THE CIRCUIT COURT
SOUTH WESTERN CIRCUIT
 IECC 1
record no. t1320/2014
JOSIE AHERN AND JOHN CHAWKE
christina greaney, catherina kelly and margaret o’donnell
Judgment by His Honour Judge Brian O’Callaghan given on 12th May 2017
A. Background & Pleadings
1. Conor [otherwise Con ] O’Donnell (the deceased) late of Ballyea, Ballingarry, Rathkeale, Co. Limerick died a bachelor farmer aged 66 years at his home on the 19th of April 2014. He is survived by three sisters, Christina Greaney, Catherina Kelly and Margaret O’Donnell (the Defendants/Counterclaimants), one brother Michael O’Donnell and six children of his predeceased sister Marie Griffin.
2. The Deceased made, which is contested, his Last Will and Testament on the 18th of May 2012 which, inter alia, appointed Josie Ahern and John Chawke (the Plaintiffs) Executors. On the 23rd June 2014 a caveat was lodged against any application for Probate in the Estate of the Deceased by the Defendants which despite warning on the 2nd of September 2014, was not withdrawn.
3. On the 7th of October 2014 the Plaintiffs, in their capacity as purported Executors of the Deceased’s Estate issued these proceedings by Testamentary Civil Bill seeking:
4. The parties exchanged Particulars and have sworn the appropriate Affidavits as to Scripts. On the 1st of October 2015 the Defendants filed their Defence and Counterclaim, denying that the Deceased made a valid Will on the 18th of May 2012, which is a pretend Will being null and void and of no effect by reason
a) A declaration that the aforesaid Will of the Deceased be propounded in solemn form of law,
b) The said Will be admitted to Probate,
c) Further/other relief, and
5. The Defendants Counterclaim for an Order:
6. There are no prior or subsequent testamentary documents in existence. Should the contested will fail his estate passes by way of intestacy. Should it stand it will be the Deceased’s first and last will. Section 78 of the Succession Act 1965 reads as follows:
1) That it was not executed in accordance with Section 78 of the Succession Act 1965
2) That the deceased did not know and/or approve of the contents of the pretend Will, and
3) The Deceased was not the author of his signature which appears on the document which the Defendants plead is a forgery.
5. A signature shall not be operative to give effect to any disposition or direction inserted after the signature is made.
‘To be valid a will shall be in writing and be executed in accordance with the following rules :
1. It shall be signed at the foot or end thereof by the testator, or by some person in his presence and by his direction.
2. Such signature shall be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness shall attest by his signature the signature of the Testator in the presence of the testator, but no form of attestation shall be necessary nor shall it be necessary for the witnesses to sign in the presence of each other.
3. So far as concerns the presence of the signature of the testator or of the person signing for him under rule1, it is sufficient if the signature is so placed at or after, or following, or under, or beside, or opposite to the end of the will that it is apparent on the face of the will that the Testator intended to give effect by the signature to the writing signed as his will.
4. No such will shall be affected by the circumstances –
(a) that the signature does not follow or is not immediately after the foot or end of the will ; or
(b) that a blank space intervenes between the concluding word of the will and the signature; or
(c) that the signature is placed among the words of the testimonium clause or of the clause of attestation, or follows or is after or under the clause of attestation, either with or without a blank space intervening, or follows or is after, or under, or beside the names or one of the names of the attesting witnesses ; or
(d) that the signature is on a side or page or other portion of the paper or papers containing the will on which no clause or paragraph or disposing part of the will is written above the signature; or
(e) that there appears to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature; and the enumeration of the above circumstances shall not restrict the generality of rule 1.
7. Some of the provisions of section 78 are similar to those in section 9 of the Wills Act 1837. In particular, Section 78 (1) above is identical to Section 9 (a) of the English Act.
B. Uncontested Facts.
8. The Deceased was by all accounts a most interesting man and would no doubt be disappointed to see the parties here in Court. He came from a family of six children. He was well educated graduating in 1980 from UCC with either a Diploma or Degree in Agricultural/Dairy Science and was a well read and travelled man. For whatever reason it is clear that for many years his relationship with most of his siblings, with the exception of his late sister Marie, was sadly strained with the result that there was very little contact between him and the defendants for many years. The last time he met the 2nd and 3rd Defendants was at their mother’s funeral in 2002 and that was the first meeting for some time with some of his siblings. His sister Chrissie, the first Defendant, was a reasonably regular visitor to his home until 2006. She sometimes cooked him Sunday dinner. He retained a close relationship with his sister Marie until her death. His brother Michael was the only sibling who lived locally. This familial void in his life was clearly filled by the First Plaintiff Josie Ahern with whom he built up a lifelong friendship and upon whom he relied and trusted when it came to most of his affairs, including dealing with marts, banks, buying, selling (including his car), house improvements and such like. His nephew Neville, son of his brother Michael and the beneficiary named in paragraph 2 of the will, helped him a lot when it came to his regular physical farming duties including calving, fencing and mucking out and it was Neville who found the deceased when he passed away in his home.
9. According to her, the deceased would speak maybe twice a day to Josie Ahern and regularly called unannounced to her home, often late in the evenings. Because he lived on his own he kept a regular daily diary always placed by the phone which annual diaries were retained shortly after his death by the defendants and which had his writing in both freehand and print form. Even though referred to regularly, none of these diaries were introduced as evidence save and with the exception of two pages of 27th and 28th of June taken from the 2002 diary referenced by Mr. Lynch in his evidence.
10. The only witnesses capable of giving factual evidence about the alleged creation and signing of the contested will were the first plaintiff Josie Ahern and Mary Mullane, the two purported witnesses to the document and according to them, the only people present with the Deceased at the time. They gave evidence to this Court in the absence of each other. There’s is the best evidence that the Plaintiffs could produce, along with the original Will form.
11. There is no suggestion that the deceased lacked the mental capacity to make a will at the time nor is there any suggestion that the two witnesses to the document created it for any personal gain. There is no question of any undue influence being placed on the deceased nor is there any suggestion that the deceased was suffering at the time from any hand or arm injury or infirmity that would hinder or affect his ability to sign his name. All the three Defendants are named in the document as legatees. There is no evidence of any engagement or discussions between the deceased and any of his relations regarding his affairs either prior to or after May 18th 2012. His only confidants appear to have been the two witnesses to his will.
12. The evidence is that some two weeks before May 18th 2012 the deceased mentioned to Josie Ahern if she might buy a will form for him. She said she refused him as she felt this very much his own business.
13. Around 9pm on 18th May 2012 the deceased arrived to the home of Josie Ahern armed with such a will form and an A4 sheet with instructions written out. Josie Ahern thought he was calling to collect money she had withdrawn for him the day before. Ms. Ahern was not happy to deal with such a matter on her own and on her suggestion they agreed to phone Mary Mullane who arrived 15 minutes later to the “office”[nickname for Josie Ahern’s kitchen] not knowing why her presence was required. “I have a little job for you” was apparently the deceased’s greeting to her. Mary Mullane recognised the will form in his possession and knew exactly what that little job entailed. She was actively involved in the local IFA and had assisted some 20 others in the making of wills. She had come to know the deceased some 4 years earlier when he started to attend IFA meetings and she had regularly helped him to complete farm applications/forms for Revenue, Government Departments and Veterinary offices. According to her, Mary Mullane sat down with the deceased at the kitchen table side by side as she carefully filled out the will form in print as per his written instructions verifying each part with him as they proceeded and using her own turn of phrase where appropriate. While this was being done, Josie Ahern was in and out doing jobs as if she stayed the deceased would only be distracted by conversation which according to both ladies he was good at. Both Josie Ahern and Mary Mullane referred to the importance of avoiding any mistake in filling out the will form as that would have resulted in cancelling everything, having to get a new form and returning another day. Both witnesses separately mentioned a local case where a person had died while waiting on his solicitor to make his will.
14. When she had completed the document the evidence from both Josie Ahern and Mary Mullane was that the deceased signed his name and printed it underneath where it appears on the form, then Josie Ahern signed her name as a witness and printed her name address and occupation and Mary Mullane did likewise as appear on the form, all signings being done by each of them in the presence of all three. On being asked specifically by the Court, Mary Mullane emphatically answered and insisted that the deceased signed the document himself and was not signed by one of the witnesses for him on his direction. On his direct instructions the A4 sheet was destroyed when placed by Josie Ahern in a bucket of ashes in the presence of the deceased and Mary Mullane. Mary Mullane left for her home. According to her evidence, the deceased then asked Josie Ahern to keep his will for him which she agreed to do. She hung it in a plastic bag behind her clothes in her wardrobe where it remained till the day he died almost 2 years later when Josie Ahern took it out and brought it a day later to her Solicitor for her attention. She was also visited by the deceased’s brother at that time who was enquiring of Josie Ahern whether she knew if the deceased had made a will. This is a clear acknowledgement at least by Michael O Donnell of the connection between Josie Ahern and the deceased in that, in his view ,Josie Ahern was a person who might know if a will existed. It also suggests that he had no knowledge of the existence of a will, let alone its contents.
C. The issue.
15. The following questions may be legitimately asked;
16. In a nutshell, did the deceased sign the document himself in both signature and print.
1. Is the purported will a total fabrication created by Josie Ahern and Mary Mullane without the knowledge of the deceased and possibly in collusion with one or more of the principal beneficiaries?
2. Was the purported will completed by Mary Mullane as per the deceased’s instructions but improperly executed in that one of the witnesses signed or simulated the deceased’s signature and printed his name on his direction? or
3. Is the document a validly executed will in compliance with section 78 of the Succession Act 1965 ?
D. The Document
17. The A4 sized document is a pre-paid will form purchased by someone from a shop. It is printed in England and is expressly declared to be suitable for use by testators domiciled in England, Wales or Northern Ireland but also suitable for use in the Republic of Ireland subject to 2 amendments to the notes attaching to the form. In addition to those notes there is a sample will endorsed on the form to assist in “showing how the Will should be drawn up”.
18. There is printed on one page of the form under the heading “Notes to be used when drafting your Will (Please read carefully, referring to the example before drafting your Will)” inter alia the following ;
19. There is no direct evidence to the effect that these endorsements and notes on the willform were read by the deceased, Josie Ahern and/or Mary Mullane on or before the 18th May 2012. However the Court is entitled to assume that it is likely the deceased read same at some stage bearing in mind in particular the descriptions of him by Josie Ahern, Mary Mullane and his two sisters when giving their evidence and especially the evidence of Mary Mullane as to how well up he was with the issues.
6. Should it be necessary to make any alteration before the Will is executed, the testator and both the witnesses must sign their names against the alteration. It is however advisable to re-write the entire will. Nothing should be crossed out or erased, otherwise it may be invalidated.
7. It is essential that the will be executed correctly: if it is not, the Will may be invalid. The Testator must sign the Will in the presence of 2 independent, unrelated adults who are not beneficiaries under the terms of the will. An executor of a will should not be a witness as any bequest made to him or her would be void. Both witnesses must then sign the will where indicated, adding their name, address and occupation. The Testator’s signature and those of the witnesses must be on the final page of the will. The testator must sign on the next line following the end of the will. An amendment to this note reads ; Under Irish succession law the witness can be related. However, the witnesses should NOT be any of the beneficiaries named in the will or the spouse of any beneficiary named in the will.
8. Do not attempt to make a codicil to your will that is an addition or alteration of its provisions. It is better to re-write a will than alter it. No stamp is required on a will.
13. When a will has been properly executed, no addition to, or alteration in it, may be made. It should be kept in a safe place and the executor informed where it can be found. Nothing should be stapled , paper clipped or otherwise attached to an executed will.
20. The relevant parts are inserted with hand-printing by Mary Mullane who insisted that these contents, which are clearly set out, reflect his wishes. It appears to be well thought out including for example the reunification of the lands at Ballyea Upper with the balance of the holding previously owned by the deceased’s late brother Padraig and split by him in 1992 between the deceased and Neville’s father Michael. All surviving relatives are included as legatees. Some emphasis was placed in evidence from Josie Ahern and Mary Mullane of the deceased’s desire to pass on the lands to the O’Donnell name.
21. The deceased’s purported signature is in both script and print form as are the signatures of each witness.
E. Defence Case.
22. The defendants, in addition to their own brief evidence from Margaret and Christina to the effect that the signature on the document did not resemble their brother’s signature as they remembered it [and which they had not seen for many years] relied on the expert evidence of 3 handwriting experts who to the credit of the Defendants and their legal advisors gave separate evidence independent of each other. It is clear that the Defendants were disappointed with the contents of the contested will and are of the view that their own children should not have been ignored and the children of their brother Michael should not have been favoured in the way they were. It is understandable that people are indeed emotional when dealing with the place of their birth and upbringing, their old foundation.
23. The defendants’ position with regard to paragraphs 3(a) and (c) of their defence and 15(a) and (c) of their counterclaim is to say that the signature on the will form is not their brother’s signature. They have not proffered nor are they obliged to so do the name of the person who they say forged or simulated it. The Plaintiffs’ evidence is that there were only three people present when the document was created, namely the deceased, Josie Ahern and Mary Mullane. Josie Ahern and Mary Mullane have been emphatic in their evidence that the deceased both signed and printed his name to the document. No one else. They both vehemently reject the allegation that the signature on the will form is a forgery as claimed by the Defendants through their following expert witnesses ;
24. Shortly after receiving a copy of the contested will, the defendants made a criminal complaint to an Garda Siochana alleging fraud against the two witnesses to the will form Josie Ahern and Mary Mullane. Both ladies were duly arrested, fingerprinted, photographed and questioned/interviewed at length in Henry Street Garda Station. After more than 18 months the two ladies were advised that the DPP had decided not to prosecute. During the course of this investigation a copy of the will and 14 copy AIB cheques bearing the deceased’s signatures were furnished to Detective Garda Butler in the Documents/Handwriting Section of the Technical Bureau at Garda Headquarters Phoenix Park Dublin on the 31st July 2015 for the purpose of determining whether the contested signature of Conor O Donnell on the willform was genuine. She examined the original will form and further received 2 receipt dockets and 2 withdrawal documents also bearing the deceased’s signatures in September 2015 [collectively called the 19 signature specimens.] The most recent of his admittedly authentic signatures produced in evidence were made on 3rd and 5th may 2012 (GB6 and GB7) before and 20th July (GB4) after the will date and these signatures along with others were compared to the contested signature. The Court must however note the distinctive differences between the 2 specimens GB6 and GB7 [very different letters ‘ D’] before one even starts to compare them to the contested signature. The same applies in different respects to specimens GB8 with GB9 and GB10 and GB13 with GB14. The Court is concerned with the failure of Detective Garda Butler to even mention these obvious differences among the specimen signatures not to mind explain them and also begs the question as to who picked these particular specimens and were others discarded.
(a) Detective Garda Geraldine Butler.
25. On the 28th September 2015 Detective Garda Butler issued a report in which she concluded that there is strong [second only to conclusive] handwriting evidence to indicate that Conor O Donnell did not sign the contested Conor O Donnell signature on the will form. This opinion is of course based on the 19 copy specimen signatures furnished to her.
26. As with the two other expert witnesses Detective Garda Butler did not carry out any cross analysis of the witness signatures on the willform with the deceased’s contested signature, or between the printing by the witnesses of their names on the willform with the printing of the deceased’s name on the same form or in his diaries, or between the signing and printing of the deceased’s name on the willform with his writing and printing in his diaries and indeed no analysis of any changes to or differences in the deceased’s writing style, if any, through his diaries.
27. On 13th January 2016 Detective Garda Butler received 36 specimen signatures voluntarily provided by Josie Ahern and a further 36 specimens provided by Mary Mullane for the purpose of determining whether Josie Ahern or Mary Mullane wrote the contested Conor O Donnell signature on the willform. Her conclusion was inconclusive. Interestingly she found both similarities and differences between the contested signature and the 72 samples of both ladies and further states that it is rarely possible to identify the person responsible for a forged signature when the writer attempts to copy the handwriting habits of another writer or conceals his/her own natural handwriting characteristics. It does however beg the question – what was the purpose of the exercise?
28. The Court notes that none of the statements given and/or interviews made during the investigation were furnished – only Detective Garda Butler’s 2 reports – and accordingly assumes that the accounts given by Josie Ahern and Mary Mullane to the Gardai were consistent with the evidence given to this Court.
29. Mr Lynch became first involved when he received instructions from Defendants’ solicitors in December 2015. He received copy of the contested will and 12 effective specimen comparators all of which were different to the specimens provided to Detective Butler. The most recent of these specimen signatures were 20th Nov 2011(tab7), 13th, 16th and 30th March 2012(tabs 6,5 and 4) beforehand and 18th June 2012(tab8) afterwards. Mr Lynch like Detective Garda Hurley referred to the deceased’s lack of fluency, signs of tremor and retouching of the first letter l. Unlike Detective Butler who focused very strongly on the script nature of the 2 letter l’s, Mr. Lynch made no reference to same. He also felt there were no significant differences between the specimen signatures provided to him. An even cursory look shows up considerable differences between the letter D in tabs 4/5 and tab 6 and between them and Detective Garda Butler’s GB6 and 7. Mr Lynch uses 2 delivery dockets signed by the Deceased on 27/28 June 2002 which have very different letters C and D to the other specimens and compares them to the deceased’s writing in his diary for the same dates pointing to the same type of letter D and the same style used in a letter E in the diary and with the C in the mass cards and a cheque of 1990. But no comparisons were carried out by Mr Lynch or the other experts with any other diary writings especially in the days leading up to and after the 18th may 2012 nor was any analysis carried out by any of the experts into the other writing in the other parts of the specimen cheques. He took only a cursory look at the rest of the will. He couldn’t say whether the first letter o in Conor was retouched or not but accepts that Mr Madden will say it was. Mr Lynch does express the view that he would have liked to have seen the original specimen signatures but felt it would not change his conclusion that the contested signature, which he describes as a signature slowly, deliberately and carefully written, is a forgery as the signature of the testator does not fit in with the specimen signatures provided to him.
(b) Sean Lynch, Forensic Document Examiner
30. Mr Madden first received instructions in September 2014 to examine the contested will and determine, with the help of some specimen signatures provided as comparators, whether the deceased was the author of the Conor O Donnell signature on the willform. Shortly before the commencement of this trial Mr Madden was asked on 23rd March 2017 to identify or eliminate the deceased as the author of the block writing of his name below the contested signature. He was the only person asked to carry out examination of the block capital entry. Mr Madden received 16 specimens of which he agreed just 11 were effective all were photocopies with exception of K2, the 1990 cheque. Again, like Mr Lynch, Mr Madden received none of the specimens provided to Detective Garda Butler with the exception of the 2 Lynch Quarry receipts both dated 20/11/13 which in the Court’s view carry 2 quite different signatures on the same day from the same person. Unlike Detective Butler neither Mr Lynch nor Mr Madden had recourse to any bank withdrawal slips and unlike Mr Lynch, Mr Madden did not see Cow Inspection Form of 1/10/2005, Sympathy Card for Mrs Frawley nor did he see the 2002 diary extracts. The specimens given to Mr Madden were the same as tabs 2 to 9 and 11 to 13 given to Mr Lynch. Mr Madden like his colleagues again notes letter formation, connecting strokes, tremor and other differences between the specimens and the contested signature. He acknowledges similarities of size, special habits, slant and alignment. He agrees that the first letter ‘l ‘has been retouched but insists unlike his colleagues that the first ‘O’ in Connor has also been retouched. Again somewhat disappointingly Mr Madden did not carry out any further analysis of the rest of the will including the signatures and printing of the witnesses, the clear differences among some of the specimens which he felt were within the middle range of variation, the writing in other parts of the specimen cheques, the deceased’s writings in his diaries especially in 2012 which clearly were available and which included both freehand and print writing by the deceased. He expressed no opinion on whether the printing of Conor O Donnell under the signature on the willform was written by the deceased due to insufficient amount of capital writing being available for valid comparison. He did not seek to examine the diaries even though he was provided with three of them. In fact, while Mr Lynch expressly referred to some letter styles in the 2002 Diary as a valid comparison, Mr Madden insisted that he could only compare signatures with signatures for the comparison to be valid. He did not seek comparisons with other legal documents such as signatures of the deceased on title documents which would be available in land registry. While reserving his right to amend his findings should he be provided with any additional original material, he concluded that the author of the comparison or specimen signatures did not author the Conor O Donnell signature on the willform dated the 18th May 2012.
(c) Dave Madden of Document Examination Ireland
40. It is fair to say that each of the expert witnesses had their own peculiar and different emphasis and indeed disagreements. All agreed that signatures on delivery dockets and /or receipts not reliable – could be signed on bonnet of car or someone’s back or scribbled if busy. All three inspected the original will.
F. The Law
41. In Re Skerrington (2005)EWCA. The presumption of due execution should not be easily rebutted if a will on it’s face appears validly executed and has a full attestation clause.
42. Wright v Rodgers (1869)LR. “The Court ought to have in all cases the strongest evidence before it believes that a will with a perfect attestation clause, and signed by the testator, was not duly executed otherwise the greatest uncertainty would prevail in the proving of wills”
43. The evidence must be positive and reliable.
44. In Re Channon (2005)EWCA.
45. The Irish courts have rejected the contention that there are any categories of civil cases to which a higher standard than that of proof on the balance of probabilities applies; though, where the allegations are serious, a court ought to apply the universal standard of proof in a more rigorous and exacting manner.
“What constitutes the strongest evidence in a particular case will depend on the totality of the relevant facts of the case and the Court’s evaluation of the probabilities. The Court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater will be the burden on those seeking to displace the presumption…..”
46. In Miller v Minister of Pensions, Denning J discussed the issue of the standard of proof being that “if the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal than it is not”. This was upheld in this jurisdiction in Buckley v MIBI, unreported, Supreme Court, ex tempore November 12 1997 and in Quinn v Midwestern Health Board, unreported, High Court, October 14 2003.
47. Except where otherwise dictated by legislation, the standard of proof to be met in all civil cases is that of proof on the balance of probabilities. It is clear that this standard is applied with a degree of flexibility and where serious allegations are made, they will be required to be proved in evidence – Banco Ambrosiano SPA v Ansbacher & Co Ltd  ILRM 669 at 701.
48. O’Flaherty J (as he then was) held, in O’Laoire v Medical Council, unreported, Supreme Court July 25 1997, that:
49. It is clear that the where serious allegations are made in civil proceedings, the courts will require clear and convincing proof before they find that the allegation has been proved on the balance of probabilities. As a result, in appropriate cases, the civil standard of proof will be applied with sufficient stringency to ensure that justice is done and that an adverse finding is not made without satisfactory proof.
“The common law panorama at this time gives the impression that there is one standard of proof in civil cases though, of necessity, it is a flexible one. This flexibility will ensure that the graver the allegation the higher will be the degree of probability that is required to bring home the case against the person whose conduct is impugned.”
50. Nonetheless, as Henchy J in the aforementioned Banco Ambrosiano v Anbascher made it clear : “Proof of fraud is frequently not so much a matter of establishing primary facts as of raising an inference from the facts admitted or proved. The required inference must of course not be drawn lightly or without due regard to all the relevant consequences including the consequences of a finding of fraud. But that finding should not be shirked when it is not a conclusion of absolute certainty. If the Court is satisfied, on balancing the possible inferences open on the facts, that fraud is the rational and cogent conclusion to be drawn, it should so find…”
51. On the evidence before the Court is the signature on the document that of the deceased or was it signed by another without his knowledge [a total fabrication] or signed by another in his presence, on his direction and behalf.
52. Josie Ahern and Mary Mullane were strong witnesses giving answers clearly. Neither of them had anything to gain or lose directly or indirectly from the making of this type of will. They had no reason why they should not tell the truth. Their demeanour in Court showed each to be respectable persons who understood the importance of telling the truth. Their evidence was clear and consistent, given independently and separate from one another and compatible with each other. They both clearly had a connection with and a fondness for the Deceased. They both are independent persons of hitherto impeccable character. The Defendants say these two ladies fabricated the document by incorporating wishes and bequests which were not those of the Deceased or approved by him, forged his signature and have lived this lie since 2012 or whenever this document was created and throughout a rigorous Garda investigation on foot of a criminal complaint made to an Garda against them by the Defendants and finally committed the most serious acts of perjury before this Court all to ensure that the three O’Donnell nephews should become the principal beneficiaries under their late Uncle’s estate, three gentlemen with whom the two witnesses to the impugned will appear to have had no association whatsoever. The Court has not at any stage been advised whether they even know each other personally. The suggestion put by the defendants under cross-examination that some or all of the principal beneficiaries had fallen out with the deceased and never reconciled and therefore unlikely to be included by the deceased in any valid will he might have freely made was never subsequently substantiated with any direct evidence. In any event it is not uncommon for Testators to benefit people with whom they may not have had the closest of relationships.
53. It is open to this Court to hold that Miss Ahern and Miss Mullane were not involved in an elaborate fraud and conspiracy but rather a straightforward lie that one of them signed/simulated the Deceased’s signature ‘on his direction’ which the law appears to allow but which in this case would make the will invalid as the person so signing under direction must be separate from the two witnesses. This possibility was put to one of the witnesses by the Court and was rejected and the Court accepts that answer.
54. There is no evidence to even suggest some form of conspiracy between the witnesses to the will and the principal beneficiaries, the O’Donnell nephews. In fact, the only evidence of any engagement between the witnesses and those nephews of the deceased is the evidence of Josie Ahern of their father Michael O Donnell calling to her enquiring if she knew whether his late brother had made a will. This evidence demonstrates that the father of those principal beneficiaries did not know of the existence of a will not to mind of it’s contents unless of course one were to take the view that this evidence was contrived in some way to dispel the notion of a conspiracy or collusion.
55. The plaintiffs chose not to call expert evidence regarding the writing on the will form but instead chose to call their best possible evidence, the two purported witnesses to the completion, attestation and execution of the will along with the original document itself. The Court disagrees that it should draw any inference negative to the Plaintiffs due to their “failure” as so termed to call expert handwriting evidence.
56. Any suggestions that the deceased did not know or approve of the contents of the contested will as pleaded in paragraph 3(b) of the defence and in paragraph 15(b) of the Counterclaim are rejected by the Court. There is no evidence upon which to base such suggestions and this aspect of the Defendants’ claim is dismissed.
57. ‘Signed by the Testator in our presence and attested by us in the presence of him and of each other’ is one of the examples of a valid attestation clause. The document used in this case has the following pre-printed version :
58. ‘Signed by the said Testator/rix in our presence and then by us in his’, which is also clearly an acceptable valid clause. The Defendants say the failure to delete the letters ‘rix’ is fatal to the validity of the clause though it is interesting to note that the example endorsed on the form is exactly the same. The court disagrees with the defendants’ contention and holds that the failure on the part of the testator on both occasions to delete the letters “rix” does not invalidate the attestion clause.
59. Accordingly, this contested will, having a valid attestation clause, is entitled to benefit from the presumption of due execution.
60. Furthermore, even if it was not a valid clause and the presumption did not apply, the Court accepts the strong clear evidence of both attesting witnesses that the purported will was validly executed and attested as per section 78 of the 1965 Act and specifically that it was signed by the deceased by both printing his name and by his freehand signature which was written, as Mr Lynch confirms, ‘slowly, deliberately and carefully’ as one would expect when signing an important document for the first time where error is to be avoided and there is only one attempt if a total rewrite with another new form on another day is to be avoided. As a result, the signature on the will clearly has it’s own distinguishing features or style with clear variations from and as emphasised by Mr. Madden clear similarities with, the more freeflowing versions used on cheques and delivery dockets produced to the expert witnesses for comparison purposes. It is to be noted indeed all three expert witnesses have one strong piece of evidence in common, that is that the signature on the purported will was written in a slow, deliberate, careful, hesitant manner.
61. Does the opinion evidence along with the brief evidence of two of the defendants rebut the presumption of due execution and counteract the strong and emphatic evidence from Josie Ahern and Mary Mullane that it was the deceased who signed that signature and printed his name underneath it on the willform before they added their signatures as witnesses. There are just too many unknowns, too much missing from the opinion evidence for it to be credible, for it to be sufficiently cogent, compelling or convincing to enable the Court find that the allegation of forgery has been proved on the balance of probabilities. Too many inconsistencies between the grounds upon which they each arrive at more or less the same conclusion of a simulated signature. By the very nature of their art there are limitations to the weight of their evidence especially in the circumstances of this case where the Plaintiffs have been in a position to call the best evidence, the two witnesses to the document. Yes the expert evidence creates a doubt in the Courts mind, but , as the law clearly states, more than that is needed to discharge the burden of proof that rests firmly on the defendants. The allegation made by the defendants is a particularly grave one requiring a higher degree of probability than the norm.
62. I have come to my decision primarily based on my assessment of the evidence given by the witnesses of fact taking into account my views of the strengths of the opinion evidence given by the expert witnesses.
63. I have taken into account, as I must, the presumption of due execution that applies in favour of the Plaintiffs and assessed the evidence in light of same. The burden of proof falls on the Defendants to rebut that presumption on the balance of probabilities. I do not accept that either Josie Ahern or Mary Mullane simulated the deceased’s signature on the willform or that both ladies committed perjury while giving evidence to this Court. The Court holds that the defendants have failed to rebut that presumption of due execution.
64. Accordingly I dismiss the Defendants’ Counterclaim and hold in favour of the Plaintiffs and make the following orders:
65. Declaration as per paragraph (a) and an Order as per paragraph (b) of the Plaintiffs’ prayer in Testamentary Civil Bill dated 7th October 2014.
66. In all the circumstances I propose making no order as to costs though I will hear from Counsel should you wish me to order otherwise.