The High Court has found that Brian Rhatigan had testamentary capacity when he signed his will on 19 May 2005, despite severe physical illness and cognitive limitations.
In a judgment delivered on 21 December 2010, Miss Justice Laffoy determined three issues in proceedings brought by Sharon Scally, the sole surviving executrix named in the will. The defendant, Odilla Rhatigan, is the deceased’s widow. The court found that the will was executed in the required form, that Rhatigan knew and approved its contents, and that he had capacity to make a valid will.
The proceedings concern the will as the last will and testament of Brian Rhatigan, who died in 2006. The defendant had contested whether he understood and approved the document and whether he had a sound disposing mind when he signed it. At the hearing, she acknowledged that the will met the formal execution requirements. The court therefore focused on testamentary capacity and assessed the evidence under the legal test in *Banks v Goodfellow*.
Rhatigan had progressive neurological disease that affected his movement, speech and swallowing, as well as some cognitive abilities. By February 2005 he had lost the power of speech and communicated using a device. The judgment records that the will’s preparation involved lengthy discussions, with the plaintiff and others explaining and reading its provisions to him. A neurologist who had treated Rhatigan provided a report the day before the signing, stating that he was capable of making a will, although his condition affected his motor, speech and swallowing functions more than his mental and cognitive abilities.
The defendant’s psychiatric expert, who reviewed medical records years later, considered that Rhatigan most probably lacked adequate testamentary capacity. The judge preferred the treating neurologist’s assessment, noting his direct familiarity with Rhatigan and the limits of a retrospective opinion. The court also considered evidence that Rhatigan understood the will’s broad effect, the assets it covered, and the claims of his wife, partner and children.
The judgment noted uncertainty over the extent and value of assets associated with Rhatigan, including offshore trusts and companies. It said the evidence raised questions about the propriety of dealings involving those assets, but those matters did not prevent the court from finding that he understood the will and had capacity when he made it.
The court determined only the first three issues listed for trial by an order of the Master dated 5 May 2010. It directed that further submissions be heard on how the other issues in the proceedings should be addressed. The judgment did not resolve those remaining matters.