Probate and Affidavit of Testamentary Capacity

aisling o'b

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I am acting as executor in my dads will and the solicitor has been requested to provide an affidavit of testamentary capacity by the probate office. He suffered dementia in the last couple of years.

He needed to change doctor just before he changed his will in 2013 and the same doctor has this week said in a letter to my solicitor that he 'cannot assess on the issue of testamentary capacity'. I think he may suspect dementia before he took him on as a patient but there was no formal diagnosis of dementia.

The solicitor has said now that he [the solicitor] is going to provide the required affidavit to the Probate Office. Will this be accepted by the Probate Office? Will it put us in a weaker position? I am all worried that my dad's will will be set aside and we are put in an intestate position. There is no legal challenge or probate caveats likely or in place; all interested parties are happy with the will. Any advice much appreciated.
 
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Hi Aisling,

In the circumstances you describe, the Probate Office will accept an affidavit from the solicitor who drew your father’s will.
 
Many thanks for a reply. I honestly can't sleep and wake up two hours earlier than usual. What factors may cause the Probate Office not to accept an affidavit from the solicitor who drafted the will? I'm going through every possible scenario in my head. For example, the death certificate showed the onset of dementia to be 3 years before he changed his will but the doctor certifying death wasn't even his doctor over this period so there is no basis to this.
 
Don't worry Aisling, while this is not a common situation, it is not unheard of.

See this link to the website of the Court Services, Ireland.

Your situation is covered towards the end of the page.
 
Thanks again Sophrosyne. I'm just a bit worried that we won't get any medic to say he had capacity and that the solicitors affidavit won't be accepted given that the doctor certifying his death is saying the dementia predated the date of his will. I wish now we had got a doctor involved but the solicitor didn't see the need at the time. I regret that now. My dad wouldn't want me to have all this worry but I'll just have to wait and see. From reading the courts.ie pages it looks like the Probate Office could refer the Will to the High Court for a decision. Does that happen often? What will the court consider at that stage?
 
He didn't leave anybody out or add anybody new but he did leave more of the estate to my sister, his primary carer. His earlier will had left equal shares but he did want to recognise her extra work etc. She was embarrassed by the extra recognition but is very deserving of it - both in our eyes and in his when he was alive.
 
In that case, I don't see a problem.

The Probate Office investigates on a case by case basis.

They would be concerned only if something, to use the venacular, seemed off - say, a testator left everything to a charity, cutting off his/her family, or where a previous will left everything to A, B and C and the last left everything to X, Y and Z.

In your case, however, your father's descision to increase your sister's share in his estate in recognition of her services seems logical and reasonable.

Account would also be taken of the fact that family members have no problem with this and would be unlikely to challenge the will.
 
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Many thanks again. It goes to underline that the elderly should get their legal affairs in order as early as possible when their mental faculties start to fade.

Last question if I may ... Is the years since onset of dementia something the Probate Office take particular cognisance of? i.e. Whether it said 1 year since onset of dementia or 5 years, they would still query and as for an affidavit of Testamentary Capacity once dementia is on the Death Cert.

This is very reassuring. My own solicitor seemed confident but didn't give me any background information.
 
Dementia is a difficult and complex issue.

Its cause and progress, obviously, differs from patient to patient.

Yes, solicitors are advised to seek medical advice regarding testamentary capacity.

However, dementia is not always obvious.

Without getting into technicalities, the question is really about what the testator would reasonably have done if he or she did not have dementia.
 
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