Judge dismisses family’s claim of ‘undue influence’ in making of will

By Gordon Deegan

A judge has dismissed a claim by four adult siblings that their brother exerted undue influence on their late mother when making her will.

At Ennis Circuit Court, Judge Brian O’Callaghan also dismissed a claim by the four, PJ Cunningham, Mortimer Cunningham, Joan Houston and Martina Cunningham that their late mother, Eileen, was not of sound mind when executing her last will and testament in March 2015.

Dismissing the siblings’ claim against their brother, Bobby, Judge O’Callaghan stated that he found “no evidence of coercion in this case”.

Judge O’Callaghan also stated that the late Eileen Cunningham did have testamentary capacity on March 6, 2015 when making her will.

Judge O’Callaghan stated that at the time of making her final will in 2015, it was abundantly clear to the court that Eileen Cunningham “was focused and understood what she was doing”.

Judge orders costs

Eileen Cunningham died one day short of her 95th birthday on April 6, 2017.

Her son, Bobby was her carer at the time of his mother’s death and Eileen left her home at Knocknagogue, Quin, Co. Clare to Bobby’s daughter, Roisin.

However, the estate looks to be the loser due to the legal costs attached to the case where evidence was heard over two days at Ennis Circuit Court.

Judge O’Callaghan stated that Bobby and Roisin Cunningham’s costs can be paid out of Eileen Cunningham’s estate.

Judge O’Callaghan also directed that 60% of the siblings’ costs can come from the estate to cover Eileen Cunningham’s testamentary capacity aspect of the case.

The judge stated that the four were entitled to take that aspect of the case based on their initial contact with Eileen’s GP who stated that he had a concern about her capacity to make a will in 2015.

Judge O’Callaghan stated that the four siblings should not recover their costs from the estate concerning the undue influence aspect to their case.

Making the will

Eileen Cunningham made her first will at the age of 82 in 2004 where she left her estate to her carer and daughter, Carmel.

However, Carmel died unexpectedly in December 2014 and Judge O’Callaghan stated that Carmel’s death shook the Cunningham family to its core.

He stated that the period after Carmel’s death was a challenging one for the family and changed the dynamic of how they functioned in relation to the then 92-year-old Eileen.

The judge stated: “There is conflicting evidence regarding arguments, failed family meetings, who did and did not stay overnight with their mother and similar issues.”

Eileen Cunningham made a new will in 2015 at the age of 93 and left her home to Bobby’s daughter, Roisin.

No undue influence

Judge O’Callaghan stated that it was strongly pleaded by the four siblings that Bobby “in effect cut them off or shut out his mother from the rest of the children and he executed complete control over all matters relating to Eileen Cunningham to the exclusion of all others”.

However, Judge O’Callaghan stated that the evidence from the four siblings “suggests the very opposite”.

Judge O’Callaghan stated that Martina Cunningham and Joan Houston – now both living in England – each made it clear that they were free to come and go as they pleased when visiting their mother so much so that Bobby left his home to allow the siblings spend more time with their mother.

The judge stated that PJ and Mortimer Cunningham told the court that they and their families were constantly visiting their mother’s home.