One of the most important functions of solicitors when making a will for somebody is to ensure that the person is capable of doing so, this is referred to as the person has the “capacity” to make a will.
The law presumes a will to be valid unless it can be proved otherwise. The person making the challenge must show that the person who made the will did not understand that he was making a will, that he did not know the extent of his estate or how he wished to dispose of it. Where a challenge is made, it is usually on the basis that the person suffered from a mental illness such as dementia or was under the influence of a substance at the time the will was made. The crucial factor here is the capacity of the person at the time the will was made and not before or after. But it is important to note that simply because an individual has a form of mental illness or disease does not mean that he or she lacks the capacity to make a will.[soundcloud id=212628407]
What do we, as solicitors, do to ensure a person has capacity?
The first important thing is to speak with the person on their own when making the will. If there is any indication that the person may not have capacity to make a will we will refer that person to a medical practitioner who will in turn certify capacity or incapacity.
Are there any external pressures which would lead to a Will being challenged?
The statutory formalities provide that the testator must make a will of their own free will/ voluntarily.
There are two types of external pressure which can form the basis of a valid challenge to a will, namely duress and undue influence. Duress involves a threat of physical harm or coercion practised upon the person to cause them to sign a will. Whereas undue influence involves a person being coerced into making the will and as a result the will does not represent an expression of their free will but no physical force or threat thereof is necessary to prove undue influence.
If a Will is declared to be invalid under either of these claims by the court, the will shall be set aside with any previous will being deemed to be the valid and binding will.
Duress and undue influence can occur commonly where vulnerable, elderly people may rely heavily on someone such as a relative or carer to help them every day. In these scenarios, the elderly person can be coerced into leaving their estate to that person. Although in the context of making a will it must be noted that there is no presumption of undue influence based on the nature of the relationship between the deceased and the party who has gotten the benefit as a result of undue influence.
Is this an area which is prevalent with elder abuse?
It is an unfortunate reality that this is an area of law where elder abuse can happen. We, as solicitors, can take steps to mitigate the likelihood of this occurring. Firstly it is crucial to know that anything said during your consultation when you give instructions as to the content of your will is a confidential matter involving only you as the will maker and your solicitor. Your solicitor can then assess whether you are exercising your free will or whether you have been pressurised into making a will. Your solicitor will take a detailed attendance and ask you those tough questions such as why you choose to benefit one person and not another. A detailed note will be taken of this and retained by your solicitor. This written attendance can be used subsequently in court if your will is challenged on the basis of undue influence or duress.
Is there any new updates in this area?
The Law Reform Committee looked at the issue of elder abuse in 2006 and they noted that there was 430,000 over 65 in Ireland in 2006 and that this figure would increase to 840,000 in 2031 and because of this there should be new mechanisms to combat the risks of abuse, neglect and mistreatment to the elderly by private individuals and the State.
The law has finally responded to these concerns with the Assisted Decision-making (Capacity) Act 2015. The aim of this Act is to change the ageist mentality that is prevalent in Ireland and facilitate the greatest amount of autonomy possible in situations where persons lack or will shortly lack capacity.
To name but a few of the substantial changes which the Act will introduce when enacted;
- It will replace and overhaul the current wards of court system and enduring powers of attorney system;
- It will allow for decision-making capacity to be assessed by reference to the circumstances such as the issue and on a time-specific basis;
- It will provide for the appointment of assistant decision-makers;
- It will establish an office of public guardian with supervisory powers to protect vulnerable people;
- It will also introduce at committee stage for Advance Care Directives.
It is hoped that the Act will become operational by the first half of 2022.