The Court of Appeal has allowed an appeal over a will made hours before the death of Brian Earls and ordered a complete retrial. It did not decide whether the July 2013 will was valid; it said the evidence before the High Court was insufficient to establish testamentary capacity.
The dispute concerns two wills. A March 2013 will left the house at 2 Ovoca Road and the residue of the estate to Mr Earls’s civil partner, Said Laaser, while making other gifts to relatives and friends. A document dated 4 July 2013 divided the house and remaining savings equally between Mr Laaser and the testator’s three siblings. It also reduced a bequest to a friend from €50,000 to €30,000 and omitted two other specific gifts.
Mr Laaser challenged the later will. At the High Court hearing, the defendants relied on evidence that Mr Earls had discussed a new will with his brother, appeared to approve it when it was read to him, and made an “X” as his signature. The High Court dismissed Mr Laaser’s claim and directed that the July will be admitted to proof in solemn form.
On appeal, the Court of Appeal said the defendants bore the burden of proving capacity, given the testator’s extreme physical weakness, the significant changes to the earlier will, and the absence of a court officer when instructions were taken. No medical evidence was presented by either side, and no medical assessment of capacity had been carried out on the evening the will was signed.
The court considered the Supreme Court’s decision in In bonis Corboy, which it said required affirmative medical evidence in circumstances where a seriously ill testator’s capacity was in doubt. It said the priest’s brief encounter with Mr Earls during the Last Rites and his apparent response to bedside reading could not establish that he understood and approved the more complex changes in the July will.
The appeal court also addressed Mr Laaser’s failure to challenge the defendants’ evidence directly in cross-examination. It said allowance had to be made for his self-representation and that English was not his first language; the trial judge’s intervention may have left him with the mistaken impression that he could not ask about the March will. The court also noted that testimony about a doctor’s reported view that Mr Earls was “capable” was inadmissible hearsay because the doctor did not testify.
The Court of Appeal concluded that the High Court had erred in dismissing the claim without medical evidence. It allowed the appeal and ordered a complete retrial, saying fairness required that course because the way cross-examination unfolded may have led the defendants to think the capacity issue was no longer in dispute. The court made no final determination on the validity of either will.