Delirium-Rebutted Capacity and Heightened “Knowledge & Approval” Scrutiny Where a Beneficiary Drives a Late-Life Will

1) Introduction

Hogan and Anor v Kierse and Anor [2026] IEHC 35 is a de novo High Court appeal from the Circuit Court’s order (10 April 2018) condemning an April 2012 will of Patrick Hogan (“the Deceased”). The plaintiffs/respondents (Gordon Hogan and Norman Hogan) challenged the will under which their sister, Peggy Kierse (first defendant/appellant), took effectively all valuable assets. Regina Nevin (second defendant/appellant) was co-executrix.

The case sits against an unusually compressed and contentious end-of-life timeline: a home visit on 5 March 2012, an outright transfer of lands to Peggy on 24 March 2012 (with a handwritten “March Will” executed the same day), and a pre-prepared “belt and braces” will on 4 April 2012 (“the April Will”) intended to protect the result if the transfer failed. The Deceased died on 27 April 2012. His widow, Gisela, survived briefly and died intestate.

The central issues were whether, on 4 April 2012, the Deceased had testamentary capacity and whether he knew and approved the contents of the April Will, in circumstances where the principal beneficiary was deeply involved in solicitor contact and the drafting initiative for the April Will came from the solicitor.

2) Summary of the Judgment

The High Court (Stack J) affirmed the Circuit Court’s condemnation of the April Will.
The court held the presumption of testamentary capacity was rebutted on the evidence (including delirium/confusion over weeks), and the defendants failed to prove a lucid interval satisfying Banks v. Goodfellow.
Independently, even if capacity were present, the circumstances were suspicious and the defendants failed to prove the Deceased knew and approved the will’s contents to the heightened standard required by probate authorities.
The statutory execution challenge under s. 78 of the Succession Act, 1965 failed: due execution was proven by the attesting solicitors.
The court proposed to hear further on costs (and reserved issues relating to related proceedings challenging the 24 March transfer and March Will).

3) Analysis

A. Precedents Cited

Testamentary Capacity: the governing test and the “lucid interval” burden

The judgment reaffirms the orthodox capacity test from Banks v. Goodfellow (1870) L.R. 5 Q.B. 549: the testator must understand (i) the nature/effect of making a will, (ii) the extent of the property disposed of, and (iii) the claims of those who might expect benefit, free from mental disorder distorting judgment. Stack J applied this test with particular emphasis on the practical ability to “call to mind” assets and potential beneficiaries during the relevant consultation.

Crucially, the court held that evidence of recurring delirium and confusion displaced the ordinary presumption of capacity and shifted the burden to the propounders to prove an interval of capacity. The judgment adopted the classic “inverted burden” approach quoted from Jarman on Wills (8th ed) citing Cartwright v. Cartwright 1 Phillim. 100: once habitual mental disorder is shown, the party relying on a lucid interval must prove it. This framing was central to why the defendants’ “he seemed fine” witness impressions did not carry the day.

“Earlier instructions” doctrine and its limits

The defendants attempted to rely on the proposition that instructions could be given earlier and execution later, invoking Parker v. Felgate (1883) 8 P.D. 171 and the Irish authority Re Glynn deceased [1990] 2 I.R. 326, as explained by Blackall v. Blackall (Unreported, Supreme Court, 1 April 1998). Stack J treated these authorities as inapposite on the facts: the doctrine presupposes clear earlier instructions given when capacity is not in doubt. Here, the April Will was pre-prepared as a solicitor-driven “belt and braces” device, with no reliable evidence of prior testamentary instructions from the Deceased for that will’s contents.

Suspicious circumstances and “knowledge and approval”

The court’s second route to condemnation rested on a long line of probate authorities:

Barry v. Butlin (1838) 163 E.R. 223 (Parke B): the propounder bears the onus to satisfy the court the instrument is the free will of a capable testator; where a beneficiary prepares/participates, suspicion is raised and must be removed.
Fulton v. Andrew (1875) L.R. 7 H.L. 448: where beneficiaries are instrumental in framing the will and take a benefit, a “further onus” arises to show the transaction’s “righteousness” (understood as a heightened requirement to prove genuine knowledge and approval).
Irish adoption and reinforcement of that approach in Re Begley, Begley v. McHugh [1938] I.R. 479 and Leahy v. Corboy [1969] I.R. 148, with Leahy v. Corboy endorsing the vigilant, critical scrutiny reflected in Wintle v. Nye [1959] 1 W.L.R. 284.
The sequencing principle from Tyrrell v. Painton [1894] P. 151: suspicious circumstances require the propounder first to establish knowledge and approval; only then does the burden shift to objectors to prove undue influence/fraud.
Modern English synthesis: Fuller v. Strum [2002] 1 W.L.R 1097 and Gill v. Woodall [2011] Ch. 380, clarifying that “knowledge and approval” means the will represented the testator’s testamentary intentions and that suspicion calibrates the level of proof required.
The relevance of beneficiary involvement and failing health to heightened proof needs, illustrated by Hoff v. Atherton [2004] EWCA Civ 1554, including the contrast between independent advice/careful reading to the testator and a beneficiary-driven process.

Stack J treated these authorities as directly engaged because (i) Peggy was deeply involved in the solicitor’s engagement and information flow, (ii) the April Will was not the product of the Deceased’s instructions but of the solicitor’s initiative to protect an earlier transfer, and (iii) the Deceased was clinically and functionally vulnerable.

Capacity and medical-evidence caution in extreme frailty

Although this case was about wills rather than the validity of the transfer, the judgment drew an evidential parallel with situations where the maker is so enfeebled as to be reduced to a mark, referencing Leahy v. Corboy and Laaser v. Earls [2016] IECA 63. This helped ground the court’s skepticism about “apparent assent” where communication is impaired.

Undue influence and vulnerable conveyances: separate advice

In analysing the surrounding property transfer and the solicitor’s approach, Stack J emphasised the established need for independent advice in major parent-to-child transfers, citing Carroll v. Carroll [1999] IESC 11, [1999] 4 I.R. 241, and referencing the Law Society’s Practice Direction dated 4 February 2011 on vulnerable clients and separate representation. While not determinative of the will issue per se, it strongly informed the court’s view of the solicitor’s conflict and the overall suspicious context.

B. Legal Reasoning

(1) Statutory due execution was proved

The court disposed of the s. 78 of the Succession Act, 1965 challenge: the will was signed by the Deceased in the presence of two attesting solicitors who then attested in his presence. This narrowed the dispute to substantial validity (capacity/knowledge and approval).

(2) Capacity: delirium, functional impairment, and burden shift

The court distinguished dementia from delirium based on Dr Reynolds’ evidence, accepting that the Deceased likely did not have dementia but did have episodes (and, by April 2012, an extended period) of delirium—exacerbated by infections, serious illness, and sedating medications including Oxycontin. The court placed significant weight on:

family evidence (especially the Deceased’s siblings, viewed as independent of the inheritance dispute) describing persistent confusion and inability to sustain coherent conversation beyond minutes;
the Milford Hospice admission record noting “confusion/disorientation” for “x 5/52” (five weeks), a timeline covering 24 March and 4 April 2012;
the solicitor-driven nature and haste of the April Will process, with no credible evidence that the Deceased himself reviewed assets/beneficiaries as part of the April Will-making decision.

Once the court found the presumption of capacity rebutted, the defendants had to prove a lucid interval meeting Banks v. Goodfellow. Their proof largely amounted to lay impressions that the Deceased was “lucid” and recognised people. The court held this did not establish that he could (i) understand the will-making act and its effects, (ii) call to mind the extent of his property, and (iii) evaluate the claims of potential beneficiaries.

(3) Knowledge and approval: “belt and braces” is not proof of testamentary intention

Even assuming capacity, Stack J held the process was so suspicious that the defendants were required to prove affirmatively that the April Will reflected the Deceased’s testamentary intentions. Key drivers of suspicion included:

Origination and purpose: the April Will was drafted on the solicitor’s initiative to shore up perceived weaknesses in the 24 March transfer;
Beneficiary involvement: Peggy controlled communications and provided significant (and in parts inaccurate) information about family circumstances, with the court finding her a wholly unreliable witness;
Absence of genuine instructions: no credible evidence that the Deceased instructed the April Will’s dispositive scheme;
Failure to revisit assets and claims: the April consultation did not involve a proper review of assets and those with claims on the bounty;
Internal inconsistency and change: the April Will differed radically from both the 2008 Will and the March Will executed only 11 days earlier;
Unexplained substantive change affecting a vulnerable sibling: the April Will diluted Peggy’s obligations to renovate the old house for Norman compared with the 24 March deed; the court found no evidence that this change was explained to the Deceased.

In effect, the judgment treats “reading out” a pre-prepared will to a gravely ill testator—without demonstrated prior instructions and without a careful, recorded exploration of assets and competing claims—as inadequate to discharge the heightened burden imposed by Barry v. Butlin / Fulton v. Andrew principles.

(4) Solicitor conflict as a credibility and process failure

A striking feature is the court’s sustained critique of the solicitor’s role. Stack J found the solicitor effectively prioritised Peggy’s interests, permitted her involvement in instruction-taking, and proceeded without the protective measures expected for a vulnerable client and a transaction (and will) benefitting the party driving the process. This was not framed as professional-discipline findings, but it materially undermined:

the reliability of evidence about what was explained to the Deceased;
the plausibility that the Deceased generated the dispositive scheme;
the court’s ability to be satisfied that the will represented the Deceased’s intentions.

C. Impact

While grounded in orthodox doctrine, the judgment has practical precedential force in Irish probate litigation by demonstrating:

Delirium-focused capacity analysis: even without dementia, extended delirium (especially medication-related) can rebut capacity and invert the burden, requiring concrete proof of a lucid interval rather than general impressions of lucidity.
“Belt and braces” wills are high-risk where they are solicitor-initiated, beneficiary-driven, and executed in frailty without clearly evidenced prior instructions. Courts may treat such wills as paradigmatic “suspicious circumstances.”
Heightened scrutiny of beneficiary-driven processes: where a principal beneficiary supplies family/asset narratives, controls access, and the solicitor does not insulate the client, the proponent may face an evidential burden that is difficult to meet without independent corroboration (medical assessment, careful attendance notes, and demonstrably independent advice).
Related-transaction context matters: even when the court is not deciding the validity of a transfer, the surrounding conveyancing and the solicitor’s approach to vulnerability can materially affect the probate outcome (credibility, suspicion, and inference).

4) Complex Concepts Simplified

Testamentary capacity: the legal ability to make a will. It is not enough to be awake or recognise people; the person must understand they are making a will, what property they are dealing with, and who might reasonably expect to benefit.
Presumption of capacity and burden shift: normally, adults are presumed capable. But if evidence shows a persistent mental condition (here, delirium/confusion), the person relying on the will must prove the will was made during a lucid interval.
Delirium vs dementia: dementia is progressive cognitive decline; delirium is often fluctuating confusion due to illness/medication and can last from minutes to weeks. A person can appear “ok” briefly yet still lack the sustained capacity required for complex decisions.
Knowledge and approval: even if someone has capacity, the court must be satisfied the will actually reflects their wishes. If circumstances are suspicious (for example, the main beneficiary helped procure the will), the court demands clearer proof that the testator truly understood and intended the contents.
“Suspicious circumstances”: not an accusation of crime; it is a legal label for facts that require closer scrutiny (beneficiary involvement, vulnerability, dramatic changes from prior wills, rushed execution, conflicted solicitor).
Family Home Protection Act consent: a spouse’s consent is typically required to dispose of the family home. How such consent is obtained can be evidence of vulnerability and flawed process.
Legal right share (Succession Act): a surviving spouse generally has a statutory minimum entitlement to the deceased’s estate regardless of the will.

5) Conclusion

Hogan and Anor v Kierse and Anor illustrates a rigorous application of capacity and “knowledge and approval” principles where a late-life will is executed amid significant illness, medication effects, and a beneficiary-driven process. Stack J condemned the April Will because the defendants could not prove a lucid interval meeting Banks v. Goodfellow, and because the suspicious circumstances—especially the solicitor’s conflicted role and the absence of genuine instructions—prevented the court from being satisfied that the will represented the Deceased’s testamentary intentions.

The judgment’s broader significance lies in its message for practice: where vulnerability, family conflict, and major dispositive changes converge, a “routine” execution and a general impression of lucidity will not suffice. Independent safeguards—clear prior instructions, independent advice, careful documentation, and (often) contemporaneous medical assessment—are likely to be decisive in whether such wills survive probate scrutiny.