Legal advice in Ireland on Elderly wills
The Nature of a Will:
A will is a document that sets out the wishes or directions of a person (the testator or testatrix) in relation to the distribution of his or her estate after death. The will does not take effect until the death of the testator. One of the main reasons for making a will is that it allows a person to decide on the devolution of his or her own property by means of a clear legal document. It is not left to the State to determine the distribution of the estate (under the terms of the Succession Act 1965)
Preparing a will for an elderly or vulnerable client requires a high duty of care on the part of a solicitor. Legal advice in Ireland by an experienced solicitor must aim in assisting the elderly client to understand the many issues involved, to communicate his or her wishes and to give full and competent instructions. It is important that the following guidelines are followed:
Taking instructions: It is important that only the testator give the instructions for the will to the solicitor who must meet him or her in person. Interested family members or third parties, while their intentions may be honourable, should be treated with caution as their wishes may not coincide with those of the testator.
Undue Influence: There is a presumption in law of undue influence in circumstances where the elderly person is relying heavily on carers due to age frailty or illness. It is essential to interview the elderly person aloes to ensure instructions are freely given and to make an assessment on mental capacity.
Testamentary capacity: It is a legal requirement that the testator be of ‘…sound disposing mind’ in order to make a will. This means that he or she must understand:
- The nature and effect of the act of making a will;
- The extent of the property being disposed of in the will;
- Be able to comprehend and appreciate the claims to which he ought to give effect.
Assessment of capacity is not straightforward. An opinion of a doctor should always be obtained in case of doubt however it is a legal test and not a medical test. A person may suffer a mental illness and may have lucid intervals during which it is possible to give instructions for a will. An experienced solicitor with the specialist training will be competent to undertake this task and take the necessary steps to ensure the will is valid and will stand up to subsequent challenge from a disgruntled third party.
Taking Instructions: This is a two stage process. At the first meeting the solicitor will take details about the testator’s family, the assets and will advise comprehensively on relevant legislation and on tax implications. A detailed memo of the meeting and what was discussed is then prepared by the solicitor. The will is then prepared and the solicitor should attend with the testator as soon as possible to have it executed. Another record of that meeting is prepared by the solicitor as soon as possible after the meeting in which he records the discussion that took place, the execution of the will, the persons present and his findings in relation to testamentary capacity.
Appointment of executor: The advantage of appointing the spouse as executor should always be considered to avoid the possibility of his or her wishes being ignored. The potential for conflict of interest in the appointment of an executor for example, a partner of a separated testator, should be considered. In circumstances where there are needy children, consideration should be given to establishing a trust fund controlled by a trustee for the benefit of the child.
Enduring Power of Attorney: An elderly person should consider appointing an attorney who could take decisions in their best interests and handle their finances in the event of mental incapacity. This will avoid the risk of having to be made a ward of court.
A solicitor making a will for an elderly client has an onerous duty and should ensure that best practice is followed in order to detect abuse or undue influence and avoid it. An experienced solicitor will be instrumental in ensuring that a vulnerable client is not the subject of abuse and exploitation.
Eoin O’Shea Solicitor, principal of our probate department, in addition to a BCL University Law Degree, has a diploma in Trusts and Estate Planning from the Law Society of Ireland and is a member of the Society of Trusts and Estate Planners, an internationally recognised organisation.
Please Contact Us now if you would require legal advice in Ireland or help with any Will or Probate queries.
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Eoin, you're more than welcome for the gift. Apart from all the legal matters you dealt with, I really appreciated your patience and understanding.
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