by Aodhan O’Faolain

A woman who is claiming proper provision from the “very valuable estate” of a man she claims to have had a loving relationship with for over 30 years has the mental capacity to continue with the court proceedings, a High Court judge has ruled.

The woman’s lawyers had made an application to “come off record” on the grounds that the woman had lost the mental capacity to give them proper instructions, some 19 days into the hearing of her action.

The woman, who is aged in her late 70s, denies she lacks capacity, wants her case to proceed, and said that she would get new lawyers if her current representatives were allowed by the court to come off record.  

The parties in the case cannot be identified by order of the court.

Ruling on the application Ms Justice Siobhan Stack said that the woman’s lawyers had not established that she lacks capacity to progress the action, and therefore the court was not permitting them to come off record.

The court accepted that medical evidence had been produced that the woman suffers from certain cognitive difficulties but it had not been established that she does not understand the nature of the proceedings in which she is involved.

Her lawyers, the judge said, had acted in a proper manner and there was no question regarding the ‘bona fides’ of their concerns.

However, they had not established that the woman is unable to give instructions and to participate in the proceedings, the judge added.

In proceedings against the executor of the man’s will the woman claims she is “a qualified co-habitant” under the 2010 Civil Partnership Act and is entitled to proper provision from the estate of the man with whom she claims she had been in a long-standing intimate and committed relationship.

The court heard that the man died in 2011, a few months after the Civil Partnership Act commenced. He left “a very valuable estate,” which comprises trusts in favour of his children.

The man made no provision for the woman in his will.

He did mention her in a ‘letter of wishes’ accompanying his will where he described her as an “assistant”.

He said in his letter that she should remain employed in his companies, should be paid a salary of €40,000 for a time after his death, and should have a non exclusive right of residence for life in the “extensive property” they allegedly co-habited.

She should not have any interest in the property, where she has continued to live since the man’s death, the letter concluded.

The woman was named a co-executor of the man’s estate, but formally renounced those rights to allow her to bring her action.

Her claims are denied and her application is opposed.

In addition to those proceedings the court noted that the woman brought related proceedings where she sought to prevent her removal as a director in a company originally run by the deceased.

Also the executor brought proceedings against the woman seeking possession of the deceased’s property.

Ms Justice Stack said that the proceedings brought under the 2010 Civil Partnership Act had run before the courts for 19 days, and the case is likely to take many more days to hear before it is concluded.

That case, the judge said, was adjourned in 2021 after medical evidence was given by a psychiatrist that the woman lacked capacity to give the instructions or to further participate in the trial.

Her lawyers had become concerned for the woman’s health and well-being during the trial, after she became distressed.

It was also proposed that the woman be made a ward of court, the judge said.

Due to costs implications, the judge said that nobody, including the woman’s family members, was willing to act as the woman’s ‘next friend’ to permit her claim to be maintained.

The High Court nominated an independent medical ‘visitor’ to carry out an assessment of the woman.
That assessment, conducted last year, stated that the woman does have the capacity to make health and welfare decisions, as well as decisions relating to property and financial affairs.

The court accepted that there had been “a significant delay” of over two years caused by the issue over the woman’s capacity, which risks significant injustice to the executor.

However there was a risk to the fairness of the trial if it does not resume shortly, as some of those listed to give evidence about the relationship between the woman and the deceased are of advanced age.

The judge said that after considering the medical evidence she was satisfied the woman understands the nature of the proceedings in which she is involved, their ultimate purpose, the central issues involved and what is material to those issues.

The woman’s cognitive difficulties may well be material to an assessment of her evidence, the judge added, but do not establish on the balance of probabilities that she lacks capacity to conduct the proceedings.

The judge said that in the circumstances the court was not giving the woman’s lawyers permission to come off record in any of the three actions she is involved in.