An elderly widow had the necessary capacity when she made her last will, which left her Sligo home to one of her nieces, a High Court judge has ruled.
When Teresa McGoldrick, of Highfield Road, Sligo, died in May 2022, aged 81, her death certificate recorded she had vascular dementia. She had no children and was survived by her sister Madge, brother Christopher (since deceased) and at least 24 nieces and nephews.
She made 11 wills between 2008 to 2014 before making her final will in April 2015.
In her last will, she left her home (her principal asset) to her niece Mary Durcan-Millane and the residue of her estate to her sister Madge, Ms Durcan-Millane’s mother.
RM Block
When dementia is recorded as a cause of death, the probate office looks for a sworn statement from a doctor that the deceased was of sound mind, memory and understanding when the will was executed.
Because the deceased’s GP declined to provide such an affidavit, for reasons including that Ms McGoldrick suffered cognitive difficulties from Easter 2014, Ms Justice Siobhán Stack had to decide whether she had testamentary capacity in April 2015.
The judge directed the beneficiaries of two wills made by Ms McGoldrick in May and September 2014 prior to the April 2015 will be put on notice of the applications.
In response, some of the children of Ms McGoldrick’s previously deceased sister Bridgie raised concerns about capacity but did not contest the will and left the matter for the court to decide.
In her recently published judgment, Ms Justice Stack noted none of the deceased’s wills were identical, but a will of September 2014 represented “something of a shift” towards Madge’s family, perhaps because Ms McGoldrick suffered a fall in 2013 and relied on Madge to provide her with her main meal daily with Ms Durcan-Millane calling at weekends and sometimes after work.
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Two wills made later in 2014 represented a “significant departure” as they nominated only Madge and Ms Durcan-Millane as the beneficiaries, as opposed to her earlier approach of directing her house be sold and the proceeds divided between many members of her extended family.
There was “nothing unnatural” about this as Ms McGoldrick was requiring more assistance with her daily life and it was natural she would favour those most involved in that. She appeared to be an “independent and forthright lady”, although she was having problems with her short-term memory later in 2014.
The judge was satisfied attendances from Ms McGoldrick’s solicitor on her on dates in June 2015 established she knew she was making her April 2015 will and knew what she was disposing of, thus meeting two limbs of the test for testamentary capacity.
The third limb of the test, regarding choosing between those likely to benefit, presented “greater difficulty”. There was no assessment of capacity at the time the April 2015 will was made and the evidence was, from at least March 2015, she was suffering from anxiety, paranoia, delusions and progressive vascular dementia.
It seemed, as of mid-March 2015, she would not have had testamentary capacity and the issue was whether she had recovered by April 22nd, 2015, when she first rang her solicitor to draw up a new will.
The judge cited sworn evidence of the solicitor, who had known Ms McGoldrick for more than 25 years that, when she made the April 2015 will, she was fully aware she was making a will, of the extent of her estate, her next of kin who would benefit, and was “of sound disposing mind”.
Although the deceased was already suffering from vascular dementia then, the judge was satisfied from the solicitor’s evidence and attendances she was able to choose between her likely beneficiaries and what they would receive.
While accepting Ms McGoldrick had displayed paranoia towards certain family members, the judge did not consider her last will was influenced by any delusionary and irrational beliefs about family members.
Based on her findings, she said the will could be admitted to probate.
