The High Court has limited discovery sought by Dorothea Dowling in a dispute over which will of Angela O’Loughlin should be admitted to probate. Mr Justice Noonan directed the plaintiffs to provide only the documents they had already offered in correspondence. He also granted the plaintiffs’ discovery motions against the defendants in the terms sought.
The dispute concerns two wills, dated 29 April and 13 December 2013. Mary Dwyer and Kenneth Dwyer, the plaintiffs, seek to have the later will admitted to probate in solemn form. They are named as executors and principal beneficiaries in that will. The defendants, Ms Dowling and Gráinne O’Flynn, are nieces of the deceased and had entered caveats in the Probate Office. Ms Dowling seeks to propound the earlier will as the last valid will. The central issue is the deceased’s testamentary capacity when she made the 2013 wills.
The judgment dealt with three discovery motions: two brought by the plaintiffs against each defendant, and one brought by Ms Dowling. Her motion sought a broad range of material, including medical and financial records, the deceased’s writings, photographs or video, and records held by healthcare providers and carers. Some requests had changed from those made in earlier correspondence. The plaintiffs had offered, among other things, diary entries for defined periods around the wills and bank records for one year before each will; they had also agreed to provide medical records. They offered to exchange a booklet of core trial documents on a reciprocal basis.
Mr Justice Noonan said the party seeking discovery had to show that the documents were relevant and necessary for the fair disposal of the case or for saving costs. He noted that Ms Dowling’s affidavit included medical opinions, although she was not a doctor, and did not identify medical evidence she intended to call at trial. During oral submissions, she said she had consulted Professor William Molloy, who had formed the opinion that the deceased lacked capacity. The judgment records that she did not say when this consultation took place or whether a report had been prepared.
The judge was not satisfied that further documents beyond those already furnished or offered were shown to be relevant or necessary. He directed discovery confined to the plaintiffs’ existing offers. Separately, he found no substantive reason had been advanced to refuse the plaintiffs’ discovery applications against the defendants and ordered discovery in the terms of their notices of motion. The judgment concerned discovery at this stage of the probate proceedings; it did not decide which will is valid or whether the deceased had capacity.