan found that: “I cannot see that the present case is really any different in principle from Corboy…If the Supreme Court considered that affirmative medical evidence was required in Corboy to establish the testamentary capacity of the testator, the present case cannot realistically be regarded any differently.” He also distinguished the case from the Supreme Court’s decision inRe Glynn, deceased 2 I.R. 326, citing “the all important difference between Glynn and the present case in that in the former case the instructions for the will had been given at a time when the testator’s testamentary capacity was not in doubt. That cannot be said in the present case.” The Judge noted that: “There remains for consideration the fact that the evidence as to capacity which was given on behalf of the defendants was not directly challenged in cross-examination by Mr. Laaser, even though the testator’s testamentary capacity was the critical part of his case.” The Judge observed that there may have been a misunderstanding between Mr Laaser, who, it was noted, was originally from Morocco, not familiar with the court system in Ireland, and representing himself, and the High Court judge, who asked him to keep his cross-examination to the circumstances surrounding the making of the second will. It appeared from the transcript that this may have “given Mr Laaser the (wrong) impression that he could not pursue issues arising from the March will and his cross-examination appears to have somewhat abruptly ended at that point”. Further, Judge Hogan noted that: “Mr Earls stated in evidence that Dr Osman, the testator’s treating consultant, had told his sister, Ms Mary Early, that the testator was “capable”. This evidence was clearly inadmissible hearsay, as Dr Osman did not give evidence and Ms Early did not address this point in her testimony.” Concluding, Judge Hogan noted that the onus of demonstrating testamentary capacity in the circumstances rested with the defendants: “In the light of the circumstances in which the July 2013 will came to be executed, the effect of the Supreme Court’s decision in Corboy is that this could only have been done by means of affirmative medical evidence led by the defendants as to that capacity. Insofar as the President dismissed the action even though such evidence was never led by the defendants, I fear that in the light of Corboy that he was in error.” He therefore found that in light of the need for medical evidence and the failure of Mr Laaser to pursue the question of testamentary capacity in cross-examination, the fairest course of action in the circumstances would be to order a complete re-trial.