The Court of Appeal dismissed an appeal by three family members challenging the will of Celine Murphy, but reduced the costs they must pay to the will’s respondents. In a judgment delivered on 19 December 2017, Ms Justice Máire Whelan left in place the decision admitting the will to probate in solemn form, while substituting a party-and-party costs order for the High Court’s solicitor-and-own-client order.
The appeal concerned a will dated 8 March 2011, shortly before Murphy’s final hospital admission. Her sisters Majella Rippington and Edel Banahan, and Rippington’s husband Shaun, had argued in the High Court that the will was not validly executed and raised issues including capacity and undue influence. The High Court dismissed their claim after a four-day hearing and admitted the will to probate. The Court of Appeal confined the appeal to seven grounds, including alleged trial-judge bias, execution of the will, the handling of evidence and the costs order.
The appeal court rejected the challenges to the will. It said the trial judge had evidence from both witnesses who attested the will, and was entitled to find that it was duly executed under section 78 of the Succession Act 1965. The will had no attestation clause, but the court said other evidence could establish due execution. It also found no basis for the allegation of bias, noting that disagreement with a judge’s findings did not itself establish bias.
A disputed issue was whether Murphy could have travelled from her home in Kingswood, Clondalkin, to the home of Mary Butler in Straffan and returned in time to take a landline call at 6.42pm. The appeal judgment said the appellants’ own engineer estimated a round trip of 22 minutes and 48 seconds, leaving a period the trial judge considered sufficient for a visit. The Court of Appeal found the trial judge’s conclusions on timing and witness evidence were supported by evidence and would not be disturbed.
The court did, however, change the costs order. It considered the particular rules governing costs in will disputes, including whether there were reasonable grounds to bring proceedings and whether they were conducted bona fide. It concluded that the High Court’s solicitor-and-own-client order should be set aside. The appellants must still pay the respondents’ costs, including reserved costs, but on a party-and-party basis. The appeal was otherwise dismissed on all grounds.