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.

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.

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.

If you have questions in any of these areas, call Kevin for a consultation on (01) 284 2420

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