The Circuit Court for the South Western Circuit, County of Clare, found that Eileen Cunningham had testamentary capacity when she made her will on 6 March 2015 and rejected her children’s claim that the will resulted from undue influence. The court said it would hear counsel on the formal orders and costs; it did not set those out in the judgment.
The proceedings concerned a will leaving Cunningham’s home to her granddaughter, Roisin Cunningham, the second defendant. The plaintiffs—PJ Cunningham, Joan Houston, Martina Cunningham and Mortimer Cunningham—sought declarations that their mother lacked a sound disposing mind when she signed the will or that it was made through undue influence. Anthony Gerald, also known as Bobby Cunningham, and Roisin Cunningham counterclaimed for the will to be established and proved in solemn form.
The judgment, delivered by Judge Brian O Callaghan on 20 November 2020, records that Cunningham’s earlier will left her estate to her daughter Carmel, who had been her carer. Carmel died in December 2014. The court accepted evidence that Cunningham herself raised making a new will, chose the solicitors, and consistently wanted to leave her home to a family member who would care for her. Solicitor Ms Pearce said she had no concerns about Cunningham’s understanding during their meetings.
On undue influence, the judge found no evidence of coercion. The judgment noted that the plaintiffs’ evidence indicated they could visit their mother, and that Bobby sometimes left his home so his siblings could spend time with her there. It also found no evidence that Bobby arranged the solicitor appointment for his own benefit.
The court separately considered capacity on the date the will was executed. Although the will was duly executed and appeared rational, medical notes and the absence of a medical assessment at the time raised a “real doubt” requiring further enquiry. The evidential burden then returned to the defendants to establish capacity.
The court weighed medical records, witness evidence and Cunningham’s conversations with Pearce. The records included periods of confusion during a hospital stay in February 2015, while other records and testimony described her as engaged and aware. The judge concluded that Cunningham understood the nature and effect of making a will, her assets and the claims of her family, and was of sound disposing mind on 6 March 2015.
The judgment says the court would proceed to make orders in line with the defendants’ counterclaim, but leaves the precise orders and costs to a further hearing with counsel.