A man has won his appeal against the High Court’s rejection of his challenge to a will executed by his civil partner, a former diplomat, hours before his death.
The challenge by Said Laaser was the first of its kind taken after the enactment of civil partnership laws here.
After finding that issues concerning the testamentary capacity of Brian Earls when making the disputed July 2015 will had not been satisfied, the Court of Appeal directed a full rehearing of the case in the High Court.
The three-judge court on Wednesday allowed Mr Laaser’s appeal against the High Court’s dismissal of his challenge to the will made by Mr Earls on July 4th, 2013, hours before he died of cancer in a Dublin hospital.
In that will, Mr Laaser was left 50 per cent of Mr Earls’s assets in accordance with his statutory entitlements under the civil partnership laws but claimed he had done “much better” in an earlier will of March 2013.
President of the High Court Mr Justice Nicholas Kearns found the disputed will was properly executed and there was “no attempt” to deprive Ms Laaser of his interest in the estate.
A native of Morocco and now a naturalised Irish citizen, Mr Laaser brought proceedings against Maurice Earls and William Early, brother and brother-in-law respectively of Mr Earls, as executors of the deceased’s estate.
Mr Laaser, a pharmacist, formed a romantic relationship with Brian Earls more than 10 years ago and they lived together for about two years in a property at Ovoca Road, off South Circular Road, Dublin.
Mr Earls was a diplomat who had postings in Moscow, Warsaw and Ankara, and had accumulated a large collection of books, rugs and carpets. After a lump was detected in his mouth and when facing the prospect of major surgery, he made a will in March 2013 leaving the Ovoca Road property to Mr Laaser. He left €35,000 to his sister Catherine while his brother Maurice was left his collection of books, papers and documents, plus €40,000 towards running costs of the Dublin Review of Books.
Bequests
He left paintings, carpets and objets d’art to be divided equally between his three siblings and Mr Laaser, plus the contents of the Ovoca Road property and also left some €50,000 to an Armenian friend.
Mr Earls’s family was told on July 2nd, 2013, he had secondary forms of cancer and his prognosis was extremely bleak. He died at 4am on July 5th, 2013. The previous afternoon, he made a different will in which the most significant change was to leave 50 per cent of Ovoca Road to Mr Laaser with the rest divided equally between his siblings.
Maurice Earls told the High Court his brother told him he wished to write a new will dividing his assets between Mr Laaser and his siblings. The will was executed and witnessed by three members of the deceased’s family hours before his death.
The significant issue in the appeal was whether Mr Earls had sufficient competence to execute that will, said Mr Justice Gerard Hogan when giving the appeal court’s judgment.
The onus was on the defendants to prove that, especially when there were appreciable changes between the two wills, no solicitor present and Brian Earls was “so obviously enfeebled” he could only mark “X” by way of executing the will.
Because there was no medical evidence concerning capacity before the High Court, the appeal court could not be satisfied Mr Earls had the necessary testamentary capacity. On any view, the testamentary capacity of Mr Earls was “open to question”.
While Mr Laaser had not directly challenged the defendants’ evidence on capacity, some allowance had to be made for the fact he was representing himself, he said. That failure might have given the defendants the wrong impression there was no need to call medical evidence, he noted.
The court had no option but to allow this appeal and the fairest course was to direct a retrial in the High Court, he ruled.
