The High Court ordered the removal of a caveat blocking probate of a 2009 will, finding that the dispute over whether the will should stand could not be decided on the motion before it. The court said any challenge based on capacity, knowledge of the will or other factors that might invalidate it must be brought in a full probate action.
The application was brought by Patrick Boyle, the executor named in the will of Charles (otherwise Cathal) Gillespie, who died in 2013. The 2009 will, which the court said met the formal requirements of Irish law, left the estate to Boyle. Gillespie’s sister, Annie O’Donnell, lodged the caveat. A 2001 will had left a house, contents and land in Donegal to O’Donnell for life, with the remainder to her two children.
O’Donnell disputed that the 2009 will had been made in Glasgow, arguing that her brother was in Donegal during severe Christmas weather and would not have travelled. Affidavits from neighbours and a local farmer placed him at home on 26 and 30 December. A supermarket note recorded deliveries to his home on 30 December and 5 January, and a delivery diverted to a neighbour on 22 December because snow immobilised the van. O’Donnell also raised concerns about the name used on the will, the choice of beneficiary and how Boyle obtained it.
Boyle said Gillespie used the name Cathal. Two attesting witnesses swore that Gillespie signed the will in Glasgow on 28 December 2009. Both parties’ handwriting experts considered it probable that the signature was Gillespie’s. Justice Baker said the evidence before her pointed to the will having been executed by Gillespie, and that the evidence of his presence in Donegal on 26 and 30 December did not establish where he was on the 28th.
The judge said the caveator had not raised enough factual dispute on affidavit to prevent the motion being decided, and declined an informal request to cross-examine the witnesses. She stressed that the Monday Probate Motion List was not a substitute for a full probate action, where oral evidence could address claims such as undue influence, duress or lack of testamentary capacity.
The caveat had initially been lodged on the belief that the 2009 document was not Gillespie’s. The court concluded that the concerns had since become a challenge to the will’s validity, which could be determined only at trial in a probate action. Removing the caveat may allow probate to issue to Boyle, but the court did not determine whether the will could ultimately be condemned; that question was left for a probate action.