O’SHEA LEGAL – PROBATE SOLICITORS IRELAND
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THE LAW OF TESTAMENTARY CAPACITY – ‘IS YOURS A VALID WILL?’
Testamentary Capacity of Testator.
To be valid a will must be made by a person over 18 or if under 18 is or has been married, and is of sound disposing mind. An 1870 case of Banks v Goodfellow laid down the test for testamentary capacity and it is still used by the courts today:
“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.”
The test is threefold:
a) He must understand the nature of the act of making a will and the effect of the will.
b) He must know the extent of the property being disposed of in the will;
c) He must be able to consider all persons who would be expected to benefit from the will although he is not obliged to include all of them.
The test was applied and expanded in a 2010 case Re Key. The Judge recognised that a testator who made a will within a week of his wife’s death, favouring his daughters to the exclusion of his sons, was suffering from an affective disorder caused by bereavement and that therefore his testamentary capacity was impaired. He opined that affective disorder such as depression, including that caused by bereavement, was more likely to affect powers of decision making than comprehension. He felt that such a person may not have the mental energy to make any decisions of his own about who to benefit in a will.
In disputes about testamentary capacity the evidence of a doctor will be sought. Therefore it is useful when an elderly or seriously ill person is making a will, that the opinion of a doctor is obtained and placed with the will. This applies especially where the testator is suffering from any condition that might cast a doubt of his or her mental capacity.
Badly Drafted Wills;
Testators often make homemade wills or purchase standard form wills in stationery shops and more often than not they fail to observe the basic rules governing the making of a will such as:
v The signature should be at the foot or end of the will;
v There should be two witnesses to the signing of the will present at the same time;
v A witness cannot be a beneficiary of the will;
v The spouse of a witness cannot be a beneficiary;
v The will should appoint at least one executor;
v There should be alternative beneficiaries in the event of death of a beneficiary named;
v There should be a residue clause to deal with all assets not specifically disposed of.
v The will should bear one date being the date of execution.
A sample of a simple will would be:
I Joe Bloggs of 1 Aylesbury Road, Dublin 4 make this as my last will and testament this 1st day of January 2000 and hereby revoke all former wills and testamentary dispositions heretofore made by me in Ireland.I appoint my daughter Jane Bloggs to be executrix of this my will and direct that she discharge my debts funeral and testamentary expenses.
I give devise and bequeath my house and contents to my wife Mary Bloggs absolutely. In the event that she predeceases me I give my house and contents to my son John Bloggs absolutely.
I give the rest residue and remainder of my estate to my children Jane Bloggs and John Bloggs in equal shares absolutely.
In the event that either of my children shall predecease me I direct that his or her share go to their children per stirpes in equal shares and that a receipt from their lawful guardian shall be sufficient discharge for my executor
______
Joseph Bloggs
Signed by the testator in the presence of us
who at his request and in his presence
and in the presence of each other have
hereunto subscribed our names as witnesses
this will having been typed on the front side
only of two sheets of A4 size paper:
______
Witness 1 and description and address
______
Witness 2 and description and address
Undue Influence.
A will may be challenged on the basis of undue influence or duress brought to bear on the testator by some third party. It means that the will was not executed by the testator freely and of his own volition.
An aggrieved family member may take a case against the estate to challenge the validity of the will in circumstances where another family member or a third party has been left the estate or a substantial portion.
The relationship of the beneficiary and the deceased will be examined by the court. The mental capacity and the physical condition of the testator will be examined along with the level of dependency on the beneficiary. Did the beneficiary have an opportunity of gaining ascendancy over the testator? Did they reside together? Was the relationship such as to call the will into question? Was the will inconsistent with the testator’s previous attitude towards his relatives?
Claims by Children;
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. This is commonly referred to as a Section 117 claim in reference to the relevant section in the Succession Act 1965. A child has no automatic rights to a share in the estate of his or her parent and must prove to the court that he or she ought to have been given a share of the estate.
The Judge hearing the case will take into account factors such as:
v The benefit left by the testator to the surviving spouse;
v The number of children in the family, their ages and their circumstances;
v The size of the estate and the means of the testator;
v The circumstances of the child making the claim and his or her age;
v The amount of any bequest to the child in the will if any;
v Details of any provision made for the child during the deceased’s lifetime or gifts to the child.
v All of the deceased’s moral obligations;
v Whether there are any special circumstances such as physical or mental illness.
Claims by Spouses;
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.
If the deceased dies without a will and leaves a surviving spouse then:
v If there are no children the spouse gets the entire estate and:
v If there are children the spouse gets to two thirds and the children one third.
A separated spouse may have renounced his or her inheritance rights in a separation agreement or a court may have extinguished the share in a judicial separation. An executor or administrator has 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!
If a deceased dies with a will and leaves a spouse then:
v If there are no children the spouse gets one half of the estate and;
v If there are children the spouse gets 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. The estate is valued for the purpose of the legal right share at the date of distribution. Excluded 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 obtain legal advice before making an election as the rules governing the spouses rights are complicated and can be a trap for the unwary.
Tip;
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.
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