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Under the Succession Act 1965 to be valid a Will must be made by a person who has attained the age of 18 years or is or has been married, and is of sound disposing mind. This phrase has given rise to much litigation before the courts in relation to the validity of wills. There are several grounds upon which a will may give rise to litigation including:
- lack of testamentary capacity;
- lack of approval or knowledge of the contents of the will;
- undue influence;
- failure of duty to an intended legatee;
- failure to provide for the legal right share;
- failure to make proper provision for a child or children.
The case of Banks v Goodfellow 1870 prescribed the test, still applied today, for testamentary capacity:
“It is essential that a testator shall understand the nature of the act and its effects: shall understand the extent of the property of which he is disposing, shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or pervert the exercise of his natural faculties:- that no insane delusion shall influence his willing disposition of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
TThe test was further expanded in the case of Re Key. A testator and his wife had been married for 65 years when she died. He was 89 years of age and depended on her for his domestic care. His daughters arranged for him to execute a will one week after her death in which he left his property to his two daughters in contrast to his earlier will in which he had left it to his two sons. After his death the sons claimed in court that he lacked testamentary capacity to make this new will. While the testator may have passed the Banks v Goodfellow test, the court extended the test and decided that affective disorder such as depression, including that caused by bereavement, is more likely to affect powers of decision making than comprehension. In other words the testator may have the capacity to understand what his property is, and even who his relatives and dependants are, without having the mental energy to make any decisions of his own about whom to benefit in his will. The court described the devastation of bereavement as “severe affective disorder” which, combined with his pre-existing cognitive impairment, was sufficient to deprive him of his testamentary capacity. Therefore decision making powers will be taken into account along with comprehension.
The evidence of the solicitor who took the instructions from the testator and his attendance notes will be essential along with the evidence of the family members and carers of the deceased. While the test is a legal test, the evidence of doctors will also be taken into account and it is therefore important for a solicitor to arrange for a doctor to assess the mental capacity of an aged or ill testator. Lord Carnworth observed that while ‘there is no possibility of mistaking midnight from noon, at what precise moment twilight becomes darkness is hard to determine’.
Did the testator know and approve the contents of the Will?
In the case of Gill v Woodward 2010 Mr and Mrs Gill made wills in favour of each other and on the death of both the estate went to the RSPCA. Their daughter challenged the will of her mother who was the last to die on the basis of lack of knowledge and approval on the part of her mother with whom she had a good relationship. There was evidence that Mrs gill suffered from severe agoraphobia and that her husband had a domineering and capricious personality. There was evidence that she found it difficult to concentrate and absorb information. There was evidence presented about the manner in which the will came about. She had said nothing to her daughter about the will and the court found that it was unlikely that she would have misled her. All of the evidence surrounding the making of the will in Ireland was considered. The will was set aside on the basis that she did not know and approve the contents of the will.
Undue Influence and Duress.
If the court is satisfied that the will was procured by reason of duress and or undue influence exerted upon the Deceased by another person then it will set aside the will as it was not executed freely and of the testator’s own volition. Undue influence may arise in many ways such as dependence on the assistance of others, the mental and physical wellbeing of the testator, the age of the testator, the opportunity for gaining influence over the testator.
Failure of Duty to an intended legatee.
A solicitor engaged to prepare a will owes a duty of care “to ensure that the wishes of the testator are not frustrated and the expectancy of the legatee defeated…”. There should be no delay in the preparation of the will. If a solicitor receives instructions to prepare a will in Dublin and fails to do so in a timely manner then the disappointed beneficiaries may have a claim against the solicitor as they were deprived of their legacy by the negligence of the solicitor. Where a client is elderly or likely to die the courts have held that anything other than a handwritten rough codicil prepared on the spot for signature may be negligent.
Legal Right Share.
A surviving spouse has a special status under Irish inheritance law and is afforded special protections whether the deceased spouse died with or without a Will.
Legal Right Share – No Will:
If a person dies intestate (no will) and leaves a surviving spouse then:
- Where there are no children the spouse is entitled to the entire estate and:
- Where there are children the spouse is entitled to two thirds and the children are entitled to one third.
A separated spouse may have renounced her inheritance rights in a separation agreement or a court may have extinguished the share in a judicial separation. It is important therefore to examine any agreements or court orders.
An LPR is also under a duty to bring the death to the notice of the other spouse. Even a divorced spouse who has not remarried is entitled to apply to court for provision out of the estate!
Legal Right Share – Will:
If a person dies testate (with a will) and leaves a spouse then:
- Where there are no children the spouse is entitled to one half of the estate and;
- If there are children the spouse is entitled to one third of the estate.
Where there is a bequest in a will to a spouse then he or she may elect to take either that bequest or the legal right share. Failure to choose means they take the bequest. The legal right share is calculated by reference to the net estate that is after payment of debts funeral and testamentary expenses. Excluded from the calculation is property held jointly and assets which go to a nominated person such as the proceeds of certain insurance policies and some Post Office Bonds and Certificates. If the deceased transferred assets within three years of death in order to deprive the spouse of her legal right share then an application may be made to include the value of those assets in the calculation of the value of the legal right share. The legal right share gets priority over any other bequests in a will.
A spouse who has been left out of a will is automatically entitled to receive her legal right share without having to elect.
A surviving spouse may forfeit their legal right share if guilty of murder, attempted murder, or manslaughter of the other, or guilty of an offence against the deceased or against a child of the deceased punishable by imprisonment for a period of at least two years.
A spouse should always take legal advice before making an election as the rules governing the spouses rights are complicated and can be a trap for the unwary.
Time limits apply. The legal personal representative must notify the spouse of her right to a legal right share.The spouse then has 6 months from the date of receipt of notification or one year from the date of the Grant, whichever is the later, to exercise the right to appropriate.
Failure to make proper provision for children.
A child has no automatic rights to a share in the estate of his or her parent. However a parent has a moral duty to make ‘proper provision’ for a child (whether a minor or an adult child) and a child has the right to apply to court for a share of the estate where proper provision has not been made in a will. Various factors will be taken into account by the Judge when hearing the case such as:
- The amount left to the surviving spouse;
- The number of children in the family and their ages and circumstances;
- The means of the testator;
- The age of the child making the claim and his or her circumstances;
- The amount of any bequest to the child in the will if any;
- Details of any gifts or provision made for the child during the deceased’s lifetime.
- All of the testators moral obligations;
- Whether there are any special circumstances such as physical or mental illness.
If there is no will the child is legally entitled to one third of the estate where there is a surviving spouse. If there is no surviving spouse the child or children will take all.
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The Executors Guide - 'At last a step by step guide, composed in plain english, for the executor or administrator who chooses not to employ a solicitor. This book contains invaluable advice and tips on how to get the difficult task of winding up an estate of a deceased person done as quickly as possible avoiding the traps for the unwary. It covers all the steps from the grave to the final distribution of the estate. It can save the estate thousands of euro in legal fees'