Martha Maria Potter and Samuel Edward Potter
| Jurisdiction | Northern Ireland |
| Judge | Gillen J |
| Judgment Date | 2003 |
| Neutral Citation | [2003] NIFam 2 |
| Date | 05 February 2003 |
| Court | Family Division (Northern Ireland) |
1
Neutral Citation No. [2003] NIFam 2 Ref:
GILC3834
Judgment: approved by the Court for handing down Delivered:
5/2/03
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
PROBATE AND MATRIMONIAL OFFICE
________
IN THE ESTATE OF THOMAS WILSON POTTER DECEASED
BETWEEN:
MARTHA MARIA POTTER
Plaintiff
and
SAMUEL EDWARD POTTER
Defendant
________
GILLEN J
[1] The plaintiff in this action is the only surviving lawful sister of the
deceased Thomas Wilson Potter who died on 18 April 1999 (hereinafter called
“testator” or “the deceased”). The defendant is sued in his capacity as sole
surviving executor and residuary legatee of the will of the deceased.
[2] By will dated 1 February 1996 the deceased made a number of specific
legacies with residue of the estate to the defendant. The defendant is a
nephew of the deceased. The estate is situated at 114 Lisburn Road,
Saintfield, County Down and includes a house and farm of approximately 28
acres together with a cash sum of approximately £16,000.
[3] Probate of the will was obtained on 17 May 1999.
[4] The will was drafted by Mr McRoberts solicitor and allegedly
witnessed by him and Freda Johnston an employee of his.
[5] The plaintiff claims:
(i) That at the time of the making of the will dated 1 February 1996, the
testator Thomas Wilson Potter was not of sound mind, memory and
understanding. The particulars of that allegation are:
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(a) The deceased was 83 years of age and suffering from senile
dementia;
(b) The deceased was throughout his life of limited intelligence
having suffered a head injury in his youth;
(c) The deceased had been the subject of (sectioning) (sic) under the
Mental Health (Northern Ireland) Order;
(d) The deceased’s domestic circumstances were in a state of
considerable disarray in the later years of his life;
(e) The deceased failed to grant any benefit to his only surviving
sister or to inform her of the existence of the said will despite having
always confirmed his intention to leave his estate to her.
(ii) Alternatively it is alleged that the said will was procured by means of
the undue influence of the defendant over the testator. The particulars of that
allegation in the statement of claim were as follows:
(a) The deceased lived alone and in the last years of his life was
unable to look after himself and by reason of old age and infirmity was
very dependent on the defendant;
(b) The defendant made use of the deceased’s dependence upon
him to force him to make the will contrary to his own wish by
procuring his isolation and impeding his efforts to have a telephone
installed on the premises;
(c) The defendant promised to look after the welfare of the
deceased but failed and/or neglected to do so.
[6] Accordingly the plaintiff claimed:
(1) A declaration that the testator was at the time at the making of the will
of unsound mind, memory and understanding;
(2) A declaration that the making of the will was procured by means of
undue influence on behalf of the defendant;
(3) Revocation of the will;
(4) That the estate be administered according to the rules of intestacy;
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Practice Note 03/12 - McKenzie Friends (Civil and Family Courts)
...Honourable Sir Declan Morgan Lord Chief Justice of Northern Ireland 5 September 2012 [1]McA v McA [2006] 10 BNIL 63, Potter v Potter [2003] NIFam 2, R v Leicester City Justices, ex parte Barrow [1991] 260, Chauhan v Chauhan [1997] FCR 206, R v Bow County Court, ex parte Pelling [1999] 1 WLR......
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