Sunday 18 August 2019

Founding Chair of the Personal Injuries Board and her cousin contesting alleged last will of their aunt - High Court hears

Dorothea Dowling
Dorothea Dowling

Tim Healy

THE former and founding chairperson of the Personal Injuries Board, Dorothea Dowling, and her cousin Gráinne O'Flynn, are contesting the alleged last will of their aunt Angela O'Loughlin, the High Court heard.

Ms O'Loughlin died, aged 90, in 2016 and had made another niece, Mary Dwyer and her husband Kenneth Dwyer, the main beneficiaries and executors of a December 2013 will she made.

Ms Dowling and Ms O'Flynn claim their aunt, who lived at Rathdown Park, Terenure, Dublin, had made another will, just a few months earlier in April 2013, in which the two of them were substantial beneficiaries.

They also claim the second December 2013 will was made when their aunt was not of sound disposing mind.

The Dwyer family deny their claims and say the aunt was prudently and properly managing her affairs.  They also have medical opinion supportive of their case.

The Dwyer family brought High Court proceedings in 2017 seeking to have the December 2013 will proved, a procedure known as having it admitted to probate, after the defendant cousins entered caveats or warnings over the will.

The case came before Mr Justice Seamus Noonan in relation to applications by both sides seeking disclosure from each other of documents and material necessary for the full hearing of the case.

The material sought by Ms Dowling related to correspondence, diary entries, video footage of the deceased between 2012 and 2014, medical records, bank account and savings/financial investments. She also sought a sworn inventory of the aunt's assets and liabilities. 

Some of it was provided voluntarily by the Dwyer side but they said no video footage existed and bank information was declined. They said sufficient documentary evidence would be provided to show Ms O'Loughlin was at all material times fully in charge and prudently managing her affairs.

They also said her assets comprised her Terenure home, three bank accounts and a small number of prize bonds. She had no significant liabilities.

Ms Dowling previously had solicitors representing her, but discharged them and represented herself at the discovery hearing.

Mr Justice Noonan noted that after she discharged her solicitors, Ms Dowling gave new and expanded reasons for seeking documentation from the Dwyers.

She also sought additional financial documents and records of communications between herself (Dowling) and Ms Dwyer in relation to allegedly being kept informed of the deteriorating health of their aunt.

Mr Justice Noonan was not satisfied that any of the documents sought, beyond those already furnished, were necessary for the fair disposal of these proceedings.

Therefore, he directed that discovery by the Dwyers be confined to documents already offered by them.

In relation to discovery sought by the Dwyers against Ms Dowling and Ms O'Flynn, he directed that they do so in accordance with the terms of the Dwyers' application to court.

Earlier, the judge said cases such as this frequently turn, in a large measure, on the opinion of medical experts regarding the capacity of the deceased.

The Dwyer family had made it clear to the defendants for a considerable period of time they had medical opinion to support their case and had invited a report exchange and/or meeting of both sides' medical experts, the judge said.

However, there was no response to this by the time the discovery application came to hearing earlier this month.  Ms Dowling's request for documents in relation to the deceased's state of mind appeared to rest upon "Ms Dowling's own interpretation of various documents including medical records, which had been made available to her", the judge said.

She predicated her assertions as to the deceased's state of mind by saying "my research indicates", he said.

She conceded she was not an independent medical expert but said she had a certain proficiency in deciphering medical records from her extensive litigation experience.

"Despite that, the fact remains Ms Dowling is no a doctor and is not entitled to give opinion evidence on medical matters pertaining to the deceased's mental health",  the judge said.

It was something of a surprise that during her oral submissions to court she indicated she had consulted an expert who formed the opinion the deceased lacked capacity, he said.

One assumes that expert reached his conclusion based on documents Ms Dowling already had been provided to her, he said.  It was never suggested by her that the expert required further documentation to come to that conclusion.

The case comes back to court next month.

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