The High Court has upheld the validity of a will in which a mother left her estate to a daughter with Down's syndrome but failed to make any provision for her other daughter.
Mr Justice Smyth yesterday dismissed the challenge by Ms Genia de Souza-Wearen of Duleek House, Duleek, Co Meath, to the validity of the will of her late mother, Mrs Maura de Souza, who died on April 22nd, 1999.
Under the terms of the will left by Mrs de Souza, her estate, primarily consisting of Duleek House, was bequeathed to Ms Shaheen de Souza, who has Down's syndrome, for her lifetime. On Shaheen's death, the estate passes to Mrs de Souza's niece, Ms Tessa Gannon, named as Shaheen's guardian, with an address in England.
Ms de Souza-Wearen was challenging the validity of the will, claiming her mother did not have the testamentary capacity required by law when it was made. She said her mother was in a very agitated state when she attended at a Drogheda solicitor's offices on January 30th, 1998. That solicitor, Mr Donal Brannigan, told the court the late Mrs de Souza had asked that the will be drawn up immediately and had claimed she believed her life was in danger.
Evidence was given on behalf of Ms de Souza-Wearen that her late mother became increasingly paranoid and believed people were conspiring against her. The court also heard that the late Mrs de Souza had a mild form of Parkinson's disease and had at one stage being diagnosed as clinically depressed.
Giving his judgment yesterday, Mr Justice Smyth said this was an unfortunate case for all involved. However, the validity of the will did not relate to its fairness or whether another parent would have done what Mrs de Souza did. The case was about whether Mrs de Souza had capacity to make the will she made, knew the extent of her estate, knew who could expect to benefit and decide who would benefit.
It was not at issue in these proceedings whether Mrs de Souza discharged her moral obligation, he added.
The judge said he was satisfied from the evidence of Mr Brannigan and another man who had witnessed the will that it was executed in accordance with the terms of the Succession Act and not open to question.
He also said he regarded as very important evidence that Mrs de Souza had said she believed Ms Tessa Gannon would make a very good mother.