Application to come off record in probate proceedings refused where presumption of capacity was not rebutted

Probate – application to come off record -capacity - proceedings have already been at hearing for 19 days - in the course of the trial, lost her capacity to give instructions such that the applicant’s solicitors’ retainer has been terminated as a matter of law - a claim by the applicant that she is the “qualified cohabitant” - seeks “proper provision” - applicant claims that she was in a longstanding intimate and committed relationship with the Deceased for a period of over 30 years prior to his death – will made no provision for her - specifically mentioned in the Letter of Wishes – not legally binding - recommended that she be paid a salary of €40,000 per annum and this was paid for a time after his death but has not paid for some years – proceedings brought just within the statutory period of six months from the issue of a Grant of Probate in the Estate - also brought proceedings alleging oppression pursuant to s. 212 of the Companies Act, 2014, and seeking orders restraining the removal of her as a director in a company - timeline of proceedings - application to adjourn the trial was made, arising out of the applicant’s solicitors’ concerns about the applicant’s capacity – medical report - proceedings may be maintained on their behalf by a Next Friend - advised of the risk that they would have to bear the costs if the proceedings were unsuccessful, they understandably declined to act – application heard by a different judge – relief refused - referral of a person to a Medical Visitor - Medical Visitor conducted an assessment - satisfaction that the applicant had capacity to make health and welfare decisions, and decisions relating to property and financial affairs - it must be assumed that the applicant would find it extremely difficult to get new solicitors if the Court accepts that she is lacking in capacity to give instructions - claim would effectively be at an end and it would only remain to determine the costs of the trial to date - risk to the fairness of the trial if it does not resume in a timely fashion - imminent commencement of the Assisted Decision Maker Act does not affect that there is an ongoing serious risk of injustice to the respondent if the issue is not determined in a timely fashion – redaction of report - unusual nature of the application - solicitor’s retainer - termination of a solicitor’s retainer by reason of lack of capacity on the part of the client - whether the applicant is no longer capable of giving instructions so as to allow her solicitors to act for her in the proceedings - does not appear that there were any concerns as to the applicant’s capacity to instruct until a consultation which took place after cross-examination had concluded - simply no evidence on affidavit from the applicant’s solicitors as to interactions with the applicant other than that which took place immediately after the conclusion of her cross-examination from which it could be inferred that the applicant does not understand the issues in the proceedings - test for capacity is a legal one rather than a medical one and there is no evidence from any person who is close to or acquainted with the applicant in her daily life - principles material to consideration of expert evidence - medical evidence – presumption of capacity has not been rebutted by these reports - Medical Visitor’s Report - contents of the reports do not demonstrate that the applicant is not aware of the issues in the case and the purpose of these proceedings - satisfied that the applicant understands the nature of the proceedings in which she is involved, their ultimate purpose, and the central issues in the case, as well as the type of evidence which is material to those issues and which might be helpful to her case – application to come off record refused –