Dementia expert says dying farmer had capacity to make will that left farm to nephew

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Tim Healy

An expert on dementia reviewed medical and other reports on a farmer, whose will is being contested, and found he had capacity to make a will, the High Court heard. 

Prof Peter Passmore, a geriatrician and head of the aging and dementia research centre in Queens University Belfast, said Michael Buckley was not in a fit state to make a will eight days before he died in hospital as he had just had a major operation the day before. 

However, he was a "very different man" five days before he died and had improved such that he did have capacity to make the will then, he said. 

Prof Passmore was giving evidence on the second day of an action by four of Mr Buckley's siblings against a nephew to who the deceased left his entire 54-acre farm and estate in a will made in his Waterford Regional Hospital bed five days before he died.

Joseph, William and Elizabeth Buckley and Teresa Doyle say the will, made in favour of Richard Cooper junior, a son of a fifth Buckley sibling, Sheila Cooper, was made under undue influence and when he did not have capacity to make it because he was dying.

Bachelor Michael Buckley (76), from Caim near Enniscorthy, Co Wexford died on March 20, 2011, aged 76, from cancer. He was a bachelor and had no children.

He had been sick for several months and underwent a major operation on March 11 which did not improve his condition, the court heard. He was mostly receiving palliative care from then on.

Sheila Cooper asked a local solicitor to go to the hospital on March 12 but that solicitor found he was not in a fit state to make a will and left. On March 15, her husband, Dick Cooper, asked another local firm to send a solicitor to take the will and it was taken.  

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The second solicitor, Jason Dunne, said Mr Buckley was lucid, chatty and a very different man from the one seen by the first solicitor. Mr Dunne was quite satisfied he had capacity to make the will.

Prof Passmore told the court, from his review of medical notes on Mr Buckley and reports by the solicitors who met him in March, he was satisfied that, on balance, the patient had capacity to make the will when he did.

He agreed, under cross examination, the "golden rule" of good practice is that a healthcare professional should be involved in taking account of a patient's mental and cognitive state in such situations. However, this was ideally the situation and as a matter of practicality, on the wards of a hospital, it is not always possible.

Dr Derek Forde, a GP and associate professor of general practice in UCD, told the court he also carried out a review of the medical and other material and it was his impression Mr Buckley was "up against it" and had no more than months to live at the time of the will taking.

Had Mr Buckley been his patient, he would not have allowed anyone near him at the time, even his family. "This man was too ill and too sick in my opinion", he said.

The case continues before Mr Justice Charles Meenan.

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