A HIGH Court judge has been asked to decide whether a deceased property developer was of sound mind when he made a will for an estate with an estimated value of more than €6.7 million.
At the time of his death in February 2006, Brian Rhatigan (60), late of “Chantilly”, Ballybride Road, Rathmichael, Dublin, had a new partner with whom he had two children, his marriage to Odilla Rhatigan having earlier broken down. He had made a will eight months prior to his death.
Odilla Rhatigan, “Briodi”, Brennanstown Road, Cabinteely, Dublin, claims Mr Rhatigan was not capable of making the will due to a degenerative disease which robbed him of his speech. She claims she was entitled to half his estate and he had set up a trust to defeat or diminish her right to her share of the estate.
Mr Rhatigan died as a result of complications from motor neurone disease and Parkinson’s disease. At the time of death, he was living with Rachel Kiely, with whom he had two children, one of whom was born three months before his death. He also had three children by his wife, one of whom had pre-deceased him.
His solicitor and executor, Sharon Scally of Amorys Solicitors, Sandyford, is seeking an order from the court that a 23-page will made by Mr Rhatigan on May 19th, 2005, be admitted as his last will and testament. A second executor to the will has since died.
Ms Scally also wants an order vacating a caveat to the will lodged on November 20th, 2008, on behalf of Mrs Rhatigan and her two children, David Rhatigan and Odilla Gilson (nee Rhatigan) both of Glendower House, Newtownpark Avenue, Blackrock, Dublin.
Mrs Rhatigan is counter-claiming her husband did not know and approve of the contents of the will, was not of sound mind and lacked capacity to make the will. She claims that from 2001, Mr Rhatigan was suffering from a progressive neurodegenerative condition which by October 2004 led him to being diagnosed as having severe mental impairment.
At the time the will was made, his condition was characterised by difficulty in physical movement but also cognitive difficulties and difficulty in focusing for any appreciable length of time, she says. He was unable to speak and communicated through a computer-aided keyboard known as Dynawrite.
Mrs Rhatigan claims that when their marriage broke down, he had promised her she would benefit from half of his estate on the basis she would not pursue a legal/judicial separation.
She claims he later put significant assets into settlements and trusts for the purpose of defeating her legal right to her share of the estate. The gross value of the estate has been estimated by Revenue at €6.7 million, though Mrs Rhatigan believes the value is significantly greater than this.
The proceeds from the sale of Mr Rhatigan’s former family home Chantilly are being held in trust for Rachel Kiely and her two children, Mrs Rhatigan claims.
Consultant neurologist Prof Tim Lynch told the court yesterday he examined Mr Rhatigan a number of times shortly before the signing of the will and afterwards and believed he had the capacity to focus on a single complex issue at the time despite his lack of speech. He believed Mr Rhatigan had the appropriate testamentary capacity.
Prof Robert Howard, a consultant called on behalf of Mrs Rhatigan, said Mr Rhatigan would have had a capacity to make a simple but not a complex will. A mental flexibility test carried out by another doctor on Mr Rhatigan in November 2004 showed Mr Rhatigan “performed disastrously”, Prof Howard said.
The case continues.