A judge has held that an elderly woman had capacity to make a will after finding her death certificate incorrectly recorded her as having dementia.
High Court judge Siobhán Stack said she had an “uncomfortable feeling” that “presumptions” of dementia are made in relation to people of an advanced age.
She was satisfied from evidence before the court, including detailed sworn statements of family members of Phyllis McCarthy, that McCarthy was not suffering from cognitive impairment at the time she made a will dated January 7th, 2020.
McCarthy, with an address in Glenageary who had worked in St Vincent’s private hospital, Dublin, was aged 85 when she died on September 23rd, 2023.
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The court heard on Monday she had made two wills, one in 2020 and one in 2017. Her main asset was her property in Glenageary.
McCarthy was a single woman who had no children. Her family members included her siblings and various nieces, nephews, grandnieces and grandnephews.
The judge heard both wills had left her estate between various family members.
The judge was told McCarthy had very poor hearing and that may have resulted in communication issues and to the insertion of “vascular dementia” among the causes of death on her death certificate.
The judge noted the evidence showed McCarthy was “very specific” in both wills regarding her estate, its executors and the beneficiaries including nieces whom she was very close to. The evidence also referred to McCarthy discussing an upcoming wedding and those whom she was looking forward to seeing and those she was not.
All family members would consent to whatever order the court would make in the matter, whether that order was to admit the 2020 will, or alternatively the 2017 will, to probate, the court heard. That consent applied even in the case of some family members who would do marginally better under the 2017 will, the judge was told.
From the evidence, including her detailed instructions, that she could choose among those family members to whom she was closest, and her comments about the wedding, it was “quite clear” McCarthy had capacity when she made the 2020 will, the judge held.
There was no reference in the medical evidence to any formal diagnosis of dementia and it was concerning this application to court was necessitated by what appeared to be a careless entry on the death certificate, she added.
She had an “uncomfortable” feeling there was sometimes a presumption of dementia at an advanced age, the judge said. “Everyone should be considered individually.”
Directing the costs of the application should be paid out of the deceased’s estate, the judge said it was “a shame” the application had to be brought.
