Developer not capable of making €6.7m will, court told
Published 08/10/2010 | 05:00
THE wife of a deceased property developer told a court yesterday that her husband was not of sound mind when he made a will of €6.7m.
A High Court judge has been asked to decide whether Brian Rhatigan was capable of altering his will.
Mr Rhatigan, late of Ballybride Road, Rathmichael, Dublin, separated from Odilla Rhatigan and had a new partner, with whom he had two children. She claims he was not capable of making a will eight months earlier due to a degenerative disease that robbed him of his speech.
Mrs Rhatigan, of Brennanstown Road, Cabinteely, Dublin, claims she was entitled to half his estate and that he set up a trust to defeat or diminish her right to her share.
Mr Rhatigan died in February 2006 at the age of just 60, resulting from complications from motor neurone disease and Parkinson's.
He had been separated from his wife Odilla, with whom he had three children, one of whom pre-deceased him.
He had been living with Rachel Kiely, with whom he had two children, one of whom was born three months before his death.
The executor of Mr Rhatigan's estate, Sharon Scally of Amorys Solicitors, is seeking an order from the court that a 23-page will made by Mr Rhatigan on May 19, 2005, be admitted as his last will and testament. A second executor to the will has since died.
Ms Scally also wants an order vacating a caveat to the will lodged on November 20, 2008, on Mrs Rhatigan's behalf and that of her two children -- David Rhatigan and Odilla Gilson (nee Rhatigan), both of Newtownpark Avenue, Blackrock, Dublin.
Mrs Rhatigan is counter-claiming that her husband did not know and approve of the contents of the will, was not of sound mind and lacked capacity to make the will.
She says that from 2001 Mr Rhatigan suffered from a progressive neurodegenerative condition, which by October 2004 led him to being diagnosed as to have severe mental impairment.
At the time the will was made, his condition was characterised by difficulty in physical movement but also cognitive difficulties and difficulty in focusing his attention for any appreciable length of time, she says. He was unable to speak and communicated through a computer-aided keyboard.
Mrs Rhatigan says that when their marriage broke down, he promised her she would benefit from half of his estate on the basis that she would not pursue a legal/judicial separation.
She says, however, he put significant assets into settlements and trusts for the purpose of defeating her legal right to her share of the estate.
The gross value of the estate has been estimated by revenue at €6.7m, although Mrs Rhatigan believes the value is significantly greater than this.
Mr Rhatigan set up a Cyprus-based trust called Golden Promise, whose trustee is Golden Promise Holding Ltd, a company which appears to be managed and controlled in Cyprus and which used subsidiary companies to procure the conduct of the deceased's property and associated development activities, Mrs Rhatigan claims.
The proceeds from the sale of Mr Rhatigan's former family home in Rathmichael are being held in trust for Rachel Kiely and her two children, Mrs Rhatigan claims.
She is seeking a number of declarations and orders including that her husband's will is null and void and that Ms Scally is not an appropriate person to be an executor of her husband's estate.
Consultant neurologist in Beaumont Hospital, Professor Tim Lynch, told the court yesterday that he examined Mr Rhatigan a number of times shortly before the signing of the will and afterwards and he believed he had the capacity to focus on a single complex issue at the time despite his lack of speech.
Prof Robert Howard, a consultant called on behalf of Mrs Rhatigan, said he would have had a capacity to make a simple but not a complex will.
Mr Rhatigan's cares in his final months, Eileen Carpenter, said she believed he had all his mental but not physical abilities up to his death.
The case continues.